GIL GARCETTI
District Attorney of Los Angeles County
ROBERT SCHIRN, State Bar No. 39849
Head Deputy District Attorney
PETER J. CAGNEY, State Bar No. 137190
Assistant Head Deputy District Attorney
Major Narcotics Division
345 Hall of Records, 320 West Temple Street
Los Angeles, California 90012
Telephone: (213) 974-6831

Attorneys for Real Party in Interest

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

DEPARTMENT 123

In re REYES SANCHEZ SALCIDO and DOES 1 THROUGH 10,000 ET AL., On Habeas Corpus.

Case No. BH001118 (LASC NO. BA159367) RETURN TO PETITION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE LARRY PAUL FIDLER, JUDGE OF THE SUPERIOR COURT, AND TO PUBLIC DEFENDER MICHAEL JUDGE AND DEPUTY PUBLIC DEFENDER KATHY QUANT, ATTORNEYS FOR PETITIONERS:

On May 14, 1998, this Court issued an Order to Show Cause directing the People to respond to Petitioners' Writ of Habeas Corpus. On June 5, an Amended Petition was filed and on July 3, 1998, a Supplemental Petition for Writ of Habeas Corpus was filed. On July 17, 1998, this Court directed the People during court proceedings to also respond to the Amended Petition and the Supplemental Petition. This return is organized into three parts, with Part One directed to the original Petition, Part Two to the Amended Petition, and Part Three to the Supplemental Petition. The attached exhibits are incorporated herein and apply to all three parts of this Return.

PART ONE

INTRODUCTION

Petitioner Salcido seeks to provide notice to any and all defendants whose cases were derived from evidence obtained over wiretaps initiated by respondent, the Office of the Los Angeles County District Attorney. To the extent that notice is sought, the petition is moot. Salcido has obtained notice and has been provided with a transcript of any intercepts where he was overheard as well as copies of the wiretap application and the judge's order authorizing the wiretap. All other persons entitled to inventory under Penal Code⁽¹⁾ Section 629.68 for wiretaps that have ended and disclosure under Section 629.70 have been identified and have received or will receive the requisite information. Even assuming that a habeas corpus petition would lie for ascertaining notice to petitioners who have pending cases or who are unknown, once notice has been provided then each defendant must pursue his or her claims independently on the particular facts of their cases. Salcido also claims that persons who are not entitled to notice under the wiretap laws must nonetheless be given notice and a hearing on the unsubstantiated theory that the wiretap applications obtained were a sham; i.e., that at the time of the application, the prosecution had no intention of disclosing the fact that electronic surveillance was being used. Such arguments cannot seriously be entertained in the absence of the facts of actual cases as they pertain to the wiretap applications connected to those cases. Under federal and state law only the named parties and persons who were actually overheard have any standing to complain of intercepts or evidence derived from intercepts. Both People v. Gonzalez (1990) 51 Cal.3d 1179 and Taglianetti v. United States (1969) 394 U.S. 316 [22 L.Ed.2d 302, 89 S.Ct. 1099], warn against allowing habeas petitioners to rummage indiscriminately through government files based upon an inadequate showing of a specific need for discovery.

The introduction of the petition alleges that the hand-off procedure allowed the use of information obtained from a wiretap to effectuate an arrest, search and seizure without disclosing the existence of the wiretap, so that surreptitious monitoring could continue and that such policy is in direct violation of the law. This statement assumes that the existence of the wiretap must be disclosed at the time of the arrest (or search and seizure). No authority for this startling proposition is presented anywhere in the Petition, Amended Petition, or Supplemental Petition. Penal Code Section 629.70 states, in pertinent part, that "[t]he contents of any intercepted wire [ ] or evidence derived from it shall not be received in evidence or otherwise disclosed [ ] unless each party, not less than ten days before" receives a transcript and a copy of the court order and application. This language standing alone does not take into account the privileges provided in Evidence Code Section 1040 and the regulation of discovery pursuant to Penal Code Section 1054.7. Penal Code Section 629.68 states that an inventory be served upon "persons named in the order or application, and other known parties to intercepted conversations." A further discussion of the handoff procedure is set forth in Section XXII and the Memorandum of Points and Authorities.

SECTION-BY-SECTION RESPONSE

The People of the State of California (People), real party in interest in the above-entitled action, by their counsel, Gil Garcetti, District Attorney for Los Angeles County, make this return to the petition of Reyes Sanchez Salcido et al., for a writ of habeas corpus and admit, deny and allege as follows:

I

The People deny that petitioners are a class of persons who have been denied their statutory and constitutional rights to notice, inventory, and/or disclosure of communications intercepted by the use of an electronic surveillance device pursuant to state and federal laws.

II

The People allege that the 58 cases mentioned in Mr. Garcetti's press release was an approximate number with the actual number of cases in which defendants were not provided with information of wiretap information being slightly less that 58. In any event, the People have sent letters of disclosure to attorneys of record in state wiretap cases and are in the process of doing so in federal wiretap cases.

III

The People admit that on March 18, 1998, the Los Angeles Daily Journal published an article, attached to the Petition for Writ of Habeas Corpus as Exhibit A. The People deny the allegation in the article that the purpose of the "hand-off" procedure was to deprive the defendants arrested of the right to know of the existence of the wiretap and challenge its usefulness for the sole purpose of allowing the electronic surveillance to continue.

IV

The People admit that on March 23, 1998, the Los Angeles Daily Journal published a follow-up article, attached to the Petition for Writ of Habeas Corpus as Exhibit B.

V

The People admit that on April 8, 1998, the Los Angeles Times published an article, attached to the Petition for Writ of Habeas Corpus as Exhibit C.

VI

The People deny factual allegations set forth in Section VI. The People affirmatively allege that there is no relevance to the "statistical information" set forth in this section. There is no indication as to the source of this information and the manner in which it was compiled. There is no statistical breakdown of which percentage are state wiretaps or federal wiretaps, or in what part of the country they were conducted. There are differences between California's state wiretap law and the federal wiretap law and wiretap laws in other states; therefore, statistics based on federal wiretaps and other state wiretaps are of dubious value when compared to the California wiretap law.

VII

The People deny the factual allegations set forth in this section. The People affirmatively allege that there is no relevance to the "information" set forth in this section. Again, there is no indication as to the source of this information and the manner in which it was compiled. There is no numerical breakdown in the number of "interceptions" indicating how many were state intercepts, how many were federal intercepts, and how many involved pen registers and tracers (which do not result in the interception of conversations). The People affirmatively allege that from March, 1993 to the first six months of 1998, the Office of the Los Angeles County District Attorney has obtained orders for approximately 90 wiretap applications. Based upon information overheard in state and federal wiretaps, approximately 87 cases have been filed. The total number of persons overheard is unknown. Not all voices were identified and few of those who identified themselves by name became known to law enforcement in a manner which would allow them to be identified and contacted. An "intercept" is not a wiretap. An intercept is anything overheard during the wiretap.

VIII

The People admit the factual allegations in this section. The People affirmatively allege a more detailed and accurate statement of the history of this case is as follows:

On July 26, 1996, defendants Gastelum, Lobo and Gaxiola were charged by information in case number BA132597 with the drug crimes as listed in Paragraph VIII of the petition with an over 80-kilogram weight enhancement. On September 9, 1997, defendants Gastelum and Gaxiola were indicted by the Los Angeles County Grand Jury for two counts of transportation of cocaine with weight enhancements of over 10 kilograms and over 1 kilogram occurring on May 22, 1996. (See Declaration of Jason Lustig, Exhibit G.)

IX

The People admit that a series of in-camera proceedings took place in the Gastelum case. On February 20, 1987, the first in-camera proceeding in the Gastelum case was held in Department 130 before Judge Gregory Alarcon in response to defendant Gaxiola's informant disclosure motion. At that in-camera hearing, the Court was informed that there was no informant and that the case was related to an on-going wiretap investigation. Previously sealed transcripts of in-camera proceedings have been released to all parties in the Gastelum case by Court order. The People affirmatively allege that during the in camera proceedings, the People argued to the court that the protection of on-going investigations in Penal Code Section 1054.7 and the official information privilege in Evidence Code Section 1040 outweighed the need for disclosure of a defendant's non-exculpatory statements captured on a wiretap. The court disagreed with the People's position regarding the defendants' statements and ordered disclosure. (See Declaration of Jason Lustig, Exhibit G.)

X

The People deny the factual allegations in the first paragraph of this section. The internal documents of the Los Angeles Police Department did not necessarily reveal a "concession" that the seizures were derived from the subject wiretap, since this is largely a legal question and a matter of semantics. The People affirmatively allege that these documents merely indicated that the wiretap provided a lead. A separate investigation led to the seizures. The probable cause to arrest these defendants was separately obtained through surveillance in the field by officers. The 72-hour report submitted by Deputy District Attorney Jason Lustig did not state that evidence was derived from the wiretap; it simply reiterated a statement from a detective's draft 72-hour report which indicated that the conversations on the wiretap "led directly" to the arrests and seizures on May 22, 1996. The 72-hour report further stated that the May 23, 1996 arrests and seizures (charged in case number BA132597) resulted from a surveillance of individuals believed to be in possession of certain cellular telephones. In fact, the May 23, 1996, seizures were made pursuant to a search warrant supported by an affidavit describing the defendants' behavior observed by detectives in the field, and the affidavit did not mention the wiretap. The People admit the factual allegations of the second paragraph of this section. The People affirmatively allege that the prosecution has complied with the court ordered disclosure of the wiretap application.

While the Court originally agreed that the official information privilege justified non-disclosure of some of the wiretap materials, the Court changed its ruling after subsequent discovery hearings and ordered disclosure of the entire wiretap application. The People timely complied with that order (see Declaration of Jason Lustig, Exhibit G).

XI

The People deny the factual allegations of this section. The People affirmatively allege that the hand-off investigative method was not developed by the District Attorney's Office and has not been taught to the Los Angeles Police Department for many years in a concerted effort to prevent the disclosure of wiretaps in Los Angeles County. The portions of the testimony cited in the petition do not stand for the asserted proposition. According to the testimony of L.A.P.D. Detective Horacio Marco, he approached a deputy district attorney with the idea of using a hand-off method of investigation in 1985, three years before the original California wiretap statute was enacted in 1988 and eight years before the Los Angeles County District Attorney's Office obtained its first wiretap order in 1993. (R.T. 1/30/98, p. 130:19-24, p. 134: 9-135:3.) The method was developed during an investigation in which Detective Marco was an undercover officer and was used to protect his undercover status, his safety, and the particular investigation. There was no wiretap involved. (R.T. 2/13/98, p. 14:10-16:13, p. 17:16-28.)

Detective Ronald Hodges never testified that officers on the receiving end of a hand-off received specific information from intercepted communications. Information from surveillance, not from the wiretap, was disclosed by the supervising officer to the recipient officer. (R.T. 12/16/97, p. 45:1-46:2.)

Detective Hodges also testified that when he received a hand-off he did not necessarily understand the information had been obtained from a wiretap, and that in the subject investigation he did not learn that a wire investigation was involved until the day following his involvement. (R.T. 12/12/97, p. 23:13-16; 24:5-28; 25:1-23.) Contrary to the representations in the subject petition, he testified that he more often received hand-offs relating to undercover investigations and the need to protect informants in cases not involving wiretaps. (R.T. 12/12/97, p. 30:13-31:1.)

Since separate intervening probable cause existed, the District Attorney's Office argued at suppression hearings that the evidence was not "derived from" a wiretap. While wiretap information was used for leads, the recovered evidence was derived from the detectives' surveillance in the field and subsequent search warrants based thereon.

XII

The People admit the factual allegations set forth in this section, that there is pending in Department 120 of the Los Angeles Superior Court the case of People v. Reyes Sanchez Salcido, et al., Case No. BA159367. The People affirmatively allege that the next court date is set for August 21, 1998, in Department 120 with pre-trial motions (including a motion to suppress under Penal Code Section 1538.5) pending.

XIII

The People admit the factual allegations set forth in this section regarding the existence and contents of the arrest report in the Salcido case, which is attached to the Petition as Exhibit K.

XIV

The People admit the factual allegations set forth in this section. The People affirmatively allege that the People's claim of privilege was sustained by the preliminary hearing magistrate.

XV

The People admit the factual allegations set forth in this section that defense counsel in the Salcido case received two separate notices from the prosecutor requesting in-camera hearings.

XVI

The People admit the factual allegations set forth in this section that the amount of cocaine in the Salcido case exceeds 15 kilograms of cocaine by weight.

XVII

The People deny that the District Attorney's Office is unwilling to disclose to the defense the source of the information in this case. The People affirmatively allege that information concerning the source of the telephone number was based on a state wiretap. The defense attorney has been advised of the existence of the wiretap, and copies of the application, order, and related materials have been furnished to defense counsel. (See Declaration of Deputy District Attorney Maria Ramirez, Exhibit D.)

XVIII

The People admit the factual allegations of this section, with the exception that the People deny that the defendants were arrested "for a crime not mentioned in the order." The People affirmatively allege that the Los Angeles County District Attorney's Office has access to information concerning persons named in electronic surveillance orders signed by a designated Los Angeles County Superior Court judge, defendants charged based on evidence derived from a wiretap, persons who are parties to an intercepted communication, and defendants who had, or will have, evidence derived from a wiretap used against them in a hearing, trial or other proceeding. Section 629.52 states that the probable cause for a state

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wiretap application must be for certain enumerated crimes. There is no requirement in the law that a defendant in a wiretap case can only be charged with an enumerated crime. The great majority of such defendants are charged with the enumerated crimes, but some are charged with other offenses.

XIX

The People admit the factual allegations of this section that the District Attorney is required to prepare and maintain reports regarding electronic surveillance and that such reports have been prepared.

XX

The People admit the factual allegations set forth in this section insofar as it relates to state wiretaps made by application of the Los Angeles County District Attorney.

XXI

The People admit the factual allegations of this section insofar as it relates to state wiretaps made by application of the Los Angeles County District Attorney's Office. The People affirmatively allege that if a defendant has been charged in Los Angeles County as a result of evidence derived from such a wiretap, the Los Angeles County District Attorney must determine and notify any such defendant who is entitled to notice of the existence of the wiretap.

XXII

The People deny the factual allegations of this section and the general statement that defendants are facing criminal charges based on inadmissible evidence which was derived from an electronic surveillance.

The People deny that the so-called "hand-off" procedure was used for the sole purpose of avoiding giving notice of the existence of a wiretap.

The People affirmatively allege that this so-called "hand-off" procedure is merely a law enforcement technique to permit an arrest without revealing in the arrest report the existence of the initial source of the information that triggered the investigation since separate intervening probable cause is used to support the arrest and seizure of evidence. As a result, the existence of an informant or of a wiretap is not disclosed at the time of arrest, and the investigation is not compromised. Once criminal charges have been filed, the prosecution may have an obligation to provide discovery to the defense. The issue of disclosure to an arrestee in a wiretap case does not arise until charges are filed and evidence derived from a wiretap is to be used in a trial, hearing, or proceeding (Penal Code Section 629.70). After a case was filed, the District Attorney's Office would provide discovery to the defense if the wiretap investigation was no longer ongoing. However, if a wiretap (or an extension) was still on-going, the prosecution sought to delay discovery by an in camera assertion of the privilege under Evidence Code Section 1040. The People's attached Points and Authorities discuss this issue more fully.

XXIII

The People deny the factual allegations of this section and the statement that the petitioners have no plain, speedy, or adequate remedy at law. The People affirmatively allege that the only named petitioner has an exclusive pre-trial remedy pursuant to Penal Code Section 1538.5. (In re Lance W. (1985) 37 Cal.3d 873, 896.) Petitioner Salcido has been provided with the application, order and a transcript of his statements. He may not seek habeas corpus relief where he has not exhausted his pre-trial much less his post trial remedies. (In re Clark (1993) 5 Cal.4th 750, 764, fn. 3.) The "10,000 Does" are not properly joined. (In re Brindle (1979) 91 Cal.App.3d 660, 675-676; Penal Code Section 1473.)⁽²⁾

XXIV

The petition should be denied based on the People's Return to the Petition for Writ of Habeas Corpus, including the attached declarations, exhibits and points and authorities.

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XXV

The People affirmatively allege that no evidentiary hearing is required in this habeas corpus proceeding because no reasonable likelihood exists that petitioner is entitled to relief and the interests of justice do not require his presence at a hearing. (Cal. Rules of Court, Rule 260.)

XXVI

The Memorandum of Points and Authorities attached hereto is incorporated by reference in this return as if set forth in haec verba. The People affirmatively allege that all facts set forth in the Memorandum of Points and Authorities are true and correct and incorporate them by reference, as if set forth in haec verba. The People also incorporate by reference, as if set forth in haec verba, the exhibits and transcripts filed with this Court along with this Return, most of which are referred to in the Memorandum of Points and Authorities, as well as in other portions of the Return.

PART TWO

The following is the People's Return to the Petitioners' Amended Petition for Writ of Habeas Corpus, Section by Section Response.

I

The People admit that on June 1, 1998 District Attorney Gil Garcetti issued a press release stating that in 58 cases in which wiretap surveillance was utilized, the defendants were provided no information concerning the wiretap surveillance. The District Attorney further stated that disclosure to the defense of the wiretap surveillance was being provided. A copy of this press release is attached to the Petitioner's Amended Petition as Exhibit A, and it speaks for itself in terms of content.

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II

The People allege that a subsequent review of District Attorney records has disclosed that the number of cases is less than 58. In any event, the People have sent letters of disclosure to attorneys of record in state wiretap cases and are in the process of doing so in federal wiretap cases.

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III

The People admit the factual allegations of this section that DDA Maria Ramirez has advised Deputy Public Defender Tom Moore of the existence of a wiretap in the Salcido case. The People allege that defense counsel has been provided with copies of the Order, Application and other materials pertaining to the wiretap (see Declaration of Maria Ramirez, Exhibit D).

IV

The People deny the factual allegations of this section in that none of the petitioners named in this section have a case involving wiretap surveillance with the possible exception of Petitioner Acosta (where the issue is under litigation) and Petitioner Ramirez (unable to locate with information provided) (see the Declarations of Robert Schirn and Peter J. Cagney, Exhibits A and B).

V

The People deny the factual allegations of this section in that none of these petitioners have a case involving a wiretap surveillance with a possible exception of Petitioners Acosta and Ramirez (see the Declarations of Robert Schirn and Peter J. Cagney, Exhibits A and B).

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VI

The People deny that not providing notice of a wiretap surveillance in 58 cases constitutes an "admission" by District Attorney Gil Garcetti of violations of constitutional and statutory state and federal laws in these cases. The People allege that in all closed cases which were related to an undisclosed state wiretap, letters have been sent to the attorneys for the defendants informing them of the existence of a state wiretap. The People allege that similar letters are being prepared for those closed cases which were related to a federal wiretap. The People deny that 151,229 people in Los Angeles County had their conversations intercepted in 1997 alone, and the People deny that there are large numbers of defendants of cases in which the existence of a state wiretap has not yet been revealed to the defendant. The People further allege that Petitioners fail to distinguish between persons who are (1) defendants in a wiretap case who may be entitled to discovery (Penal Code Section 629.70) and (2) persons who are not defendants, but who may be entitled to an inventory of the wiretap (Penal Code Section 629.68). All the Petitioners in the Amended Petition fall in the first category (or at least attempt to do so) by alleging that they are defendants in a case involving wiretap surveillance.

PETITIONERS' PRAYER

The Petitioners request and pray that the People be ordered to comply with Penal Code Sections 629.68 and 619.70. However, the People have complied and are complying with these provisions of the state wiretap law (see the Declarations of Robert Schirn and Peter J. Cagney, Exhibits A and B).

PART THREE

The following is the People's Return to the Petitioners' Supplemental Petition for Writ of Habeas Corpus, dated July 2, 1998, with a Section by Section Response.

I

The People admit that the original Petition has been amended to allege the names of additional petitioners.

II

The People deny that the Los Angeles District Attorney has violated not only the notice and disclosure provisions, but virtually every aspect of the state and federal wiretap laws as well as the state and federal constitutions. The People deny that most wiretap operations have been unlawfully concealed by the Los Angeles County District Attorney; and the People affirmatively allege that the state wiretaps obtained through the Los Angeles County District Attorney are those set forth in the Declaration of Peter J. Cagney (see Exhibit B). The People deny the general allegations that the Los Angeles County District Attorney has exhibited a wanton disregard for the privacy rights of persons and that the Los Angeles County District Attorney has concealed the true facts regarding wiretap operations in Los Angeles County.

III

The People admit that on June 1, 1998 District Attorney Gil Garcetti issued a press release, a copy of which is attached to Petitioner's Amended Petition as Exhibit A. The People allege that all cases related to a wiretap are set forth in the Declaration of Peter J. Cagney, Exhibit B).

IV

The People deny that there exist far more than 85 cases involving wiretap operations. The People admit that pursuant to Penal Code Section 629.62 there are yearly reporting requirements involving wiretap operations to be made to the state Attorney General and to the federal authorities. The People allege that these reports do not include all the wiretaps obtained in a particular year, since these often do not include wiretaps which are still ongoing and which are not reported until the following calendar year.

The People allege that the Los Angeles County District Attorney first handled a wiretap investigation/application in 1993. In 1993 the OCRNSP/Telemundo wiretap investigation resulted in a total of 11 separate applications in 1993 and 1994. In 1995 there were three wiretap investigations that resulted in a total of 13 separate applications. In 1996 there were seven wiretap investigations that resulted in ten wiretap applications. In 1997 there were 21 wiretap investigations that resulted in 31 separate applications. In the first six months of 1998 there have been 23 wiretap investigations involving 25 wiretap applications (see Declaration of Peter J. Cagney, Exhibit B).

The People allege that the annual report to the Attorney General required by Penal Code Section 629.62 does not reflect the number of wiretaps conducted in the preceding calendar year because the reports submitted by the Los Angeles County District Attorney do not normally include wiretap investigations that are still ongoing; these wiretaps are submitted to the Attorney General in the year in which the wiretap investigation is terminated (see Declaration of Nancy Lidamore, Exhibit C).

The People agree that many wiretap applications request the interception of more than one wire, electronic digital pager, and electronic cellular telephone communication based on the probable cause developed during the investigation and presented in the application. The People deny that the investigation of more than one wire, electronic digital pager, or electronic cellular telephone is a violation of anyone's rights or an attempt to misrepresent the number of interceptions taking place in Los Angeles County.

The People deny that any rulings by the trial court in People v. Gaxiola BA132597, influenced the reporting of the number of wiretap applications to the Attorney General as required by Penal Code Section 629.62. The People affirmatively allege that the reports to the Attorney General have been prepared pursuant to Penal Code Section 629.62.

The People admit that the reporting forms were not prepared or submitted in sequential order, and allege that this was not an attempt to conceal wiretaps (see Declaration of Nancy Lidamore, Exhibit C). The People allege that regardless of how the reports were prepared or included in the Attorney General's report and the federal report, this does not change the actual number of wiretap applications in existence. The actual number is correctly reflected in the Declaration of Peter J. Cagney, Exhibit B.

The People allege that a numbering system was devised in 1997 that allows the tracking and determination of all wiretap applications submitted to a particular judge. The numbering system identifies the year, the courtroom, and the number of the wiretap application that has been submitted. For example, the designation 98-123-4 denotes the fourth wiretap application that has been submitted to the Judge in Department 123 in the calendar year 1998.

The People allege that occasionally the same wiretap application was submitted to the designated judge in more than one county. This would involve a situation where an electronic digital pager and/or electronic cellular telephone is being used by a targeted suspect determined to be conducting narcotics operations in more than one county.

V

The People admit that Penal Code Section 629.70 requires that, "The contents of any intercepted wire, electronic digital pager, or electronic cellular telephone or evidence derived from it shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding, except a grand jury proceeding, unless each party, not less than ten days before the trial, hearing, or proceeding has been furnished . . . [with certain discovery]". The judge may waive the 10-day period.

The People deny that the procedure of going in camera to assert the official information privilege of Evidence Code Section 1040 is unlawful or illegal. See the attached Points and Authorities arguing that the official information privilege applies to wiretaps and provides grounds for delaying disclosure of the wiretap to the defense. The People admit that in People v. Delaherran BA161118, the case was dismissed when the prosecution could not provide the required discovery prior to trial, even though this involved the seizure of approximately 150 kilograms of cocaine. The People admit that guilty pleas have been accepted in cases involving wiretaps before the defendants have been informed of the existence of the wiretap; these defendants are now being given disclosure of the existence of the wiretap.

VI

The People deny that the District Attorney's Office has intentionally engaged in any illegal or unlawful practices pertaining to wiretaps.

The People admit that Sandra L. Buttitta submitted an application for a wiretap as the Acting District Attorney on or about April 27, 1994, and for an extension of a wiretap order on or about June 1, 1995. The People allege that during this time Sandra L. Buttitta was the Chief Deputy District Attorney, the second-ranked person in the Los Angeles County District Attorney's Office behind Gil Garcetti, and that she was authorized to act as the District Attorney in Mr. Garcetti's absence.

The People deny that Deputy District Attorney Leonard Torrealba ever submitted an application for a wiretap. The People allege that Mr. Torrealba was a member of the Major Narcotics Division and that one of his responsibilities was to oversee a wiretap application after it had been submitted by the District Attorney and signed by the designated Superior Court Judge. Apparently, Mr. Torrealba's name was incorrectly placed in the wrong part of the report to the Attorney General, or the report that was submitted was misinterpreted. (See Declaration of Leonard Torrealba, Exhibit H.)

The People deny that the Overview of Wiretap Law prepared by Anthony Meyers [sic] is the "District Attorney's Wiretap Manual."

The People deny that the Los Angeles County District Attorney knowingly applied for wiretap orders from judges who lacked competent jurisdiction. The People agree that Penal Code Section 629.50 states that "Each application . . . shall be made in writing . . . to the presiding judge of the superior court or one other judge designated by the presiding judge." The People allege that this language is vague and is susceptible to more than one construction. One construction is that advanced by Petitioners, that every application must be submitted to the same designated judge. Another construction is that "each application" is to be viewed separately, and that a different designated judge can be assigned to "each application." Either construction prevents the practice of "judge shopping" after a specific application has been submitted to a designated superior court judge. The People further allege that the possible problem of more than one designated judge has been eliminated by the recent designation by Presiding Judge Robert Parkin of Judge Larry Fidler as the designated judge with two backup judges to act during his absence or unavailability.

The People deny that the District Attorney failed to ensure particularity and specificity in wiretap orders. The People allege that the issue of specificity is one which depends on the circumstances of the particular case and should best be left to the trial court reviewing the sufficiency of the wiretap order.

The People deny that the District Attorney unlawfully invaded privacy rights by failing to minimize innocent conversations. The People allege that pursuant to Penal Code Section 629.94, the persons who conduct interceptions receive P.O.S.T. training and certification, which includes training in the requirements of minimization. The People allege People v. Ochoa, BA095853, involved a defendant who was convicted after a jury trial in which full discovery and disclosure of the existence of the wiretap was made available to the defense prior to trial. (See Declaration of Robert Schirn, Exhibit A.) The People allege that the use of transcripts from a closed case in which the issues were fully litigated is inappropriate to attempt to demonstrate a lack of minimization in that case, much less a policy to forego minimization in any other case.

The People deny that the District Attorney failed to follow the requirement that wiretaps be used as an investigative tool of last resort and executed wiretap orders without probable cause. The People allege that the requirement of exhaustion, as set forth in Penal Code Section 629.50 subsection (d)(2), is discussed in every wiretap application. The People further allege that whether the requirement of "exhaustion" has been satisfied depends on the circumstances of the individual case and should be left to the trial court reviewing the sufficiency of the wiretap application.

VII

The People deny that the Los Angeles County District Attorney intentionally withheld statistical information including the number of persons intercepted on certain public telephones. The People allege that the alleged numbers of persons intercepted on certain public telephones do not find support in the petitions submitted by the Petitioners or any exhibits in support thereof. This section of the Supplemental Petition on Page 34 states that, "It was later disclosed . . ." and "It was also discovered . . ." that over 100,000 conversations were actually intercepted under a single order over three public pay phones; however, the People have been unable to find support for these allegations in any of Petitioner's moving documents.

VIII

The People deny that illegal wiretapping is occurring through the use of pen registers and other equipment capable of obtaining voice content. The People admit that many investigations conducted by law enforcement involve the use of pen registers on suspected target telephones and that some pen registers are capable of acquiring the contents of communications. The purpose of the pen register is to help establish a pattern of telephone activity that indicates that the telephone is being used to facilitate the commission of one of the designated crimes. The pen register also helps to establish that other law enforcement investigative techniques have been utilized, but that such techniques have not reached the level of evidence necessary to achieve law enforcement goals in the investigation (i.e., exhaustion). The People further allege that in every instance the use of a pen register has been authorized by a state or federal court order; and the People allege that they are unaware of case law which mandates the issuance of a wiretap when a pen register is being used to determine telephone numbers dialed to and from a suspected target telephone. The People allege that no conversations are intercepted during the use of a pen register; merely the telephone numbers dialed to and from the target telephone are determined.

VII (Number 2)

The People note that Section VII has already been a heading on page 33 of the Petitioners' Supplemental Petition, and has now reappeared on page 39 of the same Supplemental Petition. The People do not allege any unlawful or illegal intent in failing to proceed in a proper sequential numbering.

The People allege that the 1,080 interceptions on a single day refer to conversations that are intercepted and not wiretap orders. Petitioner has incorrectly assumed that "intercept" means "wiretap."

VIII (Number 2)

The People note that on page 37 of the Supplemental Petition that there is already a Section VIII. A new Section VIII has reappeared on page 40 of the Supplemental Petition. Once again, the People do not allege any impropriety in the Supplemental Petition's failure to proceed in proper sequential numbering.

The People deny that all petitioners have standing to challenge the introduction of evidence under California's wiretap law. The People allege that a defendant must still establish standing as an "aggrieved party" to challenge the evidence derived from a wiretap, whether the wiretap is a state or federal wiretap. The People's contentions in this regard are set out more fully in the Memorandum of Points and Authorities attached to this Return and incorporated herein.

The People deny that the wiretapping of jail pay phones has resulted in the invasion of privacy upon privileged attorney-client communications.

IX

The People deny that the Los Angeles County District Attorney has engaged in unlawful practices. The People allege that the number of state wiretap investigations and authorizations has been fully identified in this Return, and the number of cases related to a state wiretap has also been fully identified (see Declaration of Peter J. Cagney, Exhibit B).

The People allege that discovery is being provided to defendants in open cases as required by law.

The People allege that of the 19 petitioners named in the various petitions, 10 petitioners' cases do not involve wiretaps; one petitioner's case (Ramirez) cannot be located with the information provided; two petitioners (Ochoa and Juarez) were represented by private counsel during court proceedings; one petitioner's case (Acosta) has the wiretap issue under litigation in a trial court; and three petitioners (Salcido, Corona and Cisneros) have cases pending in a trial court. That leaves only petitioners Barato and Perez of the "10,000 Does" who arguably have even a plausible right to proceed by way of a Writ of Habeas Corpus. (See Declaration of Robert Schirn, Exhibit A, chart.)

WHEREFORE, the People request that the within petition and all relief requested therein be denied.

DATED: July 27, 1998

Respectfully submitted,

GIL GARCETTI

District Attorney of

Los Angeles County

By

ROBERT SCHIRN

Head Deputy District Attorney

Major Narcotics & Forfeiture Division

By

PETER J. CAGNEY

Deputy District Attorney

Attorneys for Real Party in Interest

MEMORANDUM OF POINTS AND AUTHORITIES

ARGUMENT

I

SECTION 1538.5 PROVIDES SALCIDO WITH THE EXCLUSIVE PRETRIAL REMEDY

Salcido's case is pending; therefore, his exclusive remedy for seeking to suppress evidence is provided by Section 1538.5. (In re Lance W. (1985) 37 Cal.3d 873, 896.) The statutory scheme enacted to govern wiretap procedures itself mandates that a defendant shall follow the procedures of Section 1538.5. (Section 629.72.)

II

PETITIONER MAY NOT SEEK TO REPRESENT 10,000 "DOES" BASED ON PURE CONJECTURE

Petitioner states that FBI records listed 1,080 wiretap intercepts by the Los Angeles County District Attorney's Office. (P.E.T., p. 6, ¶ VII.) Using this statistic, petitioner incorrectly assumes that "intercept" means "wiretap," and using another statistic, that each wiretap yields approximately 2,139 conversations, of which approximately 373 are incriminating, and which involve approximately 384 persons. (P.E.T., p. 5, ¶ VI.) Multiplying these figures together erroneously provided petitioner with the figure "10,000 Does."

As to these 10,000 "Does," the petition is not only vague and conclusory, but incorrect. The People have searched their files and only 87 cases involving defendants whose cases were generated from wiretap intercepts were found. Notice and disclosure have been provided to the defendants in all of these cases including those cases in which the defendants were represented by the public defender. (See Declaration of Peter J. Cagney, Exhibit B.)

The Penal Code provides that "[e]very person unlawfully . . . restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint." (Section 1473, subd. (a).) The application for the writ is made by a petition, signed either by the party for whose relief it is intended or by some other person in his behalf, and it must specify "[t]hat the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty, the officer or person by whom he is so confined or restrained, and the place where, naming all the parties, if they are known, or describing them, if they are not known." (Section 1474, subd. (1).) Where the imprisonment is alleged to be unlawful, "the petition must also state in what the alleged illegality consists." (Id. at subd. 2.) Moreover,

"Every application for a writ of habeas corpus must be verified, and shall state whether any prior application or applications have been made for a writ in regard to the same detention or restraint complained of in the application, and if any such prior application or applications have been made the later application must contain a brief statement of all proceedings had therein, or in any of them, to and including the final order or orders made therein, or in any of them, on appeal or otherwise."

(Section 1475; Section 1474, subd. (3).)

As with any petition or extraordinary writ, the record and/or evidence submitted on behalf of the petition must be sufficient to permit review.

"A defendant seeking review of a ruling of the trial court by means of a petition for extraordinary writ must provide the appellate court with a record sufficient to permit such review. (Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 938 [152 Cal.Rptr. 870]; Thompson v. Superior Court (1968) 262 Cal.App.2d 98, 106 [68 Cal.Rptr. 530]; see Morelli v. Superior Court (1969) 1 Cal.3d 328, 333 [82 Cal.Rptr. 375, 461 P.2d 655].) The record must if possible be lodged with the appellate court at the time the original petition for writ is filed. To be adequate, such a record should ordinarily include any written motion and opposition thereto together with their respective points and authorities, any relevant pleadings or reporter's transcripts, and any written dispositive order. Whenever the consideration of an exhibit is necessary for a complete understanding of the case, a copy thereof must also be furnished. And each item in the record, of course, must be legible."

(Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186-187; In re Coronado (1978) 87 Cal.App.3d 788, 794.)

In In re Brindle (1979) 91 Cal.App.3d 660, relied upon by petitioner for the proposition that this petition may be brought on behalf of 10,000 "Does," the Court of Appeal stated:

The writ of habeas corpus is available to "every person unlawfully imprisoned or restrained." (Pen. Code, Section 1473.) The petition for the writ must be very specific as to the person seeking the writ, the persons confining or restraining the petitioner and the facts making the imprisonment illegal. (Pen. Code, Section 1474.) The party seeking the writ must be under actual or constructive custody. (See In re Smiley (1967) 66 Cal.2d 606, 612-613 [58 Cal.Rptr. 579, 427 P.2d 179].) Only under "very exceptional circumstances" may a petition for habeas corpus be brought by someone other that the prisoner seeking release. (In re Harrell, supra, 2 Cal.3d at p. 689.) Habeas corpus may not be used to challenge anticipated future actions or to secure declaratory relief. (In re Drake (1951) 38 Cal.2d 195, 198 [238 P.2d 566].) "But if a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot." (In re William M., supra, 3 Cal.3d at p. 23.)

(Id. at p. 675.)

In Brindle, four prisoners sought habeas corpus relief regarding the availability of the public defender where the prisoners had requested the services of the public defender, but prior to filing a case, the prison authorities declined to make the public defender available. (Id. at 669-671.) In addition to the forenamed petitioners, the trial court's order included incarcerated persons prospectively who had not yet requested representation by the public defender. The Court of Appeal overturned this aspect of the order and stated "the court's order is improper insofar as it purported to protect the rights of future prisoners in the absence of the existence of a `class claim of constitutional deprivation' constituting a `. . . class of public interest actions which merit decision notwithstanding solution of the individual petitioner's plight.' (Frias v. Superior Court (1975) 51 Cal.App.3d 919, 923 [124 Cal.Rptr. 616].)" (Id. at 676.)

The 87 cases generated from wiretap intercepts have been identified, and the defendants have been notified or are being notified. The Public Defender has been notified concerning the defendants represented by them. There is no class of persons beyond those identified by the District Attorney's Office who have had cases filed against them generated by wiretap intercepts. The Public Defender may now litigate the consequences, if any, to the defendants that they represent of any failure to timely provide notice under Section 629.68, or to provide disclosure under Section 629.70.⁽³⁾ The trial court in which these cases are pending can take appropriate action in resolving any issues with regard to these cases.

In this case, petitioner has failed to meet minimum requirements necessary in order to enable this court to intelligently review the petition as well as possibly grant some relief. Since Salcido may not bring a habeas corpus petition there is no case or controversy before this court. All that remains are the 10,000 "Does." Citations to newspapers, proceedings in other cases not before this court, compilations of statistics and theoretical treatises do not qualify as the legal basis for a case or controversy. (See, Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 1132.)

As discussed further below, the issue of notice is moot. Notice has now been given to all parties who are or were arguably entitled to notice.⁽⁴⁾ These parties may bring individual actions based upon their own cases.

III

ASSUMING THAT HABEAS CORPUS MAY LIE ON THE ISSUE OF INVENTORY, THAT ISSUE IS NOW MOOT

Salcido cites In re Brindle (1979) 91 Cal.App.3d 660 for the proposition that a habeas corpus class action case is allowable in California. In Brindle the Court of Appeal was not faced with an attack on a judgement. Brindle and a named group of prisoners sought a declaration concerning their rights as prisoners. Brindle obtained a declaration of his right to have access to the Public Defender while in prison. As discussed above, the Court of Appeal found it was error for the trial court to expand the individuals entitled to relief beyond those actually named. Brindle and its progeny all deal with the appropriateness of providing declaratory relief only in cases dealing with prisoners' rights while incarcerated. (See People v. Gott (1981) 117 Cal.App.3d 125, 129; Mendoza v. County of Tulare (1982) 128 Cal.App.3d 403, 420; In re Davis (1979) 25 Cal.3d 384, 387.)

Even assuming that prospective declaratory relief could be attained solely on the issue of notice pursuant to Section 629.68, and disclosure pursuant to Section 629.70, the District Attorney's Office has provided notice and disclosure to all defendants currently in custody and/or those defendants not in custody who have cases pending. Therefore, the issue of who is entitled to notice and disclosure is in fact moot. Any questions as to the failure to give notice in the past and the requirement to give notice in the future should be addressed in individual petitions for writs of error coram nobis⁽⁵⁾ concerning the suppression of the evidence used against defendants who have standing and whose cases have already been adjudicated. For cases currently pending the defendants must bring a Section 1538.5 motion. (Section 629.72.)

To the extent that the Public Defender seeks also to obtain declaratory relief concerning the judgments entered against defendants whose cases may have been generated by wiretap intercepts, the Brindle case teaches that such relief may not be granted absent a specific showing concerning an identified defendant's case. (In re Brindle, supra, 91 Cal.App.3d at 675-676.)

IV

PETITIONERS ARE NOT ENTITLED TO THE VOLUMINOUS DISCOVERY REQUESTED

As discussed above, Salcido must bring a Section 1538.5 motion. He is not entitled to bring a writ of habeas corpus. No case has been stated for any of the 10,000 "Does," and therefore, no writ of habeas corpus may be brought as to these unnamed petitioners. As stated in People v. Gonzalez (1990) 51 Cal.3d 1179:

Whatever role court-ordered discovery might properly play in a habeas corpus proceeding, the bare filing of a claim for post-conviction relief cannot trigger a right to unlimited discovery. A habeas corpus petition must be verified, and must state a "prima facie case" for relief. That is, it must set forth specific facts which, if true, would require issuance of the writ. Any petition that does not meet these standards must be summarily denied, and it creates no cause or proceeding which would confer discovery jurisdiction (Sections 1474, subds. 2, 3, 1475; see In re Hochberg, supra, 2 Cal.3d 870, 875, fn. 4; In re Swain (1949) 34 Cal.2d 300, 304 [209 P.2d 793]; cf. People v. Pacini (1981) 120 Cal.App.3d 877, 882-887 [174 Cal.Rptr. 820].)

(Id. at pp. 1258-1259.)

Petitioners have amended the petition to add parties for whom discovery has been provided by the District Attorney's Office. These additional persons are entitled to no more discovery than they have standing to obtain. Salcido has also been provided with discovery to which he has standing. Under the California wiretap law, Sections 629.50 et seq., standing is identical to the federal wiretap law. (18 U.S.C., Section 2511 et seq.)

In Alderman v. United States (1969) 394 U.S. 165 [22 L.Ed.2d 176, 89 S.Ct. 961], the high court held that only persons actually overheard and persons in control of premises where a wiretap was initiated had standing to challenge the legality of the interceptions. (Alderman v. United States, supra, 394 U.S. at 171-174.) The Alderman court described a person with standing as an "aggrieved person." Although the Supreme Court dealt with cases decided prior to the enactment of Title III, Title III had been passed by Congress prior to their decision, and 18 U.S.C., Section 2518(10)(a), stated that only an "aggrieved person" could move for suppression. This section states, in relevant part:

Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that----

(i)the communication was unlawfully intercepted;

(ii)the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii)the interception was not made in conformity with the order of authorization or approval.

(18 U.S.C., Section 2518(10)(a).)

The analogous section of the California wiretap law, Section 629.72, states:

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.

Although Section 629.72 begins with the words "[a]ny person," rather than "any aggrieved person", the statute mandates that Section 1538.5

provides the applicable procedural law. Accordingly, after In re Lance W. (1985) 37 Cal.3d 873, 888-890, the standing to bring a 1538.5 motion is governed by the Fourth Amendment decisions of the United States Supreme Court. In People v. Ratekin (1989) 212 Cal.App.3d 1165, 1169, the Court of Appeal held that notwithstanding Section 632, excluding all wiretap evidence, federal wiretap evidence was admissible in a California court, after the decision in Lance W. and before the passage of California's wiretap laws.

The wiretap statutes were recently reenacted by a unanimous vote of both the assembly and the senate; 33-0 in the senate, and 76-0 in the assembly.⁽⁶⁾ However, no legislative intent to broaden standing in California has been found to exist which would supersede the truth-in-evidence provision of Proposition 8 (Cal. Const., Art. I, Section 28, subd. (d).)

When the wiretap law was passed in 1988, the only discussion of Proposition 8 focused on what is now Section 629.82, (formerly Section 629.32). Among other provisions, this section provided for greater restrictions than the federal law on the use of other crimes' evidence obtained during a wiretap. The legislative analyst's office analyzed only this provision in the context of Proposition 8's truth-in-evidence clause. The analyst incorrectly stated that Proposition 8 did not apply to the wiretap statute because the federal law explicitly allowed the states more latitude in passing more restrictive wiretap laws and the federal wiretap law was not explicitly based on the Fourth Amendment. (Opinion of the Legislative Counsel, "Interception of Wire Communications", May 12, 1988, a copy is attached as Exhibit I.) While this analysis begs the question of what effect California's law has on the power of its legislature to be more restrictive than the Fourth Amendment allows, its importance for this discussion is that no mention of standing was made by the legislative analyst. If the legislature had intended to expand standing beyond what the federal law allowed, it is inconceivable that the legislative analyst's office would not have discussed standing as well as other crimes' evidence in its analysis of the bill.

The notice-of-inventory provision of the California wiretap law also negates any legislative intent to expand standing. Section 629.68 states that an inventory must be served on "persons named in the order or the application, and other known parties to intercepted communications." There is no requirement that

known parties who were arrested based on evidence derived from intercepted communications be notified. The persons who must be notified are identical to those who require notice under the federal law.

Standing, of course, controls in large part the scope of discovery which must be given. Fishman and McKenna, "Wiretapping and Eavesdropping" (2d Ed. 1995) Section 23:9, pp. 23-19 to 23-20, states: "Federal courts agree that Title III does not give a defendant standing to suppress his own conversations or derivative evidence based on an alleged statutory violation that did not violate that particular defendant's rights."

The federal courts have strictly construed standing to prevent indiscriminate rummaging through government files. (Taglianetti v. United States, supra, 394 U.S. 316 [22 L.Ed.2d 302, 89 S.Ct. 1099]; Fishman, supra, Section 23:23, p. 23-51.) In United States v. Williams (1978) 580 F.2d 578, the defendant sought records of eight wiretaps which were in place from 1970 to 1973. The defendant stated that since the government had conceded that these previous wiretaps were illegal, and that these wiretaps were linked to current wiretaps which captured conversations of the defendant, they were entitled to discovery of both the applications of the previous wiretaps and the communications intercepted under those wiretaps. (Id. at pp. 581-585.) The federal Court of Appeals held that the defendants had no standing unless each defendant could prove or the government admitted that each of the previous wiretaps "was directed at him, that the Government intercepted his conversations or that the wiretapped communications occurred at least partly on his premises." (Id. at 583, fn. omitted.)

In United States v. Civella (1981) 648 F.2d 1167, the defendants attempted to challenge evidence intercepted pursuant to one wiretap order based on the argument that the order was tainted by a previously obtained illegal wiretap. Since the defendants could not demonstrate that their rights were violated by the previous wiretap order, they had no standing to complain. (Id. at 1171-1172.)

Petitioners also assert that the wiretap applications and orders obtained were obtained as a subterfuge in order to investigate criminal activity not specified in the warrant. (Pet. p. 32.) Petitioner makes this claim without having read any of the applications or orders prepared. Whether Salcido's alleged criminal activity is described by the warrant application applicable to his case will be litigated in his Section 1538.5 motion. Whether the additional persons, who the District Attorney's Office has ascertained are represented by the Public Defender's Office, and have

cases which are generated from wiretap intercepts, have standing to object to any evidence derived from those intercepts, or have committed crimes which were or were not described by the probable cause declaration in their applicable warrant applications, can be litigated in their cases. Claims for additional discovery must be made based upon the facts of actual cases in controversy and the warrant applications which are applicable to those cases.

V

INVENTORY IS REQUIRED PURSUANT TO SECTION 629.68 BUT SUPPRESSION IS NOT A REMEDY UNLESS THE NOTICE WAS DELIBERATELY WITHHELD AND ACTUAL NOTICE WAS NOT OTHERWISE PROVIDED

The People agree that an inventory must be given within 90 days of the termination of a wiretap unless good cause is shown for an extension of time. (Section 629.68.) Although the statute calls upon the judge who issued the wiretap order to give such notice, it has long been held that the prosecutor has the duty of supplying the information which would allow the judge to comply. (United States v. Donovan (1977) 429 U.S. 413, 430-431 [50 L.Ed.2d 652, 669-670, 97 S.Ct. 658]; United States v. Chun (9th Cir. 1974) 503 F.2d 533, 540.) Until 1998, information concerning inventory notice has not been provided to the judges who issued the wiretap orders in any wiretap requested by the District Attorney's office. However, as discussed in the declaration filed by Head Deputy Robert Schirn, the failure to provide such information was not deliberate. In some instances extensions of time were obtained and the office did not follow up on the inventory after the extension ran. In Donovan the Supreme Court did not reach the issue of when suppression would be required for failure to provide a judge with the materials necessary to give notice. In that case the High Court stated:

Counsel for respondents Merlo and Lauer conceded at oral argument that the failure to name those respondents in the proposed inventory order was not intentional, Tr of Oral Arg 32, and we are therefore not called upon to decide whether suppression would be an available remedy if the government knowingly sought to prevent the District Court from serving inventory notice on particular parties. Nor does this case present an opportunity to comment upon the suggestion, recognized by the United States, Brief 49 n. 40, that suppression might be required if the agents knew before the interception that no inventory would be served.

(United States v. Donovan, supra, 429 U.S. at 439, n. 26.)

While the situation presented here is different, in that no information was given to any of the courts that had issued wiretap orders in aid of providing inventory, what occurred in this situation was merely an administrative oversight and not designed to prevent notice. The defendants who were entitled to inventory have now been provided with that notice. They now should be put to their burden of proving prejudice from not having received timely inventory. Again, this is best accomplished on a case by case basis given the myriad factual situations involved. "Federal courts generally hold that non-service of inventory provides a basis for suppression only if the defendant can demonstrate that he was prejudiced thereby." (Fishman and McKenna, "Wiretapping and Eavesdropping" (2d Ed. 1995), Section 18.7, p. 18-12, n. 53 [citing United States v. Winter (1st Cir. 1981) 663 F.2d 1120, 1153, and United States v. Harrigan (1st Cir. 1977) 557 F.2d 879, 884].) The states of Delaware, Kansas, Nebraska and Washington are in accord. (Ibid., notes 54, 55, 56, 57 [citing State v. Marine (Del. 1983) 464 A.2d 872, 876; State v. Willis (1982) 7 Cal.App.2d 413, 643 P.2d 1112, 1114-1115; State v. Hinton (1987) 226 Neb. 787, 415 N.W.2d 138; State v. Irwin (1986) 43 Wash.App. 553, 718 P.2d 826, 832].) Several states have held that noncompliance requires suppression regardless of whether the defendant was not prejudiced: Connecticut, Minnesota, New York and Texas. (Ibid., notes 58, 59, 60, 61 [citing State v. Formica (1985) 3 Conn.App. 477, 489 A.2d 1060; State v. Scott (1987) 10 Conn.App. 347, 522 A.2d 1245, 1250; State v. Organ (Minn. 1978) 263 N.W. 2d 627; People v. Bialostock (1993) 80 N.Y.2d 738, 610 N.E.2d 374; Tex Code Crim Pro Art 18.20 Section 13 (1981) parallels the Title III provision, with an added provision (Section 13(c)) that "in no event may any evidence derived from an order under this article be disclosed in any trial, until after such inventory has been served."].)

However, where actual notice was given, the lack of an inventory is harmless:

Moreover, respondents Merlo and Lauer were not prejudiced by their failure to receive post-intercept notice under either of the District Court's inventory orders. As noted earlier, the Government made available to all defendants the intercept orders, applications, and related papers. See n. 7, supra. And in response to pretrial discovery motions, the Government produced transcripts of the intercepted conversations.

(United States v. Donovan, supra, 429 U.S. at 439, n. 26.)

VI

EVIDENCE CODE SECTION 1040 PROVIDES THE PROSECUTION WITH A LIMITED PRIVILEGE TO DELAY DISCLOSURE IN A WIRETAP CASE

As discussed in the return and the declaration of Head Deputy Robert Schirn, the purpose of the "hand-off" procedure with regard to wiretap intercepts was to insulate the wiretap from the subsequent arrest in order to preserve the integrity of the ongoing wiretap investigation. Accordingly, it was the position of the District Attorney's Office that disclosure of the existence of an ongoing wiretap would be deferred and resolved in subsequent court proceedings.

Once criminal proceedings were instituted, the District Attorney's Office argued that pursuant to Evidence Code Section 1040 et seq., and more recently Penal Code Section 1054.7, the need to protect the ongoing investigation outweighed a criminal defendant's right to notice of the existence of the wiretap.

Evidence Code Section 1040 provides a privilege for official information. There is a threshold issue of whether the existence of a wiretap and information obtained during a wiretap are "official information" as defined in Evidence Code Section 1040.

Evidence Code Section 1040 defines "official information" as follows:

(a) As used in this section, "official information" means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

There does not appear to be any California cases on point as to whether the "official information" privilege applies to wiretaps. This privilege has been applied to various situations, but no case appears to directly discuss the application of the privilege in a wiretap context. However, an analysis of the case law in other situations offers support for the proposition that the privilege applies to applies to wiretaps.

California appellate courts have upheld the official information privilege of Evidence Code Section 1040 involving a vehicle identification number (VIN). In In re David W. (1976) 62 Cal.App.3d 840, a prosecution witness testified as to a VIN, but refused to disclose its secret location in a stolen vehicle, asserting the privilege under Section 1040 of the Evidence Code. The Juvenile Court upheld the assertion of the privilege, and the petition was sustained. On appeal, the Court of Appeal held that the privilege was properly invoked. The Court stated that "(t)o allow public knowledge of the location of the secret identification number would destroy its very purpose and would remove a valuable investigatory device that may lead to the discovery of vehicle thefts." (In re David W., supra, 62 Cal.App.3d at page 847.)

In People v. Marghzar (1987) 192 Cal.App.3d 1129, two expert prosecution witnesses testified that the VIN contains a secret formula to determine whether a VIN is valid or fictitious. The Court of Appeal upheld the assertion of the privilege under Section 1040 of the Evidence Codes not to reveal the formula in open court. The Court stated as follows:

"(i)n the case at bar, it is clear that if the formula which produces the check digit were revealed, an important investigatory tool would be destroyed. Thus, disclosure of the information is against public interest. . . . No evidence offered at trial indicated that the revelation of the formula would have aided appellant's defense. Under the facts of this case, the necessity for preserving the confidentiality of the information outweighed appellant's interest in disclosure." (People v. Marghzar, supra, 192 Cal.App.3d at pages 1135-6.)

Within the past ten years, there have also been a number of cases that have discussed the application of Evidence Code Section 1040 involving a surveillance point from which officers can observe possible narcotics transactions. Hines v. Superior Court (1988) 203 Cal.App.3d 1231; People v. Montgomery (1988) 205 Cal.App.3d 1011; People v. Walker (1991) 230 Cal.App.3d 230; In re Sergio M. (1993) 13 Cal.App.4th 809; People v. Garza (1995) 32 Cal.App.4th 148; and People v. Haider (1995) 34 Cal.App.4th 661.

A threshold question in these cases was whether the official information privilege even applied to a surveillance location, since an officer

normally does not "acquire" knowledge of the location. The officer simply selects it and chooses to keep it secret. However, in Hines v. Superior Court (1988) 203 Cal.App.3d 1231, on page 1234, the Court of Appeal resolved this issue as follows:

Petitioner takes too restrictive a view of the statutory word "acquire." The term does not exclude information that is generated by the person claiming the privilege. To acquire means "to come into possession . . . of often by some uncertain or unspecified means." (Webster's Third New Internat. Dict. (1981) p. 18.) To hold, as petitioner seems to suggest, that the location could be official information if petitioner was told of it by Officer Wells rather than discovering it himself creates a distinction which is neither required by the statute nor consistent with the purpose of the privilege. We hold the surveillance location was information to which the privilege could apply.

Subsequent cases have continued to find that the official information privilege includes a surveillance location. People v. Montgomery (1988) 205 Cal.App.3d 1011 at 1019; People v. Walker (1991) 230 Cal.App.3d 230 at 235; In re Sergio M. (1993) 13 Cal.App.4th 809 at 813; People v. Garza (1995) 32 Cal.App.4th 148 at 153; and People v. Haider (1995) 34 Cal.App.4th 661 at 664-5.

With the appellate courts having adopted an expansive view of "official information" with regard to surveillance locations, it seems reasonable that the official information privilege should also apply to wiretap situations.

A legislative policy of protecting the existence of an ongoing wiretap finds strong support in an analogy to the confidential informer privilege. As stated in several cases, the rationale is as follows:

"Like confidential informants, hidden observations posts may often prove to be useful law enforcement tools, so long as they remain secret. Just as the disclosure of an informer's identity may destroy his . . . future usefulness in criminal investigations; the identification of a hidden observation post will likely destroy the future value of that location for police surveillance . . . ." People v. Montgomery, supra, at pages 1019; People v. Walker, supra, at page 235, both quoting from United States v. Green (D.C. Cir., 1981) 670 F.2d 1148.

Since a wiretap is information "acquired in confidence" pursuant to Evidence Code Section 1040, then the rest of that section clearly would apply to wiretaps. The information is certainly acquired "by a public employee in the course of his or her duty . . . ." Further, the information is "not open, or officially disclosed, to the public prior to the time the claim of privilege is made" since disclosures of wiretap information are carefully regulated under the California wiretap statute (see Penal Code Sections 629.74 through 629.84).

Another strong policy reason for applying the "official information" privilege to wiretaps is that the privilege is not absolute. There are built-in safeguards for a defendant when the claim of privilege under Evidence Code Section 1040 is sustained. In Hines v. Superior Court, supra, at page 1234, these safeguards are stated as follows:

However, as Justice Kaus commented, the exercise of the privilege under Section 1040 is a mixed blessing because of the requirement of an adverse finding in Section 1042. (Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 830.) Section 1042, subdivision (a) provides: "Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material."

In the appellate court opinions involving the official information privilege as applied to surveillance locations, the discussion of an adverse finding was made in each opinion. In two instances, the adverse finding resulted in a dismissal of the charges. (Hines v. Superior Court, supra, and People v. Montgomery, supra.) In the other four opinions, these convictions were sustained because an adverse finding was only required if the privileged information is material. People v. Walker, supra, at pages 236-238; In re Sergio M. , supra, at page 814; People v. Garza, supra, at page 155; and People v. Haider, supra, at pp. 668-9.

For example, in People v. Walker, supra, at page 236, the Court of Appeal stated that, "On the specific facts of this case, the trial court did not abuse its discretion in determining that the exact location was not material." Likewise, in In re Sergio M., supra, at page 814, the Court of Appeal stated that, "In the instant case, the People argue that the surveillance location was not 'material' as it did not tend to exonerate the minor . . . . On the record in this case, we fail to see how the disclosure of [officer] Towner's exact location would result in the minor's exoneration." Similar findings were made in the Garza and Haider cases.

In ruling on the issue of "materiality", the trial court should proceed under Evidence Code Section 915(b) and hold an in-camera hearing attended by the party claiming the privilege. This was the procedure recommended in People v. Montgomery, supra, at page 1021.

Another issue to be resolved is reconciling the discovery statutes in the state wiretap law with Evidence Code Section 1040. Penal Code Section 629.70 states that the contents of an intercepted communication or evidence derived from it shall not be received in evidence unless discovery regarding the wiretap is made not less than 10 days before the trial, hearing, or proceeding. Evidence Code Section 1040 provides a privilege for non-disclosure of official information. It would appear that these two statutes are in conflict, since one requires disclosure of information, and the other limits it.

It is a rule of statutory construction that whenever possible, conflicting statutes should be reconciled to achieve the legislative objectives behind each statute. One method of reconciling these two statutes is to limit Evidence Code Section 1040 as providing only a "qualified" or partial privilege rather than a complete privilege. Under this construction, the successful assertion of the privilege would merely delay, rather than completely deny, discovery to the defense of the wiretap. Giving Evidence Code Section 1040 some validity in wiretap cases does not seem to violate the discovery provisions of the state wiretap law. A defendant is not entitled to discovery of the wiretap at the time of filing; rather, Penal Code Section 629.70 states that discovery is required 10 days before the hearing or trial, and discovery does not apply to grand jury proceedings. Penal Code Section 629.70 would allow the prosecution to delay the discovery for two months or more if the defendant is indicted by a grand jury. Under this approach, when the assertion of the privilege is upheld by the court, then the prosecution could delay discovery until 10 days before the trial, and failure to provide timely discovery could then result in sanctions.

VII

ASSUMING THAT DISCLOSURE WAS REQUIRED, SUPPRESSION NEED NOT FOLLOW, AND THE DEFENDANTS MUST MEET THEIR BURDEN OF SHOWING PREJUDICE

In Gastelum et al., Judge Alarcon held that the leads provided by the wiretap intercepts caused the resultant investigation to be derived from the wiretap for the purpose of compliance with Section 629.70. (Paragraph IX of the Return, ante.) Accordingly, the People were ordered to provide disclosure pursuant to Section 629.70. The People have complied with that order, and out of an abundance of caution, pending the outcome of many cases, the People have also provided disclosure in all open and closed cases.

In Salcido's pending case and the other two petitioners with pending criminal cases involving wiretaps, the information provided can now be used to test the wiretap application in a motion pursuant to Section 1538.5.

The procedure used by the District Attorney's Office in these cases involving wiretaps was conducted in good faith. In the related inventory notice situation, the Court of Appeals for the Eighth Circuit stated:

It is clear to us that the failure of the government to cause these two defendants to be served with inventories was not inadvertent or due to any administrative oversight. In other words, we do not think that Barletta and Fontanello simply got lost in the shuffle as may have been the case with Merlo and Lauer in the Donovan case which involved a much larger number of people than did this case. On the other hand, there is no basis for any conclusion that either the Federal Bureau of Investigation or the Department of Justice acted in bad faith in failing to include the defendants in the list of names submitted to the district court, or that they were excluded from the list for the purpose of preventing them from being served with inventories or for any other improper purpose.

(United States v. Barletta (8th Cir. 1977) 565 F.2d 985, 990.)

In Barletta, the prosecutors had not provided the two names because they had initially decided not to seek indictments against these two individuals, and believed that it was unnecessary to identify unindicted persons to the district court for the service of discretionary inventories. The Barletta court held:

If, as Donovan holds, a complete failure on the part of the government to cause discretionary inventories to be served on a person does not ipso facto call for suppression, we are unwilling to hold that suppression is required merely because the government's failure, while not inadvertent, was due to a view of the requirements of the statute that turned out ultimately to be wrong.

(Id. at p. 991.)

Disclosure has been made to all of the defendants whose cases are related to a wiretap. This includes defendants who may lack standing to attack the warrant application because they were not overheard on the wiretap. The prudent course is to place these defendants in their status quo ante and allow them to demonstrate any prejudice that may exist from the failure to provide disclosure pursuant to Section 629.70.

In United States v. Buck (9th Cir. 1977) 548 F.2d 871, the defendant complained on appeal that a post-trial hearing on the alleged illegality of a wiretap and evidence derived therefrom deprived her of several constitutional rights. The Court of Appeals stated:

Neither the pertinent statute nor its legislative history purports to mandate that such a hearing be held before trial. The propriety of holding such hearings post-trial has been recognized widely and is within the trial court's discretion. See United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); United States v. Cales, 493 F.2d 1215 (9th Cir. 1974); United States v. Bacall, 443 F.2d 1050 (9th Cir. 1971), cert. denied, 404 U.S. 1004, 92 S.Ct. 565, 80 L.Ed.2d 557; United States v. Sacco, 428 F.2d 264 (9th Cir. 1970), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140; United States v. Nolan, 420 F.2d 552 (5th Cir. 1969), cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 47 (1970); United States v. Cole, 325 F.Supp. 763 (S.D.N.Y. 1971), aff'd 463 F.2d 163, 171 (2d Cir. 1972), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972).

(Id. at 874.)

Accordingly, the late disclosure provided to these defendants in and of itself should not give rise to suppression per se. Even assuming that the defendants were entitled to disclosure, the lack thereof did not result from an attempt to defeat the defendants' rights; the People have acted in good faith throughout. Unless the defendants can demonstrate actual prejudice from the failure to disclose, their convictions must stand. Actual prejudice should be determined on a case by case basis. Questions such as standing, the probable cause enunciated in each application and the relationship of each defendant's case to that probable cause cannot be determined on the basis of "10,000 Does."

DATED: July 27, 1998Respectfully submitted,

GIL GARCETTI

District Attorney of Los Angeles County

By

ROBERT SCHIRN

Head Deputy District Attorney

Major Narcotics Division

By

PETER J. CAGNEY

Deputy District Attorney

Attorneys for Real Party in Interest

1. Unless otherwise indicated all further statutory references are to the Penal Code. Other abbreviations used are: "Pet." for the petition filed by Salcido; "Ex." for exhibits; "R.T." for Reporter's Transcript; "Decl." for a declaration.

2. The public defender has filed an amended petition naming four additional defendants. It is the People's position that these cases are not so similar that they should be joined. Salcido has no lawful basis for bringing a habeas corpus petition. Two of the additional four defendants have cases pending and therefore they, too, must proceed by way of a section 1538.5 motion. Since all of the defendants have been provided with notice and disclosure and now seek suppression of the evidence against them, the two remaining defendants represented by the public defender must seek a writ of error coram nobis not habeas corpus relief. (In re Clark (1993) 5 Cal.4th 750, 767; In re Sterling (1965) 63 Cal.2d 486, 487-489; In re Lassard (1965) 62 Cal.2d 497, 503; In re Harris (1961) 56 Cal.2d 879, 880, see Memorandum of Points and Authorities, footnote 5, post.)

3. Other persons, whose identities were ascertained during the wiretaps, but who were not made defendants in any cases, will also be notified pursuant to section 629.68. However, since these individuals are not criminal defendants, they are certainly not entitled to any representation by the Public Defender's Office, and they are not authorized to seek relief from the court through a petition for writ of habeas corpus.

4. Out of an abundance of caution, all defendants whose cases began with information obtained from a wiretap intercept have been notified even where they were not personally overheard and were not named in the warrant application. This does not mean, however, that the People concede that defendants who were not overheard and were not named in the warrant have any standing to complain about evidence admitted against them.

5. Aside from the due process questions involving notice and disclosure which have been rendered moot by the District Attorney's Office, the remedy, if any, for the failure to provide notice or for failure of probable cause with regard to the warrant application itself is suppression of the evidence derived from the wiretap. Suppression of evidence is not cognizable in a habeas corpus case. (In re Clark (1993) 5 Cal.4th 750, 767; In re Sterling (1965) 63 Cal.2d 486, 487-489; In re Lassard (1965) 62 Cal.2d 497, 503; In re Harris (1961) 56 Cal.2d 879, 880.)

6. The original statute was not passed by two-thirds of the Assembly in 1988.