MICHAEL P. JUDGE, PUBLIC DEFENDER
Deputy Public Defender
210 West Temple Street #19-513
Los Angeles, California 90012
Telephone:

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.
ARIEL UMBERTO HERNANDEZ,
Defendant
CASE NO. BA166582

OPPOSITION TO IN -CAMERA HEARING

PLEASE TAKE NOTICE on _________________or as soon thereafter as the matter may be heard in Department ____, defendant ________________ through his attorneys, Michael P. Judge, Public Defender and ____________________, 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:

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER

OF LOS ANGELES COUNTY, CALIFORNIA

By ____________________________________

Deputy Public Defender

STATEMENT OF FACTS

The preliminary hearing transcript in this case, which is incorporated herein by reference, establishes:

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 will be provided to this upon request.

POINTS AND AUTHORITIES

INTRODUCTION

While petitioner is unaware of what showing the People intend to make in this case at the requested in-camera hearing, petitioner submits the following supplemental points and authorities because he believes that what will be disclosed is evidence of the existence of a wiretap. This Opposition explains that the existing wiretap laws applicable to defendant require disclosure if the defendant was named in a wiretap order, intercepted by a wiretap order, has evidence derived from a wiretap used to form the basis of a search or arrest warrant (including a wiretap search warrant) or has any evidence introduced against him which was derived from an intercepted communication. (Section I) Moreover, existing law forbids the use of in-camera hearing with regards to wiretap orders.(Section II)

Defendant is aware that the People have previously gone in-camera and attempted to persuade a judge that disclosure was not necessary because of an ongoing investigation and sought to assert the privilege contained in Evidence Code section 1040. However, as explained below, there can be no privilege with regards to wiretap orders. (Section II) Moreover, it is believed that the People may attempt to convince this court that defendant has no standing, based on federal case law, because he was neither named in the order nor intercepted. However, as will be seen below, the California Legislature sought to provide California's citizens with greater rights and protections than are provided under the federal law and conferred on all persons, not just those "aggrieved" by personal intrusion, their own personal right to exclude any evidence derived from a wiretap if any of the required wiretap procedures were violated. (Section III) Passed by more than two-thirds both houses, that exclusionary rule is both constitutional and binding on this court. (Section IV)

THE LAW DOES NOT, AND CANNOT, ALLOW SECRET WIRETAP OPERATIONS

The entire notion of secret wiretapping, concerted efforts by prosecutors to conceal wiretapping operations, and secret in-camera court hearings to evade providing notice of wiretap operations to protect their continued existence is repulsive to a democratic society and repugnant to the congressional and legislative intent of the wiretapping laws. That fact is best seen by viewing the constitutional history of the wiretapping law as well as the overall course and scope of the state, federal wiretapping laws.

The United States Supreme Court ruled, in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, that telephone conversations were protected by the Fourth Amendment and an interception of a telephone conversation was an invasion of that protected privacy and therefore a "search and seizure."

Wiretaps were thereafter outlawed until Congress passed Title III in 1968, which allowed wiretapping, but intentionally "limit[ed] the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." (United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) When enacting Title III, additional requirements and protective measures were included to further ensure its limited use. One such requirement was the passage of an enabling statute by states seeking to allow its law enforcement officers to utilize wiretaps. California's enabling statute became effective in 1989 and is contained in Penal Code section 629. 50 through 629.98. (People v. Chavez (1996) 44 Cal.App.4th 1144, 1158.) However, the federal law still "establishes minimum standards" and California is barred from being any less protective of its citizens privacy rights. (People v. Otto (1992) 2 Cal.4th 1088, 1092, fn. 1, 1098; Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 1818.) However, California's wiretap statute provide, generally, even greater protections than the federal law.

Title III mandates suppression of all communications intercepted, as well as all evidence derived from those conversations, when there was a "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures." (18 U.S.C. § 2518(9); United States v. Donovan (1977) 429 U.S. 413, 434, 97 S.Ct. 658, 50 L.Ed.2d 652; United States v. Giordano, supra, 416 U.S. at 527.) Penal Code section 629.72, similarly, and more broadly, mandates suppression as well. Both statutes provide for civil and criminal penalties for violations of the law. (18 U.S.C. §§ 2520, 2511(4), Pen Code §§ 629.84, 629.86.)

"We do not deprecate Fourth Amendment rights. The security of persons and property remains a fundamental value which law enforcement officers must respect. Nor should those who flout the rules escape unscathed. In this respect we are mindful that there is now a comprehensive statute making unauthorized electronic surveillance a serious crime. Moreover, Title III mandates civil remedies of actual and punitive damages for violations, as well as severe criminal penalties. (18 U.S.C. §§ 2520, 2511(4).)" (Alderman v. United States, supra, 394 U.S. 165, 89 S.Ct. 961.)

Wiretapping must be limited to the investigation of serious felonies which are specified in the statute. (18 U.S.C. § 2516(2); 629.52.) No wiretap order may be issued unless the police can show that other investigative procedures have failed or are useless. (18 U.S.C. § 2518(1)(c); Pen. Code § 629.52.)

The application may only be made by the highest ranking prosecutors, and states are required to list those authorized in the statute. (18 U.S.C. § 2516(2); 2511(2)(a)(ii)(B).) This measure was intended to centralize responsibility in a public official who would be "subject to the political process." It was believed that centralization would "avoid divergent practices" from developing as well as ensure that if abuses occurred, the "lines of responsibility would lead to an identifiable person." Congress explicitly stated that it believed this provision would "go a long way toward guaranteeing that no abuses will happen." (S.Rep. No. 1097, 90th Cong., 2d Sess., 96-97 (1968); United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) The United States Supreme Court held in Giordano that all evidence derived through an application which was not authorized by the designated official would have to be suppressed. (Id. at p. 508.) California limited authorization for making local applications to only the district attorney and further required that it be made in writing under personal oath. (Pen. Code § 629.50.)

Similarly, only judges specifically authorized by statute have the power to issue wiretap orders and California limited jurisdiction to one judge per county who is either the presiding judge or one designated by the presiding judge. (18 U.S.C. § 2516(2); Pen. Code § 629.50.) Again the belief that centralization which would lead to an identifiable person for ultimate responsibility would curtail abuse of the wiretapping laws. To insure the integrity of wiretapping operations, judges issuing orders are required to insure that all intercepted conversations are recorded, sealed, and maintained for at least 10 years. (18 U.S.C. § 2518(8)(a).)

Notice and inventory of the wiretap is required to be served, "within a reasonable time but not later than ninety days" after the expiration of the order or denial of the application, on all persons named in a wiretap application or order, all persons intercepted, as well as all owners of the intercepted premises. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68.)

Notice is both statutorily and constitutionally required, and must be given regardless of whether or not incriminating statements were made or criminal charges are filed. (United States v. Donovan (1977) 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652.) While the federal law leaves to the discretion of the judge the decision of whether or not to provide notice to persons other than those named in the order, California law mandates notice to all persons whose conversations were intercepted. (18 U.S.C. § 2518(8)(d); cf. Pen. Code § 629.68.) Moreover, the prosecutor has an obligation to provide the issuing judge with all relevant information regarding persons intercepted so that the judge may cause such notice to be served. (United States v. Donovan (1977) 429 U.S. 413, 97 S.Ct. 658, 439, fn. 26, 50 L.Ed.2d 652.) Because "notice of surveillance is a constitutional requirement," the failure to provide notice, especially when intentional, requires suppression. (United States v. Donovan, supra, 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652; United States v. Harrigan, (C.A.1 1977) 557 F.2d 879, 884-885; United States v. Eastman (3d Cir. 1972) 465 F.2d 1057.)

Congress required notice regardless of whether an order was granted or denied to "insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least to the subject. He can then seek appropriate civil redress for example, under section 2520 . . . if he feels that his privacy has been unlawfully invaded." (United States v. Donovan, supra, 429 U.S. 413, 438, 97 S.Ct. 658, 50 L.Ed.2d 652; S.Rep.No.1097, 90th Cong., 2d Sess., 105 (1968), U.S. Code Cong. & Admin. News, p. 2194.)

As an added measure of safety against unlawful use of wiretapping, both state and federal law require that before any evidence derived from a wiretap may be introduced in any trial or hearing, a party must be given a copy of the order. (18 U.S.C. § 2518(9).) California law goes one step farther and mandates that transcripts be provided as well. (Pen. Code § 629.70.) While a showing of inability to produce the transcripts a full ten days ahead of time may allow for postponement, all evidence is inadmissible until such notice and disclosure are provided. (Pen. Code § 629.70.) Because it is constitutionally required, notice can never be waived entirely.

Any judge issuing or denying an order is required to report that fact along with other information to the Administrative Office of the United States Courts thirty days after the denial or expiration of an order or extension. (18 U.S.C. § 2519(1).) Reporting is required regardless of whether or not law enforcement's investigation is still ongoing because the information required simply states the date of an application or request for extension, the type of order requested, whether or not the request was modified or denied, the period of interceptions authorized, the offense specified, the identity of the law enforcement agency, and whether the facility tapped was a residence, business, etc.

Prosecutors must provide statistical information regarding each completed intercept order reported, to the Administrative Office of the United States Courts no later than January 31^st of the next year. (18 U.S.C. § 2519(2).) California requires that prosecutors give the information to the Attorney General who is required to report similar statistics to the Legislature and the Judicial Council, no later than April of each year. (Pen. Code § 629.62; 18 U.S.C. § 2519(2).)

As can be seen from the forgoing overview of the law, the entire congressional and legislative intent of the wiretap laws has been thwarted by the District Attorney's unlawful "hand-off" procedure. This court cannot permit the District Attorney to violate the law any longer and effectively hide wiretap operations nor allow the trial courts to become parties to those unlawful acts, by hiding that fact and thereby allowing it to continue.

THE UNITED STATES SUPREME COURT HAS BARRED THE USE OF IN-CAMERA PROCEEDINGS WITH REGARDS TO DISCLOSURE OF WIRETAP OPERATIONS

There is always a "reason to be concerned about the possible due process implications of routine use of in camera proceedings." (United States v. Zolin (1989) 109 S.Ct. 2619, 2630; 109 S.Ct. 2619, 491 U.S. 554, 571, 105 L.Ed.2d 469 In re John Doe Corp. (2^nd Cir. 1982) 675 F.2d 482, 489-490; In re Special September 1978 Grand Jury (7^th Cir. 1980) 640 F.2d 49, 56-58.)

As long ago as 1969, the United States Supreme Court ruled that:

"surveillance records as to which any petitioner has standing to object should be turned over to him without being screened in camera by the trial judge. Admittedly, there may be much learned from an electronic surveillance which ultimately contributes nothing to probative evidence. But winnowing this material from those items which might have made a substantial contribution to the case against a petitioner is a task which should not be entrusted wholly to the court in the first instance." (Alderman v. United States supra, 394 U.S. 165, 89 S.Ct. 961, 971.)

Whether a party has standing to challenge the evidence derived from an intercepted communication is a question of whether the evidence is relevant to a trial. Similarly, that "issue of relevancy should not be resolved in camera, but in an adversary proceeding." (Russo v. Byrne, supra, 409 U.S. 1219, 93 S.Ct. 21, 22.)

The United States Supreme Court has soundly reasoned, that with respect to "both the volume of the material to be examined and the complexity and difficulty of the judgments involved, cases involving electronic surveillance will probably differ markedly from those situations in the criminal law where in camera procedures have been found acceptable to some extent" such as the "disclosure of informant's identity." (Alderman v. United States, supra, 394 U.S. 165, 89 S.Ct. 961, 971, fn. 14.)

Since evidence against a defendant which grows out of his or her own illegally overheard conversation or from conversations occurring on a defendant's premises will be suppressed if it can be shown that they were derived by exploitation of illegality, the Government must disclose 'any surveillance records which are relevant to the decision of this ultimate issue. And. . . this disclosure must be made even though attended by potential danger to the reputation or safety of third parties or to the national security--unless the United States would prefer dismissal of the case to disclosure of the information.' " (Alderman v. United States, supra, 394 U.S. 165, 89 S.Ct. 961, 970-971.)

It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to dismiss some prosecutions party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally..." (Id. at p. 972.)

The People's assertion that Taglianetti v. United States (1969) 394 U.S. 316 allows use of in camera proceedings to conceal a defendant's own statements is wrong.

An "ex parte, in camera proceeding may be sufficient under . . . only after an explicit denial [that the defendant's statements were intercepted] has been made by the Government. (In re Grand Jury Matter (3^rd. Cir. 1982) 683 F.2d 66, 69, emphasis added.)

The defendants in Taglianetti were actually given notice and had already been provided with production of their own intercepted conversation. The court expressly held that the defendant was "entitled to see a transcript of his own conversations." The court's decision regarding use of in-camera proceedings was limited to records requested by the defendant other than those required by Alderman and only to ensure the accuracy of the prosecutor's claims. (Id. At p. 1100-1101, emphasis added.) If the People deny there was an interception, then, and only then, may an in camera hearing be allowed, and then, only at the request of the defendant for further discovery.

As explained in United States v. Apple (4^th Cir. 1995) 915 F.2d 899:

"If the government discovers that some of [defendant's] conversations were intercepted during the wiretap, the records of those conversations must be disclosed; the district court may then exercise its discretion to determine whether additional disclosure should be ordered. (See Alderman, 394 U.S. at 184-85, 89 S.Ct. at 972-73.)" (Id. at p. 911.)

III

THE DISTRICT ATTORNEY MAY NOT MAKE AN EX PARTE DETERMINATION

THAT EVIDENCE WAS NOT DERIVED FROM A WIRETAP

"The government's Ex parte determination that the evidence was not 'derived from' any electronic surveillance is not binding on . . . a court. This must be determined at an adversary hearing. (Cf. Kolod v. United States, 390 U.S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962 (1968) (per curiam) (relevancy of evidence obtained by electronic surveillance). The question is whether the connection between the . . . conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. (United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268 (1978), Quoting Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). See United States v. Cruz, 581 F.2d 535, 538 (5th Cir. 1978) (en banc).)" United States v. Farese (5^th Cir. 1980) 611 F.2d 67, 70, internal quotations omitted.)

The United States Supreme Court has plainly stated that the "issue of relevancy should not be resolved in camera, but in an adversary proceeding." (Russo v. Byrne, supra, 409 U.S. 1219, 93 S.Ct. 21, 22.)

Moreover, any judgment entered into without such disclosure must be vacated because it is the court, not the prosecutor, who must consider the independent source issue, in an adversary hearing. (18 U.S.C. Sec. 3504(a)(1); United States v. Apple (4^th Cir. 1995) 915 F.2d 899.) The only alternative the government has is to demonstrate that the wiretap was not an unlawful. (Id.at p. 911.)

III

THE DISTRICT ATTORNEY HAS AN AFFIRMATIVE OBLIGATION TO RESPOND TO PETITIONER'S CLAIM

Under federal law, even an unsupported claim of illegal electronic surveillance is sufficient to require the prosecution to make a response, under oath, of the existence or non-existence of a wiretap. United States v. Vielguth (9th Cir. 1974) 502 F.2d 1257, 1258-59; United States v. Tobias (9th Cir. 1988) 836 F.2d 449, 453.) Petitioner, however, has gone beyond what is necessary to obtain an answer to her question of whether any evidence against her was derived from a wiretap. He has presented affirmative evidence to establish the probability that wiretapping was used in this case. Defendant proved that Los Angeles District Attorney's Office is engaged in an unlawful procedure called the "hand-off," which has been utilized for numerous years and has successfully allowed the Los Angeles District Attorney to evade the mandates of the state and federal wiretap laws and use evidence derived from a wiretap without ever disclosing that fact.

Moreover, the facts themselves establish the probability that his arrest, as well as evidence which is to be used against her in trial, was derived from a wiretap, rather than happenstance, and was directly responsible for the arrests and seizure in this case, as well as consent allegedly obtained from defendant.

The trial court must require an admission or denial of the existence of a wiretap in this case in open court. This is so despite the fact that there may well be an ongoing investigation, for the People can delay disclosure no longer than the first piece of evidence derived from the wiretap being introduced at a trial, hearing, or proceeding. Petitioner, having already had evidence introduced against his at the preliminary hearing, may well now be in unlawful custody if there is in fact a wiretap involved in this case, as the failure to notify and disclose prior to its introduction would make it inadmissible as a matter of law.

Defendant further established that any such wiretap order being revealed may well have been an unlawful order, since Penal Code section 629.50 gives only one judge per county the jurisdiction to issue an order and it is now known that more than one judge has been issuing wiretaps in Los Angeles. It is entirely possible that the judge issuing this order was not designated judge and without jurisdiction to even issue any such orders.

Petitioner's showing in the trial court was more than sufficient to require the court to engage in an Alderman-type hearing in this case.

DEFENDANT IS ENTITLED TO A SUPPRESSION HEARING

IF THE SURVEILLANCE, OR OTHER EVIDENCE IN THIS CASE,

WAS THE RESULT OF INFORMATION

OBTAINED FROM A WIRETAP

A. A Defendant has Standing to Suppress Any Evidence Derived from A Wiretap

Under both the state and federal law, defendant would have standing to suppress all evidence derived from her own intercepted communication, if he was named or otherwise identified in a wiretap order, or owned the premises or property which such conversations took place. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68; Alderman v. United States (1969) 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176.) Under Title III of the federal wiretap law, a defendant would not have standing to contest evidence which was derivative of a third party's intercepted communication, there being no right under the federal law to assert the standing of a third party. (Alderman v. United States (1969) 394 U.S. 165, 176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176.)

However, under California's wiretap statute such a defendant would have standing to object to the introduction of such evidence, not because they have vicarious standing through the infringement upon a third party's rights, but because their own rights under the state wiretapping law were infringed.

That California's wiretap law is broader and affords greater protections to its citizens' individual privacy rights, is clear. Notice of a wiretap 90 days after the order expires is mandatory under the state law to all persons intercepted by a wiretap, rather than merely discretionary as provided by federal law. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68.) Civil damages for any violation of the law is $100 a day, rather than the federal compulsory damage award of only $50 a day. (18 U.S.C. §§2520, 2511(4); Pen. Code §629.86(c).) The suspected crimes for which a wiretap may be issued are severely more limited than the federal law. (18 U.S.C. 2516(2); Pen. Code § 629.52.) The authority for making a wiretap application to a judge is also more limited. Only "the" District Attorney Gil Garcetti may make such an application and, unlike the federal law, that authority cannot be delegated to anyone else. (18 U.S.C. 2516(1); Pen Code §629.52.) Moreover, such application must be made in writing under personal oath. (Pen Code §629.52.) While the federal law requires that both the application and order be provided at least 10 days before any hearing trial, or proceeding, the California law additionally requires that transcripts of all communications be provided as well. (18 U.S.C. 2518(9); Pen. Code 629.70.) While under the federal law, any United States district court or court of appeal may issue a wiretap order, the federal law allows only "a state court judge of any court of general criminal jurisdiction of a State who is authorized by a statute" to issue such orders, and California has authorized only one judge per county to issue such wiretap orders. (18 U.S.C. 2516(2); Pen. Code §629.50.)

Of importance to the issues presently before this court is the differences between disclosure and use of information obtained from a wiretap. Title III allows police officers to disclose to other officers, and thereafter use and evidence derived therefrom, almost any information which is obtained from an intercepted communication. (18 U.S.C. §2517.)

However, California severely restricts both disclosure and use of information derived from a wiretap, as well as the authority of any court to authorize such disclosure or use. Penal Code section 629.82 places limitations on disclosure and use of any information obtained from an intercepted communication, as well as judicial authorization of disclosure and use, other than that which was specifically authorized by the wiretap order. Those limitations are as follows:

If an officer overhears a communication relating to a crime which is not specified in the wiretap order, but is a crime for which a wiretap order could have been issued, the police may only disclose the information to another officer and thereafter use evidence derived therefrom, if, as soon as practicable, they thereafter go to the judge and make an application to use such information. The issuing judge may only authorize law enforcement's use of that information if it reviews the procedures used and determines that the wiretap was in accordance with the state wiretap laws. (Pen. Code §629.82(a).)
If the officer overhears a communication relating to a crime which is not specified in the order, and not one for which a wiretap order could have been issued, the information may not be disclosed or used except to prevent the commission of a crime. No evidence derived from the wiretap can be used unless the officers can establish that the evidence was obtained through an independent source or inevitably would have been discovered. But even then, a judge can only authorize law enforcement's use of such evidence if it reviews the procedures used and determines that the wiretap was in accordance with the state wiretap laws. (Pen. Code §629.82(a).)

Moreover, if any intercepted communication is used to obtain a search warrant, which would include a wiretap order, or an arrest warrant, the person named in the warrant is entitled to notice of the wiretap and a copy of the contents of all intercepted communications used. (Pen. Code §629.82(c).)

Finally, California does not restrict who may move to suppress evidence derived from a wiretap. Under the federal law, only an "aggrieved person" may move to suppress derivative evidence. (18 U.S.C. §2518.) An "aggrieved person" is defined by statute as one is intercepted, and defined by the federal courts as one named in an order from whose premises or property the intercepted communication was derived. (18 U.S.C. §2510.) The federal law limits the grounds for suppression to communications "unlawfully intercepted," orders which are insufficient on their face, or interceptions which are not in conformity with an order.

Penal Code section 629.72 affords far greater rights and standing to challenge the introduction of derivative evidence. It provides:

"Any person in any trial, hearing, or proceeding, may move to suppress some or all of the contents of any intercepted wire, electronic digital pager, or electronic cellular telephone communications, or evidence derived therefrom, only on the basis that the contents or evidence were obtained in violation of the Fourth Amendment of the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in Section 1538.5." (Pen. Code §629.72.)

While the express language of the statute itself makes it clear that the Legislature intended to restrict the introduction of any evidence derived from a wiretap in any criminal proceeding against any person, the legislative intent of this provision crystalizes the complete depth and meaning of what protections the Legislature was conferring on all California's citizens. "When SB83 was heard in 1987, significant concerns were expressed that the broad authority for law enforcement to use evidence of other crimes discovered during a wiretap could lead to fishing expeditions and needlessly intrude into the lives of innocent parties.

"To allay these fears, a 'compromise' was fashioned which allowed the use of of evidence of other crimes in a 'layered' manner. If the criminal information is not related to the crime that is the subject of the surveillance order, but is related to another crime for which a surveillance order may be obtained, the information and any derivative evidence may be disclosed to other officers and may be used as testimony in criminal proceedings if the judge finds that the information was otherwise intercepted in accordance with state law. If, in comparison, the criminal information does not relate to the surveillance order and does not relate to a crime for which an electronic surveillance order may be obtained, that information and derived evidence may be used (1) to prevent the commission of a crime, and (2) as evidence in court where the evidence was [from an] independent source or inevitably would have been discovered, and the use is authorized by a judge who find that the information was otherwise intercepted in accordance with state law." (Sen. Com. Crim. Proc., 1995-1996 Regular Session, SB 1016, p. 16. attached as Appendix 1; http://SB 1016; http://www. leginfo.ca.gov/pub/95-96/bill/sen/sb_1001-1050/sb_1016_ cfa_ 950403_ 104435_sen_comm.html.) .)

The legislative intent also discloses that the author of SB 1016 sought to have those limitations excluded from revised state wiretap law and thereby "allow the use of any information obtained in an electronic surveillance operation for law enforcement purposes." "According to the sponsor, under federal law, law enforcement, with judicial approval can use what they learned during a judicially authorized intercept about crimes other than those specified in the order." (Sen. Com. Crim. Proc., 1995-1996 Regular Session, SB 1016, p. 16. attached as Appendix 1.) However, while SB 1016 was passed into law, it was passed without those proposed changes which would have limited the state law and provided to California citizens only those rights and protections afforded by the federal wiretap law.

Therefore, any person against whom evidence derivative of an intercepted communication is introduced has a right to challenge its introduction and to suppress any such evidence if any of the evidence was obtained in violation of the state wiretap law.

For example, if there existed a wiretap order against one defendant in this case for crimes relating to the sale or distribution of cocaine in an amount which exceeded three pounds, the officer in the wire room could not even disclose to any other officer any information about any crime other than one involving three pounds of cocaine. If the wiretap disclosed a conversation between two of the three defendants revealing that all three defendants were transporting 2.99 pounds of cocaine, the only thing law enforcement could do would be to stop the crime.

Under California law, law enforcement could not "hand-off" the information to another officer to conduct a surveillance, or try to obtain more evidence. Law enforcement could only disclose the information for the limited purpose of telling another law enforcement officer to stop the crime but seizing the cocaine. Law enforcement could not use any information derived from the wiretap to establish probable cause for the seizure, let alone the arrest. While the cocaine would be confiscated as contraband, no arrest would be possible unless the officers could establish that there existed an independent source of evidence or that such evidence would inevitably have been discovered, such as if the three defendants were transporting the cocaine to an undercover officer in Los Angeles. But even then, the officers would have had to establish they complied with the requirements of judicial review and authorization beforehand, and the court would be required to review the procedures used to see that they were in accordance with state law.

Therefore, under California law, all three defendants in the above scenario would be entitled to notice and disclosure and all three would have standing to make a motion to suppress pursuant to Penal Code section 1538.5 on the basis that their rights under the state procedures were violated. However, the making of that motion is dependant on the defendants obtaining notice of the fact that a wiretap operation existed.

B. PROPOSITION 8 DOES NOT BAR SUPPRESSION OF THE EVIDENCE OBTAINED IN VIOLATION OF THE STATE WIRETAP LAW

The fact that suppression would not be afforded to defendants under the Federal Constitution or Title III is irrelevant. Title III establishes only "minimum" standards for admissibility, it does not bar states from being more protective of their citizen's privacy rights. (People v. Otto (1992) 2 Cal.4th 1088, 1098.)

Moreover, Article I, section 28, of the California Constitution is no bar to suppression of evidence obtained in violation of the state law, it provides:

"Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press."

Article 4, section 2, subdivision (a), of the California Constitution established that the Senate shall have a membership of forty Senators and the Assembly a membership of 80 Assemblymen. Therefore, any statute barring evidence in a criminal proceeding which is passed by more than 54 votes in the Assembly, and 27 votes in the Senate may exclude otherwise relevant evidence from a criminal proceeding.

On July 6, 1995, the Senate passed Senate Bill 1016 by a vote of 28 ayes to two noes. On September 1, 1995, the Assembly passed Senate Bill 1016 by a vote of 62 ayes to 5 noes. On May 15, 1997, the Senate passed Senate Bill 688 by a vote of 33 ayes to 0 noes. Senate Bill 016 was Chaptered on October 16, 1995, and went into effect on January 1, 1996. /⁽¹⁾

On May 15, 1997, the Senate passed Senate Bill 688 by a vote of 33 ayes and 0 noes. On August 11, 1997, the Assembly passed Senate Bill 688 by a vote of 76 ayes to 0 noes. Senate Bill 688 was Chaptered on August 26, 1997, and went into effect on January 1, 1998. /⁽²⁾ Senate Bills 1016 and 688 are embodied in Penal Code sections 629.50 et. seq., which includes both Penal Code sections 629.70 and 629.72. (Appendix 2, 3.)

Therefore, California's exclusionary rule for evidence obtained in violation of the state wiretap statute, having been passed by a more than two-thirds vote of both houses, may lawfully and constitutionally exclude evidence obtained in violation of the state wiretap laws.

CONCLUSION

Based on the foregoing arguments and authorities, this court should deny the People's motion to proceed in-camera and further reveal to defendant whether any evidence against defendant was derived from a wiretap to allow defendant the ability to fully litigate in an adversary hearing, both standing and the legality of the evidence in this case.