Robert Kalunian,
Assistant Public Defender
Kathy Quant,
Deputy Public Defender
I
APPLICABLE WIRETAP LAWS, LEGISLATIVE INTENT,
AND VIOLATIONS OCCURRING IN LOS ANGELES
A. The Fourth Amendment Protects Telephone Communications
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. Wiretapping was thereafter outlawed until the passage of Title III.
1. Title III of the Federal Wiretap Act Restricted State and Federal Wiretapping
Wiretaps were thereafter 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.) Congress was concerned by the fact that telephonic interceptions could not limit the "search and seizure" to only the party named in the warrant. When enacting Title III, additional protective measures and reporting requirements were included in the law, to further ensure its limited use.
Title III mandates that before any State may allow law enforcement officers to utilize wiretaps, it must pass an enabling statute which, at minimum, affords the same protections as the federal law. (18 U.S.C. 2516(2); People v. Chavez (1996) 44 Cal.App.4th 1144, 1158; People v. Otto (1992) 2 Cal.4th 1088, 1092, fn. 1, 1098; Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 1818.)
2. California's Wiretap Act Passed in 1989
Not until 1989 did the Legislature finally pass a wiretap statute which would allow state law enforcement officers to use wiretaps. However, as will be seen below, state law imposed more onerous restrictions and controls on law enforcement's use of this extraordinary investigative tool than were required by the federal wiretap law. Since amended, California's enabling statute is embodied in Penal Code Sections 629.50 through 629.94.
B. Required Procedures and Limitations
1. Wiretapping must be Limited to Enumerated Serious Felonies
Title III mandates that wiretapping be limited to the investigation of serious felonies which are specified in the statute. (18 U.S.C. § 2516(2).)
California law severely limits the types of crimes for which wiretapping may utilized to cases involving murder or kidnap, or attempts to commit either crime, or the trafficking of more than 3 pounds of cocaine, heroin, PCP, or methamphetamine, but not other controlled substances such marijuana. (Pen. Code § 629.52.)
2. Wiretapping Must be used Only as a Last Resort
No wiretap order may be issued unless the police can show that other investigative procedures have failed, are useless, or are too dangerous. (18 U.S.C. § 2518(1)(c); Pen. Code § 629.52.) As clearly expressed in both Title III and Penal Code section 629.52, subdivision (3), subsection (d), an electronic surveillance order cannot be obtained unless the government fully explains in its application what investigative techniques have been tried against the target of the wiretap. (18 U.S.C. §§ 2518(1)(c), 2518(3)(c).) The necessity requirement directly and substantially implemented the congressional intention to limit the use of wiretapping as an extraordinary investigative tool of last resort. (United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) Failure to satisfy this requirement requires that the contents of the intercepted communications and the evidence derived therefrom be suppressed. (United States v. Mondragon (10th Cir.1995) 52 F.3d 291, 294, citing United States v. Donovan, supra, 429 U.S. 413, 433-34, 97 S.Ct. 658, 671, 50 L.Ed.2d 652.) Moreover, congress and the legislature did not intend the statutory phrase 'normal investigative procedures' to include electronic eavesdropping techniques." (United State v. Castillo-Garcia (10th Cir. 1997)117 F.3d 1186, 1187; citing Castillo-Garcia, supra, 920 F.Supp. at 1545; United States v. Bianco (2d Cir.1993) 998 F.2d 1112, 1127; United States v. Uribe (1st Cir.1989) 890 F.2d 554, 556; United States v. Lambert (6th Cir.) 771 F.2d 83, 91; 117 F.3d 1179.)
"Even within an ongoing investigation of a suspected drug conspiracy, the government may not simply 'move swiftly from wiretap to wiretap.' . . . Rather, under Title III, it must always 'paus[e] to consider whether normal investigative procedures could be used effectively, particularly in light of any evidence obtained as a result of each succeeding wiretap.' United States v. Castillo-Garcia (10th Cir. 1997) 117 F.3d 1179, 1197; emphasis added.)
Atel Order: "That the wire intercept is the main source of the information presently in use by investigators in their attempt to expose the criminal activities of the principal and/or employees of Atel Cellular and Paging and others in the conspiracy." (Atel Extension #16, p. 45-46. )
6. Only the Highest Ranking Prosecutor May Apply for a Wiretap Order
Title III provides that 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, supra, 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 the application be made in writing under the District Attorney's personal oath. (Pen. Code § 629.50.)
In spite of this clear language, the District Attorney's Wiretap Manual states "it has been the practice of the Los Angeles County Office of the District Attorney to obtain the signature of the acting County District Attorney" "[i]f the County's District Attorney is not within the county." (Overview of Wiretap Law, Anthony Meyers, (1997) L.A.C.D.A., Major Narc./Forf. Div., p. 9, emphasis added.)
7. Only Courts of Authorized by a Statute have Competent Jurisdiction to Issue Orders
Title III authorizes only a court of "competent jurisdiction" to issue wiretap orders. The term is defined as a "court of general criminal jurisdiction of a State who is authorized by a statute of that State" to issue wiretap orders. (18 U.S.C. § 2510(9)(b).)
California, for the same reasons, "centralized" that authority to a single person and authorized only "the presiding judge of the superior court or one other judge designated by the presiding judge" to issue such orders. (Pen. Code § 629.50, emphasis added.)
The legislative intent of this sections was clearly stated. It was meant to avoid "judge shopping" which could allow the law enforcement to bypass the strict requirements of California's law. It was believed from the inception of the wiretap act that this could be avoided by authorizing "only one judge per superior court" to "review wiretap warrant requests." (Bill Statement, SB 83.)
In spite of this clear language and intent, there were at least five different judges issuing wiretap
orders in Los Angeles County in 1997, and none were the presiding judge. The designation order
issued to Judge Perry, with Judges Rappe and Czueleger designated as "back-up" judges in case
of unavailability. It was not long before the People were applying to all three judges, regardless
of availability, and submitting applications to non-designated judges as well. This was made
easy since there is apparently no docketing system for wiretap cases in Los Angeles County.
8. Notice and Inventory are Required
Title III requires notice and inventory of a 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. It is within the judges discretion whether persons intercepted must also be served. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68.) The prosecutor has an obligation to provide the issuing judge with all relevant information regarding persons intercepted so that the judge may make the determination regarding whether or not such notice is to be served. (United States v. Donovan, supra, 429 U.S. 413, 97 S.Ct. 658, 439, fn. 26, 50 L.Ed.2d 652.)
Notice is both statutorily and constitutionally required, and must be given regardless of whether or not incriminating statements were made or criminal charges were filed. (United States v. Donovan, supra, 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652; Senate Report No. 1097, 90th Cong., 2d Sess. 66 (1968), U.S.Code Cong. & Admin.News 1968, 2194.)
California, however, mandates notice to all persons whose conversations were intercepted, regardless of whether criminal charges are ever filed. (Pen. Code § 629.68.)
9. Failure to Provide Notice
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.)
The District Attorney has not provided since 1992.
10. Production of Records is a Condition Precedent to the Introduction of Evidence Derived from a Wiretap
Title III requires 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 and application. (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.
In United States v. Apple (4th Cir. 1990) 915 F.2d 899, the Fourth Circuit Court of Appeal reiterated:
"The Court in Alderman specifically addressed the procedures to be followed in resolving the ``ultimate issue'' before the court--whether the evidence against the defendant ``grew out of his illegally overheard conversations or conversations occurring on his premises.'' (394 U.S. at 180, 89 S.Ct. at 970.) The fundamental teaching of Alderman is that the claimant must be provided with the records of his own illegally intercepted communications so that he has a reasonable opportunity to prove the extent of the taint. (394 U.S. at 182-85, 89 S.Ct. at 971-73.)
In United States v. Lanoue (1st Cir. 1995) 71 F.3d 966, the court held that a statement must be disclosed before the government uses it, and in enough time that the defense could make use of it. Moreover, where there was a failure to provide notice, disclosure, and production prior to use, "a mistrial was the only appropriate remedy." (Id. at p. 978.)
Lanoue explained that the failure to disclose subverts the purpose of law, which was intended to facilitate the fair and efficient pre-trial determination of the admissibility of a defendant's statements. (Id. at p. 977.) A defendant would necessarily be prejudiced because the failure to disclose their statements would deprive them "the opportunity to effectively prepare for trial and to design an intelligent trial strategy." (See Alvarez, 987 F.2d at 85; United States v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied, 467 U.S. 1218, 104 S.Ct. 2666, 81 L.Ed.2d 371 (1984); Gladney, 563 F.2d at 71 F.3d 966.)"
11. Prohibited Use of In-Camera Hearings
The United State Supreme Court ruled that courts cannot make relevancy determinations in-camera. Moreover, disclosure of wiretap evidence ". . . 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 (1969) 89 S.Ct. 961, 970-971.) (Alderman v. United States supra, 89 S.Ct. 961, 971; Russo v. Byrne (1972) 93 S.Ct. 21, 22.)
Even when information involves an informant, the California Supreme Court held that a
defendant is entitled to know the basis of claim of any privilege and must be given an
opportunity to submit questions concerning the validity of the grounds for maintaining such
confidentiality. (People v. Hobbs (1994) 7 Cal.4th 948, 973.)
RESOURCES AVAILABLE:
Database: Telephone, cellular telephone, date, vehicle, license plate, date of arrest, location of arrest, name.
Hotline: 213-974-3074 - Defendants may leave information and we will check and return a call if found.