MICHAEL P. JUDGE, PUBLIC DEFENDER
Jenny Brown, Deputy Public Defender
State Bar Number 131437
210 West Temple Street #19-513
Los Angeles, California 90012
Telephone: (213) 974-2920
Attorney for Defendant
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
| PEOPLE OF THE STATE
OF CALIFORNIA, Plaintiff, v. TERESA ACOSTA Defendant. |
CASE NO. BA158245
DEMAND FOR NOTICE OF WIRETAP PURSUANT TO PENAL CODE SECTION 629.68 |
TO GIL GARCETTI, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES, AND/OR HIS REPRESENTATIVES,
PLEASE TAKE NOTICE on May 20, 1997, or as soon thereafter as the matter may be heard in Department 125, defendant Teresa Acosta, through her attorneys, Michael P. Judge, Public Defender and Jenny Brown, Deputy Public Defender, will challenge the introduction of all evidence in this case pursuant to Evidence Code section 402 and Penal Code 629.50 et. seq.
Dated: May 20, 1998 Respectfully submitted,
MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA
By ____________________________________
JENNY BROWN
Deputy Public Defender
STATEMENT OF FACTS
Facts of the Case
Disclosed by the People as part of their discovery in this case are photographs taken on July 4, 1997.
A copy of those photographs is attached hereto as Exhibit A and made a part of this motion.
The arrest report in this case reveals that on October 21, 1997, at approximately 7:00 in the morning a surveillance was established at the residence located at 2349 #81 S. Cutty Way, Anaheim, California. The Surveillance was performed by members of the Regional Narcotics Suppression Program (R.N.S.P.) (Sheriff's Department Follow-up Report, 97-56066, p.2.) No reason is ever given regarding why such surveillance was initiated.
The arrest report continues to explain that at approximately 9:20 in the morning the rear garage door of the condominium opened and a blue Honda (CA 3UKG786) left. There was a female Hispanic driving, and a male in the passenger seat, and a child in the rear seat. An R.N.S.P. officer followed the car to Los Angeles County. (Sheriff's Department Follow-up Report, 97-56066.) Again, no reason is given why such the car was followed out of Orange County and into Los Angeles County.
When the car arrived at its destination, R.N.S.P. officers requested and allegedly obtained permission to search the location and discovered narcotics and weapons. Again no explanation is given for why permission to search was requested.(Sheriff's Department Follow-up Report, 97-56066.)
A copy of the arrest reports are attached as Exhibit B and made a part of this motion.
The Hand-Off Procedure
The following evidence was disclosed at the hearing on the motion to suppress pursuant to Penal Code section 1538.5, in Case Numbers BA132597 and BA109547:
The "hand-off" procedure was developed by the Los Angeles County District Attorney's Office and has been taught to the Los Angeles Police Department for many years in a concerted effort to prevent the disclosure of wiretap operations in Los Angeles County. ( R.T. 12-12-97, p. 17:4-19; 18:5-20:21; R.T. 12-16-97, p. 26:23-28:23; R.T. 1-23-98, p. 79:22-80:3.) Detective Harden testified that the "hand-off" policy, procedure, and practice have been in existence as long as he has worked in narcotics investigation unit, and he has personally utilized it since at least May of 1994. (R.T. 12-12-97, p. 19:16-20:4; R.T. p. 12-16-97, p. 49:6-18.)
Los Angeles Police Department Detective Ronald E. Hodges testified that the "hand-off" procedure he was trained to use by the Los Angeles County District Attorney's Office required officers without express knowledge of the wiretap to obtain specific information from intercepted communications to initiate a surveillance on a specific person or at a specific location, to thereafter look for other facts to explain the arrest of a suspect whose call was intercepted (referred to by the District Attorney's Office as "establishing independent probable cause"), to report those facts as the basis for the arrest, and to thereby alleviate the need to include the existence of the wiretap operation as the basis for the arrest. (R.T. 12-12-97, p. 18:5-25; 31:11-20.)
Los Angeles Police Officers testified that the "hand-off" procedure developed by the District Attorney's Office was implemented as follows:
Once a wiretap was established and placed in operation, a supervising officer would instruct the officers in the "wire room" intercepting communications to advise him of any meet locations or other specific information mentioned in the intercepted conversations which could be used to locate suspects. (R.T. 1-23-98, p. 11:12-15.)
The Supervising officer would be in contact with the "wire room" throughout each day of electronic surveillance. (R.T. 12-15-97, p. 3:10-25; R.T. 12-16-97, p. 17:24-27; 25:14-17.) If incriminating information regarding an offense was intercepted through the wiretap, that information was disclosed by officers in the "wire room" to the supervising officer. (R.T. 12-12-97, p. 17:4-19.) The supervising officer would then disclose that information to another officer under his command without expressly telling the recipient officer that the information was obtained from a wiretap. (R.T. 12-12-97, p. 17:4-19; R.T. 12-15-97, p. 3:10-25; R.T. 12-16-97, p.17:24-27; 25:14-17.)
Detailed information obtained from the wiretap, such as a specific address, location, person, vehicle, and/or chain of events, was disclosed by the supervising officer to the recipient officer who would not have otherwise known of any criminal activity or had reason to suspect the persons to be investigated was engaged in criminal activity. The recipient officer was simply ordered to "conduct a surveillance" at such location or on such suspect. (R. T. 12-12-97, p. 31:21-25; R.T. 12-16-97, p.29:20-24; 45:1-4.)
When informed they were "getting a hand-off," or simply given the information and told to conduct a surveillance, officers understood that information had been obtained from a wiretap, and that they were expected to conduct the investigation without mentioning that fact. (R. T. 12-12-97, p. 23:13-16; 24:9-10; 25:1-12; 30:11-22.)
Recipient officers knew from training by the District Attorney's Office that their job was to take the information and to see if they could come up with probable cause to make an arrest without having to mention the existence of a wiretap. (R. T. 12-12-97, p. p.20:10-21; 31:11:20.) One reason they knew information was obtained from a wiretap was because at different times they themselves would be officer "handing-off" the wiretap information without mentioning its source. (R.T. 12-12-97.)
Even if an officer later became aware that the information was obtained from a wiretap, that fact would not be included in police reports subsequently written. (R.T. 12-12-97, p. 6:10-28; 7:4-22; 11:20-12:3.) This practice had led to a general understanding by police officers that they were not to divulge to defendants the existence of a wiretap. (R. T. 12-12-97, p. 22:15-19; 23:3-6.) Officers would neither include such fact in a report if known, nor write a supplemental or amended report after discovering that the surveillance was ordered based on information obtained from a wiretap. (R. T. 12-12-97, p. 9:19-26; 32:28-33:20.)
"Hand-offs" are not considered by the Los Angeles Police Department as anything "unusual," but simply a "type and style" of "normal" investigations for the Los Angeles Police Department. (R.T. p. 12-12-97, p. 6:10-28; 31:11-16.) In fact, a single Los Angeles Police Department officer admitted under oath that he alone was involved in literally "hundreds" of hand-off cases. (R.T. 1-23-98, p. 42:7-11.)
The information regarding "hand-off" cases is sometimes contained in the Sergeants' Daily Reports, logs, "Trend Reports," activity reports, and 72-hour reports, and at times reflect that a particular "call led to the arrest of" certain individuals whose case numbers are included. (R. T. 12-12-97, p. 93:3-95:26; p.97:5-10; p.98:21-100:16; R.T. 12-15-97, p. 3:10-25; R.T. 12-16-97, p.3:9-15.) These reports go to commanding officers and the District Attorney's Office for safekeeping or submission to the court. (R. T. 12-12-97, p. 93:3-95:26; p.97:5-10; p.98:21-100:16; R.T. 12-15-97, p. 3:10-25; R.T. 12-16-97, p.3:9-15.) Despite the fact that the District Attorney's Office is aware of the use of evidence derived from a wiretap, defendants are not given notice that evidence introduced against them was derived from communications intercepted by the use of a wiretap. (R. T. 7-11-97, p. 5:7-11; 8:25-9:5.) This is so despite the fact both L.A.P.D. officers and Deputy District Attorneys admit that the information obtained from calls leads directly to arrests and seizures and such arrests "wouldn't have happened without" the wiretap information. (R. T. 12-12-97, p. 98:4-10; p. 98:21-100:16 100:1-28; 102:24-103:7.)
Copies of the Reporter's Transcripts of the Motion to Suppress hearing are attached hereto as Exhibit D and made a part of this petition.
Relevant Wiretapping Activity
According to the most recent wiretaps reports for orders occurring in 1997 issued by the California Attorney General and the Administrative Office of the United States Courts, the California Judges issued 60 wiretap orders throughout the State in 1997, making it the third highest state for wiretap orders in the country and, along with New York and New Jersey, comprising over 70% of all wiretap orders in the country. 43 wiretap orders were directly related to Los Angeles County. 41 orders were issued by three different Judges in Los Angeles County, Judge Rappe, Judge Czueleger, and Judge Perry, despite the fact that Penal Code section 629.50 prohibits more than one judge from issuing such orders. 2 additional orders were requested by the Los Angeles District Attorney's Office but issued by Judge Taylor in Riverside County. 13 wiretap orders were issued by a Judge Tooney in Orange County. Of the 13 issued by Orange County Judge Tooney, 8 were issued for single family dwellings, 4 were issued for cellular phones, and one was issued for a business. 13 of the orders related to Los Angeles County were for cellular telephones.
A copy of the Attorney General's report for wiretaps in 1997 is attached hereto as Exhibit E and made a part of this petition. A chart of those wiretaps is attached hereto as Exhibit F and made a part of this petition A copy of the "Wiretap Report" issued by the Administrative Office of the United States Courts report for wiretaps in 1997 is attached hereto as Exhibit G and made a part of this petition.
According to the Attorney General's reports of wiretaps in 1993 and 1994, the Regional Narcotics Suppression Program has worked in conjunction with the Los Angeles District Attorney's Office and has routinely applied to the Los Angeles County Superior Court for wiretap orders. In fact, an overwhelming majority of the wiretapping orders issued to Regional Narcotics Suppression Program were issued by Los Angeles County Judges.
Copies of the reports of wiretapping in 1993 and 1994 are attached hereto as Exhibit H and Exhibit I repsectively and made a part of this motion.
The most recent wiretap reports show that beginning June 24, 1997, and continuing through November 24, 1997, Judge Perry in Los Angeles began unlawfully issuing a series of wiretap orders in a major narcotics investigation and was joined by Judge Tooney in Orange County on July 3, 1997, who signed four wiretap order. The operation lasted 6 months and cost $623,110. The orders issued by Judge Perry in Los Angeles and Judge Tooney in Orange County were for public telephones, wire telephone lines, cellular telephones, and pagers. Altogether 17 related wiretap orders were issued. On October 16, 1997, Judge Perry signed three orders for interception of cellular telephones and pagers. The last order was issued on November 24, 1997. That order became final on December 24, 1997, as a result of there being no further extensions granted. It was the last known order issued in 1997.
POINTS AND AUTHORITIES
I
NOTICE, INVENTORY, AND DISCLOSURE ARE REQUIRED
Evidence Code section 402 has established a procedure for determining foundational and other preliminary facts when the existence of a preliminary fact is disputed.
The right to notice and inventory of the fact that a party's communication was intercepted is separate, distinct, and totally independent of any criminal discovery or even the existence of criminal case. In fact, the right to notice arises even when a wiretap order is denied. Penal Code section 629.68 provides:
"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:
(a) The fact of the entry of the order.
(b) The date of the entry and the period of authorized interception. (c) The fact that during the period wire, electronic digital pager, or electronic cellular telephone communications were or were not intercepted.
Therefore, notice is required regardless of whether the order was actually issued and regardless of whether communications were ever intercepted. The law is clear. It mandates that notice be served on any person whose communication has been intercepted. This is so regardless of whether that communication was incriminating, regardless of whether information obtained from the conversation was "handed-off" to another officer who did not know the information he or she was acting on came from a wiretap, and regardless of whether there existed independent probable cause to arrest the person whose communication was intercepted. Those factors are totally irrelevant to Penal Code section 629.68.
The evidence in this case clearly establishes that defendant was the victim of a wiretap order. The Regional Narcotics Suppression Program works closely with the Los Angeles District Attorney's Office and obtains a majority of their wiretap orders from Los Angeles County Judges. On June 24, 1997, a major narcotics wiretapping operation was initiated by and between Los Angeles County, Orange County, and Riverside County, wherein 17 wiretap orders were issued for public telephones, wire telephone lines, cellular telephones, and digital pagers.
Pictures included in discovery provided by the people disclose that July 4, 1997, the day following the issuance of four wiretap orders by Judge Tooney in Orange County, photographs of suspects were taken in this case. Moreover, the police reports establish that on October 21, 1997, 5 days after the issuance of three more wiretap orders for cellular phones and pagers were issued in that joint narcotics investigation operation. Police reports show that there were seizures of both cellular telephones and pagers from the defendants' in connection with case.
The last of the 17 related orders was issued on November 24, 1997. That order became final on December 24, 1997, as a result of there being no further extensions granted. The evidence establishes that defendant is most certainly a victim of those orders issued and therefore entitled to immediate notice and inventory more than 90 days have lapsed since the termination of the order.
Every individual in the State of California has the right to notice of the fact that their conversation was intercepted if that person's identity is "known."(1) Even if, at the time of the interception, law enforcement did not know who defendant was, there subsequent use of the information obtained from the wiretap to locate her and the subsequent arrest, created the government's absolute duty to provide such notice and inventory. Moreover, once an intercepted party is known, an additional duty is created, to provide the judge issuing the order with the name of the party intercepted and with such additional information as is necessary for the issuing judge to make a proper evaluation of that person's interests so that he or she may make a determination of how and when to cause such notice to be served on that person.(2) (United States v. Donovan (1977) 429 U.S. 413, 430, 97 S.Ct. 658, 668-669, 50 L.Ed.2d 652.) Therefore, "hand-off" policy did not diminish the duty to provide notice to defendant, it solidified it.
Only upon a showing of "good cause" may such notice and inventory be postponed, but even that delay can be no longer than is necessary to achieve the purposes for which it was granted. Moreover, there is no provision for allowing the notice requirement to be waived entirely. In fact, a failure to provide mandatory notice would itself be unconstitutional. (United States v. Donovan, supra, 429 U.S. 413, 428-429, 97 S.Ct. 658, 668-669, 50 L.Ed.2d 652; Berger v. State of New York (1967) 388 U.S. 41, 63; 87 S.Ct. 1873, 1884;18 L.Ed.2d 1040.)
Penal Code section 629.70 establishes the farthest outside boundary for postponing any such notice, inventory, or disclosure. It provides that the contents of any intercepted communication and any evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding, unless each party is furnished with a transcript of the contents of the interception and with a copy of the court order not less than 10 days beforehand. While the statute provides that "this 10-day period may be waived" for compelling reasons, delay of disclosure is permissible only if a defendant is not prejudiced by the delay. Moreover, there is no provision permitting complete waiver of notice, inventory, or disclosure prior to the introduction of evidence of the contents of the communication or any evidence derived therefrom. Notice and disclosure is a condition precedent to the introduction of any wiretap evidence and as such, the time when such evidence is introduced delineates the end of any possible delay.
Therefore, defendant, being either named in an electronic surveillance order or a party to an intercepted communication, or having been the subject of an arrest or search warrant based on evidence derived from intercepted communications, is entitled to notice immediately. Defendant is not only presently awaiting trial but is in fact at day 9 of 10. She is therefore required to receive notice, inventory, and disclosure immediately.
Defendant's preliminary hearing has already taken place. She has already had her rights violated by proceeding through a preliminary hearing or other proceeding without such notice, inventory or disclosure and held to answer on insufficient legally admissible evidence.
II
THE WIRETAP ORDERS ISSUED BY JUDGE PERRY
WERE ILLEGAL
A. An overview of the Wiretap Laws
1. Federal Law - Title III
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. Therefore, when law enforcement intercepts a telephone conversation, it is considered a search and seizure. Wiretaps were therefore outlawed until Congress passed Title III in 1968. Title III 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.)
2. Title III Requirements
A. Enabling Statute Required
Title III mandates that before any State may allow their law enforcement officers to utilize wiretaps, it must pass an enabling statute which, at minimum, contains the following relevant requirements:
1. Remedies for Violation of the Statute
Title III mandates suppression of all communications intercepted, as well as all evidence derived from those conversations, when there was a "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures." (18 U.S.C. § 2518(9); United States v. Donovan (1977) 429 U.S. 413, 434, 97 S.Ct. 658, 50 L.Ed.2d 652; United States v. Giordano, supra, 416 U.S. at 527.)
Moreover, Title III mandates civil remedies of actual and punitive damages for violations, as well
as severe criminal penalties. (18 U.S.C. §§ 2520, 2511(4).)
2. Use Limited to Serious Crimes
Wiretapping may only be used when investigating certain felonies which are specified in the statute. (18 U.S.C. § 2516(2).
3. Other Investigative Procedures Failed
No wiretap order may be issued unless the police can show that all other investigative procedures have failed or are useless. (18 U.S.C. § 2518(1)(c).)
4. Highest Ranking Prosecutors Make the Application
The application may only be made by the highest ranking prosecutor listed in the statute. (18 U.S.C. § 2516(2); 2511(2)(a)(ii)(B).) This measure was intended to centralize responsibility in a public official who would be "subject to the political process." It was believed that centralization would "avoid divergent practices" from developing as well as ensure that if abuses occurred, the "lines of responsibility would lead to an identifiable person." Congress explicitly stated that it believed this provision would "go a long way toward guaranteeing that no abuses will happen." (S.Rep. No. 1097, 90th Cong., 2d Sess., 96--97 (1968); United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) The United States Supreme Court held in Giordano that all evidence derived through an application which was not authorized by the designated official would have to be suppressed. (Id. at p. 508.)
5. Only Authorized Judges May Issue Orders
Similarly, only judges specifically authorized by statute have the power to issue the order. (18 U.S.C. § 2516(2).) Again the belief that centralization which would lead to an identifiable person for ultimate responsibility would curtail abuse of the wiretapping laws. An unauthorized judge is without any power to issue such an order and any order made would be void and unenforceable.
6. Notice Required Within 90 Days of Application
Denial or Expiration of the Order
Regardless of whether an application for an order is granted or denied, whether anything incriminating was overheard, or whether criminal charges are filed or not, notice to the person named in the order is constitutionally and statutorily mandatory. It is left to the discretion of the judge whether a person whose conversation was intercepted but who was not named in the order is entitled to notice of that fact. But the prosecutor has an obligation to give all pertinent information regarding that person to the judge so he or she can make that decision. Notice must include the "fact" that an application for a wiretap order was made, regardless of whether the application was granted or denied. Notice must be given "within a reasonable time but not later than ninety days" after the denial or expiration of the order. (18 U.S.C. § 2518(8)(d).)
The failure to provide notice, especially when intentional, requires suppression and civil damages since "notice of surveillance is a constitutional requirement." (United States v. Donovan (1977) 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652; United States v. Harrigan, (C.A.1 1977) 557 F.2d 879, 884-885; United States v. Eastman (3d Cir. 1972) 465 F.2d 1057.)
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." S.Rep.No.1097, 90th Cong., 2d Sess., 105 (1968), U.S.Code Cong. & Admin.News, p. 2194.)
7. Notice and Disclosure is Required Before Any Evidence
Derived from a Wiretap May Introduced at a Trial or Hearing
Any party to an intercepted communication must be given a copy of the order and application before any evidence derived from a wiretap may be introduced in any trial or hearing. This material must be furnished 10 days before its introduction into evidence unless good cause can be shown for a delay. However, because it is Constitutionally required, notice can never be waived entirely. (18 U.S.C. § 2518(9).)
8. All Judges Issuing Orders Must Report That Fact
To The Federal Courts Within 30 Days
Any judge issuing or denying an order is required to report the fact that an application for a wiretap was made within thirty days of the denial, the expiration of an order granted, or each extension, to the Administrative Office of the United States Courts. Reporting is required regardless of whether law enforcement's investigation is still ongoing or not because the information required simply states the date of an application or request for extension, the type of order requested, whether or not the request was modified or denied, the period of interceptions authorized, the offense specified, the identity of the law enforcement agency, and whether the facility tapped was a residence, business, etc. (18 U.S.C. § 2519(1).)
9. Prosecutors Must Report Statistical Information by January 31
Prosecutors must later provide statistical information about those reported wiretaps. All wiretaps completed in any given year must be reported to the Administrative Office of the United States Courts no later than January 31st of the very next year. Information must be provided regarding the approximate nature and frequency of incriminating and non-incriminating communications intercepted, and the approximate number of persons whose communications were intercepted, the nature, amount, and cost of the operation including manpower and other resources, the type and number of arrests, trials, convictions, and motions to suppress resulting from interception, as well as the results of those proceedings and a general assessment of the importance of the interceptions. (18 U.S.C. § 2519(2).)
3. California's Wiretap Statute
In 1988 California passed an enabling statute to allow law enforcement to wiretap in California. That law was revised in 1994 and 1996, and can be found in Penal Code sections 629.50, et.seq. In compliance with, and in addition to, the federal mandates, the California Law has the following relevant requirements:
A. Mandatory Notice to All Parties Intercepted
A bit broader than the federal law, California law demands mandatory notice be served to all
parties named in the order, as well as all known parties whose conversations are intercepted,
as soon as possible and no later that 90 days from the expiration of the order and any extension.
It is the responsibility of the issuing judge to ensure that the notice is served. While an ongoing
investigation may serve as good cause for a delay, notice can not be delayed indefinitely. (Pen.
Code § 629.68.) "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.)
B. An Order May Only be Applied for by the District Attorney's Personal Oath
California limits who may apply for a wiretap order to "the District Attorney" only. He or she may not delegate that authority to anyone, as allowed for under federal law. Moreover, applications must be made in writing on their personal oath. (Pen.Code § 629.50.)
C. Only One Judge Per County Has the Authority to Issue A Wiretap Order
California law limits the court's jurisdiction to issue any wiretap order "to the presiding judge of the superior court or one other judge designated by the presiding judge," but not both. (Pen. Code § 629.50.) Therefore, unlike the federal law, a presiding judge in California is not authorized to designate more than one judge to issue wiretap orders. A judge other than one designated is without jurisdiction and any order issued would be void and unenforceable. Moreover, Penal Code section 629.52 expressly states that a judge may only enter a wiretap order for "telephone communications within the territorial jurisdiction of the court in which the judge is sitting." In other words, if any law enforcement agency wants to tap telephones in LA, they need to go to a designated judge in LA.
D. Evidence Derived From a Wiretap Cannot be Introduced Into Evidence
Unless There is Notice, Disclosure, and a Transcript of the Communication Provided
Transcripts of the intercepted communication must be provided along with a copy of the order and application, at least 10 days before any hearing or trial where any evidence derived from a wiretap will be introduced at a trial or hearing. While a showing of inability to produce the transcripts a full ten days ahead of time may allow for postponement, all evidence is absolutely inadmissable until such transcripts are provided. (Pen. Code § 629.70.)
E. Reporting Requirements
While the Federal law requires the court and prosecutor to report to the Administrative Office of the U.S. Courts, California imposes upon the State Attorney General a separate and additional duty to report all wiretap orders. Akin to the federal law imposed on the issuing judge, the Attorney general must report all orders issued the previous year, regardless of whether investigations are completed or not, to the Legislature, the Judicial Council, and the Director of the Administrative Office of the United States Court, no later than April of each year. (Pen.Code § 629.62.)
B. Government Reports of California Wiretaps in 1997
1. Administrative Office of the U.S. Courts Report - 1997 Wiretap Report
Compiled from information Title III requires to be reported by all District Attorneys applying for, and all California Judges issuing, wiretap orders, no later than January 21, 1998.
569 orders were issued by the Federal Courts.
617 orders were issued by State Courts
Florida issued 57 wiretap orders and was the third highest state in the country.
1 issued by Judge Harlan in Amador County
1 issued by Judge Kane in Fresno County
1 issued by Judge Price in Monterey County
1 issued by Judge Tansil in Sonoma County
24 issued by three separate judges in Los Angeles County:
Los Angeles County Judges issuing wiretap orders:
Judge Rappe: 17 orders in 1997. / (3)
Judge Czuelegar: 1 order on May 13, 1997
Judge Perry: 6 orders in 1997.
On July 11, 1997, both Judge Rappe and Judge Perry issued wiretap orders.
On August 5, 1997, both Judge Rappe and Judge Perry issued wiretap orders.
Garcetti: 26
Torrealba?: 2 /(4) (Orders issued by Judge Perry.)
$345,520.00 - Judge Czuelegar - May 13, 1997
While the cost covers this and two related orders, all three totaled only 90 days.
$10,000 was attributed to costs other than labor.
$165,000.00 - Judge Perry - June 12, 1997
$60,000 was attributed to costs other than labor for this 79 day wiretap.
$125,000.00 - Judge Perry - August 5, 1997
Applied for by Los Angeles District Attorney Torrealba and lasting only 45 days.
$10,000 was attributed to costs other than labor.
The Attorney General Wiretap Report failed to disclose the underlying offense for 13 L.A. wiretap orders. The U.S. Courts disclose all 13 to be related to "narcotics."
2. Attorney General's Report on California's 1997 Wiretaps
A. There were only 39 "completed wire interceptions" from 1989, the first year the law was in effect, to the end of 1996. (1997 AG Report.) In 1998 alone, there were 60 reported "intercepts" in California. (AG 1998 AG Report + 2 not listed in AG Report.)
B. 37 interceptions were completed in 1997 listed in the Attorney General's "Main" Wiretap Report:
1 in Sonoma County
1 issued by Judge Tansil (Included in Fed. Report.)
1 in Monterey County
1 issued by Judge Price (Included in Fed. Rpt.)
2 in Fresno County
1 by Judge Kane (Included in Fed. Rpt.)
1 by Judge Kane (Not included in Fed. Rpt.)
28 in Los Angeles County - All applied for by Gil Garcetti.
17 by Judge Rappe (All included in Fed. Rpt.) /(5)
2 by Judge Taylor in Riverside (Neither included in Fed. Rpt.)
4 by Judge Czuelegar (Only 1 included in Fed. Rpt.)/(6)
3 by Judge Perry (All included in Fed. Rpt.) /(7)
2 by Judge Perry & Judge Revak in San Diego County. (Both in Fed. Rpt. only Perry listed.)
4 in Orange County
4 by Judge Tooney (None included in Fed. Rpt.) 1 in Ventura County
1 issued by Judge Bradley & Judge Perry in LA County (Not in Fed.Rpt.)
C. 21 more "wire-intercepts" were reported in 1997 in the "Additional" Attorney General Report
20 in San Bernadino County
13 issued by Judge Perry in LA County (None included in Fed. Rpt.)
7 issued by Judge Tooney in Orange County (None included in Fed. Rpt.)
1 in San Diego County
1 issued by Judge Howat (Not included in Fed. Rpt.)
D. Major Narcotics Wiretap Operation in San Bernadino
The Attorney General's "Additional" Report revealed one huge drug surveillance operation by Orange County, Los Angeles County, and San Bernadino County. The County spent $623,110, between June and November of 1997, on 17 "related" wiretap orders which were granted 41 extensions totaling 1,660 days.
The orders were issued for 5 single family dwellings, 4 cellular phones, 3 digital pagers, and 5 public telephones.
Invasions of privacy caused by 5 wiretap orders issued by Judge Perry for public telephones:
Number of people affected Number of incriminating conversations
1. 6,787 1
2. 18,614 1
3. 13,988 1
4. 19,966 3
5. 6,246 4
The privacy rights of 157,829 people were violated by only 5 of Judge Perry's 19 orders issued in 1997.
C. The Illegality
The law only allows the District Attorney to apply for an order and only allows one judge to be authorized to issue wiretap orders.
CONCLUSION
It is incumbent on this court to insure that defendant is provided with her statutorily and
constitutionally required notice of the search and seizure of her communications. Failure to
provide will result in not only a reversal on appeal, but a travesty of justice. (In re Sassounian,
(1995) 9 Cal.4th 535, 545, fn. 7, People v. Kasim 56 Cal.App.4th 1360, 1382, fn. 16.) This
court should ensure that defendant is served upon with notice, inventory, and disclosure
forthwith. (Pen. Code §§ 629.68, 629.60, 629.66, 629.64, 629.74, 629.76.)
Dated: May 20, 1998
Respectfully submitted,
MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA
By ____________________________________
Jenny Brown
Deputy Public Defender
1. While the Los Angeles County Public Defender's Office cannot represent persons whose conversations were intercepted but have been denied notice as a result of the District Attorney's policy, it is clearly within this court's authority to cause service to be served upon all such individuals.
2. Such additional information would include whether or not such person would be prosecuted. (Wiretapping and Eavesdropping, 2nd Ed., 1995, Clifford S. Fishman and Anne T. McKenna, p. 18-5.)
3. The U.S. Court Wiretap Report lists Judge Perry as having signed an order on June 12, 1997, which lasted 79 days and cost $165,000.00, with $60,000.00 spent on something other than manpower. The A.G. reports that the order on that date was signed by Judge Rappe with concurrent authorizations by Judge Fasel in Orange County, Judge Revak in San Diego, and Judge McCarville in San Diego. There was apparently one motion pending in court on this case.
4. While there is obviously no Los Angeles District Attorney named Torrealba, there is a Deputy District Attorney Torrealba in the Major Narcotics Division of the Los Angeles District Attorney's Office.
5. The US Courts list Judge Perry for the June 12, 1997, order. The AG lists Rappe.
6. That one was not the order issued for the Lynwood Sheriff County Jail inmate public telephone on 12-30-96 which lasted 180 days and cost $1,119,422.00 and had to have intercepted many more conversations than were disclosed in the report.
7. Again, one of these is reported by the US Courts as filed by Judge Rappe.