TOPICAL INDEX
The Arrest
The Hand-Off Procedure
Relevant Wiretapping Activity
POINTS AND AUTHORITIES
I
THE LAW DOES NOT, AND CANNOT, ALLOW SECRET WIRETAP OPERATIONS
III
THE DISTRICT ATTORNEY HAS AN AFFIRMATIVE OBLIGATION TO RESPOND TO
PETITIONER'S CLAIM
(310) 399-3259
Attorney for Defendant
RAMON PEREZ ANGULO
RICHARD CHIER
Attorney at Law
1901 Avenue of the Stars, 20th Floor
Los Angeles, California 90067
(310) 201-4949
Attorney for Defendant
FRANCISCO RAMIREZ
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
| PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff, v.
RAMON PEREZ ANGULO,
FRANCISCO RAMIREZ,
Defendants. |
Case No. BA161078
NOTICE OF MOTION AND MOTION TO DISMISS INFORMATION PURSUANT TO §955 OF THE CALIFORNIA PENAL CODE; POINTS AND AUTHORITIES |
TO THE CLERK OF THE ABOVE-ENTITLED COURT; TO PLAINTIFF AND PLAINTIFF'S ATTORNEY OF RECORD:
Please take notice that on June 24, 1998 at the hour of 8:30 a.m., or as soon thereafter as counsel may be heard in Department 118 defendants and each of them will move for an order dismissing counts one and two of the information heretofore filed against them.
Said motion is made on the following grounds, each and all:
1. Before the filing of the information herein, defendants were not legally committed by a magistrate; and/or
2. The defendants were committed without reasonable or probable cause.
Said motion is based upon the attached moving papers; the preliminary hearing transcript; the supplemental reporter's transcript from February 24, 1998 and March 25, 1998; upon §995 of the California Penal Code and upon such further oral and/or documentary evidence as may be presented at the hearing on this motion.
Dated: June 17, 1998 Respectfully submitted,
RICHARD CHIER
Attorney for Defendant
FRANCISCO RAMIREZ
VICTOR SHERMAN INTRODUCTION
Attorney for Defendant
RAMON PEREZ ANGULO
Defendants, by a formal motion in writing, requested pre-trial discovery including, but not limited to statements of the defendants and disclosure of the existence of wiretapping in this case. Statements are contemplated by section 1054 of the Penal Code, but wire tap disclosure is mandated by an entirely sepatate statutory scheme. However, rather than order the People to disclose evidence of a wiretap if one existed, the Honorable Glenette Blackwell, the magistrate, instead granted the People's request for an in-camera hearing, took evidence and made rulings (perhaps regarding relevancy) at that in-camera hearing, ordered the People to produce no certain documents, and thereafter sealed the entire record including any rulings made therein.
Defendants submit that even the most casual reading of the record in this case supports their claim that the evidence being used against them was derived from a secret wiretap. Narcotic investigations simply do not commence at hamburger stands in Hawthorne and narcotic detectives don't ignore leads unless they are prepossessed of the data about which they appear disinterested.
Disclosure of the wire intercepts was requested by the defendants when it was revealed that abuses of the law had been uncovered and established by the sworn testimony of narcotics officers in a case presently pending before Judge Gregory Alarcon, the Judge presiding in Department 130 in this courthouse.
This sworn testimony uncloaked, for the first time, the prosecution's method of avoiding disclosure and/or notification of wiretaps since at least 1985. The testimony from the case in Judge Alarcon's court was presented to the magistrate together with a request that she take judicial notice thereof, which she would not do claiming she was not bound by rulings of Judge Alarcon. No contention was made that Judge Alarcon's ruling bound Magistgrate Blackwell; rather the testimony was submitted to her in excerpted form just so she could see what has been going on.
What has been going on is that the Los Angeles District Attorney's Office has developed and trained other law enforcement agencies on a procedure known as the "hand-off," the purpose of which is to conceal the fact that evidence being used in a case is derived from a wiretap, the existence of which has never been disclosed (as well as the array of other matters required to be disclosed which are mandated by Section 629.50 et.seq.of the Penal Code). Unimpressed, the magistrate refused to require the People to either admit or deny the existence of a wiretap, and/or to inform the defendants whether the in-camera hearing revealed the existence of a wiretap, and refused to conduct an adversarial (evidentiary) hearing to explore that contention.
The United States Supreme Court has ruled that, unlike cases involving informants, information regarding wiretapping operations must be turned over to a defendant "without being screened in camera by the trial judge" and it is "a task which should not be entrusted wholly to the court in the first instance." (Alderman v. United States (1969) 394 U.S.165 [22 L.Ed.2d 176, 89 S.Ct. 961, 971.) Similarly, the "issue of relevancy should not be resolved in camera, but in an adversary proceeding." (Russo v. Byrne (1972) 409 U.S. 1219, 93 S.Ct. 21, 22.) (Emphasis added) In fact, "this disclosure must be made even though attended by potential danger to the reputation or safety of third parties or to the national security." (Id. at pp. 970-971.) (Emphasis added)
In support of this motion, defendants make the following showing.On or about December 18, 1997, a two count felony complaint was filed against defendants Angulo and Ramirez., alleging that on or about December 17, 1998, each violated Penal Code section 182(a)(1), conspiracy, and Health and Safety Code section 11351, possession of cocaine for sale.
A copy of the felony complaint is attached hereto as Exhibit A and made a part of this motion.
On March 25, 1998, the magistrate announced, in response to the written request of the defendants for disclosure of the existence and/or use of wiretap procedures in this case, that she had conducted an in camera hearing between February 24, 1998, and March 25, 1998(Supp. R/T Vol 1, pp 18-21).
Counsel for Defendants objected to the court's disposition of the[discovery] requests by way of in camera hearing. (Supp.R/T,Vol. 1, pp 20-22)
In addition, the magistrate suggested that her ruling was in some way reliant upon section 1054 of the Penal Code (Supp.R/T, Vol 1, p.21), and never mentioned the wire tap statutory scheme (628.9 P.C.).
Defense counsel tried to persuade the court to make rulings on both the discovery scheme (1054 P.C.) and the wiretap scheme (628.9 P.C.) (Supp. R/T vol 1, p. 24), but the magistrate would not enlighten defense counsel as to the underlying reason for her ruling made in secret and announced in open court without elucidation.
The court below, as a direct result of that in camera hearing, denied all relief to the defendants without stating, for the record, a reason or basis for its ruling. No findings were made, nor formal orders made other than the aforesaid bench rulings. The proceedings were thereafter ordered sealed by the magistrate.
The preliminary hearing was held on April 20, 1998 before magistrate, Glenette Blackwell.
The rulings of that court when considered as a whole deprived the defendants of
substantial rights, warranting dismissal under Sec. 995 of the Penal Code.
Summary of Preliminary Hearing
On April 20, 1998, a Preliminary Hearing was conducted in the within case before the
Honorable Glenette Blackwell, judge presiding in Division 46 of the Municipal Court of
California, County of Los Angeles. The People of the State of California were represented
by Deputy District Attorney Jason Lustig; Defendant Angulo was represented by Victor
Sherman, and Defendant Ramirez was represented by Richard Chier. The hearing
consisted of the direct testimony of Deputy Sheriff Michael Thatcher. Cross examination
was limited to questions which reiterated the witness' direct.
Testimony of
Michael Thatcher
Michael Thatcher testified that he was a Deputy Sheriff employed by the County of Los Angeles for twelve years and was then assigned to Headquarters Narcotics Bureau. (Page 4, Line
26 - Page 5, Line 5)
After establishing Thatcher's background and employment, the prosecutor at Page 5, Line 25 began his next question by stating, "On December 17, 1997, at approximately 7:30 in the evening..." but was cut off by the court which spontaneously stated at Line 27: "Okay, 7:30 p.m. is the cut off." While it is not altogether clear what this somewhat cryptic remark by the court actually means, in practice it meant defense counsel would not be permitted to explore the dynamics of the surveillance and/or to engage in meaningful cross examination which in any way challenged the witness' direct. Hence, the use of the expression "cut off" by the magistrate.
On December 17, 1998, Deputy Thatcher was ostensibly conducting an investigation at McDonald's restaurant in the 15600 block of Hawthorne Boulevard in the County of Los Angeles. (Page 5, Line 26 - Page 6, Line 7)
Thatcher saw a single male Hispanic leaning against a red Toyota Celica. This individual was soon joined by two other Hispanic individuals. Thatcher did not see where the two individuals came from. (Page 6, Line 11 - 28)
The two male Hispanics were observed getting into and driving away in the red Toyota Celica. (Page 7, Line 1 - 6)
The original male who had been seen leaning against the red Toyota was then observed getting into a white pick-up truck which was parked on Hawthorne Boulevard. This individual was observed leaving the vicinity of McDonald's restaurant. (Page 7, Line 8 -10)
About an hour to an hour and a half later Thatcher observed the two male Hispanics return in the white truck he had previously seen driven away by the single male and shortly after that Thatcher saw two more male Hispanics arrive [at McDonald's] in the red Toyota he had also previously seen the single male leaning on. (Page 7, Line 11 - 16)
The occupants of the red Toyota appeared to have switched places with the occupants of the white pick-up truck, after which Thatcher saw the driver of the red Toyota talk to the occupants of the white pick-up truck which had returned to the location prior to the return of the red Toyota. (Page 7, Line 17 - 28)
The two Hispanics who returned to the McDonald's location in the red Toyota are identified as Defendants Angulo and Ramirez, the car having been driven by Angulo. (Page 8, Line 1 - 28)
Angulo was then observed getting out of the red Toyota and contacting the two individuals inside the white pick-up truck from outside of the truck. (Page 9, Line 1 - 19)
After a short conversation the two men in the white pick-up truck got out and approached the red Toyota. (Page 9, Line 19 - 22)
Ramirez was then observed getting out of the passenger's side of the red Toyota and getting into the white Datsun pick-up truck. Angulo was seen getting into a green Mazda pick-up truck that was parked in the parking lot at McDonald's. (Page 9, Line 23 - Page 10, Line 2)
The two male Hispanics from the white pick-up truck got into the red Toyota and drove away. (Page 9, Line 24 - 25)
Thatcher watched Ramirez drive north on Hawthorne Boulevard followed by Angulo in the green pick-up truck. (Page 10, Line 1 - 5)
Ramirez made a U-turn in the white truck and Angulo followed him now traveling south on Hawthorne Boulevard. (Page 10, Line 8 - 11)
The green truck and the white truck drove in tandem to Manhattan Beach Boulevard; there they turned west; they then drove to Inglewood Avenue, completed a U-turn and continued east on Manhattan Beach Boulevard until they came to Hawthorne Boulevard and turned south once again. (Page 10, Line 12 - 17)
Immediately after the turn, Ramirez drove the white pick-up into the driveway of an automotive glass business (owned and operated by the defendants). (Page 10, Line 18 - 28)
As soon as Ramirez pulled into the driveway of the glass business, Angulo, driving the green truck, allegedly stopped in the number 2 traffic lane of Hawthorne Boulevard. (Page 10, Line 20 -24), and as Ramirez was supposedly closing the gate across the driveway, Angulo drove off southbound on Hawthorne Boulevard at an alleged high rate of speed. (Page 11, Line 1 - 12)
As Angulo drove south on Hawthorne Boulevard and Ramirez was closing the driveway gate, Deputy Thatcher broadcast a message "...that [he] believed that we had witnessed a narcotics transaction,..." and he asked the other officers to "contact" Mr. Ramirez. (Page 11, Line 17 - 23)
He did not see the officers contact Ramirez; rather, he states he was told by Detective Peyton that a search was conducted of Ramirez' truck and a substantial amount of cocaine seized. (Page 12, Line 1 - 8)
Reputedly, numerous kilos of cocaine were uncovered in the bed of the truck that Ramirez was driving; they were in green or black trashbags. (Page 12, Line 25 - Page 13, Line 2)
Thatcher recovered 50 kilograms of what he believed to be cocaine from the bed of the
Datsun pick-up truck which, in his opinion, were possessed for sale. (Page 16, Line 5 - 9)
Cross-Examination of Thatcher
For approximately two hours or more, defense counsel for Angulo and, to a lesser degree,
counsel for Ramirez attempted to cross-examine Deputy Thatcher to no avail. Objections
to most questions asked Thatcher were sustained on relevance grounds. It appears that as a
result of an in-camera hearing with judge Blackwell, some parameters were established
which erected an impenetrable (albeit, invisible) barrier behind which defense counsel were
forbidden to look. The following is an outline of the frustrated efforts by defense counsel to
establish any facts beyond those actually acknowledged by the witness Thatcher on direct
examination.
Attempted Cross Examination by Counsel for Defendant Angulo
1. Did you know any of the persons upon first observing them (asked on the issue of identity)? (Page 18, Line 20 -23)
2. Were you at that location [McDonald's] for a particular reason? (Page 19, Line 21 - 22)
3. Thatcher stated that he and four or five other officers in about three vehicles were conducting a narcotic investigation. However, when asked where they were coming from (in the temporal sense and not in the attitudinal sense), the court sustained the prosecutor's objection on the grounds of relevance. (Page 20, Line 13 - 18)
4. When did you arrive at McDonald's? Objection sustained on relevance grounds. (Page 23, Line 21)
5. The court sustained an objection on the grounds of relevance to a question which asked the witness what attracted his attention to the individual near the red Toyota. (Page 24, Line 18 - 28)
6. Defense counsel, Sherman, attempted to advise the court that she was committing "Jennings" error in restricting proper cross-examination. The court, under the impression that she had, when she really hadn't, stated: "I ruled up front that anything prior to 7:30 p.m. on December 17, 1997 was not relevant in the absence of any motions. I have no motions. Do your job and I will do mine." (Page 25, Lined 5 - 14)
7. When advised by Mr. Sherman that an array of motions had in fact been filed, the magistrate directed Mr. Sherman to continue his questioning. (Page 25, Line 10 - 20)
In response to the court's refusal to permit cross-examination of Deputy Thatcher respecting his knowledge or recognition of the individuals he was observing, counsel for defendant Ramirez moved to strike the direct testimony of Deputy Thatcher on the grounds that the prohibition of cross-examination resulted in a lack of symmetry. The objection was overruled. (Page 26, Line 1 - 19)
8. An objection on relevance grounds was sustained to the question, "Were you looking for that particular vehicle [red car]?" (Page 29, Line 20 - Page 30, Line 20)
9. Relevance objections were also sustained to the following questions on Page 30:
Had you seen that vehicle before?;
Were you there with the intention of looking for any particular vehicle?;
Did you have any information about the red Toyota?;
Did you know the red Toyota was going to arrive at McDonald's on that day?
10. The court sustained an objection on relevance grounds to a question as to whether the driver of the red Toyota was focused upon as part of the investigation or whether he was conducting a narcotic investigation of that particular individual.
A relevance objection was sustained to a question as to whether or not the officer was watching this particular person [driver of the red Toyota] for any reason.
N.B. Because the statutory wiretap scheme provides for disclosure of the existence of a wiretap [together with accompanying data in order to assist the defendant or other person in making a motion to suppress], no formal motion for suppression had been filed by either defendant in this case in order to first obtain the wiretap disclosure information. When it appeared, on Page 33, that the court was, in part, sustaining relevance objections because of the absence of a motion to suppress, defense counsel Sherman notified the court he intended to suppress the evidence in this case. This oral notice of a motion to suppress was rejected by the court on the grounds of inadequate notice, notwithstanding the prosecution's failure to comply with the wiretap statutes as invoked by defense counsel. (Page 33, Line 1 - 26)
11. The court sustained on relevance grounds a question by Victor Sherman as to whether or not any of the officers knew the two individuals who initially met the driver of the red Toyota and drove off in the red Toyota. (Page 24, Line 13 - 28)
12. The court sustained on relevance grounds a question propounded by defense counsel to the witness as to whether he considered suspicious the meeting of the driver of the Toyota with the two Hispanic men because he had information causing him to expect something to happen. (Page 36, Line 13 - Page 37, Line 10)
13. Continued questions propounded to the witness by Mr. Sherman, albeit in other forms, intended to ferret out whether the observations were freestanding or influenced by some early briefing, were all sustained by the court on grounds of relevance. (Page 37, Line 22 - 24; Page 38, Line 3 -6; Page 39, Line 16 - 20)
N.B. Deputy Thatcher testified that although there were at least four or five police vehicles at the McDonald's location on the 17th of December, 1997 and despite the fact that he believed the people in the Toyota were going somewhere for some purpose, he neither followed them nor concerned himself about where they were going. (Page 41, Line 8 - Page 42, Line 10)
14. In attempting to connect the officer's expertise to his observations at the McDonald's hamburger restaurant, defense counsel for Angulo attempted to elicit from the witness, Thatcher, the reason the two Hispanics drove off in the Toyota. This occurs on Pages 42 and 43.
15. Consider for example the question: "Did you make the observations of the two individuals entering the red Toyota as part of your narcotic investigation after 7:30 p.m. on that day?" Mr. Lustig: "Objection; Relevance."
The Court: "Sustained."
16. Did you form an opinion as to whether or not the red Toyota should be followed?
Mr. Lustig: "Objection. His opinion is irrelevant."
The Court: "Sustained."
17. Although the witness, Thatcher, testified on direct examination that he considered the entry of the two male Hispanics into the red Toyota as suspicious, he stated that the red Toyota wasn't followed because he wasn't sure that he, Thatcher, in fact witnessed any criminal activity [prior to the departure of the red Toyota from McDonald's]. (Page 44, Line 2 - Page 47, Line 2)
18. Question: "Didn't you believe this was a classic car switch in which the people leaving the red Toyota were..."
Mr. Lustig: "Objection."
The Court: "Sustained." (Page 47, Line 9 - 13)
19. Question: "Didn't you not follow that vehicle because you knew where that vehicle was going?"
Mr. Lustig: "Objection; Relevance."
The Court: "Sustained."
20. Question: "Do you know where the red Toyota went?"
Mr. Lustig: "Objection; Relevance."
The Court: "Sustained." (Page 47, Line 9 - 27)
Restrictions on Cross-Examination Regarding Elements of Offense
Despite numerous attempts by defense counsel to explain to the court that they should be permitted to explore the expert opinion of the witness, Thatcher, that the drugs were possessed for the purpose of sale, which requires a knowing possession, the court repeatedly restricted cross-examination intended to explore the objective criteria relied upon by the officer in forming an opinion that the movants were engaged in criminal activity. The magistrate, in concert with the district attorney, restricted the cross-examination intended to test the evidence adduced on elements of the offense. For example:
The court sustained on relevance grounds objections to the following attempted colloquies:
21. Q: "Do you have any information as to whether Mr. Angulo knew there were drugs inside the red Toyota when it first arrived at McDonald's restaurant? (Page 49, line 4-9)
Mr. Lustig: "Objection; Assumes facts not in evidence."
Mr. Sherman: "Can I ask what fact assumes it's not in evidence?" (Id at lines 10-18)
The Court: "The record speaks for itself."
Q: "Do you have any evidence that Mr. Angulo at any time..."
Mr Lustig: "Assumes facts not in evidence."
The Court: "Sustained." (Page 49)
Q: "Do you have any information that Mr. Angulo had knowledge of the drugs seized in this case?" (Page 49)
Mr. Lustig: "Objection; Calls for a conclusion."
The Court: "Sustained. It calls for someone else's state of mind. Now, on the issue of notice, you put your client on to testify as to his mental state at the time." (Page 49)
[The magistrate is saying, in substance, that it is impermissible to question the officer regarding the evidence, if any, establishing scienter.] Although it is quite clear that defense counsel in a case of this type is permitted to establish the extent of the evidence against their clients, the court's suggestion that the only proper way to establish the existence vel non of defendant's state of mind is by forcing the defendant to testify is a misstatement of the law. (Page 48, Line 23 - Page 49, Line 26)
Perhaps the best illustration of the determination of the magistrate to withhold relevant evidence from the defendants appears at Page 57, Line 9 - 12:
The Court: "Stop arguing. I can handle everything. But, Mr. Sherman, not on this earth during this lifetime is it going to get around my ruling, but it doesn't hurt to try...."
22. According to the witness, Thatcher, he observed six different men who he assumed to be connected to the narcotic transaction. (Page 68, Line 24)
The surveilling officers at no time left McDonald's despite the fact the red Toyota and white Datsun pick-up truck left the location and returned later in the day. (Page 60; Page 61; Page 62; Page 63)
Efforts by defense counsel to ascertain the officer's opinion as to when the cocaine was placed in the white Datsun, and by whom, were resisted by the district attorney and assisted in that regard by the court.
When Ramirez and Angulo returned to McDonald's in the red Toyota, the white Datsun was already at McDonald's. (Page 65, Line 4 - 7)
23. When asked whether the witness had any reason to believe that either one of the vehicles, the Datsun or the Toyota, bore drugs [on the return to the restaurant], an objection on the grounds of relevance was sustained by the magistrate.
24. Q: "Did you have any information at that time that anybody had put drugs in either one of those vehicles?"
Mr. Lustig: "Objection; relevance."
The Court: "Sustained." Page 65, line 8.
25. Q: "Do you have any knowledge as to who any of these four [uncharged] people were?"
Mr. Lustig: "Objection; Relevance."
The Court: "Sustained." (Page 68, Line 25 - 28)
When challenged to explain a seemingly inexplicable failure of the police to follow individuals they believed to be involved in loading narcotics into the white Datsun, defense counsel for Angulo asked,
Q: "In light of the fact that they returned in a vehicle that later contained 50 kilos of cocaine, do you believe
they were involved in criminal activity?"
Mr. Lustig: "Objection; Relevance."
The Court: "Sustained." (Page 69, Line 18 - 22)
26. Despite the fact that the witness admitted two individuals other than the defendants in this case were driving the white Datsun prior to its being driven by Ramirez, the court consistently supported the district attorney's efforts to withhold from the defense counsel relevant information which would tend to explain the relationship between the defendants and the cocaine seized from the white pick-up truck. (Page 78, Line 6 - 14)
27. Defense counsel, Sherman, made an offer of proof that he would show the white Datsun was driven away from McDonald's by two persons unladen with cocaine; returned to McDonald's with occupants at which time it was apparently laden with cocaine, the responsibility for which lay with the people who drove the car back to McDonald's, all of which would have called into question the involvement of the defendants in this case since there were no observations by police that translated into scienter. It was thus relevant to show that two other people put drugs in the car other than the defendants in this case and the police knew who did that. (Page 82, Line 3 -11)
28. Restricted cross-examination occurred in connection with the defense counsel's attempt to ascertain why no effort was made to investigate, follow, and stop, the individuals who loaded the drugs on to the pick-up truck. These restrictions, in violation of Jennings v. Superior Court (1967)66 C2d 867 are ubiquitous, occurring at Page 86, Line 9-14; Page 87, Lines 1,6, 14, 22; and Page 88, Line 5.
29. The court sustained a speculation objection to a question by defense counsel: "So, to the best of your knowledge, [Angulo] was never seen driving a vehicle with any drugs?" (Page 88, Line 22 - 23)
This Jennings error is repeated on Page 89, Lines 3; 6;& 12.
30. Efforts by defense counsel to ascertain whether the witness ever observed defendant Angulo in the white pick-up truck after it had drugs in the flatbed were invariably dissallowed on
relevance grounds.
Restriction on Cross Examination
By Counsel for Defendant Ramirez
The Magistrate's improper restriction of cross examination was not limited to defendant Angulo. Counsel for Defendant Ramirez sought, in vain, to cross examine the witness, Thatcher, on issues such as surveillance; the witness' written report; and details of the surveillance conducted at McDonald's on December 17, 1998.
Echoing the argument of his co-counsel, counsel for defendant Ramirez attempted to continue the attack on the credibility of Thatcher by questioning the plausibility of his failure to identify the apparent suppliers of the cocaine either by following them, having them followed, or following any leads, despite his ample opportunity so to do.
Illustrations of undue restrictions on Ramirez' cross examination of Thatcher are as follows (They are not repeated in haec verba for the sake of economy):
31. Page 95, line 15-19 (location of source of drugs);
32. Page 97, line 20 -99, line 12;
33. Page 101, line 13-18;
34. Page 101, line 24 to page 102, line 10;
35. Page 102, line 12 to 103, line 24;
36. Page 104, line 3 to 107, line 9;
37. Page 109, line 13 to page 110, line 12;
38. Page 117, line 2 to 6 (officer not allowed to say whether he was forming opinion while observing);
39. Page 119, line 14-24(refusal to allow cross of direct);
With regards to the defendants' Discovery motion, the court disclosed (transcript of March 25) that a confidential in-camera hearing regarding discovery requests had taken place and further disclosed that it had relieved the district attorney of any obligation to provide additional information to the defendants.
Counsel for both defendants attempted many times, through cross examination, to elicit relevant information which efforts were repelled by the court in what looked like a kind of tag team pitting the judge and D.A. against defense counsel.
The magistrate erred by conducting an ex parte, in-camera hearing to dispose of defendants' request for discovery of secret wiretapping by allowing the People to present evidence in that in-camera hearing rather than conducting an adversary proceeding to resoslve defendants' contention that evidence in the case was obtained through a wiretap, and by making a relevance determination ex parte.
Unlike informant cases, information regarding wiretapping operations must be turned over
to a defendant "without being screened in camera by the trial judge" and it is "a task which
should not be entrusted wholly to the court in the first instance." (Alderman v. United States,
supra, 394 U.S, 165 (89 S.Ct. 961, 971.) Similarly, the "issue of relevancy should not be
resolved in camera, but in an adversary proceeding." (Russo v. Byrne, supra, 409 U.S. 1219,
93 S.Ct. 21, 22.) Moreover, the denial of notice and disclosure of the existence of a wiretap
has denied petitioner her right to suppress evidence pursuant to Penal Code sections 629.72
and 1538.5.
POINTS AND AUTHORITIES 1
THE LAW DOES NOT, AND CANNOT, ALLOW
SECRET WIRETAP OPERATIONS
The entire notion of secret wiretapping, concerted efforts by prosecutors to conceal wiretapping operations, and secret in-camera court hearings to evade providing notice of wiretap operations to protect their continued existence is repulsive to a democratic society and repugnant to the congressional and legislative intent of the wiretapping laws. That fact is best seen by viewing the constitutional history of the wiretapping law as well as the overall course and scope of the state and federal wiretapping laws. The United States Supreme Court ruled, in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, that telephone conversations were protected by the Fourth Amendment and an interception of a telephone conversation was an invasion of that protected privacy and therefore a "search and seizure."
Wiretaps were thereafter outlawed until Congress passed Title III in 1968, which allowed wiretapping, but intentionally "limit[ed] the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." (United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) When enacting Title III, additional requirements and prophylactic measures were included to further ensure its limited use. One such requirement was the passage of an enabling statute by states seeking to allow its law enforcement officers to utilize wiretaps. California's enabling statute became effective in 1989 and is contained in Penal Code section 629. 50 through 629.98. (People v. Chavez (1996) 44 Cal.App.4th 1144, 1158.) However, the federal law still "establishes minimum standards" and California is barred from being any less protective of its citizens' privacy rights. (People v. Otto (1992) 2 Cal.4th 1088, 1092, fn. 1, 1098; Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 1818.) However, California's wiretap statute provides, generally, even greater protections than the federal law.
Title III mandates suppression of all communications intercepted, as well as all evidence derived from those conversations, when there was a "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures." (18 U.S.C. § 2518(9); United States v. Donovan (1977) 429 U.S. 413, 434, 97 S.Ct. 658, 50 L.Ed.2d 652; United States v. Giordano, supra, 416 U.S. at 527.) Penal Code section 629.72, similarly, and more broadly, mandates suppression as well. Both statutes provide for civil and criminal penalties for violations of the law. (18 U.S.C. §§ 2520, 2511(4), Pen Code §§ 629.84, 629.86.)
"We do not deprecate Fourth Amendment rights. The security of persons and property
remains a fundamental value which law enforcement officers must respect. Nor should
those who flout the rules escape unscathed. In this respect we are mindful that there is now
a comprehensive statute making unauthorized electronic surveillance a serious crime.
Moreover, Title III mandates civil remedies of actual and punitive damages for violations,
as well as severe criminal penalties. (18 U.S.C. §§ 2520, 2511(4).)" (Alderman v. United
States, supra, 394 U.S. 165, 89 S.Ct. 961.)
Wiretapping must be limited to the investigation of serious felonies which are delineated in the statute. (18 U.S.C. §2516(2); 629.52.) No wiretap order may be issued unless the police can show that other investigative procedures have failed or are useless. (18 U.S.C. § 2518(1)(c); Pen. Code § 629.52.)
The application may only be made by the highest ranking prosecutors, and states are required to publish a list of those authorized in the statute. (18 U.S.C. § 2516(2); 2511(2)(a)(ii)(B).) This measure was intended to centralize responsibility in a public official who would be "subject to the political process."(1) It was believed that centralization would "avoid divergent practices" from developing as well as ensure that if abuses occurred, the "lines of responsibility would lead to an identifiable person." Congress explicitly stated that it believed this provision would "go a long way toward guaranteeing that no abuses will happen." (S.Rep. No. 1097, 90th Cong., 2d Sess., 96-97 (1968); United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) The United States Supreme Court held in Giordano that all evidence derived through an application which was not authorized by the designated official would have to be suppressed. (Id. at p. 508.) California limited authorization for making local applications to only the district attorney of each county and further required that it be made in writing under personal oath. (Pen. Code § 629.50.)
Likewise, only judges specifically authorized by statute and selected each year have the power to issue wiretap orders and California limited jurisdiction to one judge per county who is either the presiding judge or one designated by the presiding judge. (18 U.S.C. § 2516(2); Pen. Code § 629.50.) Again the belief that centralization which would lead to an identifiable person for ultimate responsibility was supposed to curtail abuse of the wiretapping laws. To insure the integrity of wiretapping operations, judges issuing orders are required to insure that all intercepted conversations are recorded, sealed, and maintained for at least 10 years. (18 U.S.C. § 2518(8)(a).)
Notice and inventory of the wiretap is required to be served, "within a reasonable time but not later than ninety days" after the expiration of the order or denial of the application, on all persons named in a wiretap application or order, all persons intercepted, as well as all owners of the intercepted premises. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68.)
Notice is both statutorily and constitutionally required, and must be given regardless of whether or not incriminating statements were made or criminal charges are filed. (United States v. Donovan (1977) 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652.) While the federal law leaves to the discretion of the judge the decision of whether or not to provide notice to persons other than those named in the order, California law mandates notice to all persons whose conversations were intercepted. (18 U.S.C. § 2518(8)(d); cf. Pen. Code § 629.68.) Moreover, the prosecutor has an obligation to provide the issuing judge with all relevant information regarding persons intercepted so that the judge may cause such notice to be served. (United States v. Donovan (1977) 429 U.S. 413, 97 S.Ct. 658, 439, fn. 26, 50 L.Ed.2d 652.) Because "notice of surveillance is a constitutional requirement," the failure to provide notice, especially when intentional, requires suppression. (United States v. Donovan, supra, 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652; United States v. Harrigan, (C.A.1 1977) 557 F.2d 879, 884-885; United States v. Eastman (3d Cir. 1972) 465 F.2d 1057.) Because the investigating officers deliberately avoid knowledge about the individuals they believe to be sources of the drugs, they think they are not bound to notify these individuals about whom I.D. knowledge is eschewed.
Congress required notice regardless of whether an order was granted or denied to "insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least to the subject. He can then seek appropriate civil redress for example, under section 2520 . . . if he feels that his privacy has been unlawfully invaded." (United States v. Donovan, supra, 429 U.S. 413, 438, 97 S.Ct. 658, 50 L.Ed.2d 652; S.Rep.No.1097, 90th Cong., 2d Sess., 105 (1968), U.S. Code Cong. & Admin. News, p. 2194.)
As an added measure of safety against perfidious use of wiretapping, both state and federal law require that before any evidence derived from a wiretap may be introduced in any trial or hearing, a party must be given a copy of the order. (18 U.S.C. § 2518(9).) California law goes one step farther and mandates that transcripts be provided as well. (Pen. Code § 629.70.) While a showing of inability to produce the transcripts a full ten days ahead of time may allow for postponement, all evidence is inadmissible until such notice and disclosure are provided. (Pen. Code § 629.70.) Because it is constitutionally required, notice can never be waived entirely.
Any judge issuing or denying an order is required to report that fact along with other information to the Administrative Office of the United States Courts thirty days after the denial or expiration of an order or extension. (18 U.S.C. § 2519(1).) Reporting is required regardless of whether or not law enforcement's investigation is still ongoing because the information required simply states the date of an application or request for extension, the type of order requested, whether or not the request was modified or denied, the period of interceptions authorized, the offense specified, the identity of the law enforcement agency, and whether the facility tapped was a residence, business, etc.
Prosecutors must provide statistical information regarding each completed intercept order reported, to the Administrative Office of the United States Courts no later than January 31st of the next year. (18 U.S.C. § 2519(2).) California requires that prosecutors give the information to the Attorney General who is required to report similar statistics to the Legislature and the Judicial Council, no later than April of each year. (Pen. Code § 629.62; 18 U.S.C. § 2519(2).)
As can be seen from the forgoing overview of the law, the entire congressional and
legislative intent of the wiretap laws has been to get the intercepts out in the open once the
fruits are plucked. It was never intended that law enforcement's incursions into people's
privacy should remain forever hidden and undisclosed. In fact, even if the wiretap evidence
is never used, or no arrest or prosecution ever transpires, disclosure is nevertheless
mandated by both state and federal statute.
2
THE UNITED STATES SUPREME COURT HAS BARRED THE USE OF IN-CAMERA
PROCEEDINGS WITH REGARDS TO DISCLOSURE OF WIRETAP OPERATIONS
As long ago as 1969, the United States Supreme Court ruled that:
"Surveillance records as to which any petitioner has standing to object should be turned
over to him without being screened in camera by the trial judge. Admittedly, there may be
much learned from an electronic surveillance which ultimately contributes nothing to
probative evidence. But winnowing this material from those items which might have made
a substantial contribution to the case against a petitioner is a task which should not be
entrusted wholly to the court in the first instance." (Alderman v. United States supra, 394
U.S. 165, 89 S.Ct. 961, 971.)
Whether a party has standing to challenge the evidence derived from an intercepted communication is a question of whether the evidence is relevant to a trial. Similarly, that "issue of relevancy should not be resolved in camera, but in an adversary proceeding." (Russo v. Byrne, supra, 409 U.S. 1219, 93 S.Ct. 21, 22.)
The United States Supreme Court has soundly reasoned, that with respect to "both the volume of the material to be examined and the complexity and difficulty of the judgments involved, cases involving electronic surveillance will probably differ markedly from those situations in the criminal law where in camera procedures have been found acceptable to some extent" such as the "disclosure of informant's identity." (Alderman v. United States, supra, 394 U.S. 165, 89 S.Ct. 961, 971, fn. 14.)
Since evidence against a defendant which grows out of his or her own illegally overheard conversation or from conversations occurring on a defendant's premises will be suppressed if it can be shown that they were derived by exploitation of illegality, the Government must disclose 'any surveillance records which are relevant to the decision of this ultimate issue. And. . . this disclosure must be made even though attended by potential danger to the reputation or safety of third parties or to the national security--unless the United States would prefer dismissal of the case to disclosure of the information.' " (Alderman v. United States, supra, 394 U.S. 165, 89 S.Ct. 961, 970-971.)
It may be that the prospect of disclosure will compel the Government to dismiss some
prosecutions in deference to the prosecuting party's interests. But this is a choice the
Government concededly faces with respect to material which it has obtained illegally..."
(Id. at p. 972.)
It is, therefore, clear; there can be no secret wiretap operation once criminal charges are
filed.
3
THE DISTRICT ATTORNEY HAS AN AFFIRMATIVE OBLIGATION
TO RESPOND TO DEFENDANTS' DISCLOSURE REQUEST
Under federal law, even an unsupported claim of illegal electronic surveillance is sufficient to require the prosecution to make a response, under oath, of the existence or non-existence of a wiretap. United States v. Vielguth (9th Cir. 1974) 502 F.2d 1257, 1258-59; United States v. Tobias (9th Cir. 1988) 836 F.2d 449, 453.)
The Los Angeles Police Department and the Los Angeles Sheriff's Department have been engaged in an unlawful procedure called the "hand-off," for many years and have combined with the head law enforcement agency of the county to evade the mandates of the state and federal wiretap laws and to use evidence derived from wiretaps without ever disclosing that fact. This misuse of the wiretap law has been admitted by the office of the District Attorney who seeks to limit the instances of misuse by admitting to abuses in cases where the persons affected are in some way beyond redress (See "D.A.'s Office Admits Secret Wiretapping," Los Angeles Times, June 2, 1998, Page B3, attached hereto as Exhibit B).
The most cursory scanning of the preliminary hearing transcript is revealing and is persuasive evidence that a wiretap was utilized in this case. The zeroing in of the surveilling officers on these defendants; the nonchalance or even outright ennui on the part of the officers toward the persons who were obviously engaged, in some way, in trafficking strongly suggests that their lack of interest stems entirely from an undisclosed source of information, making serious effort by them to follow up leads unnecessary and even counterproductive in terms of having to reveal the existence of wiretaps.
Defendants contend that wiretap, rather than keen police work, are responsible for the arrests and seizure in this case, and they demanded disclosure as required by state, federal, and constitutional law. However, to date, the Los Angeles District Attorney's office has not admitted that wiretap(s) ever took place.
Moreover, the magistrate refused to require such admission or denial. This is so despite
the fact that movants made proper demand. The defendants may now be in unlawful
custody if there is in fact a wiretap involved in this case, as the failure to notify and disclose
prior to its use would make it inadmissible as a matter of law.
The Magistrate's Restrictions on Cross Examination
By Defense Counsel Denied the Defendants
Substantial Rights; Dismissal Is The
Only Acceptable Remedy
Restriction or denial of a defendant's right to cross examine a witness at a preliminary hearing denies a substantial right guaranteed by the Federal and State Constitutions and should occasion dismissal. Jennings v. Superior Court(1967) 66 C2d 867; Hines v. Superior Court (1988) 203 CA3d 1231.
When a defendant is not permitted to cross examine on the elements of the offense or to
establish a defense through erosion of the prosecution's case, the defendant is denied a
substantial right by reason whereof he has not been properly held to answer. Jennings v.
Superior Court, supra.
THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH PROBABLE
CAUSE FOR THE OFFENSE OF TRANSPORTATION
BY DEFENDANT ANGULO
The people's witness, Thatcher, was unable to establish the crime of transportation of cocaine by defendant Angulo. On page 50, the witness admits he has no knowledge of how the drugs got into the white truck. On the next page he admits he does not know when they were placed there. On page 72 he admits that he never saw Angulo in the truck at the same time it was laden with cocaine. On page 73, he acknowledges that they did not lift any prints from the illicit cargo.
Other than the fact that the truck is registered to Angulo and that he had an unspecified relationship with the co-defendant driver, there is no evidence of transportation.
The transcript must contain some evidence to support each element of the charged offense. Garabedian v. Superior Court (1963) 59 C2d 124, and the inferences drawn from the evidence must be reasonable. If they are speculative, it is the P.C.995 judge's duty to discard those that derive their substance from guesswork, speculation or conjecture. Birt v. Superior Court (1973) 34 CA3 934,938. Most of the same rules of evidence concerning the sufficency of the evidence at trial apply to the sufficiency of the evidence required on 995 review. People v. Schuber (1945) 71 CA2d 773.
Because of the adamant refusal of the prosecution to explain what they were doing at
McDonald's, if not eating, the evidence--as to both defendants--is speculative. Although
the witness broadcast a message to the other police on this mission, that "we just witnessed
a narcotic transaction," the truth is nothing was observed that would link either defendant
to the cocaine other than mere possession, under which nobody knows anything about such
as who put it there; when; where or if the defendants had acutal or constructive knowledge
of its presence.
THE EVIDENCE ADDUCED AT THE PRELIMINARY HEARING
IS INSUFFICENT TO HOLD EITHER DEFENDANT TO ANSWER FOR
POSSESSION FOR PURPOSES OF SALE
The record is devoid of any evidence that either defendant
possessed the cocaine with knowledge of its presence or narcotic character. The mere fact
that Angulo and Ramirez were friends and that Ramirez was driving a truck which was
mysteriously loaded with a controlled substance which was double wrapped and not visible
in its condition when seized is not sufficent to hold these defendants to answer. An
information (or count therein) must be set aside if no evidence exists to support each
necessary element of the offense. People v Caffero (1989)207 CA3d 678; People v. Martin
(1973) 9 C3d 687; People v. Monson (1967) 255 CA2d 689.
CONCLUSION
The proceedings in this case are flawed. The evidence points to the existence of a wire tap. Demand was made for disclosure in accordance with statutory assurances.
An ex parte/in camera hearing takes place in the magistrate's chambers on a date unknown with persons unnamed. A decision is made about the relevance of evidence not yet received.
A preliminary hearing is held which features an investigation, so-to-speak, at a McDonald's drive-in and police officers who cannot state why or whence they came, waiting around for the defendants to arrive. In the meantime, other persons most likely more heavily involved in narcotic trafficking are allowed to come and go without a trace.
The preliminary hearing is more like a tag team wrestling match with the prosecutor and magistrate working together to shield the facts from the defendants and their attorneys. The prosecutor shouts out talismanic words such as "relevance!" which turns out to be a signal for the magistrate to lay down another brick in the wall being erected to keep the defendants out of the truth fields..."sustained!"; responds the magistrate to the great bewilderment and frustration of the men facing thirty years in prison against whom there is less evidence than there is against the ones the police allow to drift away.
The defense attorneys were forbidden to test the testimony of the witness in traditional ways such as testing his memory, ability to recall, his observations, or even to challenge the evidence against their clients.
In addition to the flawed procedures, the evidence is superficial.
This court sits as a reviewing court. The case law is incontrovertible on the issue that
overly restricted cross examination requires that the hearing be held again with important
rights protected and exercised. The charges should be dismissed.
1. i.e. re-election.