US. Department of Justice

 

United States Attorney
Northern District of Indiana

 

David app
UnitedSIares Attorney 5400 Federal Plaza, Suite 1500 9) 937'- 5.500
Hammond, Indiana 46320 FAX: (219) 852- 2770
933- I250

May 31,2012

Aladean DeRose

Acting City Attorney

City of South Bend

14?h Floor

City-County Building
South Bend, Indiana 46601

Dear Ms. DeRose,

In January 2012, this of?ce was presented with complaints that phone conversations at
the South Bend Police Department (SBPD) were being recorded and listened to without
the knowledge of the of?cers and persons speaking on these lines. Shortly thereafter this
of?ce asked the FBI to commence an investigation because the interception of telephone
conversations could violate the Wiretap Act, Title 18, United States Code, Section 2510,
et seq., an act that generally prohibits the intentional interception, use, or disclosure of
wire and electronic communications unless a statutory exception applies. The following

is a brief summary of that investigation.

SBPD had a practice over many years of recording certain police phone lines and radio
communications, but not all phone lines. The investigation did not uncover a written
document that speci?ed exactly what phone lines were to be recorded; instead the
investigation revealed a historical practice of oral instructions from Police Chief to the
Director of Communications. Generally, it appears that all 911 calls and all police radio
traf?c were recorded. Additional lines usually recorded were police front desk lines, the
Chiefs of?ce lines, a line for internal affairs, the main detective bureau line, and most of

the division chiefs? lines.

Approximately two years ago during a change in leadership at the detective bureau, the
Chief of the Detective Bureau?s line was mistakenly not recorded and the line assigned to
one of the detectives in the bureau was mistakenly recorded instead. Once this was
learned, the recording on that line continued. Ultimately, certain conversations from that

line were placed on ?ve cassette tapes.

May 31, 2012
Page 2

In late March, we met with representatives from the City. We advised that our primary
concern was that the SBPD practices comply with federal law.

We have carefuIly reviewed this matter and the existing case law and have discussed in
detail with career experts in this area at- the Department of Justice. It is our opinion that

no federal prosecution is warranted.

It is our understanding that the practice in question here has terminated and that the SBPD
is now preparing formal policies in the area of recording police lines so as to be in full
compliance with the Wiretap Act. While we have not, and cannot, give any specific
guidance on future compliance we would encourage the City and SBPD to implement a
review system designed to ensure that both the Department?s telephone recording policy
and actual practice of recording remain in compliance with federal law and any other
applicable laws. The details of such a program is a matter that the City and the SBPD
must develop in consultation with their own legal counsel.

The thirteen cassette tapes (the ?ve original cassettes, plus copies of those ?ve, plus
additional copies of three of those ?ve for a total of thirteen) received during this
investigation are being returned?to your of?ce. The obligations imposed by the subpoena
served on the SBPD on January 20, 2012 are hereby released. Our investigation into the
past practice and conduct of the SBPD in recording police phone lines is concluded and

closed.

SincefE/(Cy/

David Capp
United States Attorney

DC/smc