by Jack Fischer
HOLLISTER -- Worried about potential violence at this month's massive motorcycle rally in Hollister, law enforcement officials there made plans to eavesdrop on local cellular telephone conversations.
That would have been a violation of state and federal wiretap laws -- but now officials say they never acted on the plans.
A memorandum issued by Monterey County Sheriff Norman Hicks in the days before the rally and recently obtained by the Mercury News, confirmed the eavesdropping plan.
It said, in part: "The field command post is authorized to use radio equipment which will allow monitoring of cellular phone frequencies in the immediate area of the operation."
"We were ready to do it if need be," said Monterey County Sheriff's Lt. Mike Kanalakis, whose department was one of 17 federal and state law enforcement agencies, including the FBI, that participated in the event, which drew an estimated 50,000 bikers to Hollister and surrounding San Benito County during the July 4 weekend.
"It's a tool, like any other investigative tool, but there was no need for it."
He said the scanners to monitor cell phone conversations were put in place in the command center at the Hollister Police Department, but were never turned on.
Kanalakis, an intelligence officer who helped the San Benito County Sheriff's Office and the Hollister Police Department coordinate law enforcement's plans for the rally, defended the plan as legal, and cited a section of the California penal code as the legal basis for capturing cellular calls without a court order.
Kanalakis said he did not seek legal advice for his interpretation of the statute. Hicks was out of town and could not be reached for comment.
But experts on the laws governing federal and state wire tap laws flatly disagreed with Kanalakis.
At the Justice Department, Steve Harwood, senior counsel of the office in charge of enforcing the Federal Communications Privacy Act, which makes such eavesdropping illegal without a court order, rejected the contention that law enforcement was exempt from the federal act, and warned, "People must understand you can't be listening in to cordless phones, cell-phones or land-line phones. And, if you do accidentally overhear one, you'd better turn it off quickly."
Harwood said a single violation of the law is considered an infraction punishable by a fine of $5,000, and added that subsequent violations are federal felonies.
"They are in a box," Harwood said of law enforcement, "The law clearly makes it illegal to do it. But it's so easy, the temptation is there."
At the state level, California Assaitant General John Vance, an expert in wiretap laws, declined to comment specifically on the Monterey sheriff's actions, but said state laws also make such eavesdropping without a court order illegal, and said the section of the penal code cited by Kanalakis did not make an exception for law enforcement officials.
In fact, Vance said the Attorney General's Office teaches as much at Police Officers Standards and Training classes, or POST, which helps set the standards for law enforcement in the state. "We teach at POST that you cannot intercept cell phones unless you have a court order."
The three-day motorcyclists' rally in Hollister was staged to coincide with the 50th anniversary of a 1949 bikers' jamboree that turned rowdy and later became the basis for the 1954 movie, "The Wild One," staring Marlin Brando.
An estimated 50,000 motorcyclists attended this year's gathering, far short of estimates beforehand that ran as high as 150,000.
And while the event proved a relatively tame one -- with four fatalities from traffic accidents and 69 arrests, mostly for drunken driving and minor offenses -- the Monterey sheriff's memo makes clear that law enforcement was bracing for far worse.
"The potential for violence and intimidation is high," it read, in describing the gathering. "Similarly, the potential for the Hells Angels or any one of a number of other outlaw biker groups to descend on the community and try to take it over or disrupt the event is a realistic possibility."
"The bottom line is it wasn't used," Kanalakis said. "The only reason it may have become necessary was if (there was) a major criminal situation in which it became important to use it, like a barricaded situation, or hostages, or something like that, and you need to bring all your tactical intelligence in to bear."
The lieutenant said that, to his knowledge, his department has never had occasion to conduct such monitoring, but he believed other law enforcement agencies in the state have done so. "There are cases," he said, "I can't remember specific ones, but there are cases in California."
Kanalakis said the equipment is available at any retail electronics store, but in 1993 the Federal Communications Commission made it illegal to manufacture or sell scanners capable of receiving cellular telephone communications.
It is also illegal to alter a scanner to enable it to receive such signals. Violation of the FCC law is punishable by a fine of $10,000 for each violation, up to a total of $75,000.
But the Justice Department's Harwood said the 1993 law did not make it illegal to possess a scanner that predates the change in the law, and millions were sold before the change.
On of the organizers of the July 4th rally, Mark Maxwell, was told about the eavesdropping plan and said it disturbed him.
"I don't think it's right at all," Maxwell said, "As far as I'm concerned that's a violation of constitutional rights of privacy. I bet they wouldn't do that the cowboys, when the rodeo is in town."