TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE CALIFORNIA COURT OF APPEAL, SECOND APPELLATE DISTRICT:

Early in 1998, the Petitioners discovered that the Los Angeles County District Attorney's Office had been secretly conducting wiretaps. Through a procedure known as the "hand-off," the People managed to evade the constitutional and statutory notice and disclosure requirements of the state and federal laws which would afford persons affected the right to test the validity of the underlying wiretap order prior to the introduction of evidence derived from the wiretap into any trial, hearing, or other proceeding. (18 U.S.C. 2518(9); Pen. Code § 629.70.) By disclosing information obtained from the wiretap to other officers without disclosing the source of the information, arrests and convictions could be obtained based on information obtained from wiretap operations without the need to ever reveal that fact. This procedure allowed the wiretap to continue indefinitely, and, more importantly, without ever having the lawfulness of underlying wiretap order challenged. It was so effective it was used by other agencies who knew that a "hand-off" to a law enforcement agent trained by the Los Angeles District Attorney, would have no qualms about concealing the source of information to allow their wiretap operation to continue. This procedure resulted in what is now known as the largest wiretap operation in the history of the United States, the Atel wiretap operation, which did not, as required by law, intercept a single, specified telephone for 30 days, but, instead, intercepted over 350 telephones and lasted almost two years.

Possessed of this information, Petitioners suspected that their case had been a "hand-off" and made a motion for discovery specifically asking for wiretap disclosure prior to the preliminary hearing so that a motion to suppress could made. However, the People opposed the motion claiming that such information would be privileged and asked for an in camera hearing. Petitioners immediately responded by submitting transcripts of the other court proceeding wherein the hand-off scheme was disclosed by an involved officer under oath together with specific points and authorities which addressed the relevant law barring such in camera proceedings and mandating disclosure. In spite of the fact that the same deputy district attorney involved in the other hearing was counsel in petitioners' case, he objected to to the belated introduction of evidence and the court refused to consider the evidence and legal precedents submitted unless Petitioners agreed to continue the matter. Petitioners grudgingly consented to continue matter, but prior to the agreed upon continuance date, the court conducted the in camera hearing and petitioners were informed of this fact at the date set for hearing on the appropriateness of such a procedure. The court explained it had always intended to allow the in camera but couldn't disclose that fact and had since ordered everything sealed, including the basis for her ruling and the actual ruling on the in camera motion made by the ubiquitous Mr. Lustig.

Petitioners preliminary hearing proceeded without any disclosure of what had taken place in camera, or even which privilege(s) had been asserted. . Not surprisingly, thereafter, all cross examination was severely restricted and the hearing was nothing but a concerted effort between the court and the People to bar petitioners from knowing anything about the underlying basis for the arrest or the basis for the officers' conclusions and expert opinions.

After arraignment in Superior Court, petitioners filed a motion to dismiss pursuant to Penal Code section 995. The People then finally revealed that evidence was in fact derived from a federal wiretap. The unsealed transcripts of the in camera meeting of the judge and the prosecutor revealed that the People informed the magistrate that there was in fact a a federal wiretap but that information needed to continue to be concealed from Petitioners because there was a "continuing investigation." Without discharging any of their obligations under the state and federal wiretap laws, the People asserted that the governmental privileges contained in Evidence Code section 1040 and Penal Code section 1050.7 allowed the concealment of non-exculpatory information. However, the records presented to the court were simply summaries of conversations intercepted on the day of the arrest which actually revealed the fact that neither petitioner was involved in any of the planning of the narcotics transfer. In light of the fact that the preliminary hearing disclosed that the officers observed nothing more than petitioners' exchange of their vehicle for a truck which had a black garbage bag in its bed which, in turn, contained the narcotics, the information was actually exculpatory, and established that petitioners were not involved in the planning of the transaction and that the culpable person was one who worked at the Petitioners place of business and/or who had access to the phones there.

Petitioners presented to the Superior Court a United States Supreme Court ruling which held that the Fourth Amendment required that a defendant be given all records in an electronic surveillance case regardless of the fact that disclosure might create a "potential danger to the reputation or safety of third parties" or even "to the national security." Moreover, in camera proceedings to determine relevance, as was conducted in this case when the court reviewed the documents and determined they were not exculpatory, was improper.

The Superior Court denied Petitioners' motion based on a plethora of cases (not cited by the respondent and apparently discovered by the court, itself) most of which cases hold, essentially, that in camera proceedings are allowed in some situations involving wiretaps and that the notice and inventory mandates contained in separate sections of the wiretap laws may be delayed past the required 90 day period if there is a continuing investigation. (18 U.S.C. 2517(8)(d); Pen. Code § 629.68.) Some cases appear to have been cited for the generalized rubric t hat in camera hearings can be used to resolve problems where there is a conflict between need and privilege. However, no case cited by the court in its bench ruling stood for the proposition that a criminal defendant could be denied his constitutional right to notice and production of wiretap materials prior to its introduction in a hearing such as was done in the preliminary hearing in this case.

Petitioners assert that a review of the events in this case will reveal that the People's conduct was just another attempt to conceal their "hand-off" operation, and the court below erred by failing to dismiss the information. The order holding petitioners to answer not only was unsupported by probable cause because of the admission of inadmissable wire tap evidence which did not support he allegations in the complaint, but was also illegal because of the magistrate's refusal to afford petitioners the substantial rights to which they were entitled. Hence the commitment was illegal as well. Therefore, Petitioners respectfully allege as follows:

I The parties directly interested in these proceedings are the named Petitioners, defendants in criminal case number BA16 1078 and respondent, the Superior Court of the State of California for the County of Los Angeles. The People of the State of California, by their attorney, Gil Garcetti, District Attorney of the County of Los Angeles, are the real party in interest.

On December 17, 1997, a felony complaint was filed in Los Angeles Municipal Court alleging Petitioners had violated Health and Safety Code sections 11352 and 11351, sale and possession for sale of a controlled substance, specifically cocaine. It was further alleged that the controlled substance in Counts One and Two exceeded 40 kilograms by weight in violation of health and Safety Code section 11370.4, subdivision (a).

A copy of the felony complaint is attached hereto as Exhibit A and made a part of this petition.

Petitioners were arraigned on the felony complaint in Division 30 of the Los Angeles Municipal Court on February 19, 1998, and pled not guilty. The matter was set for preliminary hearing on January 2, 1998, in Department 46, and thereafter continued to February 24, 1998, for a discovery motion.

A copy of the Municipal Court docket is attached hereto as Exhibit B and made a part of this petition.

On January 26, 1998, Petitioners filed a discovery motion which requested, among other things, disclosure of any wiretaps which may have been involved in the case. A declaration was submitted in support of the discovery motion explaining that a motion to suppress would be made at the preliminary hearing based on the fact that there was insufficient probable cause to detain or arrest the Petitioners. (Exhibit C, p. 6:1-4.) The declaration explained that it was inconceivable that numerous officers who just happened to be at Mc Donalds observed Petitioners exchange cars so they decided to follow them all the way to their ultimate destination whereupon they realized that at some point the driver had driven in a direction opposite from that final destination and thereby correctly concluded that the occupants must have engaged in a narcotics transaction. Petitioners asserted that they believed the arrest and seizure was not happenstance but a wiretap and asserted that they intended to make a motion to suppress based on the fact that the officers' observations of such neutral behavior did not establish probable cause.

A copy of the Motion for Discovery is attached hereto as Exhibit "C" and made a part of this petition.

On or about February 17, 1998, the People filed an opposition to the discovery motion and alleged their compliance with section 1054 of the Penal Code and further stated:

"Information regarding wire intercepts is not authorized discovery. Such information may also be subject to the official information privilege as discussed below. Furthermore, even assuming the existence of one or all of the listed items, the People would invoke the in camera procedures under Penal Code section 1054.7 and Evidence Code section 1040 to 1042." (Exhibit D, p. 7:5-11.)

A copy of the People's Opposition is attached hereto as Exhibit D and made a part of this petition.

On February 23, 1998, Petitioners filed a joint reply to the People's Opposition explaining the requirements of disclosure contained in the wiretap statutes and introduced additional documents to establish that a practice called the "hand-off" had been utilized by the People for many years as a means of avoiding disclosure and/or notification of wiretap operations. Petitioners submitted transcripts of police officers' sworn testimony which revealed for the first time in open court exactly how that procedure was utilized to conceal the existence of wiretaps from those persons who were intercepted by passing (handing off) information obtained from an intercepted communication to an officer without revealing that it came from a wire tap. Officers were provided specific information and told only to conduct a surveillance. This procedure supposedly enabled the officers to whom the wiretap information was given to develop their own probable cause and thereby dispensed with the need to notify the persons affected their conversations had been intercepted. Thus, it was theorized by the geniuses who invented this procedure, the existence of the wiretap could remain concealed. Petitioners asked the magistrate to take judicial notice of those transcripts containing those revelations.

Petitioners explained that their motion requested pre-trial discovery of both the statements of the defendants pursuant to Penal Code 1054 as well as disclosure of the existence of any wiretap in this case in reliance upon an entirely separate statutory scheme contained in Penal Code section 629.50, which required disclosure of such evidence independent of section 1054.

A copy of the Joint reply to the People's motion is attached hereto as Exhibit E and made a part of this petition.

On February 24, 1998, the matter was called for hearing on the discovery motion. Deputy District Attorney Jason Lustig objected to the submission of the transcript ( request for judicial notice) based on the fact that the People were not given sufficient time to review its substance.(4:27-5:11.) Petitioners initially objected to any delay based on the fact that it was a transcript of Mr. Lustig's own hearing, but faced with the court's refusal to consider their reply brief without providing the People with additional time, Petitioners agreed to a continuance so that the court could make rulings based on the evidence and authorities set forth in the reply brief. (Exhibit F, p.7:20-22; 8:12-13,19-23.) The court continued the matter to March 25, 1998. (Exhibit F, p. 12:16 - 14:28; 16:1-7.)

Copies of the reporter's transcripts for February 23, 1998, are attached hereto as Exhibit F and made a part of this petition.

However, on February 27, 1998, and prior to date set for the hearing on the propriety of an in camera hearing as well as the assertion of the privilege in any format, the People and two officers from the Los Angeles Police Department participated in an ex parte in-camera hearing with the same Magistrate who had, just days before, told Petitioners she would consider their opposition to that hearing if they agreed to a continuance. (Exhibit G, p. 3:1-26.)

At the in-camera hearing the People showed the magistrate a single five page document culled from the federal wiretap logs which contained communications intercepted on the date of the arrest without compliance with Penal Code section 629.70. (Exhibit G, p. 4:24-5:5.) The People acknowledged that there had been a wiretap which led to the arrest of the Petitioners and then Mr Lustig uttered the buzz words from Penal Code section 1054.7 and claimed that there was a "continuing investigation." However, the only substantiation of this putative claim is an comment that law enforcement was awaiting the return of the main target from Mexico. No evidence was offered to authenticate this announcement . A delay of approximately 60 to 90 days is then sought, again without any showing in support of this request. (Exhibit G, p. 8:15-21.) It was never alleged or suggested that the wiretap was continuing; the District Attorney's only reason for seeking the delay was that it was needed to await the "possible" return of some undisclosed person at some unknown time. (Exhibit G, p. 8:15-21.)

The people then represented that the defense was requesting statements of the defendants under Penal Code section 1054, never mentioning Petitioners' specific assertion of their absolute right to production under Penal Code section 629.70. Instead, the People referred the magistrate to the same statute, (1054 Penal Code) together with Evidence Code section 1040 and 1041, and declared, without authority that "the privilege" allows the court to bar disclosure of evidence gathered or derived from wiretap(s). (Exhibit G, p. 8:22-9:5.) And yet, the court below went out of its way to characterize this deception by the prosecutor as "not artful.!"

The information divulged to the court in camera established that two persons, identified only as "the boss" and "the runner," (neither of the Petitioners) are overheard discussing plans to move a "load" via two persons, named Carlos and Javier. Neither of the Petitioners is named or called Javier or Carlos. The runner calls the Petitioners' auto glass shop and the receiver of the call, who identifies himself as Javier, discusses how he is going to transfer the load and the parties to the call make arrangements for a meeting. Directionsare given. The runner calls "Javier" again and says he's at Mc Donalds and tells him to bring a vehicle to take the load. Petitioners are thereafter arrested and a non-consensual search of a big garbage bag in the bed of a pickup truck results in the discovery of the contraband admitted against them at the preliminary hearing.. (Exhibit G, p. 4:16-5:19.)

The People persuaded the court and the court so ruled that these conversations were incriminating rather than exculpatory (Brady )l, and therefore the statements could lawfully be withheld. (Exhibit G, p. 8:1-14; 11:23-28.) However, as can be readily seen by this court, the evidence does not in the least incriminate Petitioners and only establishes that the police knew better than Petitioners what the garrbage bag in the bed of the truck contained.

The People made no mention of Penal Code section 629.70, or their constitutional and statutory obligation to provide wiretap materials prior to the introduction of any evidence. The magistrate, without any independent research or even an attempt to apprise itself of the defense position, made its ruling in total reliance upon Jason Lustig's naked assertions and denied discovery, upholding the specious claim of privilege without any consideration or ostensible awareness, for that matter) of the state or federal wiretap law. (Exhibit G, p. 9:6-10:16.) Moreover, this is done without even a formal claim of privilege being lodged by the federal government as required by law. (Rubin v. City of Los Angeles (1987) 190 Cal.App.3d 560, 577.)

The court ordered that the transcripts of the in camera hearing be sealed and given to the district attorney's office to be stored in their investigators evidence safe. (Exhibit G, p. 13:26- 14:4.)

A copy of the ex parte in-camera hearing which was subsequently unsealed by order of the Superior Court is attached hereto as Exhibit G and made a part of this petition.

On March 25, 1998, Petitioners were informed that the in-camera hearing had taken place and since no questions had been presented by the defense none were submitted to the declarants. (Exhibit F, p. 17:21-24.) When defense counsel explained that the purpose of the continuance was to determine whether an in camera would be held and would have submitted questions had that fact been known, the court stated that she had told Petitioners that such hearing would take place. (Exhibit F, p. 18:7-19:10.) Petitioners asserted that no privilege was appropriately invoked and could not be invoked, as asserted, be invoked by the district attorney's office. (Exhibit F, p. 18:24-19:27.)

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, refused to conduct an adversarial evidentiary hearing to explore the contention, and refused to provide Petitioners with any information regarding the basis of her ruling other than to say that pursuant to Penal Code section 1054, Petitioners' motion was denied. (Exhibit F, p. 20:6-22:20.)

On May 4, 1998, an information was filed against Petitioners alleging a violation of Health and Safety Code sections 11352 and 11351, sale and possession for sale of a controlled substances, specifically cocaine. It was further alleged that controlled substance in Counts One and two exceeded 40 kilograms by weight in violation of health and Safety Code section 11370.4, subdivision (a).

A copy of the information is attached hereto as Exhibit H and made a part of this petition.

On May 18, 1998, Petitioners were arraigned on the information and pled not guilty. The matter was set for pretrial on June 24, 1998.

A copy of the minute orders are attached hereto as Exhibit I and made a part of this petition.

On June 18, 1998, Petitioners filed a motion to dismiss the information pursuant to Penal Code section 995 based on the fact that viewed as a whole, the preliminary hearing held on April 20, 1998, before Magistrate Glenette Blackwell deprived the defendants' substantial rights and the People failed to adduce sufficient lawful evidence to hold Petitioners to answer, thereby warranting dismissal.

Petitioners correctly likened the preliminary hearing experience to a tag team wrestling match with the prosecutor and magistrate working together to shield the facts from the Petitioners and their attorneys. The prosecutor would shout out the talismanic word "relevance" which was the signal for the magistrate to lay down another brick in the wall being erected by shouting "sustained," all in an obvious effort to keep the defendants blocked from the truth. This obvious kinship and collaboration of the putative "impartial magistrate" and the prosecutor was shocking to the conscience and an affront to Petitioners as men who were facing thirty years in prison as a result of it. Their defense attorneys were rendered impotent and forbidden to challenge the testimony of the witness in all traditional ways such as testing memory, ability to recall, accuracy of observations or object to the foundational basis for the introduction of evidence.

Moreover, the witness-officer testified that they only observed Petitioners take possession of the truck at Mc Donalds which had previously been driven there containing its "load" by another person. The officers simply followed the truck after its departure from McDonalds and then, in a deus ex machina, officer Thatcher divined that the truck contained narcotics and ordered the truck stopped, searched and the driver arrested after discovery of the contraband concealed in the garbage bag in the bed of the truck. No evidence was otherwise presented to link either Petitioner to the contraband or otherwise establish actual or constructive knowledge of its presence or narcotic character.

Still unsure that the case involved a wiretap, Petitioners correctly argued that if a wiretap was in fact disclosed at the in camera hearing, it was unlawfully and unconstitutionally withheld from Petitioners based upon the United States Supreme Court's ruling in Alderman v. United States (1969) 394 U.S.165, 22 L.Ed.2d 176, 89 S.Ct. 961, which held that unlike informant, disclosure, the Fourth Amendment requires that in wiretap cases "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 p. 971.) Moreover, information regarding wiretapping operations must be turned over to a defendant "without being screened in camera by the trial judge" as it is "a task which should not be entrusted wholly to the court in the first instance." (Id. at pp. 970-971.)

A copy of Petitioners Penal Code section 995 Motion is attached hereto as Exhibit J and made a part of this petition.

On July 2, 1998, the People finally admitted that the evidence introduced against Petitioners was derived from a federal wiretap.

On or about July 8, 1998, the People filed an Opposition to Petitioners' 995 motion. The People argued there was sufficient evidence introduced at the preliminary hearing and that the confrontation clause of the Sixth Amendment is a trial right and since the Petitioners still have the right to cross examine the officer at trial, there was no denial of that right. Without alleging that any information was provided to the federal court or federal authorities regarding the need to disclose the existence of the wiretap to Petitioners who were then facing criminal prosecution or that if such request were made it would have been denied, the People simply asserted that the information regarding the federal wiretap was sealed by the federal court and therefore disclosure would have compromised that ongoing investigation. (Opposition p. 11.) Without addressing the fact that no formal claim of privilege was lodged by any federal government agency or an assertion that the people had authority to assert any such privilege on behalf of the federal government, and without presenting the court with any authority to support the proposition, the People imperiously insist that their use of in-camera proceedings to assert the "governmental privilege in Penal Code section 1040 and deny discovery pursuant to 1054.7 were appropriate vehicles to protect the secrecy of that wiretap.

A copy of the People's Opposition to the Penal Code section 995 Motion is attached hereto as Exhibit K and made a part of this petition.

On August 4, 1998, Petitioners filed a Reply to the People's Opposition alleging that there was insufficient evidence to hold Petitioners to answer because evidence derived from a wiretap was introduced into the preliminary hearing without compliance with Penal Code section 629.70. Petitioners pointed out in addition to the fact that the claim of privilege was never properly invoked, that a privilege could not be sustained since the notice provisions of the wiretap laws are constitutionally mandated and cannot be neutralized by a " continuing investigation," even if real, as announced by to Alderman v. United States (1969) 394 U.S. 165, 22 L.Ed.2d 176, 89 S.Ct. 961. This is especially true in light of the complete statutory scheme governing disclosure of wiretap information. Moreover, since the federal wiretap statute mandates that state statutes be at least as protective as the federal laws, any attempt to use the official information privilege to shield notice or disclosure would be barred by the supremacy clause. Finally, the existence of a seal is not a bar to disclosure of wiretap evidence as the entire statutory scheme which requires sealing also provides for unsealing, upon request, for cause. Clearly if the statute mandates disclosure prior to the introduction of derivative evidence, prosecution in a criminal proceeding would obviously have been good cause had the court simply been asked.

A copy of Petitioners Reply to the People's Opposition is attached hereto as Exhibit L and made a part of this petition.

On September 2, 1998, the 995 motion came on calendar in Department 118, the Honorable Linda Lefkowitz, Judge Presiding. The court read and considered the transcript of the preliminary hearing as well as the transcript of the in camera hearing.

The preliminary hearing transcript showed the following:

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 restricted to questions which reiterated the witness' direct testimony.

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. (P.H.T. p. 4:26 - 5:5) After establishing Thatcher's background and employment, the prosecutor began his next question by asking: "On December 17, 1997, at approximately 7:30 in the evening..." but was cut off by the magistrate who stated spontaneously : "Okay, 7:30 p.m. is the cut off." (P.H.T. p. 5:25-27.) While it is not altogether clear what this somewhat cryptic remark by the magistrate actually means, in practice it meant defense counsel were not 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. (P.H.T. p. 5:26 - 6:7) 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. (P.H.T. p. 6:11 - 28.) The two male Hispanics were observed getting into and driving away in the red Toyota Celica. (P.H.T. p. 7: 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. (P.H.T. p. 7: 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. (P.H.T. p. 7: 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. (P.H.T. p. 7:17 - 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. (P.H.T. p. 8:1 - 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. (P.H.T. p. 9: 1 - 19.) After a short conversation the two men in the white pick-up truck got out and approached the red Toyota. (P.H.T. p. 9: 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. (P.H.T. p. 9: 23 - 10:2.) The two male Hispanics from the white pick-up truck got into the red Toyota and drove away. (P.H.T. p. 9: 24 - 25.)

Thatcher watched Ramirez drive north on Hawthorne Boulevard followed by Angulo in the green pick-up truck. (P.H.T. p. 10: 1 - 5.) Ramirez made a U-turn in the white truck and Angulo followed him now traveling south on Hawthorne Boulevard. (P.H.T. p. 10: 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. (P.H.T. p. 10:12 - 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). (P.H.T. p. 10:18 - 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. (P.H.T. p. 10: 20 -24.) As Ramirez was supposedly closing the gate across the driveway, Angulo drove off southbound on Hawthorne Boulevard at an alleged high rate of speed. (P.H.T. p. 11: 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. (P.H.T. p. 11:17 - 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. (P.H.T. p. 12:1 - 8.) Reputedly, numerous kilos of cocaine were uncovered in the bed of the truck that Ramirez was driving; they were in green or black trash bags. (P.H.T. p. 12: 25 - 13:2.) 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. (P.H.T. p. 16: 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)? A relevancy objection was sustained. (P.H.T. p. 18: 20 -23.)

2. Were you at that location [McDonald's] for a particular reason? A relevance objection was sustained. (P.H.T. p. 19: 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. (P.H.T. p. 20:13 - 18.)

4. When did you arrive at McDonald's? Objection sustained on relevance grounds. A relevance objection was sustained. (P.H.T. p. 23:21.)

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. (P.H.T. p. 24:18 - 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." (P.H.T. p. 25:5 - 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. (P.H.T. p. 25: 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. (P.H.T. p. 26:1 - 19.)

8. An objection on relevance grounds was sustained to the question, "Were you looking for that particular vehicle [red car]?" A relevance objection was sustained. (P.H.T. p. 29:20 - 30:20.)

9. Relevance objections were also sustained to the following questions: (P.H.T. p. 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.

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. However, mention was epressly made in Petitioners motion for discovery that such disclosure was necessary because Petitioners intended to make a motion to suppress wiretap evidence pursuant to penal Code section 995. When it appeared 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. (P.H.T. p. 33.) 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. (P.H.T. p. 33:1 - 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. (P.H.T. p. 24: 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. (P.H.T. p. 36: 13 - 37: 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. (P.H.T. p. 37: 22 - 24; 38:3 -6; 39: 16 - 20.)

Deputy Thatcher testified that although there were at least four or five police vehicles at the McDonald's location on the 17^th 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. (P.H.T. p. 41:8 - 42:10.)

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. (P.H.T. p. 42, 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]. (P.H.T. p. 44: 2 - 47: 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." (P.H.T. p. 47: 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." (P.H.T. p. 47: 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? (P.H.T. p. 49: 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 :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." (P.H.T. p. 49.)

Q: "Do you have any information that Mr. Angulo had knowledge of the drugs seized in this case?" (P.H.T. p. 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." (P.H.T. p. 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. (P.H.T. p. 48: 23 - 49:26.)

Perhaps the best illustration of the determination of the magistrate to withhold relevant evidence from the defendants appears at Page 57, Lines 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. (P.H.T. p. 68: 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. (P.H.T. p. 60; 61; 62; 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. (P.H.T. p. 65: 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." (P.H.T. p. 65: 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." (P.H.T. p. 68: 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." (P.H.T. p. 69: 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. (P.H.T. p. 78: 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. (P.H.T. p. 82: 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?" (P.H.T. p. 88:22 - 23.)

This Jennings error is repeated on Page 89, Lines 3, 6, and 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):

. Page 95, line 15-19 (location of source of drugs);

. Page 97, line 20 -99, line 12;

. Page 101, line 13-18;

. Page 101, line 24 to page 102, line 10;

. Page 102, line 12 to 103, line 24;

. Page 104, line 3 to 107, line 9;

. Page 109, line 13 to page 110, line 12;

. Page 117, line 2 to 6 (officer not allowed to say whether he was forming opinion while observing);

. Page 119, line 14-24(refusal to allow cross of direct);

A copy of the preliminary hearing transcript is attached hereto as Exhibit M and made a part of this petition.

At the hearing on the motion to set aside the information the superior court expressed concern with the fact that the People failed to discuss the requirements of the wiretap law with the court but nonetheless denied Petitioners motion. (Exhibit N, p. 15:26-17:17.) The court found that Alderman, which it erroneously believed had predated the enactment of Title III, had not been extended to preclude in camera hearings entirely nor could be viewed as eliminating traditional evidentiary privileges. (Exhibit N, p. 24:3-26:2.) The court relied on a plethora of cases, none of which stand for the proposition assumed, that defendants facing a criminal preliminary hearing may be denied their constitutional right to notice and production of wiretap records prior to the introduction of such evidence at that preliminary hearing.

A copy of the transcripts of the September 2, 1998, hearing is attached hereto as Exhibit N and made a part of this petition.

The trial court's refusal to set aside the information was error. Not only is there is insufficient evidence introduced at the preliminary hearing to support the information, but the denial of substantial rights in the municipal court rendered Petitioners commitment illegal. (Penal Code section 629.70, 18 U.S.C. 2518(9), Alderman v. United States (1969) 394 U.S.165, 22 L.Ed.2d 176, 89 S.Ct. 961.)

The attached memorandum of points and authorities and exhibits are incorporated by reference herein.

No other petition for writ of mandate or for any other extraordinary relief has been made on petitioner's behalf.

Appeal is not an adequate remedy at law. The Supreme Court has ruled that appeal is not an available remedy for being improperly committed to the superior court and having to face trial on inadequately supported charges. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529; see also Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 834.) The Legislature has statutorily determined that extraordinary writs are the appropriate remedy for improper commitments to the superior court. (Pen. Code § 999a.)

The matter has now been set for October 1, 1998. No stay appears necessary at this time.

WHEREFORE, your petitioner prays that a peremptory writ of mandate issue directing that respondent court vacate and set aside its ruling denying petitioner's Penal Code section 995 motion and to order respondent court to grant that motion and dismiss the information.

Respectfully Submitted,

Richard Chier, Attorney for Petitioner Angulo

Victor Sherman, Attorney for Petitioner Ramirez

By_______________________________________

Richard Chier,

Attorney at Law

STATE OF CALIFORNIA )

) ss.

COUNTY OF LOS ANGELES )

I, the undersigned, declare under penalty of perjury as follows:

I am an attorney at law, duly licensed to practice in all the courts of California.

I represent petitioner in the foregoing petition for writ of mandate and I make this verification as his attorney acting on his behalf in that the allegations made therein are more within my knowledge than petitioner's.

I have read the foregoing petition and know of my own personal knowledge that the matters alleged therein are true, based on the exhibits attached hereto and my appearances in court with petitioner.

Executed this ___ day of ____________, 1998, at Los Angeles, California.

_______________________________

Richard Chier

Attorney at Law

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 of the United States Constitution and the interception of such by the government an invasion of that protected privacy. Thereafter considered a "search and seizure," wiretaps were outlawed throughout the United States until Congress passed Title III, a comprehensive regulatory scheme 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.) Congress was concerned by the fact that telephonic interceptions could not limit the "search and seizure" to only the party named in the warrant. In fact, subsequent statistics have confirmed that a single wiretap intercepts approximately 2,000 conversations of which only 20% are incriminating, and invades the protected privacy of approximately 200 people. (Administrative Office of the United States Courts, 1997 Wiretap Report.)

Recognizing also that both Berger v. New York (1967) 388 U.S. 41, 87 S.Ct. 1873,1883, 18 L.Ed.2d 1040 and Katz v. United States (1967) 389 U.S. 347, 354-356, 88 S.Ct. 507, 19 L.Ed.2d 576 established that notice of surveillance is a constitutional requirement of any such wiretap statute, but acknowledging that prior notice was obviously impossible, Congress mandated that the notice be made subsequent to the termination of the electronic surveillance and prior to the introduction of any evidence derived therefrom into any trial, hearing, or proceeding. (18 U.S.C. 2518(9).) As explained in United States v. Donovan, supra, 429 U.S. 413, 429 n. 19, 97 S.Ct. 658, 669 n. 19, 50 L.Ed.2d 652, the provision in Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. § 2518 (8)(d)." (Dalia v. United States (1979) 441 U.S. 238, 243; 99 S.Ct. 1682, 1688.) 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.) Moreover, to assure the community that secret wiretapping by the government would never be imposed on them, Congress provided for public reporting.

"Congress .... made the judgment that electronic surveillance should be monitored not only by courts, but, to an extent by the public as well... and ... created elaborate reporting requirements about the use of court-permitted wiretapping. ... Congress decided that statistics on wiretap use should be compiled so as "to form the basis for a public evaluation" of the operation of the surveillance law and to "assure the community that the system of court-order(ed) electronic surveillance is properly administered." (Ferri v. Bell, (3^rd Cir. 1981) 645 F.2d 1213, 1224-1225, citing United States v. Chavez (1974) 416 U.S. 562, 577, 94 S.Ct. 1849, 1857, 40 L.Ed.2d 380, S.Rep.No.1097, 90th Cong., 2d Sess. 107 (1968), reprinted in U.S.Code Cong. & Ad.News at 2196.)

After the passage of Title III,⁽¹⁾ the United States Supreme Court ruled in Alderman v. United States (1969) 89 S.Ct. 961, that the Fourth Amendment of the Constitution required disclosure of all electronic surveillance "even though attended by potential danger to the reputation or safety of third parties or to the national security," and provided that the prosecutor choice was "dismissal of the case" or "disclosure of the information." (Id. at p. 970-971.) Alderman was later codified by 18 U.S.C. 3504, and presently requires a prosecutor in federal court to respond to a claim of unlawful electronic surveillance by denying, admitting, or stating the party was aggrieved by a lawful intercept. While there are no corollary state procedures in California, the federal courts have held that Alderman itself mandates a similar procedure be in state courts. (Wiretapping and Eavesdropping, 2^nd Ed., (1995) Clifford Fishman and Anne T. McKenna, p. 20-17.)

Title III and Penal Code section 629.70 both therefore require that wiretap operations be disclosed and defendants be provided with copies of order, application, and transcripts not less than 10 days before any trial, hearing, or other proceeding in a Federal or State court. (18 U.S.C. 2518(9).) It seems only obvious that preliminary hearings could not possibly fall outside the ambit of the laws protection, since federal courts have consistently construed 18 U.S.C. 2518, subdivision (9), to require such production in any hearing or other proceeding in which derivative evidence is being affirmatively introduced by the government including detention hearings, bail review hearings, sentencing hearings, parole revocation hearings. (States v. Salerno (2^nd Cir.1986) 794 F.2d 64, 69; United States v. Farese (5^th Cir. 1980) 611 F.2d 67, 71.)

However, in spite of the overall scheme of the state and federal wiretap laws, the Los Angeles County District Attorney's Office has managed to consistently evade the laws' mandates and those unlawful actions, deemed felonious by the state and federal wiretap laws themselves, are routinely sanctioned by the Los Angeles County judiciary based on nothing more than the People's soto voce assertion that they have the right to do it. In spite of the fact that Petitioners tried to educate the magistrate with a request for the taking of judicial notice of the sworn testimony by police officers attesting to the Los Angeles District Attorney's policy and procedure of "handing-off" information obtained from a wiretap to officers without disclosing its origin for the simple purpose of evading the laws mandate that such wiretap operations be disclosed, the Los Angeles County Courts acting through magistrate Blackwell allowed the People to once again evade the law. In fact, the magistrate did not even bother to either read Petitioners brief, research the law herself, or attempt to discover that the evidence presented was not, as the people claimed, incriminating as to Petitioners. Instead, she simply chose to believe whatever the People told her and even went out of her way to trick the Petitioners into waiving their rights to a speedy trial under the guise of providing them an opportunity to have their facts and law considered, when in fact the delay was only intended to provide the People with the opportunity obtain that which they desired, an ex parte in camera hearing wherein they could continue to ignore the mandates imposed upon them.

THERE IS NO AUTHORITY FOR THE PROPOSITION THAT EVIDENCE CODE SECTION 1040 CAN SHIELD A WIRETAP FROM THOSE PERSONS AGAINST WHOM DERIVATIVE EVIDENCE IS BEING INTRODUCED The superior court has now ruled that the concealment of a wiretap is permitted by law. However, a review of all of the authorities seemingly relied upon by the trial court in reaching this untenable conclusion fails to unearth a single case which actually supports her ruling; some, when read closely, actually support the Petitioners' argument.

Most of the cases relied on by the trial court discussed the fact that in camera hearings may be permitted to determine issues other than those mandated by Alderman which holds that a defendant with standing must be provided with the discovery even in the face of potential danger to people or national security.

The trial court relied on Taglianetti v. United States (1969) 394 U.S. 316, and Stoddard v. United States (2^nd Cir. 1983) 710 F.2d 21, for the proposition that in-camera proceedings are appropriate "to address various wiretap issues." Petitioners acknowledge that there may well be some situations where in-camera hearings are appropriate in respect to some aspects of a wiretap operation, but the instant case is not one them. This case falls squarely within the ambit of Alderman.. That Stoddard and Taglianetti cannot be interpreted to stand for the proposition asserted by the court is best established by the fact the defendants in both Stoddard and Taglianetti were actually given notice of the existence of a wiretap. In Stoddard the appellant was given notice despite the fact that there were no pending charges.

Under Federal law,/⁽²⁾ it is left to the discretion of the court whether persons who were intercepted but not named in warrant should be provided notice. The People are required to provide the court with all the information regarding those persons so the court may make an intelligent decision on whether the interests of justice would require the People to notice, one of is the prosecution of criminal charges as a result of the interception. (United States v. Donovan, supra, 429 U.S. 413, 439, fn. 26, 97 S.Ct. 658, 50 L.Ed.2d 652.) Apparently the court in Stoddard determined that notice should be provided despite the fact that investigations were still ongoing but simply denied disclosure of materials which are not otherwise required to be disclosed.

Taglianetti explains why Alderman and like cases require disclosure:

"[A]n adversary proceeding and disclosure were required in those cases, not for lack of confidence in the integrity of government counsel or the trial judge, but only because the in camera procedures at issue there would have been an inadequate means to safeguard a defendant's Fourth Amendment rights." (Id. At p. 1100-1101, emphasis added.)

For that express reason the court in Taglianetti held that the defendant in that case was "entitled to see a transcript of his own conversations" but the in-camera proceeding could be used with regards to other records requested by the defendant and to ensure the accuracy of the prosecutor's claims. (Id. At p. 1100-1101, emphasis added.)

In United States v. Capra (2^nd Cir. 1974) 501 F.2d 267, a combination of mistakes and inexperience resulted in telephone calls being intercepted without authorization after the expiration of the interception order. The court suppressed all evidence obtained by the interception during an 18 day period defendant's conversations were overheard due to failure to comply with Title III. The only apparent reason for citing this case is footnote 10, on page 277, which notes in passing that "the trial court found the state court had authorized the delay in filing the inventory in order to protect the secrecy of ongoing investigations and the defendants had shown no prejudice resulting from either delay. No issue was presented in the case regarding the admission of evidence without compliance with 18 U.S.C. 2518, (9). The case stood solely for the proposition, that an inventory can be delayed as a result of an ongoing investigation. Petitioners do not disagree with this proposition of law, however, it is inapposite to a decision on whether wiretap derivative evidence may be introduced into a hearing without compliance with the disclosure requirement of the state and federal law. Had the court does more extensive research, she would have discovered that there is actually a split on whether or not evidence needs to suppressed when notice and inventory is delayed. While some courts find that suppression is necessary only when the defendants suffer prejudice, many state courts, including New York, Connecticut, Texas and Minnesota, all require automatic suppression for late notice regardless of whether any prejudice was suffered.

United States v. Brown (5th Cir. 1976) 539 F.2d 467, was a non-wiretap related case involving the former black panther H. Rap Brown, who alleged judicial bias and selective prosecution as grounds for reversal. Reversing for incontrovertible judicial bias, the court proceeded to explain that the defendant should be entitled to limited discovery, aided by in camera review by the court of documents the government did not wish to provide the defense. This case has nothing to do with wiretaps and therefore did not concern the statutorily required disclosure involved in this case which mandates production as a condition precedent to the introduction of derivative evidence.

United States v. Palermo (1959) 360 U.S. 343 was similarly inapposite. In this pre-Title III supreme court decision, the court approved the in camera review of government documents under a federal discovery law commonly known as the Jenks Act. While obtaining some discovery, the defendant could not obtain a transcript of a three and a half hour interrogation of a adverse witness. The court concluded that such document was not discoverable by the defendant under the Jencks Act, 18 USC 3500. The court noted that this was not the type of document covered, but explained that when it is conceivable that discovery of a type of statement was compelled by the Jenks Act, the practice of an in camera review to determine whether the statement in question came within the statutory description of impeachment evidence that a defendant is entitled to when a witness takes the stand against him is a proper use of the procedure.

United States v. Manfredi (2^nd Cir. 1973) 488 F.2d. 588, 601, involved, among other things, the delay of the notice and inventory of the wiretap six moths beyond the termination of the wiretap order as investigations continued. Appellant raised the failure to provide notice within 90 days. There was no issue of whether wiretap derivative evidence was admitted since the defendant themselves were still under surveillance and had not yet been arrested. While court found the postponement reasonable, the court acknowledged that this holding may well stretch the constitutional limits. The court noted that "if in a given case undue delay in [giving notice], that delay may congressional mandate places a premium on reasonable notice of the inventory. . . .[C]ourts should exercise great care in granting extensions beyond the 90-day period for filing the inventories."

The Matter of Application for a Search Warrant (1981) N.Y. City Crim. Ct., 437 N.Y.S.2d 635, was another non-wiretap case. Search warrants were issued for four separate locations on January 9, 1981, and on January 15, 1981, the prosecutor applied for an order sealing those warrants on the grounds that release of the materials would compromise ongoing investigations. The court founds investigations would in fact be compromised and the ordered the warrants sealed subject to court order.

In State v. Berjah (1972) 266 So.Rptr.2d 696, Florida's statutory wiretap scheme loosely tracked the federal scheme but required service of the inventory on all persons involved or affected within 90 days of the expiration of the order extension thereof. A subsection of the statute provided that an ex parte showing to a judge with jurisdiction could postpone such service. The prosecutor requested a postponement which was granted for an "indefinite period." No inventories were served for eight months. The trial court suppressed the evidence and that order was affirmed on appeal.

In United States v. Johns (8^thCir 1975) 508 F.2d 1134,the postponement of notice and service was found to be necessary for the continued effectiveness of the governments' investigation ; the materials were received by the defendants immediately after their arrest. The court held post-use notice may not be dispensed and may be postponed but must always be actually given by the issuing judge.

In State v. Dowdy (1977) 563 P.2d 425, the Kansas wiretap scheme was more permissive to law enforcement than the federal law by providing courts with discretion to provide notice to persons affected by the interception when the federal law required that notice be made. This flaw, making discretionary that which was mandatory by federal law, required suppression and rendered all evidence inadmissible as a matter of law. This ruling was based on the underlying public policy scheme of the federal wiretap law which required such notice be given.

As can be seen from a review of the cases relied upon by the trial court, none support the position that disclosure and production can be withheld for to do so would be unconstitutional and no reported decision has ever declared that even though the language of the statute(s) are mandatory and not permissive or precatory, they are really permissive.

The prosecution argues that the existence of a wiretap is susceptible of being shielded by the official privilege found in Evidence Code section 1040. This claim is wrong. First, since the notice provisions of the wiretap law are constitutionally founded, any claim of privilege would always result in disclosure, since no claim of confidentiality could outweigh the need to comply with the constitutional duty to disclose. Secondly, the complete statutory scheme governing disclosure of wiretap information is inconsistent with, and precludes application of, the official governmental privilege. Thirdly, the fact of the existence of the wiretap is not ``information acquired in confidence,'' and thus cannot be shielded by the official privilege. Finally, since the federal wiretap statutes mandate state statutes be at least as protective as the federal laws, any attempt to use the official information privilege to shield notice or disclosure is barred by the supremacy clause.

A

NOTICE AND DISCLOSURE ARE CONSITUTIONALLY REQUIRED

AND CANNOT BE AVOIDED

The People asserted that the information regarding the federal wiretap was sealed and disclosure would have compromised that ongoing investigation. (Opposition p. 11.) They further allege that the use of in-camera proceedings to assert the governmental privilege in Penal Code section 1040 and deny discovery pursuant to 1054.7 are appropriate to protect the secrecy of that wiretap. The People are wrong.

First, Evidence Code section 1040, subdivision (b), creates a "privilege to refuse to disclose official information, and to prevent another from disclosing official information" which may be claimed by a person "authorized" by that entity. It is doubtful that the federal authorities have authorized the Los Angeles District Attorney's Office to assert that the wiretap should not be disclosed to a criminal defendant against whom evidence derived from that wiretap is being introduced at a preliminary hearing. ⁽³⁾ But assuming the federal wanted the to assert the federal state privilege, more is required than a mere assertion by Los Angeles Deputy District Attorney Jason Lustig.

"In order to invoke the state secrets privilege, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. (United States v. Reynolds, supra., 345 U.S. at pp. 7-8 [97 L.Ed. at pp. 732-733]; Halkin v. Helms [Halkin II], supra., 690 F.2d at p. 991; Kinoy v. Mitchell (S.D.N.Y. 1975) 67 F.R.D. 1, 8-10.) The requirement that a responsible officer assert the state secrets claim 'is to assure that the privilege, which in any event is waivable, is not lightly claimed. Hence, the requirement is that the claim be made by someone in a position of sufficient authority and responsibility to weigh prudently the competing considerations of making evidence available in litigation and protecting important government interests. The decision involves policy, not simple law .... [T]he decision is a matter of importance and not merely routine categorization of documents, and therefore should be made by a policy-maker who can be assumed to have the larger public interest in mind.' (United States v. Am. Tel. & Tel. Co. (D.D.C. 1979) 86 F.R.D. 603, 605.)" (Rubin v. City of Los Angeles (1987) 190 Cal.App.3d 560, 577.)

Secondly, the privilege is available only under two circumstances, when disclosure is "forbidden by an act of the Congress of the United States or a statute of this state" or disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice. (Pen.Code §1040(b)(1)&(2).) The former is an absolute privilege and the later a conditional privilege if the court determines, in accordance with precise statutory standards, that disclosure is against the public interest. (Rubin v. City of Los Angeles (1987) 190 Cal.App.3d 560, 583; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540; Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123.) In making the determination of whether disclosure is against public interest, the interest of the public entity as a party in the outcome may not be considered. (Evid. Code, § 1040, subd. (b)(2).)

Here, both state and federal law require disclosure of this information making the absolute privilege in subsection (b)(1) unavailable to the District Attorney. The only possible basis for the assertion of the privilege is that disclosure is "against the public interest." However, the right to notice, inventory, and disclosure is not only a statutory right, but a constitutional right.

"In United States v. Donovan, 429 U.S. 413, 429 n. 19, 97 S.Ct. 658, 669 n. 19, 50 L.Ed.2d 652 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. § 2518 (8)(d)." (Dalia v. United States (1979) 441 U.S. 238, 243; 99 S.Ct. 1682, 1688.)

Clearly infringement of that constitutional right must be against the interest of the public, such a construction of the governmental privilege would make Penal Code section 1040 unconstitutional.

B.

THE COMPLETE SCHEME OF DISCLOSURE IN THE WIRETAP LAW PRECLUDES USE OF THE OFFICIAL INFORMATION PRIVILEGE TO SHIELD WIRETAP DISCLOSURES

The Legislature of California has enacted a comprehensive scheme governing the use of wiretaps. That scheme includes specific provisions governing notice and disclosure of wiretapping. General reporting provisions of the number of wiretaps and their nature and frequency is required by 18 U.S.C. § 2519 and Penal Code section 629.62. The specific disclosure requirements for notice of wiretaps is found in 18 U.S.C. § 2517 (8) and Penal Code section 629.68:

``Within a reasonable time, but no later than 90 days, after the termination of the period of an order or extensions thereof, or after the filing of an application for an order of approval under Section 629.56 which has been denied, the issuing judge shall cause to be served upon persons named in the order or the application, and other known parties to intercepted communications, an inventory which shall include notice of all of the following:

...

``(c) The fact that during the period wire, electronic digital pager, or electronic cellular telephone communications were or were not intercepted.''

``The judge, upon filing of a motion, may, in his or her discretion, make available to the person or his or her counsel for inspection the portions of the intercepted communications, applications, and orders that the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge, the serving of the inventory required by this section may be postponed. The period of postponement shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted.'' (Pen. Code § 629.68.)

The Legislature also mandated disclosure of any wiretapping where evidence ``derived'' from the wiretap is used in evidence at trial:

``The contents of any intercepted wire, electronic digital pager, or electronic cellular telephone communication or evidence derived from it shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding, except a grand jury proceeding, unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a transcript of the contents of the interception and with a copy of the court order and accompanying application under which the interception was authorized. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding, and that the party will not be prejudiced by the delay in receiving that information.'' (Pen. Code § 629.70; see also 18 USC § 2517.)

These provisions evince a legislative intent to enact a comprehensive scheme governing notice and disclosure of interceptions done during wiretapping. It is the position of People that all these provisions may be trumped by use of the official governmental privilege, Evidence Code section 1040. (Ret., pp. 32-37.) The People treat Evidence Code section 1040 as an ultimate trump card, playable at the government's whim, to block disclosure otherwise expressly mandated by several quite clear statutes.

Not surprisingly, neither the People nor the superior court cited authority in support of this astonishing claim.

It would be very odd indeed if the Legislature's careful delineation of notice and disclosure in the wiretapping statutes could be simply obliterated by a general privilege provision. It is evident that the Legislature's intent in enacting the wiretap statutes was to compel notice and disclosure, not the contrary.

The wiretap statutes enact a quite specific scheme governing notice. The fact that there is a general official information privilege cannot mean that the carefully drafted, narrow wiretap statutes requiring notice can be nullified by the general information privilege. Such a construction would render the notice provisions of the wiretap statutes nugatory; this should be avoided:

``We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous. (People v. Craft (1986) 41 Cal.3d 554, 560 [224 Cal.Rptr. 626, 715 P.2d 585]; Gates v. Salmon (1868) 35 Cal. 576, 587.) The whistleblower statute was a legislative expression intended to encourage and protect the reporting of unlawful governmental activities, and to effectively deter retaliation for such reporting. The Legislature clearly intended to afford an additional remedy to those already granted under other provisions of the law; otherwise section 19683 would be rendered meaningless. (Cf. Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408 [261 Cal.Rptr. 384, 777 P.2d 157].)'' (People v. Tanner (1979) 24 Cal.3d 514, 522.)

Moreover, the specific statutes control over the general, even where the two might otherwise overlap. ``A specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates. (Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123 P.2d 505].)'' (People v. Tanner, supra, 24 Cal.3d 514, 521.)

As the Court of Appeal explained:

``A special statute dealing expressly with a particular subject constitutes an exclusion, so as to take precedence over a conflicting general statute on the same subject. (Kennedy v. City of Ukiah (1977) 69 Cal.App.3d 545, 552 [138 Cal.Rptr. 207]; Busic v. United States (1980) 446 U.S. 398 [64 L.Ed.2d 381, 100 S.Ct. 1747].) This rule applies regardless of whether the special statute was enacted before or after the general one. (People v. Randano (1973) 32 Cal.App.3d 164 [108 Cal.Rptr. 326]; Warne v. Harkness (1963) 60 Cal.2d 579, 588 [387 P.2d 377].)'' (State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 238.)

``As a broad proposition, it is said that a specific statutory provision on a particular subject controls over general statutory provisions on the same subject, and a statute of general application will not ordinarily be held to repeal by implication a former statute of special or limited application. A repeal of the special statute will be found, of course, where there is something in a later general statute that discloses the legislative intent to repeal, but laws of special and local application are never deemed repealed by general legislation except upon the most unequivocal manifestation of intent to that effect, or where there is such a manifest repugnancy as to make plain a legislative intent to repeal an earlier special statute. Conversely, when a subsequently enacted specific statute directly conflicts with an earlier, more general provision, it is settled that the subsequent legislation effects a limited repeal of the former statute to the extent that the two are irreconcilable.''

The Supreme Court has explained:

``Where the terms of a later specific statute apply to a situation covered by an earlier general one, the later specific statute controls (People v. Haydon, 106 Cal.App.2d 105, 111 [234 P.2d 720]). As we held in Rose v. State, 19 Cal.2d 713, 723, 724 [123 P.2d 505]: ''It is well settled, also, that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.'' (See also People v. Moroney, 24 Cal.2d 638, 644 [150 P.2d 888]; Coker v. Superior Court, 70 Cal.App.2d 199, 201 [160 P.2d 885]; Whittemore v. Seydel, 74 Cal.App.2d 109, 120 [168 P.2d 212].)'' (County of Placer v. Aetna Cas. etc. Co. (1958) 50 Cal.2d 182, 189.)

This is a very well-settled proposition. (See, e.g., 58 Cal Jur 3d, Statutes, § 69; Code of Civil Procedure section 1859; Governing Board v. Mann (1977) 18 Cal.3d 819, 828.) Evidence Code section 1040, the general official information privilege section, was enacted effective 1967. The quite specific wiretap notice and disclosure statutes were enacted in 1995. The specific and later-enacted wiretap notice and disclosure statutes cannot be trumped by the older and general official information privilege. Thus, the latter privilege may not be asserted to avoid the mandatory notice and disclosure provisions of the wiretap law.

.

III.

THE EXISTENCE OF A WIRETAP IS NOT ``INFORMATION ACQUIRED IN CONFIDENCE,'' AND THUS CANNOT BE SHIELDED BY THE OFFICIAL PRIVILEGE The second flaw in the People's argument is that the fact of the existence of a wiretap cannot qualify as ``information acquired in confidence,'' a necessary foundational element of the official privilege. Thus, no privilege may be asserted with respect to the existence of a wiretap.

Evidence Code section 1040, subdivision (a), codifies the official governmental privilege, but a prerequisite for any claim of that privilege is that there must be ``information acquired in confidence.'' Evidence Code section 1040 provides that ``a public entity has a privilege to disclose official information.'' (Evid. Code § 1040, subd. (b).) But the section has a quite specific definition of ``official information'': ``As used in this section, `official information' means information acquired in confidence . . . . '' (Evid. Code § 1040, subd. (a).)

Case law has made it clear that the foundation for any claim of privilege depends on a showing that there was ``information acquired in confidence.'' The Supreme Court has stated, ``We note at the outset that the conditional privilege, like the absolute privilege, is applicable only to `information acquired in confidence ....' (§ 1040, subd. (a).)'' (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 124.)

The Court of Appeal has restated this point:

``Preliminarily, we note section 1040 of the Evidence Code `represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.' (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540 [113 Cal.Rptr. 897, 522 P.2d 305], italics added.) `It essentially establishes two different privilegesan absolute privilege if disclosure is forbidden by a federal or state statute (subd. (b)(1)), and a conditional privilege in all other cases pursuant to which privilege attaches when the court determines, in accordance with precise statutory standards, that disclosure is against the public interest (subd. (b)(2).)' (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123 [130 Cal.Rptr. 257, 550 P.2d 161].) Moreover, either privilege is applicable only to `information acquired in confidence.' (Evid. Code, § 1040, subd. (a).)'' (Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 905.)

Thus, not everything the government wishes to keep secret can be shielded by the official privilege; only information ``information acquired in confidence'' can form the basis of a claim of privilege. It should be noted that Petitioners are unaware of case applying the official privilege to wiretaps. Even the prosecution is forced to admit that no California case has found the privilege applicable to wiretaps. However, People argues that analogous case law supports application of the privilege to wiretaps.

The People cite two cases involving the location or substance of vehicle identification numbers (VIN), People v. Marghzar (1987) 192 Cal.App.3d 1129, 1134-1136, and In re David W. (1976) 62 Cal.App.3d 840, 846-848. (Ret., pp. 33-34.) These cases say that the formula used for a secret VIN number, and the location of that number, are properly shielded by the official governmental privilege. However, neither supports a claim that the very existence of the VIN number may be shielded. People is not merely claiming that the contents of the conversations overhead during the wiretap are shielded, but the very fact of the wiretap itself.

Apart from the VIN cases, the prosecution relies on the observation post cases in support of their claim that the official information privilege should apply to wiretaps. (Ret., pp. 34-36.) Although People cites all the observation post cases, only two of those cases actually address the issue at stake here: whether this is ``information acquired in confidence'' capable of being shielded by the official governmental privilege.

First, the People rely on Hines v. Superior Court:

``Petitioner contends that Weir's surveillance location does not come within the privilege because the record does not show that the location was `acquired in confidence ... during the course of his ... duty.'

``Petitioner takes too restrictive a view of the statutory word `acquire' The term does not exclude information that is generated by the person claiming the privilege. To acquire means `to come into possession ... of often by some uncertain or unspecified means.' (Webster's Third New Internat. Dict. (1981) p. 18.) To hold, as petitioner seems to suggest, that the location could be official information if petitioner was told of it by Officer Wells rather than discovering it himself creates a distinction which is neither required by the statute nor consistent with the purpose of the privilege. We hold the surveillance location was information to which the privilege could apply.'' (Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 1234; internal quotation marks omitted.)

Next, the People relies on People v. Montgomery:

``Appellant claims that Officer Weir's testimony did not provide a basis for the People's claim of the privilege. We do not agree. In Hines v. Superior Court (1988) 203 Cal.App.3d 1231[251 Cal.Rptr. 28], Division Four of this district held on facts practically identical to those before us that the surveillance location used by Officer Weir to observe the corner of Fifth and Grove Streets (one block from the corner in question here) was information to which the privilege could apply, even though the officer may have `acquired' the information from himself. (Id., at p. 1234.) We agree that one effect of section 1040 is to establish, under appropriate circumstances, a `surveillance location privilege' in California. (See Com. v. Lugo (1987) 23 Mass.App. 494, 497 [503 N.E.2d 974, 976], and cases collected therein.)

``This legislative policy of protecting surveillance locations finds strong support in an analogy to the confidential informer privilege. `Like confidential informants, hidden observation posts may often prove to be useful law enforcement tools, so long as they remain secret. Just as the disclosure of an informer's identity may destroy his [or her] future usefulness in criminal investigations, the identification of a hidden observation post will likely destroy the future value of that location for police surveillance. The revelation of a surveillance location might also threaten the safety of police officers using the observation post, or lead to adversity for cooperative owners or occupants of the building. Finally, the assurance of nondisclosure of a surveillance location may be necessary to encourage property owners or occupants to allow the police to make such use of their property.' (Com. v. Lugo, supra, 23 Mass.App. at p. 498 [503 N.E.2d at p. 976], quoting United States v. Green (D.C. Cir. 1981) 670 F.2d 1148, 1155; see also McCray v. Illinois, supra, 386 U.S. at p. 308 [18 L.Ed.2d at p. 69].)

``While we find the analogy to the informer privilege apt, we think it reasonable to afford even more protection to information of a surveillance location and thereby to people who permit their homes to be used as surveillance locations. An informer whose identity is revealed, rightly or wrongly, probably has a fairly good chance of hiding because of the anonymity of our predominantly urban environment. But a person whose address is revealed has no place to hide.'' (People v. Montgomery (1988) 205 Cal.App.3d 1011, 1018-1019; internal quotation marks omitted.)

These cases in fact support Petitioners' contention that the very existence of a wiretap cannot be ``information acquired in confidence'' to permit application of the privilege. The issue in the observation post cases is not the very existence of the observation posts, but the location of those posts. These cases support the claim that the location of the posts can qualify as ``information acquired in confidence.''

If the People's analogy applied, these cases would support application of the official government privilege to the very existence of the observation posts. But nothing in the above-quoted language supports such an approach. The above cases address only the issue of shielded the location of observation posts, not their existence.

In fact, the existence of a wiretap, an observation post, or a VIN is not, and cannot, qualify as ``information acquired in confidence.'' The location of an observation post or a VIN number, or the contents of communications overheard during a wiretap, can qualify as ``information acquired in confidence.'' But the mere existence of each of these items is not ``information,'' nor can they be said to have been ``acquired in confidence.''

Moreover, as shown above, the federal wiretap statutes require notice and disclosure. (18 USC § 2519; 18 USC § 2517 (8).) Even assuming Penal Code section 1040 allowed concealment of the existence of a wiretap, it would be preempted by federal wiretap statute's mandates.

"Although defendants relied exclusively on federal law at trial, the Court of Appeal also considered defendants' state law claims based on the California Privacy Act (Pen. Code, §§ 631, 632). State law, however, cannot be less protective than the federal Act. (United States v. McKinnon (1st Cir. 1983) 721 F.2d 19, 21, fn. 1.)'' (People v. Otto (1992) 2 Cal.4th 1088, 1092.)

The underlying rationale of the preemption doctrine is that the supremacy clause invalidates state laws that interfere with or are contrary to federal laws. (Chicago & N. W. Tr. Co. v. Kalo Brick & Tile Co. (1981) 450 U.S. 311, 317 [67 L.Ed.2d 258, 265, 101 S.Ct. 1124].)'' (Smith v. County of Santa Barbara (1988) 203 Cal.App.3d 1415, 1422.)

"State law which conflicts with a federal statute is invalid under the supremacy clause of the United States Constitution.'' (In re Marriage of Hillerman (1980) 109 Cal.App.3d 334, 341, Article VI, clause 2, of the United States Constitution.)

IV

THE STATE AND FEDERAL WIRETAP STATUTES

BAR THE USE OF WIRETAP DERIVATIVE EVIDENCE

PRIOR TO THE PROSECUTOR PROVIDING NOTICE AND DISCLOSURE

Title III and Penal Code section 629.70, require that wiretap operations be disclosed and defendants be provided with copies of order, application, and transcripts in any trial, hearing, or other proceeding in a Federal or State court. Such hearing have included detention hearings, bail review hearings, sentencing hearings, parole revocation hearings, or any other proceeding in which evidence is being introduced affirmatively by the government. (United States v. Salerno (2^nd Cir.1986) 794 F.2d 64, 69; United States v. Farese (5^th Cir. 1980) 611 F.2d 67, 71.)

Alderman v. United States (1969) 89 S.Ct. 961, requires that disclosure "even though attended by potential danger to the reputation or safety of third parties or to the national security," and provided that the prosecutor choice was "dismissal of the case" or "disclosure of the information." (Id. at p. 970-971.) Alderman was codified by 18 USC 3504, and requires a prosecutor in federal court to respond to a claim of unlawful electronic surveillance by denying, admitting, or stating the party was aggrieved by a lawful intercept. (Wiretapping and Eavesdropping, 2^nd Ed., (1995) Clifford Fishman and Anne T. McKenna, p. 20-17.) While there are no corollary state procedures, Alderman itself mandates a similar procedure be in state courts. In In re Grand Jury Matter (3^rd Cir. 1982) 683 F.2d 66, the government declined to affirm or deny the existence of an illegal wiretap during a grand jury proceeding and instead made an ex parte, in-camera presentation to the district court because of the on going investigation. After the in-camera hearing the judge concluded that no unlawful electronic surveillance had occurred. Like petitioner in this case, the contemnor was faced solely with a conclusion by the district court based on statements made by the Government. The District Court of Appeal held that an "ex parte, in-camera proceeding may be sufficient" in some instances regarding wiretap cases, but "only after an explicit denial has been made by the Government." (Id. at p. 67-69.)

The trial court in this case made significant rulings and orders in response to defense motions which substantially affected the rights of all defendants in this case yet deprived the defendants the right of knowing what rulings were made and what orders were issued. It appears that information disclosed in-camera related either to an informant, a wiretap, or a ruse. Petitioner believes the in-camera hearing was yet another attempt by the People to conceal an ongoing wiretap. If so, no decision should have been made, nevertheless sealed, without either a denial of the existence of wiretap by the People or an adversary hearing. (Alderman v. United States (1969) 89 S.Ct. 961, 971; Russo v. Byrne (1972) 93 S.Ct. 21, 22.) However, even if related to an asserted claim of a confidential reliable informant, petitioner was enTitled to know the basis of the privilege and provided an opportunity to submit questions concerning the validity of the grounds for maintaining such confidentiality. People v. Hobbs (1994) 7 Cal.4th 948, 973.) In In re Grand Jury Matter (3^rd Cir. 1982) 683 F.2d 66, the government declined to affirm or deny the existence of an illegal wiretap during a grand jury proceeding and instead made an ex parte, in-camera presentation to the district court because of the on going investigation. After the in-camera hearing the judge concluded that no unlawful electronic surveillance had occurred. Like petitioner in this case, the contemnor was faced solely with a conclusion by the district court based on statements made by the Government. The District Court of Appeal held that an "ex parte, in-camera proceeding may be sufficient" in some instances regarding wiretap cases, but "only after an explicit denial has been made by the Government." (Id. at p. 67-69.)

The trial court in this case made significant rulings and orders in response to defense motions which substantially affected the rights of all defendants in this case yet deprived the defendants the right of knowing what rulings were made and what orders were issued. It appears that information disclosed in-camera related either to an informant, a wiretap, or a ruse. Petitioner believes the in-camera hearing was yet another attempt by the People to conceal an ongoing wiretap. If so, no decision should have been made, nevertheless sealed, without either a denial of the existence of wiretap by the People or an adversary hearing. (Alderman v. United States (1969) 89 S.Ct. 961, 971; Russo v. Byrne (1972) 93 S.Ct. 21, 22.) However, even if related to an asserted claim of a confidential reliable informant, petitioner was enTitled to know the basis of the privilege and provided an opportunity to submit questions concerning the validity of the grounds for maintaining such confidentiality. People v. Hobbs (1994) 7 Cal.4th 948, 973.)

Based on the forgoing facts and law, Petitioners respectfully requests that this court require, once and for all, that the People follow the law by ordering the superior court to set aside its ruling and grant Petitioners motion to dismiss.

Respectfully Submitted,

Richard Chier, Attorney at Law

Victor Sherman, Attorney at law

By_______________________________________

Richard Chier

Attorneys for Petitioners

1. ¹ The superior court believed Alderman predated its passage.

2. ² California mandates notice to anyone intercepted.

3. ³ In fact, it is fairly obvious the only reason the Federal Authorities did not themselves arrest the defendants was precisely because they knew they would be required to disclose the wiretap operation once criminal proceedings were under way. Apparently they also knew that the Los Angeles District Attorney's Office was managing to bypass that legal requirement.