Published in:
"CACJ Forum"
California Attorney's for Criminal Justice
1999 Volume 26, No. 2


WIRED IN L.A.

By
Kathy Quant

Deputy Public Defender

Los Angeles County

Wiretapping Revealed in LA

The fact that wiretapping was occurring in Los Angeles County hit the local papers in the middle March of 1998. It was reported that the attorneys for three defendants, Lauro Gaxiola, Antonio Gastelum, and Carlos Lobos, filed a rather standard motion for discovery of their client's statements. What resulted was, however, far from standard. Attorneys Philip De Massa, Roger Rosen, and Ben Campos were informed that the investigation which lead to the narcotics trafficking prosecution then pending in Superior Court had included the interception of their client's telephone conversations pursuant to an order authorized by Los Angeles County Superior Court Judge James Bascue.

This revelation came as quite a surprise to those who practiced criminal defense law in Los Angeles County simply because wiretapping cases were virtually nonexistent. However, the sparse facts reported about the circumstances surrounding the disclosure caused far greater concern. It was reported, rather casually, that the court ordered disclosure only after a lengthy series of "in camera" hearings whereat the Los Angeles County District Attorney's Office had requested, behind closed chamber doors for some six months, that the wiretap continue to be concealed from the very defendants whose telephones and conversations had been intercepted.

The egregiousness of these facts went unnoticed by not only the general public but by many criminal defense practitioners as well. This was caused not only by their unfamiliarity with the wiretap laws, but by the fact that their objections to such ex parte communications had long since been defeated in informant disclosure cases. However, unlike informant cases, the United States Supreme Court had long held that disclosure and production of wiretap records was compelled regardless of possible harm to third parties or even national security. (Alderman v. United States (1969) 89 S.Ct. 961, 971-972, see also Russo v. Byrne (1972) 93 S.Ct. 21, 22.) The Supreme Court barred the use of in camera hearings for the purpose of relevancy determinations and held that disclosure of every piece of wiretap-related evidence was required to be disclosed, without any prior court screening, to any defendant who had standing to object to their admission. And Alderman clearly explained that the federal statute gave standing to anyone targeted by the wiretap, as well as those who were intercepted, and then expanded the definition to include those who resided in a place where an intercepted conversation took place.

So the concerns were, at first, two-fold. How could disclosure follow lengthy in camera hearings and, moreover, on what possible grounds could the People assert that the wiretap should not be disclosed.

The answer to the latter question seemed to be revealed in the published articles. The Los Angeles District Attorney boldly asserted that the concealment of the wiretap was premised on a procedure referred to as the "hand-off." The prosecutor alleged the "hand-off" effectively insulated any wiretap from disclosure to defendants who were intercepted because it allowed information obtained from the intercepted conversations to be "handed-off" to a supervising officer who then "handed-off" the information to an investigating officer without disclosing its source. The investigating officer was given information regarding the suspect's location or identity, and then simply told to "initiate a narcotics surveillance." Once at the scene, the investigating officer made his own observations of "suspicious activity," such as a "suspected narcotics exchange," a "car switch" or "counter surveillance driving," and established "independent probable cause" to make the arrest. Since the intercepted conversations would never be introduced against the defendant in court, the wiretap need never be disclosed. End of case.

So what was wrong with this theory? Everything. First, the fact that the recorded statements were not being used in court was irrelevant. A defendant has the right to move to suppress not only the taped statements but "any evidence derived" from those statements. It doesn't take a genius to figure out that an officer told to watch a specific person at a specific location will view all otherwise innocuous behavior as "suspicious." Every exchange of objects will appear to be a "narcotics transaction," all changes of drivers a "car switch," and any turn indicative of "counter surveillance driving." The simple fact that the information was disclosed and officers thereafter ordered to surveillance alone made the immediate subsequent arrest of the defendants "derivative" of the information provided from the intercepted communications. Without that information the officers would not have been at the location looking for anything suspicious.

The only argument which could be made was that the taint from the wiretap had been attenuated by the "hand-off" procedures. However, the alleged elaborate measures taken by law enforcement to create a prophylactic "wall" by filtering out the source of the information as it was passed through layers and ranks of officers, was an impotent act. Knowledge between law-enforcement officers has always been imputed. (People v. Ramirez (1983) 34 Cal.3d 541, People v. Howard (1984) 162 Cal.App.3d 8.)

But even if knowledge was not imputed, the actions taken did not create a "wall," at best they created a sieve. Extracting only the source of the information did nothing to the change the fact that information from the wiretap was disclosed and immediately acted upon. Even if a lengthy investigation had subsequently ensued adding probable cause from independent sources, the question of whether or not the "taint" from the wiretap had been attenuated would be a judicial determination which needed to made in an adversary, not ex parte, hearing. (United States v. Alderman, supra., United States v. Apple, (4th Cir. 1990) 915 F.2d 899.) Moreover, it is clearly both unlawful and ethically for the prosecutor to simply implement a procedure which "independently determine[d] whether seized evidence might be favorable to a defendant" and intentionally suppressed any and all such evidence as a matter of course, simply because it was seized from a wiretap which the prosecutor doesn't want to disclose. (People v. Backus (1979) 23 Cal.3d 360, 384; Brady v. Maryland (1963) 373 U.S. 83, 87; People v. Hitch (1974) 12 Cal.3d 641, 645-646.) What if the wiretap disclosed evidence that a defendant had no knowledge of the type, quantity, or even existence of the contraband?

Finally, like all other search warrants, "notice and inventory" of the execution of the wiretap search warrant and subsequent seizure of all communications would be constitutionally and statutorily mandated. (18 U.S.C. § 2518(8)(d), Pen. Code § 629.69, United States v. Donovan (1977) 429 U.S. 413, 439.) While the wiretap laws differ from ordinary search warrants and allow notice and inventory to be served after the information was seized and used for an arrest, notice of the search is constitutionally mandated and cannot be excused entirely regardless of whether an arrest was based on "independent probable cause" or never even occurred at all. (See United States v. Donavan, supra.) Notice is required "as soon as possible and in no event longer than 90 days after the expiration of the wiretap order" and in fact must be provided even if a wiretap application is denied and no interceptions occurred at all. (18 U.S.C. § 2518(8)(d), Pen. Code § 629.69.)

But the articles reported that the wiretap was concealed from the defendants for some eight months after the motion was filed in Superior Court, and a full year and half after the defendants' arrest and incarceration. While there is a provision in the statute for a "good cause" delay, it has generally only applied when a pre-arrest investigation is continuing after the expiration of the wiretap order. Here the delay would necessarily have exceeded the outermost boundaries allowed under the law since the defendants had not only been arrested but were then awaiting trial in Superior Court. Notice, as well as production of wiretap related documents and transcripts, must be provided to defendants in sufficient time to allow them to move to suppress the evidence. This is not just a suggested procedure but a self-executing suppression remedy, a statutory condition precedent to the introduction of any wiretap derivative evidence at any hearing for which there is no exception. (18 U.S.C. 2518(9), Pen. Code § 629.68.) The odds that a case could have proceeded that far and that long without there being some type of hearing or proceeding within which the facts of the case were introduced would be slim. Even defendants who enter a quick plea at the preliminary hearing would be entitled to disclosure at the sentencing hearing where the facts would be introduced through the probation report.

A subsequent review of the case record showed that the defendants had not only been through one hearing, but several, including a bail hearing and a preliminary hearing where derivative evidence was in fact introduced. But production prior to both of these hearings is required. (States v. Salerno (2nd Cir.1986) 794 F.2d 64, 69; United States v. Farese (5th Cir. 1980) 611 F.2d 67, 71; Dunlap v. Superior Court (1991) 169 Ariz. 82.) So how did the People manage to get through both hearings without prior disclosure and production? The answer was simple, ignore the state and federal, statutory and constitutional laws and not tell anyone. But why would the Court, clearly aware of the existence of the wiretap, allow the prosecutor to continue to keep the wiretap concealed for some eight months? The answer to that question remained a mystery, at least for a little while longer.

Challenging the Practice

Now knowing at least one wiretap existed in Los Angeles County which was concealed from the defense under very unusual circumstances, the question for the Los Angeles Public Defender's Office became whether this fact was also being concealed from their clients and, if so, how many?

The initial speculated terror raised by that question subsided when Narcotics Captain Ron Seban issued a statement to the Los Angeles Times the following week claiming that L.A.P.D. had obtained "only two wiretap orders" since the wiretap law began. The terror was resurrected again when the transcripts from the Gaxiola hearing revealed L.A.P.D. officers alleging the "hand-off" procedure had been utilized "hundred of times" since 1985, four years prior to the enactment of the wiretap law.

Representing almost 70% of all felony defendants in the county, a diligent search began to find an effective legal device to force disclosure of the names of all Public Defender's clients who had been affected by the "hand-off." It was found in the Brindle, a 20 year old opinion from the California Court of Appeal. (In re Brindle (1979) 91 Cal.App.3d 660.) In Brindle, the court reviewed a habeas corpus petition granted to the Alameda County Public Defender's Office on behalf of a "class" of indigent clients, past, present, and future, who were being denied their right to counsel after invoking Miranda. The Court of Appeal explained that "extraordinary relief by mandamus or habeas corpus has been utilized to correct prior conditions or to declare the rights of unnamed and future petitioners" and held that it may be used "to secure fundamental rights of a person lawfully in custody," "particularly in the area of the supervision of the administration of

criminal justice." So, approximately one month after the news hit the papers, the Public Defender's Office was ready to file in the Los Angeles Superior Court, a "class petition for habeas corpus" on behalf of all unnamed Public Defender clients who were being denied their right to notice and production as required by the state and federal wiretap acts.

The first hint that something was radically amiss came while attempting to actually file the petition. California's wiretap law, passed in 1989 as one of the "strictest wiretap laws in the nation," gave jurisdiction to issue wiretap orders to only "one" judge, who was "either the presiding judge or one other judge designated by the presiding judge." (Pen. Code § 629.50.) So the petition was initially taken the courtroom of the Presiding Judge since either he, or someone he had designated, would have exclusive jurisdiction of the case. When asked where a petition regarding wiretapping could be filed, I was told I should "just bring the telephone number" to the Master Calendar of the Criminal Court. When the same question was subsequently asked of the clerks in Master Calendar, it prompted the following response: "Just take the telephone number to either Judge Czueleger, Rappe, Perry, or J.D. Smith." When I explained I wasn't trying to get a wiretap, I was just trying to get someone to follow the wiretap law, which, by the way, only allowed "one" judge per county to issue wiretap orders, I got a confused stare. I finally just filed with the main clerk so they could sort it out. I was informed the next week that the case was assigned to none of the four judges mentioned, but instead Judge Fidler, who, I was informed, was the judge designated to issue wiretap orders.

The 1997 Federal "Wiretap Report"

Suspicions that something was wrong was again confirmed when the Administrative Office of the United States Courts, to whom all courts and prosecutors must report every wiretap issued, (18 U.S.C. § 2519), published their annual "Wiretap Report" which is submitted to Congress, on the Internet in April. (Http://www.uscourts.gov.)

The report included a summary of nationwide statistics on wiretapping which disclosed that all state courts, nationwide, had collectively wiretapped at little over 600 telephones in 1997, a record high. And while New York, New Jersey, and Florida were to blame for about 70% of those wiretaps, California had reported twenty-eight wiretaps, its own record high, with twenty-four wiretaps attributable to Los Angeles County. It appeared that there were a few more undisclosed wiretaps in L.A. County. To insult to injury, the report mentioned that a significant percentage of the telephones wiretapped by federal courts were attributable to the Central District of California. It seemed the privacy of the citizens of Los Angeles County was being invaded by both state and the federal law enforcement.

A closer review of the report disclosed that wiretap orders were being issued by not one, but three separate Judges; Czuelegar, Rappe, and Perry. But there were no orders reported which had been issued by Judge Bascue who had authorized the wiretap in the Gaxiola/Gastelum case.

More curious was the fact that the report revealed that two separate Los Angeles District Attorneys had made the applications, namely Garcetti and Torrealba. This was quite interesting since the federal law only allowed the 'principle prosecutor," designated by a state statute, to make wiretap applications. (18 U.S.C. 2516(2).) And California's wiretap act only designated the Attorney General, the Chief Deputy and Chief Assistant Attorney Generals, and "the" district attorney to make such applications. (Pen. Code § 629.50.) And there was no provision allowing for the designation of that authority on anyone else. To the contrary, the law specifically required the application be made "in writing" under "personal oath or affirmation" of the district attorney. (Pen. Code §629.50.) While I remembered voting for Gil Garcetti, I didn't even recall there being a Torrealba on the ballot, although I knew a Deputy District Attorney Grade II named Torrealba was working in Major Narcotics.

If true, this would be no little violation. The United States Supreme Court had ruled that suppression was required if an application was made by an person not specifically designated. (United States v. Giordano (1974) 416 U.S. 505, 528.)

The Attorney General Reports of Interceptions in California

The state wiretap act similarly requires prosecutors to report all telephones intercepted to the California Attorney General who publishes an annual wiretap report to the California State Legislature and the Judicial Committee in April. (Pen. Code § 629.62.) But as of May 1, 1998, no such report could be found. I made inquiry to every law librarian and legislative counsel but couldn't even find past reports. I finally called the Attorney General's Office where, after a dozen or so transfers, I was informed that the report was not public information, a fact I knew was untrue. So I searched the California Senate WebSite and, while I didn't find the wiretap report itself, I found mention of it the legislative library. I also discovered that a bill was pending hearing in the Public Safety Committee of the Senate on the 6th of May which would expand California's present wiretap law, which allowed the use of wiretapping only in cases involving of murder, kidnap, bombing, or the trafficking of more than three pounds of dangerous narcotics (Pen Code § 629.52.), and allow its use in any offense involving gangs. With the law surrounding gang enhancements still unclear, visions of mass wiretapping of every family with a teenager came to mind. Through the efforts of the California Public Defender's Association, I was able to be scheduled to testify at that hearing. But I wanted to the California wiretap report before testifying, so I called the legislative librarian in Sacramento. She informed me that the state wiretap reports were logged in the library computer but not actually maintained. Her review of those, however, showed that the 1997 report had not yet been filed which, she added, was a violation of some obscure 10 digit Government Code section. She told me I should call the Governor's office immdiately. I laughed and mentioned I doubted that would be a fruitful expenditure of time. She told me I should talk to a woman named Shirley who was in charge of making sure reports required by this obscure code section were timely filed and that she took her job quite seriously. So I called Shirley and informed her that the 1997 Wiretap Report had not been filed. She checked her log and was shocked to find I was right. She too rattled off the 10 digit Government Code section and explained that it since it was already May, the Attorney General's Office was in violation of that section. Acknowledging the severity of this violation, I asked what I could do about this. She said she would get right back to me, a promise I had heard from a half dozen other concerned government employees with whom I had spoken. I continued making calls when I was interrupted a few minutes later by my secretary who informed me that "Shirley from the Governor's Office was on hold."

Shirley told me that Deputy Attorney General John Vance was responsible for the wiretap report and gave me the number to his "personal desk, not his secretary's." She told me he would get me whatever I wanted so I immediately called and spoke to a very curt and disgruntled John Vance, mentioned Shirley, and requested copies of the 1997 wiretap report as well as all reports from all previous years, immediately.

The "Attorney General Report for Interceptions of Criminal Conversations Occurring in 1997" came in two parts. The first part began with the usual summary of all past wiretaps from 1989 to 1996. California had intercepted a total of only 39 telephones, 24 attributable to Los Angeles County. However, 38 telephones were wiretapped in 1997 alone, 28 attributable to Los Angeles County. But the federal wiretap report had said there were only 28 wiretaps in California and only 24 attributable to L.A. Upon closer examination of the report, it was discovered that four additional wiretaps, attributable to Ventura County, were either requested by or issued by L.A. County, increasing our total to 32 wiretaps in 1997. The report did, however, include the wiretap order issued by Judge Bascue on May 21, 1996, and it mentioned that this wiretap was not reported until 1998. No statistical information was provided on that wiretap, as required by state and federal law, (18 U.S.C. 2519; Pen. Code § 629.62). Instead a notation appeared explaining that while "no extensions were granted," "the order was thereafter renewed and continued until 1998." No clue as to the exact date of its rebirth and its total length was provided. The average wiretap nationwide generally only lasts 28 days, a result of both the stringent requirements imposed as well the exorbitant cost, an average of $65,000 a month. Could this wiretap have been in operation for two years? Not a single explanation was given for this unusual event, nor was there even a hint that there might be something was wrong with these facts, which was rather interesting considering the Attorney General was the chief state law-enforcement officer in charge of supervising wiretaps, and unlike the federal law, any violation of the state wiretap is punishable as a misdemeanor or a felony. (Pen. Code § 629.84.)

The second part of the report, labeled "Additional Wiretaps," disclosed another 35 wiretaps, none attributable to Los Angeles County in spite of the fact that most were issued by a Los Angeles County Superior Court Judge who would only have jurisdiction to issue wiretaps on telephones within his own county. (Pen. Code § 629.52.) So, to what county were they attributed? San Bernadino and Ventura Counties of course. It seemed the San Bernadino District Attorney came to LA and obtained a number wiretaps, five of which were issued for wiretaps on public pay phones somewhere in L.A. County. It was reported that those five little wiretap orders ended up invading the privacy of over 120,000 people in Los Angeles County in only four short months. Not bad considering it took all the wiretaps issued by all the remaining states in the county a whole year to collectively invade the privacy of only 75,000 people. In spite of vast numbers people intercepted, all five wiretaps resulted in only 11 incriminating conversations without a single arrest. And the cost? A mere $623,110.00. A drop in the bucket compared to wiretap issued by Judge Czueleger for public pay phones in the Los Angeles County Jail which was reported as costing $1,119,422.00.

Prepared to raise these concern while testifying at the Senate hearing, I flew to Sacramento and waited to be called by the Public Safety Committee. After a few hours I was informed that, in spite of the availability of all witnesses on both side, the bill had been pulled and was off calendar, never to be seen again.

Violations of the Wiretap Laws

With heightened curiosity about the practices of not only the Los Angeles County District Attorney, but the Los Angeles Superior Courts as well, I began collecting anything and everything dealing with wiretaps in LA.

I found several designation orders issued by the various presiding judges naming not one but three different judges. Each judge had been sequentially designated based on the "availability" of preceding designee. Even assuming that the law allowed for such a practice, which it doesn't, (Pen Code § 629.50), the latter judge would acquire jurisdiction only if the prior judge was "unavailable." Superior Court attendance and availability records were obtained and compared to the dates wiretap orders were issued. It was clear that all the named judges were issuing orders regardless of the availability of the preceding designated judge and, in fact, there were a number of wiretap orders issued by different judges on the same day. All such orders would be clearly void for lack of subject matter jurisdiction and all evidence derived would need to be suppressed. (18 USC 2510(9); Pen Code § 629.50; Marlow v. Campbell (1992) 7 Cal.App.4th 921, People v. Bradford (1997) 15 Cal.4th 1229.)

Wiretap applications and orders, collected from attorneys throughout Southern California, revealed applications submitted by a number of people other than Gil Garcetti himself. The District Attorney Wiretap Manual revealed a "practice" of allowing the Assistant District Attorney to make a wiretap application whenever the District Attorney himself was "out of the county."

Thousands of "wire monitor logs," forms used by officers conducting the interceptions to make notes of calls, have been reviewed extensively. The portion of log reserved for tracking "minimizations," the number of times the wiretap is turned off when the conversation relates to non-criminal activity, an absolute requirement of state and federal law, is almost always blank or simply used as addition space to take notes. Such failure to "minimize" innocent conversations violates the constitutional prohibition against "general searches" and requiring suppression of all derivative evidence as well. (Berger v. State of New York (1967) 388 U.S. 41, 59.)

No longer supported by a specific showing of probable cause and exhaustion of other available investigative tools, the "wire intercept is the main source of the information presently in use by investigators" in Los Angeles County. (Affidavit of LAPD Officer Johnnie Sanchez in support of a wiretap extension order.) A significant portion of wiretaps are obtained for "unknown suspects" based solely on the fact their cell phone has "high usage." Any incriminating conversations obtained from a "high usage" wiretap is then immediately used to obtain a wiretap on the telephone of the second "unknown suspect" who was a party to the incriminating call. Others wiretaps have been obtained simply because an "unknown suspect" frequently called, or was called by, another "unknown suspects." At no point in time does continuous cycle stop, for even a moment, to allow for the use of some other form of investigation. This is so despite the fact that the law prohibits the government, even in "an ongoing investigation of a suspected drug conspiracy," to simply "move swiftly from wiretap to wiretap" but requires instead that they "pause to consider whether normal investigative procedures could be used effectively," (United States v. Castillo-Garcia (10th Cir. 1997) 117 F.3d 1179, 1197.)

The Deceptions

The failure to investigate resulted in more than simply invasions of privacy. Review of one wiretap reveals the police engaging in what is now known to be their practice of surreptitiously taking narcotics or money from stashed locations which are overheard on the wiretap. The ensuing conversations, later overheard, reveal the havoc caused by the officers' theft as discussions evolve around speculations of persons suspected, accusations, and desperate pleas for time and money to repay the debts incurred by the loss.

In one instance, the police provided the court with the verbatim transcripts of a series of such conversations, including one which plotted the murder of a unknown women thought by the parties to have been responsible for the loss. Had a thorough investigation been done, as required by law, the police would have known who the players were, or at least where they were, and been able stop what was clearly ensuing, murder. But since the telephones were wiretapped without any investigation whatsoever, the police had no idea of whose life was in danger. Rather than jeopardize their wiretap operation, even to save a life which they themselves caused to be placed in jeopardy, the police instead simply explained, in small footnote, that no help could be offered this woman because the police were unaware of the parties' identities. This report, by the way, was not an attempted explanation for what was clearly reprehensible conduct. It was presented to the court as the basis for obtaining an extension of the wiretap, a request which was, of course, granted. (Atel # 2, Extension # 16, p. 27-28.)

Declarations of false facts "under the penalty perjury" appears to be quite prevalent. We now have in our possession hard fast proof of a number of instances of perjury with respect to wiretap operations. Three relate to the representation, "under the penalty of perjury," of the existence of a "confidential reliable informant" as the source of information, when, in fact, the information was obtained from a wiretap. Another instance involved declarations that there were "no prior interception orders involving the same persons," when in fact there were. The remaining instances are contained in a single declaration made under the penalty of perjury that certain arrests were not derived from a wiretap when, in fact, they were.

We also have information showing hand-offs from L.A. County wiretaps to law enforcement as far north as Canada and as far East as New York, along with dozens of small towns and major cities in between. The information, probably disguised by those agencies as "confidential informants," has admittedly been used to obtain arrests, search warrants, seizures of assets, and, of course, other wiretaps, to enable the gesture can be returned in kind.

The Los Angeles District Attorney's Office should be awarded the gold medal for their skill and creativity in playing "The Numbers Game" when it comes to wiretap staistics. Rather than reporting each "order for interception," they report each "interception order." This is not just a matter of semantics, it's a major tactic used to hide wiretaps. By getting judges to sign a "single" order for "multiple telephones," and thereafter simply obtaining extensions of that "same" order, the District Attorney has managed to appear, at least to those state and federal agencies charged with monitoring their activities, as modest users of wiretapping. So, how many wiretaps can the Los Angeles District Attorney hide in a single order?

After Judge Fiddler issued an Order to Show Cause in the Habeas Corpus Petition, the People attempted to evade a ruling by quickly serving notice on few people and then answering the petition by admitting their failures but claiming it was simply an "administrative oversight," which had since been corrected, thereby rendering the habeas moot. They argued there was no need for the court to act because we got what we asked for. And to some extent we did. In fact, we got more than we asked for.

We discovered that the wiretap in the Gaxiola case didn't end after those two defendants were arrested, because it was "one" of those orders for "more than one" telephone. How many more? Only twenty-two more telephones and an entire Cellular Telephone Company the first month. Continuing for another 21 months, and adding more telephones with each extension, the wiretap on the Atel Cellular Telephone Company finally ended almost two years later having wiretapped some 250 telephones. That figure does not include the hundred or so telephones intercepted by "spin-off" wiretaps which named the same cellular telephone company as the target. A company which, to this day, continues to exist without the alleged target owners, who were supposedly co-conspirators in a major narcotics trafficking network, having ever been arrested. Atel is not the first, but the third cellular telephone company to be targeted for a wiretap operation, all of which similarly remain in business their owners never having been arrested, although plenty of their "co-conspiring customers" have been.

The Atel wiretap continued through the arrest, the preliminary hearing, and the duration of the "taint" hearings. By obtaining a gag order on the attorneys, and then litigating endlessly what was clearly a wiretap-tainted arrest, the prosecutor managed to stretch out the life of the wiretap another five months after the court disclosed the existence of the wiretap to the defendants.

It was this claim of a "continuing investigation" upon which the court had allowed the People to forestall providing notice to the defendants Gaxiola, in camera. Finally, after some nine months of delay, the court asked if the wiretap was ever going to end. The prosecutors answer was clear and unambiguous. "No, its a productive wire." And productive it was. Compliance with the court-ordered production of the wiretap logs in this "one" wiretap left me with some 500,000 pages of telephones logs which, once inventoried, turned out to be only 1/3 of the telephones tapped in "one" Atel Order. When we asked to examine the condition of the seals on the tape recordings from this "single" wiretap, they had to be brought to us on a fork-lift. And these were just the tapes that hadn't already been destroyed "by mistake." While the tapes did have a seal, it was not the seal originally placed on them. The officers explained that the booking warehouse were the tapes were kept didn't like the original boxes the tapes were in, so the officers unsealed the tapes, without a court order, and resealed at some point in time thereafter. They also explained that the original seal had not been "immediately" placed on the tapes. The officer waited a month or so after they got the court order. The sealing order, by the way, had been issued, "nunc pro tunc," two years after the wiretap order expired.

Didn't any one of these lawyers or judges know that the United States Supreme ruled, as recently as 1990, that all evidence derived from a wiretap would have to be suppressed if the seal was not immediately placed on the tapes and maintained until they were offered into evidence regardless of their originality and authenticity? (United States v. Ojeda Rios (1990) 495 U.S. 257.) I know for a fact that the judge to whom I submitted the motion to suppress as a result of the destruction of the tapes knew the case, because I cited it. Yet he still nodded, approvingly, when the DA argued that the destruction of the tapes didn't require suppression, only the failure to maintain a seal immediately placed on the tapes required suppression. He even ordered the submission of supplemental points and authorities to address that ridiculous argument. How difficult was it to understand that the rule requiring there be in place, at the time evidence is introduced, the existence of a seal which was immediately placed on tapes, presupposed that the tapes beneath the seal still actually existed.

Determining the Total Number of Wiretaps in LA County

If "one" wiretap order intercepts 250 telephones and the DA has admitted there have been 91 wiretap orders, but we have found additional wiretap orders which they neither admit nor deny, as well as logs for a significant number of telephones tapped with apparently no authorization, how many telephones have been wiretapped in Los Angeles County? So far we have discovered about 528 telephones that were tapped. But that only accounts for about 1/4 of the wiretap orders admitted.

Determining the Total Number of Wiretaps Related Cases in LA County

If 100% of all wiretaps nationwide result in the arrest of between 3 and 4 people, how many criminal cases have been derived from all the wiretaps in Los Angeles County, if we know that there are at least 528?

According to Gil Garcetti, as well as the sworn statements of his deputies made under the penalty of perjury, the answer is 58.

Some say two conclusions can be drawn from that answer. Either Mr. Garcetti and his deputies are lying and there are more criminal cases than have been admitted, or many of these wiretaps have absolutely nothing to do catching criminals. Personally, I think its both.

Kathy Quant

Footnote: All briefs, motions, and research relating to LA County Wiretaps are available on the Internet at http://pd.co.la.ca.us.