Clerk of the California Supreme Court
300 South Spring Street
Los Angeles, California 90013
Re: Angulo and Ramirez v. Superior Court,
S-074134; B125540 (LASC No. BA161078)
Dear Sir:
Pursuant to Rules of Court, Rule 14, subdivision (b), the Los Angeles County Public
Defender's Office hereby files, as amicus curiae, the following letter in support of the Petition for
Review now before this court in the above-entitled matter.
This office has an interest in those proceedings based on the fact that the Los Angeles District
Attorney's Office has failed to comply, and the Los Angeles County Judiciary has failed to enforce,
the state and federal wiretap laws for at least the six years. It is now known that the continuous
failure to enforce those laws has now resulted in the invasion of privacy of hundreds of thousands
of Los Angeles County citizens in 1997 alone. (Interception of Criminal Communications, California
Attorney General's Report to the Legislature, 1998.)(1) More Los Angeles County citizens were
subjected last year to invasions of privacy through state court wiretap orders than all citizens
nationwide were collectively subjected to in 1997. ("Wiretap Report" for Interceptions occurring in
1997, Administrative Office of the United States Courts.) While all states, nationwide, collectively
issue orders intercepting only about 500 telephones a year, the People reported to the California
Attorney General as only "one" of their 30 wiretap orders in 1997 an order now known to have
intercepted almost an entire cellular telephone company and almost 350 of their customer's phones.
The Atel Wiretap Order is just "one" of a total of 90 orders which have thus far been
admitted. That the County of Los Angeles managed to intercept more telephones than were
intercepted by the combined total of 49 states under what was legislated to be "the strictest wiretap
law nationwide" is alone evidence that the People have seriously gone amiss. Combined with
admissions of the Los Angeles District Attorney's Office that evidence derived from both state and
federal wiretap operations was used against hundreds of defendants without prior notice or
production of wiretap-related documents, this shows the total disregard for the mandates of the state
and federal wiretap laws. Attorneys within this office represent almost 70% of all felony defendants
in Los Angeles County and have a significant interest in assuring the protection of the privacy rights
of their clients, themselves, and their community. However, without orders by this court mandating
enforcement of the express provisions of the state wiretapping laws, both the criminal defense bar
and the community at large in Los Angeles County is powerless against such invasions. For these
reasons this office urges this court to take any and all such immediate action as is necessary to halt
and correct the violations of such important constitutional rights which are demonstrated by the facts
in the above-mentioned case as well detailed below.
This office is thoroughly familiar with the Petition for Review filed in this case which seeks
reversal of the Superior Court's order denying a Penal Code section 995 motion for failure to
produce wiretap-related documents prior to the introduction of wiretap related evidence at the
preliminary hearing. The District Attorney's ability to evade the state and federal mandates through
the use of an in camera assertions of governmental privileges pursuant to Evidence Code section
1040 and Penal Code section 1054.7, based on a mere allegation of an "ongoing" federal wiretap
investigation, is indicative of the general belief among most courts in Los Angeles County that
wiretapping need not ever be disclosed. In spite of the fact that no claim of privilege was ever filed
by the federal authorities, no evidence was presented to establish the Los Angeles District Attorney
was authorized to assert the privilege on behalf of the federal government, and there was no showing
that a request was ever even made to the federal court supervising the wiretap investigation to allow
production of such records to afford defendant's their statutory and constitutional rights,(2) the Los
Angeles County courts upheld the People's assertion of those privileges.
This case is also indicative of the prevailing lack of concern for compliance with the state and
federal wiretapping laws as well as the constitution. Petitioners' rights in this case were denied even
though production would have posed no risk to the wiretap operation involved, the interception order
having already expired, and the only remaining aspect of the alleged "ongoing" investigation was
simply the arrest of another target. The magistrate apparently determined that awaiting a target's
return from Mexico, rather than attempting to have an arrest warrant or extradition order issued, was
good enough a reason to deny petitioners their rights. However, had either the People fully disclosed
their legal obligations, or had the magistrate followed the law, it would have been understood that
there existed a mandatory duty to produce wiretap records prior to receipt of such wiretap derivative
evidence at the preliminary hearing "even though attended by potential danger to the reputation or
safety of third parties or to the national security--unless the [prosecutor] would prefer dismissal of
the case to disclosure of the information." (Alderman v. United States (1969) 89 S.Ct. 961; see also
Kolod v. United States (1968) 390 U.S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962 (per curiam), Gelbard v.
United States (1972) 92 S.Ct. 2357.)
Control and clarification by this court of the mandates of California's relatively new Wiretap
Act is clearly needed at this point in time. Enforcement of the evidentiary prohibition of wiretap
derivative evidence absent prior production of wiretap-related records is the first step towards ending
the continuing mass surveillance. It is now clear that without a published ruling by this court the Los
Angeles County Courts, which continue to allow the District Attorney to evade the state and federal
wiretapping laws, will continue to sanction those unlawful acts.
Petitioners are only two of hundreds of defendants who have thus far determined that they
have been denied their rights. It is believed that many more who are still unaware and are continuing
to be denied their right to know whether or not wiretap derivative evidence was introduced at their
preliminary hearing. This office represents three such defendants who have also petitioned this court
for review. (Acosta v. Superior Court, S-073859.) Similarly subjected to ex parte in camera orders,
these defendants continue to be denied the right to know the substance of the in camera hearing, the
orders which were issued as a result of that hearing, or even the grounds for such ex parte hearing.
A significant number of defendants' rights are being simultaneously litigated in a Class
Petition for Habeas Corpus which was filed by this office along with the Los Angeles County
Alternate Public Defender's Office six months ago.(3) Premised on Penal Code section 629.92,
which grants authority to the designated wiretap judge "to conform the proceedings or the issuance
of any order of authorization or approval to the provisions of the Constitution of the United States,
any law of the United States, or this chapter," and In re Brindle (1979) 91 Cal.App.3d 660, 670,
which held that the court has authority to secure fundamental rights of a class of persons when
pertaining to the administration of the criminal justice system, the petition attempted to obtain
orders mandating that the Los Angeles District Attorney comply with the law.
While an order to show was issued, the court has continually refused to order the People to
comply with the law even though subsequent pleadings established, through both admissions by the
People and documented evidence submitted by this office, that virtually every aspect of the state
wiretap law had been violated by the Los Angeles County District Attorney. Many of the violations
proved have already been determined by United States Supreme Court to require suppression. While
argument is set for November 13, 1998, the court has already indicated on the record its reluctance
to grant either a hearing or require compliance with the laws.
After intensive independent investigation, this office submitted evidence that wiretap orders,
authorized by Los Angeles County Superior Judges, were: 1) applied for by non-authorized deputy
district attorneys; 2) issued by judges without jurisdiction; 3) issued without probable cause; 4)
issued without prior investigation; 5) without the requisite particularity and specificity mandated by
law; and 6) so overbroad that they allowed the District Attorney to intercept telephones which were
never authorized by a written court order.
Also submitted was evidence that the execution of those orders resulted in: 1) general
searches through the failure to minimize innocent conversations; 2) invasion of the attorney-client
privilege through mass surveillance of Los Angeles County jails; 3) use of wiretapped pay phones
in county jails to gather evidence to be used in other cases; and 4) the mass surveillance of Los
Angeles Community through the unlawful wiretapping of telephones lines, cellular telephones, and
public pay phones.
The extent of the mass surveillance which resulted from the total lack of compliance with the
law is best established through the FBI CALEA Report which documented that at some point in time
between January 1, 1993, and March 1, 1995, when the Los Angeles District Attorney reported
having less than twenty wiretap orders issued, there were 1,080 separate telephone lines being
simultaneous intercepted in Los Angeles County. (Information Concerning Implementation of the
Communications Assistance for Law Enforcement Act (CALEA), Federal Bureau of Investigation.)
While that number included interceptions resulting from not only from wiretaps but "pen registers"(4)
as well, that fact only increases privacy concerns since the People have admittedly labeled as "pen
registers" devices capable of obtaining voice content. These devices "can be used to intercept a wire,
oral, or electronic communication," and therefore should be used only after compliance with 629.50
and Title III. (18 U.S.C. § 2510(5), Wiretapping and Eavesdropping, 2nd Ed., (1995) Clifford
Fishman and Anne T. McKenna, pp. 4-30; 4-31.) Yet the People's wiretap manual instructs law
enforcement they need only obtain an ordinary court order and simply caution that the utilization of
the device for eavesdropping purposes would be illegal. (Overview of the Wiretap Law, Anthony
Meyers, (1997) Office of the Los Angeles County District Attorney, Major Narcotics and Forfeiture
Division, p. 9.)
These violations of state and federal law, as well as the resulting mass surveillance on the Los
Angeles County Community, have continuously been concealed by the failure of the District
Attorney and Judges in Los Angeles County to: 1) report all telephones lines intercepted; 2)
accurately report statistics regarding such interceptions, 3) implement procedures mandating that all
wiretap applications and orders be filed, recorded, docketed, and returned; 4) serve notice and
inventory on all persons intercepted; 5) require adversary hearings to determine standing and taint;
and 6) require production of wiretap-related records prior to the introduction of any wiretap
derivative evidence. The violations and mass surveillance continue to be concealed through the
procedures used in this case, ex parte in camera hearings wherein the court allows the People alone
to determine the rights of defendants as well as their obligations without an adversary hearing.
Motivated not by the interests of justice but by their own need to conceal their own acts which
amount to criminal felonious violations of the law, the People have managed to circumvent the law
and avoid providing notice or production since 1992. (18 U.S.C. § 2511; Pen. Code § 629.84,
Gelbard v. United States (1972) 92 S.Ct. 2357.) Any presumption generally afforded public officials
to the effect that the discharge of their official duties has been properly performed has clearly been
rebutted and this court should take all measures to scrutinize all claims made by the people.
The full extent of the unlawful invasions of privacy committed against the Los Angeles
County Community may never be known as a result of the courts giving to the District Attorney the
exclusive right to retain and maintain all such records. In an attempt to preserve evidence for
judicial review, this office has attempted to obtain and introduce into evidence in support of its Class
Petition every wiretap related document thus far discovered. This office has also subpoenaed in their
class action, for judicial inspection alone, all wiretap orders issued by Los Angeles County Courts
in the possession of every telephone company in Los Angeles County. Based on telephones call
received in response to those subpoenas, which complained of the enormity involved in that
endeavor, it is apparent that the violations occurring are only "the tip of the iceberg."
Immediate action by this court is stressed by this office since it appears that the previous
prolonged delay has already resulted in the destruction of evidence. In its first attempt to determine
whether tape recordings of intercepted communications still remained sealed and properly preserved
as required by law, it was disclosed that the tape recordings had been destroyed by the officers.
Those tape recordings were directly related to the illegal Atel Cellular Telephone Wiretap Order
which was issued by a judge who had never been designated by the presiding judge. That order,
which intercepted almost 350 cellular telephones and continued for over two years, was issued
without probable cause and without requiring any prior investigation. Telephones wiretapped as a
result of that order were, in many instances, without any written authorization whatsoever. It has
now been established that the order resulted over one hundred arrests and the seizure of over
$8,000,000 in U.S. Currency. The destruction of those tapes in spite of the fact that both state and
federal law mandate preservation for at least ten years prohibit destruction without a court order, and
require suppression without the existence of a seal or a satisfactory explanation for its non-existence
[United States v. Ojeda Rios (1990) 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224], indicate that
expediency of action by this court is necessary.
It is certain, that unless this court takes some action to protect its citizens by enforcing the
law, the mass violations of privacy will continue to occur. This is evidenced by the fact that the Los
Angeles District Attorney has admitted that at least twenty-five wiretap orders were issued in the
first six months of this year alone by three different judges.(5) Enforcement of the law's provision
for independent judicial review of those wiretap orders prior to the introduction of derivative
evidence in a preliminary hearing will go a long way toward effectuating the spirit and intent of the
wiretap laws. As can be seen from the cases now pending before this court, the Los Angeles County
courts have made it clear that they have no intention of enforcing that law, and Justice Turner's
reliance on Taglianetti v. United States (1969) 394 U.S. 316, in the Acosta Petition filed by this
office, Case No. S-973859, has now provided additional support for the People to refuse to disclose.
(Appellate Court Upholds Wiretap Ruling, Daily Journal, October 20, 1998, p. 2.). The fact that the
appellants in Taglianetti had actually already been provided with production of their own
intercepted conversation and merely stood only for the proposition that ex parte hearings may be
available for review of evidence other than that which was mandated by Alderman v. United States
being totally ignored.
The Los Angeles County District Attorney has made clear its intent. It will not disclose all
wiretap-related cases and refuses to admit that there have been more than 57 criminal cases related
to a state wiretap operation and 35 criminal cases related to a federal wiretap. While this office
concedes, and is infinitely more troubled by, the fact that the mass surveillance on the Los Angeles
Community was conducted for reasons other than investigation of crimes listed in Penal Code
section 629.50, it has produced evidence to establish that the District Attorney is still concealing
wiretap related criminal cases. This court should understand that the District Attorney has a vested
interest in concealing both state and federal wiretap operations. State and federal law enforcement
agencies in Southern California have for so long shared wiretap information through drug organized
task force associations that revelation in any one case could trigger revelation of many wiretap
operations. In spite of the fact that the Los Angeles County District Attorney conducted a two-year
investigation of Atel Cellular Telephone customers, this office has learned that there have been
additional wiretap operations on Atel by federal authorities. Evidence also establishes that the
People have hidden federal wiretaps as sources for arrest by misrepresenting to courts that the
information was obtained instead from a confidential reliable informant.
Substantial rights of defendants of constitutional dimension have been, and continue to be,
disregarded at the whim of the District Attorney. Illegal wiretapping is not only being permitted but
facilitated by the Los Angeles County Judiciary. These violations are not simply procedural
violations but instead, as mandated by state and federal law and explained by the United States
Supreme Court, criminal acts.
Based on the foregoing facts and arguments, amicus vigorously urges this court to grant
review and take immediate action to attempt to correct one of the most serious invasions of privacy
in the history of the United States.
Respectfully submitted,
MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA
By _______________________________
KATHY QUANT
Deputy Public Defender
1. It is also now known that the figures reported by the Los Angeles District Attorney were inaccurate and more people were intercepted than were reported.
2. To a court thoroughly familiar with Title III mandates, such a request which would have certainly been granted. In fact it is precisely this reason that federal law enforcement officers hand-off wiretap information to a law enforcement agency in Los Angeles. Knowing that all federal courts would require compliance with production requirements and the Los Angeles District Attorney will not hesitate to break the law and prosecute without ever disclosing that fact, federal law enforcement is able to continue their own wiretap operation longer than they would have otherwise been able to had they themselves made the arrest.
3. Private attorneys were denied the right to join.
4. True "pen registers" are devices which do no more than record the number dialed.
5. This was admitted by the People in Case BH001118.