MICHAEL P. JUDGE, PUBLIC DEFENDER
Kathy Quant, Deputy Public Defender
Appellate Branch
(State Bar No. 118603)
320 West Temple Street, Suite 590
Los Angeles, Ca. 90012Telephone No.
(213) 974-3098

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

INDEX

SUPPLEMENTAL PETITION

I ADDITIONAL KNOWN DEFENDANTS

II RESEARCH AND INVESTIGATION DISCLOSED FAR MORE VIOLATIONS OF THE WIRETAP LAWS

III DISTRICT ATTORNEY'S UNSWORN STATEMENT CLAIMED ONLY 85 WIRETAP CASES

IV PAST PRACTICE OF INTENTIONALLY CONCEALING WIRETAP OPERATIONS SO THAT MASS SURVEILLANCE OF THE LOS ANGELES COUNTY COMMUNITY WILL REMAIN HIDDEN

• Reporting of Wiretap Operations was Intended for Community Overview
• District Attorney History of Concealing Wiretap Operations
• Between 1989 and 1996 California Reported Only 39 Wiretap Operations, 34 of Which Were Reported to be Related to Los Angeles County
• In 1997 the District Attorney of Los Angeles Reported Record High Wiretap Operation
• Wiretaps in Los Angeles County were Significantly Higher in 1997 than Reported
• Los Angeles Statistics for All Years Are Significantly Higher than Reported

• The Increase in the Number of Wiretaps Reported in Los Angeles in 1997 Are Related to Judge Alarcon's Ruling Which Finally Exposed the District Attorney's Wiretap Operations

• The Sequential Numbering in the Federal Reporting Forms Reveal the District Attorney's Practice of Concealing
• The Federal Government Requires the Use of Sequential Reporting Forms
• Sequential Numbering of Reporting Forms Reveal the District Attorney's Concealed Wiretap Operations
• Petitioners Have Located a Few Concealed Wiretap Orders

V WRONGFUL LEGAL MANEUVERS USED TO CONCEAL WIRETAP OPERATIONS

VI SUPPRESSION OF EVIDENCE AND REVERSAL OF CONVICTIONS

A. Unlawful Delegation of Authority

B. Wiretap Orders From Judges without Competent Jurisdiction

C. Failed to Insure Particularity and Specificity in Wiretap Orders

D. Failure to Minimize Innocent Conversations

E. Failure to use as Tool of Last Resort"

F. Failure to State Probable Cause

VII. FAILURE TO REPORT PREVENTED ANYONE FROM KNOWING THE TRUE EXTENT OF THEIR WIRETAP OPERATIONS AND RESULTED IN LAW ENFORCEMENT'S UNLIMITED USE OF THE WIRETAPS FOR MASS SURVEILLANCE OF THE LOS ANGELES COUNTY COMMUNITY

A. The District Attorney Intentionally Hid Devastating Statistical Information
B. Belief that the Failure to Report and Provide Notice Would Sufficiently Conceal Wiretap Operations Resulted in the Widespread Wiretapping

VIII ILLEGAL WIRETAPPING IS OCCURRING THROUGH THE USE OF PEN REGISTERS
IX WIRETAPPING OF JAIL PAY PHONES HAS RESULTED INVASIONS OF PRIVACY AND INFRINGED UPON PRIVILEGED ATTORNEY-CLIENT COMMUNICATIONS

X THE FBI FOUND 1080 INTERCEPTIONS IN LOS ANGELES COUNTY ON A SINGLE DAY

XI ALL PETITIONERS HAVE STANDING UNDER THE STATE WIRETAP LAW

XII ONLY THE LOS ANGELES DISTRICT ATTORNEY, AND THOSE UNDER HIS DIRECTION AND CONTROL, KNOW WHO HAS BEEN WIRETAPPED

I THE LOS ANGELES COUNTY DISTRICT ATTORNEY HAS VIOLATED THE STATE AND FEDERAL WIRETAP LAWS AS WELL AS THE CONGRESSIONAL AND LEGISLATIVE INTENT OF THOSE LAWS

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

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

IV DEFENDANT IS ENTITLED TO A SUPPRESSION HEARING ON EVIDENCE OBTAINED FROM A WIRETAP

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

B. Proposition 8 does not bar suppression of the evidence obtained in violation of the state wiretap law

CONCLUSION

Shocking last minute Notice and Inventory

received by John Yzurdiaga, Private LA Attorney

PETITION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE LARRY FIDLER OF THE SUPERIOR COURT FOR THE COUNTY OF LOS ANGELES, JUDGE DESIGNATED PURSUANT TO PENAL CODE SECTION 629.50:

Petitioners, by and through their attorney, Michael P. Judge, Public Defender for the County of Los Angeles, and Kathy Quant, Deputy Public Defender, make the following additional allegations in support of their Supplemental Petition for Writ of Habeas Corpus:

I

Petitioner amends the petition to add the names of the following petitioners who were previously known by only the People and therefore unnamed and who are now known by both parties: Jesus Guzman, Criminal Case Number BA164591, Gilbert Ochoa, Criminal Case Number BA09583, Fransisco Medina, Criminal Case Number KA039990, and Noel Sanchez, TA051047.

II

A Supplemental Petition Was Necessary Because Petitioners Research and Investigation Have Disclosed Far More Violations of the Wiretap Laws Than was Originally Alleged

Since the original Petition for Writ of Habeas Corpus was filed, petitioners have developed and assembled as much additional information and data as appears possible without further discovery orders by this court. That research and investigation have disclosed that the Los Angeles District Attorney's Office appears to be involved in far more violations of the wiretap laws than was originally alleged. Petitioners' research and investigation, as detailed below, establishes 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. However, petitioners research and investigation is incomplete because most wiretap operations have been unlawfully concealed by the Los Angeles County District Attorney. Petitioners have obtained only a small sampling of the documentation of the wiretap orders issued. However, despite the comparatively diminutive documentation available on wiretap operations in Los Angeles County, the violations already discovered are so numerous that petitioners will but briefly describe them in this supplemental petition. However, each of those documents is attached as an exhibit to allow the court to observe and appreciate the full extent of each violation.

Petitioners allege that the Los Angeles County District Attorney has exhibited a wanton disregard for the privacy rights of an extraordinarily vast number of persons within Los Angeles County and has consciously and systematically flaunted the mandates of the law as to petitioners and thereby acted in conscious disregard for the known consequences of such intentional violations of the law, such as suppression of evidence and reversal of convictions. However, the Los Angeles District Attorney also knew that those consequence were only available if the true facts regarding wiretap operations in Los Angeles surfaced. Until now, the Los Angeles District Attorney has, through artifice and stratagem, successfully concealed the true facts and hoodwinked the judges, lawyers, defendants, and the Los Angeles County community. All petitioners who have had, or will have, any evidence derived from a wiretap introduced against them in any proceeding, are materially affected by the unlawful practices of the Los Angeles County District Attorney.

The following allegations and evidence are submitted in support of the Petition for Writ of Habeas Corpus. They are also introduced to rebut any possible application for the unjust benefit of the Office of the Los Angeles District Attorney of the presumption afforded most public officials: that the discharge of their official duties has been properly performed. On June 15, 1998, Counsel for petitioners provided to Deputy District Attorney Robert Schirn, Head Deputy of the Narcotics Division, who has been assigned to file the return in this matter, the general substance of most of the following allegations.

III

The District Attorney's Unsworn Statement Claimed Only 85 Wiretap Cases

On June 1, 1998, Los Angeles County District Attorney Gil Garcetti made a public unsworn statement claiming:

"Since 1993, our office has filed 85 cases in which wiretap surveillance techniques were utilized. . . . The defendants in 58 cases were provided with no information concerning the wiretap surveillance while their cases were pending. . . In addition, we are adopting an interim policy, pending final judicial review of all these issues, governing future wiretap surveillance cases under which all defendants will be provided notice of wiretap surveillance consistent with the court's ruling in People v. Gaxiola." (Exhibit, 1 Amended Petition, emphasis added.)

Petitioners have thus far been served with only two such written notices and have been given verbal notice in two additional cases. Only petitioner Nelly Cisneros, Criminal Case Number BA157012, has been provided with a copy of the order and a partial copy of an application, the remaining portion of which has been improperly ordered sealed at the People's request.

IV

Petitioners Allege the District Attorney Is Continuing His Past Practice of Intentionally Concealing Wiretap Operations from Defendants and the Public So that Mass Surveillance of the Los Angeles County Community Will Remain Hidden

Petitioners allege that there exist far more than 85 cases involving wiretap operations and far more than 4 petitioners who are entitled to notice of the fact that their conversations have been intercepted by a wiretap operation or that evidence derived from a wiretap has been used against them in their criminal cases. Petitioners allege that the District Attorney has been concealing wiretap operations for many years.

To support this allegation, petitioners will first establish that state and federal reporting procedures require the District Attorney to report all wiretap operations to enable Congress, the Legislature, and the community to monitor wiretapping and ensure that wiretapping is being properly administered. Petitioners will establish that the number of wiretaps reported in 1997 is significantly higher than the number of wiretaps reported in previous years. Petitioner will establish that but for Judge Alarcon's ruling in Gaxiola, which exposed the fact that the District Attorney was concealing wiretap operations, the number of wiretaps reported for 1997 would have been far less. Petitioners will show that the number of wiretaps reported by the District Attorney does not match the number of wiretaps which actually occurred in 1997. Petitioners will show that the District Attorney has failed to report wiretap operations in 1997 and in previous years as well. Finally, petitioners will provide plausible reasons why those wiretaps were concealed and provide an appropriate method for locating a portion of concealed wiretaps and determining the minimum number of wiretap operations which have not been reported.

In support of these allegations petitioners introduce the following evidence:

1. All Wiretap Operations Must be Reported to the State and Federal Governments to Provide the Community with Assurance that Wiretap Operations Are Being Properly Administered

All judges issuing wiretap orders are required to report all wiretap applications to the Administrative Office of the United States Courts within 30 days of their denial or expiration of the order if the application is granted. (18 U.S.C. § 2519(2).) Annually, the District Attorney is required to report statistics on completed wiretaps to the Administrative Office of the United States Courts by January 31^st of the following year and thereafter to the state Attorney General so that he may submit in April an annual report to the Legislature on interceptions which occurred the previous year. (Pen. Code § 629.62; 18 U.S.C. § 2519(2).) The purpose of reporting is as follows:

"Congress .... made the judgment that electronic surveillance should be monitored not only by courts, but, to an extent by the public as well... and ... created elaborate reporting requirements about the use of court-permitted wiretapping. ... Congress decided that statistics on wiretap use should be compiled so as "to form the basis for a public evaluation" of the operation of the surveillance law and to "assure the community that the system of court-order(ed) electronic surveillance is properly administered." (Ferri v. Bell, (3^rd Cir. 1981) 645 F.2d 1213, 1224-1225, citing United States v. Chavez (1974) 416 U.S. 562, 577, 94 S.Ct. 1849, 1857, 40 L.Ed.2d 380, S.Rep.No.1097, 90th Cong., 2d Sess. 107 (1968), reprinted in U.S.Code Cong. & Ad.News at 2196.)

2. The District Attorney has a History of Concealing Wiretap Operations

A. Between 1989 and 1996 California Reported Only 39 Wiretap Operations, 34 of Which Were Reported to be Related to Los Angeles County

The Attorney General's mandatory annual report to the Legislature in April of 1997 stated there were only "39 completed wire interceptions" in California from 1989 to the end of 1996, a number he considered, as he had done each year before, as "sparing," "responsible," and an "appropriate use" of the law. (Exh. A-7, p.1.) In fact, California's 12 reported interceptions for the year 1996 appeared comparatively in line with the rest of the country, all state courts nationwide together having issued only a total of 568 orders. (Exh.A-7, Exh. B.) Los Angeles County was responsible for at least 34⁽¹⁾ of the 39 interceptions. These numbers were consistent with the numbers reported by the federal government.

B. In 1997 the District Attorney of Los Angeles Reported Record High Wiretap Operation

The federal government's "Wiretap Report" covering the year 1997, contained information that California incurred 28 interceptions, 24 of which were related to Los Angeles. (Exh.C-5.) In contrast, the Attorney General's "Report to the Legislature on Interceptions of Criminal Communications," contained information that there were "37 completed wire and/or electronic interceptions in the calendar year 1997," 28 related to Los Angeles County. (Exh.A-8, p. 1.) However, the Attorney General's report was never filed in April, it was filed in the beginning of May along with a separate report entitled "Additional Wire-Intercepts Completed in 1997," which disclosed 21 additional wiretaps issued in 1997, but none were attributed to Los Angeles County. (Exh. A-9, p. 1.) It therefore appeared to the United States Congress, which makes an annual review of the number of interceptions occurring, that Los Angeles County had 24 interceptions, and it appeared to the California Legislature, which also makes an annual review, that Los Angeles County had 28 interceptions.

C. Wiretaps in Los Angeles County were Significantly Higher in 1997 than Reported

Petitioners have determined that the total number of interceptions in Los Angeles County was significantly higher in 1997. Petitioners have discovered the following additional information:

A Ventura County interception was issued by a Ventura County Judge and Los Angeles County Judge Perry. (Exh.A-8, p. 76.) Since judges may only issue orders for their own county, it appears Los Angeles County suffered another wiretap. (Pen.Code § 629.52.)

An additional Los Angeles County wiretap order issued by Judge Rappe on October 30, 1997, was reported by the United States Courts but not the Attorney General. (Exh. C-5.)

One wiretap order occurring in 1997 for a jail facility actually intercepted three separate public pay phones in the Lynwood Sheriff's County Jail.⁽²⁾

Mentioned within the partial disclosure recently received by counsel in Petitioner Cisneros' case are two additional wiretap orders issued by Los Angeles Judge Ouderkirk on April 11^th and April 28^th of 1997 heretofore undisclosed and still unreported by either the state or federal authorities. (Affidavit in support of Rappe 9/11/97 order, p. 27.) ⁽³⁾

Twenty of the twenty-one wiretaps in the Attorney General's "Additional Report" were attributed to San Bernardino County. However, thirteen were issued by Los Angeles Judge Perry along with another four interceptions which were issued by Orange County Judge Toohey reported as being directly related to Judge Perry's orders. Petitioner Acosta alleges her prosecution in Los Angeles County is directly related to the orders issued by both of these judges.

The Attorney General's "main" report separately listed a Los Angeles County interception order from 1996 which had not previously been reported and which lacked the requisite statistical information, but which disclosed that the interception order was issued by Judge Ouderkirk on May 21, 1996, "for which no extensions were sought," but "a new intercept order was obtained which ran until 1988." (Exh. A-8, p. 2-3, emphasis added.) The Attorney General provided no explanation of how an order could expire without an extension in 1996 but somehow become reactivated and allowed to continue until 1998. The undated report form signed by Judge Ouderkirk provides no information regarding the date the order was issued or the number of extensions granted, but merely states "see attached."

Attached to that report form is an unsigned, undated sheet of plain paper with nothing other than the following:

Orig. Request 30 5/21/96 granted 5/21/96

1^st Ext. 30 6/20/96 granted 6/20/96

2^nd Ext. 30 7/23/96 granted 7/23/96

3^rd Ext. 30 8/22/96 granted 8/22/96

4^th Ext. 30 9/24/96 granted 9/24/96

5^th Ext. 30 10/18/96 granted 10/18/96

6^th Ext. 30 11/14/96 granted 11/14/96

7^th Ext. 30 12/12/96 granted 12/12/96

8^th Ext. 30 1/11/97 granted 1/11/97/⁽⁴⁾

Federal statistics reveal that the average length of a wiretap nationwide is 30 days. (Exh. D) Fewer than one-third of the wiretap orders for Los Angeles County expired after 30 days. Most wiretap orders in Los Angeles County are inordinately long, somewhere between 60 and 180 days. Perforce, a two year wiretap is beyond the pale. But the length of this order is just one concern. Review of the order disclosed that it contained not one, but 22 separate telephone lines including an entire cellular telephone company. ⁽⁵⁾ The Attorney General's report failed to disclose the existence of the fact that there were other interceptions in that single order./⁽⁶⁾ Nor did it disclose that the order was authorized to run, and the District Attorney's Office admitted that it would have in fact run, endlessly but for the ruling of Judge Alarcon. (Exh. A-9, Transcript of in-camera hearings in Gaxiola, April 3, 1997 p. 20:15-21.)

The actual number of interceptions which occurred as a result of the issuance of the above wiretap order is yet unknown because, as will be seen below, the open-ended order, issued by a judge with absolutely no jurisdiction to issue wiretap orders, provided that if the telephone number of the "unknown" target was changed, the District Attorney need only request interception of the new number.

Petitioner Barato alleges that the above interception was in fact the order which from his conviction, and already completed illegal sentence, were derived.

D. Los Angeles Statistics for All Years Are Significantly Higher than Reported

The fact that the County of Los Angeles conducted more interceptions in 1997 than any other state in the nation but possibly one establishes, in and of itself, evidence of misuse of the wiretap law as an investigative measure of "last resort." Petitioners allege that the Los Angeles County District Attorney has a past practice of concealing multiple interceptions within a single order and that the actual number of interceptions in Los Angeles County is significantly higher than has been reported to the state or federal government. Petitioners allege that the purpose of this practice is to conceal from Congress, the Legislature, and the community at large the mass invasions of privacy occurring in Los Angeles County.

In addition to the Gazxiola order which intercepted 22 separate telephone lines, petitioners submit the following:

The order issued by Judge Czueleger on February 24, 1995, intercepted three separate telephone lines, two in the 213 area code and one in the 310 area code. (Exh. F-1, p.1.)

The unreported order issued by Judge Czueleger on December 1, 1994, intercepted four separate telephone lines, two in the 213 area code and two in the 310 area code. (Exh. F-2, p.1.)

An unsigned, undated, and apparently unreported wiretap order, the application for which is stated as having been submitted on March 28, 1995, requested interception of four separate telephones, three in the 213 area code and one in the 310 area. (Exh. F-3, p.1.)⁽⁷⁾

The order issued by Judge Czueleger on January 6, 1995, intercepted six separate telephone lines in the 310 area code. (Exh. F-4, p.1.)

The unreported order issued by Judge Czueleger on February 14, 1995, intercepted six separate telephone lines, all in the 310 area code. (Exh. F-5, p. 1.)

The order issued by Judge Czueleger on November 8, 1994, intercepted nine separate telephone lines, two in the 213 area code and seven in the 310 area code. (Exh. F-7, p.1.)

An unsigned, undated, and apparently unreported application for a wiretap order for thirteen telephone numbers in the 213 area code which are related to Telemundo Cellular Telephone Communications.⁽⁸⁾ (Exh. F-7, p. 2.)

3. The Increase in the Number of Wiretaps Reported in Los Angeles in 1997 Are Related to Judge Alarcon's Ruling Which Finally Exposed the District Attorney's Wiretap Operations

Petitioners allege that the reporting of what otherwise would appear to be an extraordinarily high number of wiretaps issued in 1997 was not simply an exceptionally active year for law enforcement but simply a direct result of Judge Alarcon's ruling ordering disclosure of the previously concealed unlawful wiretap in the Gaxiola case and further alleges that otherwise most of those orders would not have been reported.

Petitioners allege that the Los Angeles County District Attorney has a past practice of intentionally concealing interception orders by failing to report them to the state or federal government. In support of this allegation petitioner submits the following evidence:

The Attorney General reported that the Gaxiola order was issued by Judge Ouderkirk without extension on May 21, 1996, under federal report form number 44526. (Exh. A-9, p. 2.) However, the order does not appear in the state or federal wiretap reports in either 1996 or 1997./⁽⁹⁾ Examination of the report form discloses it was signed by Judge Bascue on April 10, 1998, and Deputy District Attorney Jason Lustig on April 8, 1998, three weeks after Judge Alarcon ordered disclosure, and that the order was issued on May 21, 1996.⁽¹⁰⁾ (Exh. G, pp. 1-2.)

There does exist a reporting form signed by Judge Ouderkirk but it is not dated and only the beginning number "3" of the form number is clearly visible. (Exh. H.) The prosecutor's portion of form was signed by Deputy District Attorney Jason Lustig on January 15, 1997, ⁽¹¹⁾ and contained statistical information disclosing a cost of $161,848.00.

Petitioner alleges that Judge Alarcon's ruling did more than put a stop to the never-ending wiretapping in Gaxiola, it pressured the Los Angeles District Attorney into disclosing more wiretap operations than he had intended to disclose. This is evidenced by the fact that the federal wiretap report, based on the information supplied by the District Attorney was missing 31 of the wiretap orders reported to the Attorney General. Despite the fact that each and every one of those 31 wiretap orders expired more than 30 days prior to close of the reporting cycle on January 1, 1998, none were divulged to the federal government as required.

On March 18, 1998, Judge Alarcon ordered disclosure of the Gaxiola order. A decision was apparently then made by the District Attorney to report only 20 of the 31 wiretap orders. Only 20 of the 31 wiretap orders were divulged prior to the completion of the Attorney General's report to the legislature. They are included in the total of the "main" report. Also included was Judge Ouderkirk's reporting form, but not Judge Bascue's reporting form.

However, as previously explained, the Attorney General's Report was not provided to either the Senate Public Safety Committee or the Senate Judicial Committee in the month of April despite the fact that the Attorney General's letter to the Chair of the Senate Committee on Public Safety was signed and dated April 14, 1998. (Exh. W.) Petitioner's counsel personally contacted each the week of May 4, 1998, and none had yet received a copy.

It is now known that Gaxiola federal form number 44526 was completed on April 10, 1998, when it was signed by Judge Bascue. Petitioner alleges that report form 44526, as well the remaining 21 wiretap orders, were received by the Attorney General prior to the mailing of the Attorney General's letter to the Chair of the Senate Committee on Public Safety, and thus required the filing of the "Additional Report."

On May 6, 1998, petitioner's counsel again contacted the Senate Committees as well as the Governor's Office and was later notified that the two volume report on interceptions had finally been received. The remaining 21 wiretap orders, which included the 17 orders issued by Los Angeles Judge Perry and Orange County Judge Toohey, were included in the second separate volume of the 1998 report along with the information contained in Judge Bascue's report on the Gaxiola order. Clearly, it was Judge Alarcon's ruling exposing the District Attorney's previously concealed wiretap operations that forced the disclosure of these wiretap orders which would not have otherwise been divulged.

4. The Sequential Numbering in the Federal Reporting Forms Reveal the

District Attorney's Practice of Concealing Wiretap Orders

A. The Federal Government Requires the Use of Sequential Reporting Forms

Title III requires reporting of all interceptions and authorizes the Director of the Administrative Office of the United States Courts to issue "binding regulations" for filing. (18 U.S.C. § 2519(1), (2), and (2)(g).) Those regulations require that prosecutor obtain preprinted, sequentially numbered reporting forms from the U.S. Courts, type the requisite information onto the forms and distribute them as follows: Ply-1 is given to the court to be forwarded to the Administrative Office of the United States Courts within 30 days of the denial of an application or the expiration of the order.⁽¹²⁾ Ply-2 is to be kept in the judge's files. Ply-3 is required to be filed with the U. S. Courts before January 31^st of the year following the expiration of an order granted. Ply-4 is maintained in the prosecutor's files. (Exhibit G, p. 2.) The Deputy Attorney General John Vance has informed petitioners' counsel that while there is no specific written deadline reporting wiretap operations, the information is needed by the beginning of April to enable the filing of the annual report to the legislature in April.

B. Sequential Numbering of Reporting Forms Reveal the District Attorney's Concealed Wiretap Operations

Federal form numbers did not become an integral part of the Attorney General's Report until 1995. In 1996 the federal reporting number sequence for wiretap orders reported was as follows: 36084, 36086, 36087, 36088, 36089, 36092, 36094. Four numbers in the sequence were missing; 36085, 36090, 36091, 36093. (Exh. A-7, p.3-4.)

Only the beginning number of the undated federal reporting form signed by Judge Ouderkirk is clearly visible. It is the number "3." (Exh. H) The prosecutor's portion of form was signed by Deputy District Attorney Jason Lustig on January 15, 1997, ⁽¹³⁾ and contained statistical information disclosing a cost of $161,848.00. There are no similarities between information contained within Judge Ouderkirk's report and those contained within Judge Bascue's report. However, Judge Ouderkirk's report indicates it was related to two other federal reports, one numbered 36084, a wiretap actually reported which issued by Judge Ouderkirk on September 5, 1996, which incurred similar costs of $161,840.00, and report number 36091. However, 36091 was a number which was missing in the 1995 sequence. It therefore appears that the Gaxiola case revealed not one missing wiretap, but two.

More importantly, it revealed that there may well be a relationship between missing numbers in the sequence and wiretaps which were never reported.

C. Petitioners Have Located A Few Concealed Wiretap Orders

The Attorney General reports disclose eleven numbers missing from two different federal reporting form sequences from Los Angeles. One unreported wiretap order issued by Judge Czueleger has been located. It was issued on February 14, 1995, and intercepted six separate telephone lines. (Exh. F-6, p. 1.) Petitioner believes that it was also Judge Czueleger who signed the March 28, 1995, wiretap order. (Exh.F-3, p.1.) Like Gaxiola, it was never reported and intercepted thirteen separate telephone lines of a cellular telephone company called Telemundo Communications. (Exh.F-3, p.6.)

One missing sequence number in the Attorney General's report was 33777. However, the Attorney General's report failed to include an order issued by Judge Czueleger on December 1, 1994,⁽¹⁴⁾ which was in fact reported to federal government. If petitioner's allegation is correct the federal reporting form number of that order would be 33777 since it matches the dates of missing sequence number perfectly. On November 8, 1994, Judge Czueleger issued a wiretap order which intercepted nine separate telephone lines and was reported under 33776. On December 20, 1994, Judge Czueleger issued a wiretap order for an unknown number of telephone lines and was reported under 33778. Number 33777 was missing from the sequence. The December 1, 1994, order would be the logical wiretap order to complete the sequence. Therefore, it appears there are now eight missing numbers from the sequence for 1995, petitioners having located three wiretap orders, two of which have never been reported.

While federal report numbers were not included in the Attorney General's 1993 report, Petitioner believes that those numbers may also reveal breaks in the sequence since petitioners have located three additional wiretap orders which appear to have been unreported. Two orders were issued by Judge Ito on February 18, 1994, and March 17, 1994,⁽¹⁵⁾ for cellular telephones. (Exh. C-2.) Moreover, there is evidence that the unsigned, undated application for an order in August of 1993 previously referred to in this petition, was in fact subsequently issued. (Exhibit F-4, p. 9.)

Despite the large number of wiretaps reported in 1997, there are still many numbers missing from three different sequences covering Los Angeles County. Reference to two of those missing orders were found in the Cisneros partial disclosure. Both of these orders were issued by Judge Ouderkirk, one April 11 and the other on April 28, 1997, even though he had no jurisdiction to issue wiretap orders.⁽¹⁶⁾

Of particular concern is the fact that one sequence in 1997 appeared to begin with the number 44501 and end at the number 44526. However, it is now known that this form number, 44500, is actually wiretap order which was never reported to the Attorney General's for inclusion in the 1997 wiretap report. This is evidenced by the fact that federal form numbers 44501, 44502, 44503 all allege to be related to "44500." But 44500 has never been reported. Had this information not been known, it would have appeared that Los Angeles County's number sequence began at 44501, even though it began at an earlier number. In fact, no one would have known that number 44500 ever existed. Now we know that the beginning and ending numbers in a sequence do not necessarily delineate the outside boundaries of all wiretap orders, but are a clue to finding concealed wiretap orders. Therefore, the numbers which are missing from a sequence in the Attorney General's wiretap report are not all inclusive and there may well be far more concealed wiretap orders than there are missing numbers in a sequence. Therefore, finding missing numbers between the highest and lowest numbers in a sequence is one tool that can be used to locate a portion of these orders.

D. The Sequential Federal Reporting Forms Reveal the Los Angeles District Attorney is Directly Connected to the 17 Wiretap Orders Attributed to San Bernardino County

The federal reporting form sequence numbers also directly connects the Los Angeles District Attorney to 17 wiretap orders which invaded the privacy of 158,829 people, despite the fact that those orders were applied for by the San Bernardino District Attorney and attributed to San Bernardino County wiretap statistics in the 1997 Attorney General's wiretap report. (See below.) Fourteen of those orders were issued by Los Angeles Superior Court Judge Perry, the remaining three were issued by an Orange County Superior Court Judge. Because a judge in California only has jurisdiction to issue wiretap orders for their own jurisdiction, it appears that these orders for a wiretap operation by the San Bernardino County District Attorney's Office were to intercept telephone lines in Los Angeles County.

However, the sequential numbers reveal that these wiretap orders were actually attributable to the Los Angeles District Attorney. The sequential numbers for these three counties for 1997 were as follows: San Bernardino's federal reporting form numbers were contained within the 45500 sequential series. Orange County's federal reporting form numbers were contained in the 45600 sequential series. Los Angeles County reporting form numbers were contained in three separate federal reporting sequential series in 1997: 36071 through 36082, 43000 through 43038, 44500 through 44526.⁽¹⁷⁾ Los Angeles Judge Perry's wiretap orders allegedly issued for the San Bernardino County's District Attorney to intercept telephones located in Los Angeles County were reported as federal reporting form numbers 43023 through 43035. Orange County Judge Toohey's wiretap orders which were allegedly issued for San Bernardino County's District Attorney to intercept telephones located in Orange County were reported as numbers 43036 through 43038 and specifically reported as being related to Judge Perry's order. Therefore, the reporting form sequential numbers establish that the Los Angeles District Attorney is somehow intimately connected to that wiretap operation.

V

The District Attorney has Engaged Wrongful Legal Maneuvers To Attempt to Conceal its Wiretap Operations

California law requires full disclosure of all evidence derived from a wiretap if any such derivative evidence is introduced at a hearing, trial, or other proceeding, or was used to support another search warrant, of which an interception order is both legally and technically included. (See Points and Authorities section on standing in California.) The United States Supreme Court has held that wiretap records must be turned over to all who have standing, without being screened in camera by the trial judge. (Alderman v. United States supra, 394 U.S. 165, 89 S.Ct. 961, 971.)

Petitioners allege that District Attorney has engaged in an unlawful practice and procedure of concealing wiretap orders by engaging in unlawful ex parte in-camera proceedings. Regardless of the fact that the law provides only two choices, the District Attorney may either pursue a prosecution with disclosure of the wiretap operation or dismissal, the Los Angeles District Attorney has improperly obtained the best of both worlds.

Through unlawful ex-parte, in-camera hearings, the District Attorney has managed inveigle the courts, which are not provided a full and accurate exposition of the law, to conceal wiretap operations from the defense, to seal all records which disclose information regarding wiretap operation, and to issue gag orders on all those who possess any information regarding their concealed wiretap operations.

Transcripts of the in-camera hearing in Gaxiola disclose that the District Attorney attempted to persuade the court that the wiretap operation was so successful it should not be stopped. The District Attorney then relied on the "governmental" privilege in Penal Code section 1040 and informant cases to try to continue to conceal it, even though there was no informant facing life threatening consequences and it was the "government" that mandated that they disclose. (Exh. E, p. 8.)

That practice is still continuing. In-camera hearings have followed a similar request to disclose the existence of a wiretap in petitioner Acosta's case. In petitioner Hernandez' case, in-camera proceedings have been requested by the People and are now set for July 14, 1998. In People vs. De la Herran, BA161118, an in-camera hearing which followed a request to disclose a wiretap resulted in the People declaring they were unable to proceed, rather than disclose the wiretap's existence.

In the partial application for the wiretap order in Cisneros, the District Attorney requested that a portion of the affidavit be sealed pursuant to People v. Hobbs (1994) 7 Cal.4th 948. However, the Hobbs case related solely to non-disclosure of informants, while the affidavit made clear that there were other informants available in the case. The sealing in petitioner Cisneros' case is, therefore, an additional violation of California's wiretap law. Petitioners allege that this is but another method by which the District Attorney is attempting to continue to conceal yet another wiretap.

Petitioners allege that compliance with notice and disclosure requirements of the state and federal wiretap laws in all their cases will reveal even more illegally concealed wiretap orders.

VI

The District Attorney Has Consciously and Intentionally Violated the State and Federal Wiretap Laws Knowing that if his Actions Were Revealed the Consequences Would be Suppression of Evidence and Reversal of Convictions

Petitioners allege that the Los Angeles County District Attorney has intentionally ignored the mandates of the state and federal wiretap law, as well as the protections guaranteed by the state and federal constitutions.

Penal Code section 629.72 broadly mandates suppression for any violation of the Fourth Amendment, as well as any violation of the California wiretap statute, and that Title III mandates suppression of all communications intercepted, as well as all evidence derived from those conversations, when there was a "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures." (18 U.S.C. § 2518(9); United States v. Donovan (1977) 429 U.S. 413, 434, 97 S.Ct. 658, 50 L.Ed.2d 652, emphasis added; United States v. Giordano, supra, 416 U.S. at 527.) Penal Code section 629.94 requires the District Attorney and all other law enforcement officers to be trained and obtain certification prior to being involved in any aspect of a wiretap operation. The California Attorney General is required to establish training "in the legal, practical, and technical aspects" of wiretapping and "set minimum standards for certification" to be able to apply for a wiretap order, "conduct the interceptions," and "to use the communications or evidence derived from them in official proceedings." In accordance therewith, the Attorney General developed guidelines for certification as well as a POST training course and distributed to all prosecutors and law enforcement agencies a comprehensive Electronic Surveillance Manual, which thoroughly reviewed the mandates of the law and the consequences of its breach.

Petitioners allege that the District Attorney acted in conscious disregard for the known consequences, to wit: suppression of evidence and reversal of convictions, not only by intentionally failing to provide notice as alleged in the original petition, but by intentionally engaging in each of the following practices:

A. The District Attorney Unlawful Delegated His Authority To Apply For Wiretap Orders Knowing Such Delegation Was Unlawful and Would Require Suppression

In an effort to centralize responsibility in a public official who would be subject to the political process, Title III allows only the highest ranking prosecutor listed in a state statute to make an application for a wiretap order. (18 U.S.C. 2516(2); 2511(2)(a)(ii)(B).) California allows only "the" District Attorney, not a deputy district attorney, to make such an application which is required to be in writing under "personal oath." (Pen. Code 629.50.) An unauthorized delegation of that authority requires suppression of all evidence derived from such wiretap order. (S.Rep. No. 1097, 90th Cong., 2d Sess., 9697 (1968); United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.)

Petitioners allege that despite the District Attorney's knowledge of the longstanding United States Supreme Court precedent mandating suppression for an unauthorized delegation, the District Attorney intentionally and consciously ignored the law in spite of the potential consequences.

Contained within the limited available documentation on wiretaps in Los Angeles, petitioner has located one application for a wiretap order made on April 27, 1994, and one application for an extension of a wiretap order dated June 1, 1995, submitted by Acting District Attorney, Sandra L. Buttitta. (Exh. P and Q, respectively.)

The federal "Wiretap Report" for 1997 reported that two wiretap applications were submitted by Deputy District Attorney Torrealba on August 5, 1997, and on October 21, 1997.

The District Attorney's wiretap manual concedes that the "responsibility for applying for the intercept may not be designated by any of the four-named attorneys [in Penal Code section 629.50] to any other attorney in their office," but maintains that "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." (Exh. L, Overview of Wiretap Law, Anthony Meyers, (1997) Office of the Los Angeles County District Attorney, Major Narcotics and Forfeiture Division, p. 9, emphasis added.)

B. The District Attorney Knowingly Applied for Wiretap Orders

From Judges Who Lacked Competent Jurisdiction

Title III authorizes only a "judge of competent jurisdiction," 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 has 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.)

State and federal wiretap reports disclosed the following:

In 1991 there were no reported wiretap orders.

In 1992 there were no reported wiretap orders for Los Angeles.

In 1993, Judge Lance Ito alone issued all five wiretap orders.

In 1994, two judges issued orders. Judge Lance Ito issued 6 wiretaps orders and on December 1, 1994, Judge Czueleger issued his first wiretap order.

In 1995, two judges may have issued wiretap orders. The Attorney General reports Judge Czueleger as having issued all 12 wiretap orders while the United States Courts shows that the order issued on August 30, 1995, was issued by Judge Ouderkirk.

In 1996 four judges issued wiretap orders. Judge Ouderkirk issued seven wiretap orders. Judge Czueleger issued one wiretap on May 15, 1996. Judge Bascue and Judge McIntyre jointly issued one wiretap order on November 29, 1996. Judge Bascue issued the wiretap order in Gaxiola on May 21, 1996, but authorized no extensions. Judge Ouderkirk appears to have issued eight extensions in 1996.

In 1997 five different judges issued wiretap orders in Los Angeles County. Judge Perry issued 16 wiretap orders, Judge Rappe issued 17 wiretap orders,⁽¹⁸⁾ Judge Czuelegar issued 4 wiretap orders. Judge Ouderkirk issued one extension for the Gaxiola wiretap order on January 11, 1997. ⁽¹⁹⁾

After a thorough search by the Los Angeles County Superior Court Clerk's Office and the Presiding Judge's staff, Petitioner's counsel was provided with three orders and informed that these orders were the only orders which had been issued and filed in Los Angeles County Superior Court wherein the Presiding Judge designated another judge to issue wiretap orders. Those orders were as follows:

On August 11, 1992, the order of Presiding Judge Ricardo Torres was filed with the Superior Court and designated Judge Lance Ito to consider, authorize, and supervise all applications presented pursuant to Penal Code section 629. (Exh. R.)

On October 17, 1994, the order of Presiding Judge Robert Mallano was filed designating Judge J. Stephen Czueleger to consider, authorize, and supervise all applications presented pursuant to Penal Code section 629. (Exh. S.)

On January 8, 1997, the following order of Presiding Judge Robert Parkin was filed. "Under the authority of Penal Code section 629, Judge Robert Perry is hereby designated to consider, authorize, and supervise all applications presented pursuant to said section. If Judge Perry is unavailable, then Judge Curtis Rappe, followed by Judge Stephen Czueleger are designated as back-up judges to consider, authorize, and supervise all applications presented to Penal Code section 629." (Exh. T.)

It is clear, since no orders have ever been filed designating Judge Bascue, Judge Ouderkirk, or Judge McIntyre, each and every order issued by these Judges is void for lack of jurisdiction. However, since only judges "authorized by a statute" are "of competent jurisdiction," orders issued by Judge Rappe and Judge Czueleger in 1997 are also void, there being no statute authorizing the designation of a "back-up judge." Moreover, even assuming the law allowed "alternative" judges based on availability, Judge Rappe would unquestionably be without jurisdiction to issue orders on July 11, 1997, August 5, 1997, and October 27, 1997, since Judge Perry issued orders on each date as well.

C. The District Attorney Failed to Insure Particularity

and Specificity in Wiretap Orders

A sampling of the orders being submitted to the courts and signed lack specificity and particularity as required by Penal Code section 629.54.

The Gaxiola order was so vague as to be used to intercept any conversation overheard on any of telephone numbers since it issued for the "the operators of" the 22 telephone numbers listed in the order "and others as yet unknown" as the targets of the alleged crime. It required "General Telephone Company, Pac Bell Telephone Company, Air Touch Cellular, and LA Cellular," to provide "upon request" of the District Attorney interception of the numbers listed "and any subsequently changed telephone number utilizing the same cable, pair, and binding, and/or ESN number, and used by the target subjects, related to this investigation, and other co-conspirators, known and unknown, is hereby authorized." (Exh. J.)

The Cisneros order was authorized to "terminate upon attainment of the [unspecified] authorized objective, or in any event no later than October , 1997." Despite the fact that the date of termination was never entered in the space provided,⁽²⁰⁾ Judge Rappe's signature is affixed to the order. (Exh. N, p. 1, 3.)

D. The District Attorney Unlawfully Invaded the Privacy Rights

By Failing to Minimize Innocent Conversations

Both the state and federal laws require law enforcement, when executing a wiretap order, to engage in "minimization" of innocent conversations. (18 U.S.C. 2518(5), Pen. Code § 629.58.) Failure to minimize is considered a "general search," a violation of the Fourth Amendment, and grounds for suppression. (Berger v. State of New York (1967) 388 U.S. 41, 59; 87 S.Ct. 1873;18 L.Ed.2d 1040.) Petitioner alleges that minimization is not occurring in wiretap operations applied for by the District Attorney.

In the court record of the People v. Gilbert Ochoa BA095853, the wire monitor logs reveal 209 conversations intercepted with only 11 minimizations. (C.T. p. 000329-000538.) (Exh. O.) Conversations by women and children who were clearly not within the scope of the order and whose conversations were "clearly innocent" were not only monitored without proper minimization, but described in the logs as follows: "females - general conversation - plays song from radio - to discuss - cut off" (000339); "I love you - Kiss Kiss." (Exh. O, p. 000349); [between two women]: "C. - Has anyone called? R. No one has called/How's the baby. C. The baby's sick. R. - Is your dad coming? C. Yes, in Marcy's. R. With your mom and sister? C.- Yes. Disconnected." (Exh. O, 000389.); "Don't ever yell at me again/no matter how upset you are. Don't repeat what you told me that I was an asshole. I was trying to say that I want you even when you had nothing. You said screaming. Disconnected" (Exh. O, 000426); "Continues chewing out female about losing temper and tongue. Don't do again. I have to take a shower and relax. Have a bad headache." (Exh O, 000427); "Thank you for calling Sparkletts, hold please." (Exh. O, 000479); "(Two females talking about what each is going to wear.)" (Exh. O, p. 000514.) " 'Doctors Office' asks R. to bring home some lotion." (Exh. O, 000512); "(Little girls conversation)" (Exh. O p. 000520.) "Two white females talking about going out / caller has young baby / she was calling from home / bedroom high ceiling / no furniture/ bye" (Exh. O, 000513); "two females talking about what each is going to wear." (Exh. O, 000514); "(Two females talking about meeting each other.)" (Exh. O, p. 000531.)

While the District Attorney may well attempt to assert that officers were not ridiculing the unsuspecting subjects but were simply attempting to "decode" possible criminal conversations, most were unquestionably nothing more than invasions of protected privacy. The ramifications of the failure to minimize should be of greater concern to this court with regards to hundreds of thousands of conversations overheard on public pay phones.

E. The District Attorney Failed to Abide by the Requirement that He Use Wiretapping as an "Extraordinary Investigative Tool of Last Resort " and Executed Wiretap Orders Without Probable Cause

State and federal law both forbid wiretapping unless the police can show that all other investigative procedures have failed or are useless. (18 U.S.C. § 2518(1)(c), Pen. Code § 629.52(d).)

From the small fraction of wiretap applications reviewed thus far, it is apparent that interceptions are hardly being utilized as an investigative measure of last resort. Boilerplate language without a factual showing is found in each of the affidavits. Conclusionary statements are made that drug dealers are "highly suspicious of strangers" making it "impossible to introduce 'cold' informants" to gather information and therefore "unlikely to succeed." (Identical language in Cisneros Exh. I, p.67; Exh. K, p. 63, Gaxiola; similar language in Telemundo, Exh. F-8 p. 33; more simplistic variation in Ochoa, Exh. F-9, p. 26.)

That these recitals are so routine and without thought is evidenced best in the Cisneros partial affidavit where it was disclosed that the DEA had two confidential informants who had already infiltrated the target's network and were about to make a deal when the DEA agent learned of the investigation by the Los Angeles Police Department's and terminated the federal investigation. (Exh. I, Cisneros p. 42.) L.A.P.D. thereafter requested a wiretap order because "no other informants are currently available with the capacity to infiltrate this organization." (Exh. I, Cisneros p. 66.)

Of concern, however, is that the target of most orders is cellular telephone companies. In 1993 the Los Angeles County District Attorney obtained an order for Telemundo Communications which lasted seven months, cost $330,000, and produced 13 arrests. Of concern is that the target of the one order provided to Petitioners thus far was, some four years later, still Telemundo Communications. Atel Cellular Telphone Company was not only the target in Gaxiola for two years but has been the target for a number of federal wiretap orders as well. (Exh. U.)

Yet both companies continue to exist despite the fact that the Gaxiola wiretap operation was touted by the District Attorney in-chambers as "the most successful wiretap in LAPD history" having produced over 50 arrests. That such operations are considered "successful" when the main targets are not forced out of business makes clear that the "target" of these operations may be everyone in Los Angeles County. (Exh. V.) The cellular telephone companies "suspected" of "drug dealing" are nothing more than a "sham" means to provide law

enforcement with the capability of conducting widespread electronic surveillance on the cellular telephone customers. Probable cause is continuously provided simply by repeating the same facts. Deputy District Attorney Lustig admitted in-camera that the District Attorney's Office had no intention of ever stopping the Gaxiola interceptions.⁽²¹⁾ (Transcript of in-camera hearings in Gaxiola, April 3, 1997 p. 20:15-21.)

That these wiretap operations are successful is obvious. Clearly if one spies on the lives of over a half a million people⁽²²⁾ the chances of finding illegal activity is certain. Moreover, there is considerably less expenditure of time and effort, not to mention risks involved, when law enforcement need only walk into their recently refurbished "wire room" located inside the police station and put on a pair of earphones.

VII

The District Attorney's Intentional Failure to Report was used to Prevent Defendants, the Courts, the Government, and the Community from Knowing the True Extent of their Wiretap Operations and Resulted in Law Enforcement's Unlimited Use of the Wiretap Procedure for Mass Surveillance of the Los Angeles County Community

Title III mandates suppression of all communications intercepted, as well as all evidence derived from those conversations, when there was a "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures." (18 U.S.C. § 2518(9), emphasis added; United States v. Donovan (1977) 429 U.S. 413, 434, 97 S.Ct. 658, 50 L.Ed.2d 652; United States v. Giordano, supra, 416 U.S. at 527.)

A. The District Attorney Intentionally Hid Devastating Statistical Information

Both state and federal laws require the District Attorney to report statistical information to the federal government, including the number of people affected by each and every wiretap operation. In twenty of the twenty-eight cases reported to the federal government in 1997, the Los Angeles District Attorney stated that the number of people intercepted was "unknown." In 4 other reports, a vague reference to "over 5" or "more than 10."

Petitioners allege that the Los Angeles County District Attorney is consciously and intentionally concealing the actual number of people affected by wiretap operations in Los Angeles County to deny people, such as petitioners, their right to notice, inventory, and disclosure and to conceal the full scope of their unlawful operations so as to be allowed to continue mass surveillance of the Los Angeles County community.

One such reference was used in reporting a wiretap order of public telephones in the Lynwood County Jail which lasted six months, cost over one million dollars but somehow intercepted only 1,782 conversations of "over 10" people. It was later disclosed, prior to the imposition of a suspected gag order on all attorneys with cases involving that particular wiretap, that over 100,000 conversations were actually intercepted by that "single" order. It was also discovered that the "single" order actually intercepted "three" separate public pay phones thereby increasing Los Angeles County statistics to 72 interceptions in 1997.

Federal statistics disclose that the average intercept order invades the lives of approximately 100 people. Yet in six of the 28 orders which purported to provide actual numbers to the federal government, a total of only 337 people were reported as having being intercepted by L.A. wiretaps, an average of 50 people intercepted per wiretap.

However, the numbers in the wiretaps which were not reported to the federal government reveal quite a different picture. Sixteen such orders intercepted a total of 158,820 people, or an average of 10,000 people per intercept.

Seventeen "related" wiretap orders were issued by Judges in Los Angeles and Orange Counties between June and November of 1997. Los Angeles County Judge Perry signed 3 orders on June 24, three on August 18, three more on August 19, three more on October 10, and the final order on November 14. Orange County Judge Toohey signed all four of his orders on July 3. A single "total" cost was listed for all 17 orders as $623,110. The orders were issued for 5 single family dwellings, 4 cellular phones, 3 digital pagers, and 5 public telephones.

B. The District Attorney's Belief that the Failure to Report and Provide Notice Would Sufficiently Conceal Wiretap Operations Resulted in the Wiretapping of 131,202 People in Los Angeles County Who Used Public Telephones Without Allegedly Generating a Single Arrest

The fact that the Fourth Amendment protects people using public telephones was established as long ago as the Katz decision itself in 1967, where the United States Supreme Court held that such persons were "surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication." (Katz v. United States) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, full quotation set forth in section entitled "Public Telephones.") Yet the number of invasions of privacy suffered by the Los Angeles District Attorney pursuant to these five wiretap orders was astounding. They were as follows:

Petitioners allege that they have been affected by these wiretap operations and comprise a portion of the 131,202 people intercepted and are entitled to notice of that fact regardless of whether or not any evidence was derived or introduced against them as a result of those interceptions.

Both state and federal laws require the District Attorney to report statistical information, including the number of people arrested by each and every wiretap operation. Petitioners allege that the Los Angeles County District Attorney is consciously and intentionally concealing the actual number of persons arrested to deny to persons such as petitioners their rights under the law.

Statistics provided by the District Attorney in seventeen related wiretap orders issued by Judge Perry in Los Angeles and Judge Toohey in Orange County claimed a single total cost of $623,110.00, claimed to affect 158,829 people, intercept 1,867 "incriminating" conversations (of which only 10 were gained from public telephones) but failed to generate a single arrest.

Petitioners allege that many of their arrests, and in particular petitioner Acosta's Criminal Case Number BA158245, was a direct result of that wiretap operation. Surveillance in Acosta's case commenced on June 30, 1997, six days after Judge Perry's first wiretap order which was issued on June 24, 1997. Photographs of the house in which petitioner was first seen by the arresting officers were taken on July 4, 1997, the day following the issuance of four wiretap orders by Judge Toohey. Five days after the issuance of three more wiretap orders for cellular phones and pagers the Regional Narcotics Suppression Program just happens to park outside the house in which petitioner is staying, just happens to follow petitioner from Orange County to Los Angeles, just happens to ask petitioner if they can search her residence, and then just happens to find narcotics, cellular phones, and pagers.

Petitioners allege widespread assertion by the District Attorney and police officers in their criminal cases of luck and happenstance are actually intentional lies used to conceal wiretap operations.

In the Gaxiola order, allegedly issued June 30, 1996, the District Attorney "reported" 8 arrests to the Attorney General. However, in-camera, Deputy District Attorney Lustig revealed that the wiretap generated over 50 arrests. (Transcripts of in-camera hearing in Gaxiola, April 1, 1996, R.T. p. 7:22-28. )

VIII

Illegal Wiretapping is Occurring through the Use of Pen Registers and

Other Equipment Capable of Obtaining Voice Content

It was explained in the Petition that devices which are capable of intercepting "communications" are covered by Title III and the state wiretapping laws and that modern pen registers are now capable of acquiring the contents of communications. As such, they are subject to the requirements of Title III and require the issuance of a warrant thereunder, regardless of whether such monitoring device is disabled or not. (Wiretapping and Eavesdropping, 2^nd Ed., (1995) Clifford Fishman and Anne T. McKenna, pp. 4-30; 4-31.)

It is now known that law enforcement in Los Angeles County in fact possesses and uses such equipment. The District Attorney's own wiretap manual further admits that within law enforcement's arsenal of electronic surveillance equipment are ESN readers which "allows eavesdropping on the target cellphone communication/conversations" but warns that "[u]tilization of an ESN reader for such purposes, absent a court authorization for an intercept, is illegal." (Exh. L, p. 13.)

The evidence, however, clearly established the correlation between pen register orders and call content awareness by law enforcement. In the Gaxiola order, reference was made to a federal wiretap in December of 1995 and it was implied that information obtained from that federal wiretap was providing information with which to make numerous arrests in late February and March. (P. 39.) However, upon request of counsel for petitioners, the United States Courts investigation of the federal wiretaps in 1995 and 1996 revealed that no federal wiretap operations were still ongoing in either February or March of 1996.

However, on February 14, 1996, a "pen register" was installed on the target telephone. (P. 52.) Similar aquired information resulted from the "pen register" installed in the Cisneros order on March 14, 1997. (P. 21.) As such, the use of any and all "pen register" search warrants are in violation of the state and federal wiretapping law and are a part of this petition.

C. Wiretapping of Jail Pay Phones Has Resulted in Mass Invasions of Privacy and Infringed upon Privileged Attorney-Client Communications

Wiretap reports are replete with wiretapping of jail pay phones. At least six orders have been reported as being issued. However, the only order disclosed thus far intercepted three pay phones and continued for six months. While it was reported that "over 10" people were intercepted petitioners' counsel was informed, prior to the issuance of apparent gag orders barring attorneys with cases pertaining to that order from discussing the matter, that over 100,000 telephone calls were intercepted.

Petitioners can only assume, since they are or were indigent criminal defendants, and among those detained at Lynwood jail, that they compose a significant portion of the 100,000 people intercepted. Moreover, since jail pay phones are the most common means by which petitioners can communicate with their attorneys' office from the county jail, it is clear that a significant number of "confidential" communications may have been intercepted as well.

It is the custom and habit of the Office of the Los Angeles County Public Defender to answer each and every telephone call by identifying the office or attorney. Moreover, petitioners who are clients of the Los Angeles Public Defender must identify themselves before being able to converse with their attorney. As such, all parties to those conversations are "known" and therefore required to have served upon them notice of the interception, regardless of the fact that the law enforcement officers listening may have been following the law and minimizing those conversations. As yet, no Deputy Public Defender has been given such notice.

VII

THE FBI FOUND 1080 INTERCEPTIONS

IN LOS ANGELES COUNTY ON A SINGLE DAY

In their original Petition for Writ of Habeas Corpus, petitioners alleged that "between January 1, 1993, and March 1, 1995, Los Angeles County [lead] the nation in electronic surveillance activity with 1080 interceptions."⁽²³⁾ Petitioners had mistakenly believed that the FBI found 1080 interceptions over a 26 month period. However, after consultation with an expert in the field of telecommunications petitioners now assert that between January 1, 1993, and March 1, 1995, the FBI found 1080 interceptions in Los Angeles County ON A SINGLE DAY. (Information Concerning Implementation of the Communications Assistance for Law Enforcement Act (CALCEA), Appendix A, FBI document prepared for Senator Patrick J. Leahy; found at http://www.fbi.gov/calea/ calea1.htm, emphasis added.)

VIII

All Petitioners Who Have Had, or Will Have, Evidence Derived From a Wiretap

Introduced Against Them Have Standing Pursuant to the Broad Protections

Afforded California Citizens Under the State Wiretap law

All petitioners who have had any evidence derived from a wiretap introduced against them at any trial, hearing proceeding, or had such derivative evidence included in arrest or search warrants, including a wiretap orders, have standing under California's wiretap law to challenge the introduction of any and all such derivative evidence to determine if it was obtained in violation of the Fourth Amendment of the United States Constitution or of California's wiretap law. (Pen. Code § 629.72.) Petitioners' contentions are more fully set forth in the accompanying Points and Authorities in Support of this petition.

IX

Only the Los Angeles District Attorney, And Those Under His Direction and Control,

Know Who Has Been Wiretapped

As a result of the unlawful practices of the Los Angeles County District Attorney, petitioners are unaware whether or not such unlawful evidence has been or will be introduced against them. That knowledge is unlawfully in the exclusive possession of the Los Angeles County District Attorney. It is the obligation of this court to ensure that all who are entitled to notice and disclosure are provided their rights under the law. The first step for this court to take is to provide petitioners with additional discovery of wiretap documents to allow them to uncover the full breadth of the District Attorney's unlawful acts.

Petitioners who have had derivative evidence used against them in any proceeding are entitled to disclosure. Petitioners allege that, since the Public Defender's Office and the Alternate Public Defender's Office represent 74% of all criminal defendants charged with felonies in Los Angeles County, there is at least one petitioner in every wiretap who has standing to require compliance with the notice and disclosure mandates of the state wiretap. (Exh. M, p. 20.)

Exhibit A - Attorney General's Annual Reports on Interceptions of Criminal

Communications for the years 1989 through 1998. Numbered 1-9

Exhibit B - Report on Number of Wiretaps Issued in the United States from the Administrative Office of the United States Courts

Exhibit C - The Wiretap Reports from the Administrative Office of the United

States Courts for the years 1992 through 1997. Numbered 1-5 respectively.

Exhibit D - Ten Year Statistics on Wiretap Operations Nationwide issued by the Administrative Office of the United States Courts.

Exhibit E - Copies of the transcripts of the in-camera proceedings in People v. Gaxiola have been intentionally made to prohibit duplication to protect their proprietary value and are not, therefore, attached to this petition. They must be obtained by this court directly from Joanne Francesca Diaz, the Official Court Reporter for the proceedings referred to herein.

Exhibit F - 1. Order issued by Judge Czueleger on February 24, 1995.

2. Order issued by Judge Czueleger on December 1, 1994.

3. Order issued March 28, 1995.

4. Order issued by Judge Czueleger on January 6, 1995.

5. Order issued by Judge Czueleger on February 14, 1995.

6. Order issued by Judge Czueleger on November 8, 1994.

7. Application for Telemundo Cellular Telephone Communications.

8. Affidavit in support of wiretap order in People v. Ochoa.

9. Opposition filed by the District Attorney in People v. Guzman.

Exhibit G - Copies of the federal reporting form signed by Judge Bascue in People v. Gaxiola.

Exhibit H - Copies of the federal reporting form signed by Judge Ouderkirk in People v. Gaxiola.

Exhibit I - Partial wiretap application and order disclosed in connection with in People v. Cisneros.

Exhibit J - Wiretap application filed connection with in People v. Gaxiola.

Exhibit K - Wiretap order issued in People v. Gaxiola.

Exhibit L - Overview of Wiretapping Laws Manual by the Office of the Los Angeles County District Attorney.

Exhibit M - Impact of Three Strikes Law, Los Angeles Countywide Criminal Justice Coordinating Committee, November 1995.*

Exhibit N - Order issued in People v. Cisneros.

Exhibit O - People v. Gilbert Ochoa wire monitor log.

Exhibit P - Application for Order by Acting District Attorney, Sandra L. Buttitta.

Exhibit Q - Application for Extension by Acting District Attorney, Sandra L. Buttitta.

Exhibit R - Order designating Judge Ito to issue wiretap orders 1993.

Exhibit S - Order designating Judge Czueleger to issue wiretap orders 1995.

Exhibit T - Order designating Judge Perry to issue wiretap orders in 1997, Judge Czueleger, and Judge Rappe.

Exhibit U - Federal wiretap applications pertaining to Atel Communications.

Exhibit V - Affidavit submitted in-camera in People v. Gaxiola.

Exhibit W - Attorney General's letter to the Chair of the Senate Committee on Public Safety dated April 14, 1998.

Exhibit X - The Legislative Intent of California's 1996 Amendment to the Wiretapping Laws.*

Exhibit Y - Complete Bill History of Senate Bills 1016 and 688.

1. That this court provide interim relief by providing petitioners with the additional discovery necessary to establish their claims as requested in the ancillary discovery motion filed herewith,

2. That his court order General Telephone Company, Pac Bell Telephone Company, Air Touch Cellular, and LA Cellular and all other telecommunication companies serving Los Angeles County, to provide copies to this court of all orders, or other authorizations or requests, or extension thereof, for interceptions occurring in Los Angeles County since 1989, and to make such copies available to petitioners if more than 90 days have expired since the termination of such each and every court order for interception. This court should define for the telecommunications companies the term "interceptions" in the same way that that term was defined by FBI in making determinations of interceptions in the CALEA report as follows: Interception means interception of communication content and interception of dialing-related information and identifying information, (call identifying information) derived from pen registers, where such pen registers would have access to communication content if such pen registers were equipped to provide voice content.

3. That this court suppress all unlawful orders to avoid massive repetition of litigation and to secure uniformity of decisions throughout Los Angeles County,

4. That this court make general rulings on the issue of standing and thereafter insure notice is given to all petitioners who have "standing to object."

5. That, subsequent to this court making the above rulings and suppression orders, this court order that petitioners cases be placed on calendar by the People in their original courts once the notice and disclosure requirements of the California wiretap law have been fully complied with and allow those courts with original jurisdiction to make determinations regarding further discovery, the impact of derivative evidence on the criminal proceedings, and all other fact specific legal rulings,

6. That this court take whatever actions are necessary to determine the identities of all petitioners affected prior to relinquishing jurisdiction of this matter.

Dated:

MICHAEL P. JUDGE, PUBLIC DEFENDER

OF LOS ANGELES COUNTY, CALIFORNIA

By ______________________________

KATHY QUANT

Deputy Public Defender

VERIFICATION

STATE OF CALIFORNIA

ss.

COUNTY OF LOS ANGELES

I, the undersigned, declare under penalty of perjury as follows:

I am an attorney at law, duly licensed to practice in all the courts of California, and I am employed as a Deputy Public Defender for the County of Los Angeles.

In this capacity, I represent petitioners in the foregoing petition for writ of habeas corpus and I make this verification as their attorney acting on their behalf in that the allegations made therein are more within my knowledge than theirs.

I have read the foregoing petition and know based upon my reading of the exhibits, documents, declarations, and transcripts incorporated therein that the matters alleged therein are true, and to the extent that any allegation is based on information and belief, I declare that I have been so informed and do so believe such information.

Executed this 3rd day of July, 1998, at Los Angeles, California.

_________________________________

KATHY QUANT

Deputy Public Defender

POINTS AND AUTHORITIES

I

THE LOS ANGELES COUNTY DISTRICT ATTORNEY HAS VIOLATED THE STATE AND FEDERAL WIRETAP LAWS AS WELL AS THE CONGRESSIONAL AND LEGISLATIVE INTENT OF THOSE LAWS

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

Wiretaps were thereafter outlawed entirely until Congress passed Title III in 1968, which allowed wiretapping, but intentionally "limit[ed] the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." (United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) When enacting Title III, additional requirements and protective measures were included to further ensure its limited use. One such requirement was the passage of an enabling statute by states seeking to allow its law enforcement officers to utilize wiretaps. California's enabling statute became effective in 1989 and is contained in Penal Code section 629.50 through 629.98. (People v. Chavez (1996) 44 Cal.App.4th 1144, 1158.) However, the federal law still "establishes minimum standards" and California is barred from being any less protective of its citizens' privacy rights. (People v. Otto (1992) 2 Cal.4th 1088, 1092, fn. 1, 1098; Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 1818.) However, California's wiretap statute provides far greater protections than the federal law.

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

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

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

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

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.) Again, this was with the belief that centralization would lead to an identifiable "person" for ultimate responsibility and would curtail abuse of the wiretapping laws. To insure the integrity of wiretapping operations, judges issuing orders are required to insure that all intercepted conversations are recorded, sealed, and maintained for at least 10 years. (18 U.S.C. § 2518(8)(a).)

Notice and inventory of 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 or order, all persons intercepted, as well as all owners of the intercepted premises. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68.)

Notice is both statutorily and constitutionally required, and must be given regardless of whether or not incriminating statements were made or criminal charges were filed. (United States v. Donovan (1977) 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.)

While the United State Supreme Court has determined that all persons who have had their communications intercepted by a wiretap order have a protected Fourth Amendment right to notice and inventory of that fact, the federal law leaves to the discretion of the judge the decision of whether or not to provide notice to persons other than those named in the order. (18 U.S.C. § 2518(8)(d) California, however, mandates notice to all persons whose conversations were intercepted, and regardless of whether criminal charges are ever filed. (Pen. Code § 629.68.) Moreover, under both the state and federal law, the prosecutor has an obligation to provide the issuing judge with all relevant information regarding persons intercepted so that the judge may cause such notice to be served. (United States v. Donovan (1977) 429 U.S. 413, 97 S.Ct. 658, 439, fn. 26, 50 L.Ed.2d 652.) Because "notice of surveillance is a constitutional requirement," the failure to provide notice, especially when intentional, requires suppression. (United States v. Donovan, supra, 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652; United States v. Harrigan, (C.A.1 1977) 557 F.2d 879, 884-885; United States v. Eastman (3d Cir. 1972) 465 F.2d 1057.)

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

As an added measure of safety against unlawful use of wiretapping, both state and federal law require that before any evidence derived from a wiretap may be introduced in any trial or hearing, a party must be given a copy of the order 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.

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

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

"Congress has by legislation made the judgment that electronic surveillance should be monitored not only by courts, but, to an extent by the public as well. The Omnibus Crime Control and Safe Streets Act of 1968 created elaborate reporting requirements about the use of court-permitted wiretapping. . . Congress decided that statistics on wiretap use should be compiled so as "to form the basis for a public evaluation" of the operation of the surveillance law and to "assure the community that the system of court-order(ed) electronic surveillance is properly administered." (Ferri v. Bell, (3^rd Cir. 1981) 645 F.2d 1213, 1224-1225, citing United States v. Chavez (1974) 416 U.S. 562, 577, 94 S.Ct. 1849, 1857, 40 L.Ed.2d 380, S.Rep.No.1097, 90th Cong., 2d Sess. 107 (1968), reprinted in U.S.Code Cong. & Ad.News at 2196.)

As can be seen from the forgoing overview of the law, the entire congressional and legislative intent of the wiretap laws has been thwarted by the District Attorney's unlawful procedures. Not only petitioners, but the entire Los Angeles community as well, has a right to know the extent to which its privacy has been invaded.

II

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

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

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

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

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

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

"It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant." (Id. at p. 184, 972.)

It is, therefore, abundantly clear; there can be no concealing of a wiretap operation once criminal charges are filed.

III

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

Under federal law, even an unsupported claim of illegal electronic surveillance is sufficient to require the prosecution to make a response, under oath, of the existence or non-existence of a wiretap. (United States v. Vielguth (9th Cir. 1974) 502 F.2d 1257, 1258-59; United States v. Tobias (9th Cir. 1988) 836 F.2d 449, 453.) Petitioners, however, have gone beyond what is necessary to obtain answers to their questions regarding whether any evidence against them was derived from a wiretap. They have presented an abundance of affirmative evidence to establish the probability that wiretapping operations were used in their cases. Petitioners have proved that Los Angeles District Attorney's Office is engaged in an unlawful procedure which has been utilized for numerous years and have proved that those procedures have successfully allowed the Los Angeles District Attorney to evade the mandates of the state and federal wiretap laws and use evidence derived from a wiretap in prosecutions without ever disclosing that fact.

The trial court must, therefore, require the District Attorney to provide notice of the existence of a wiretap and all interceptions upon petitioners, and must require disclosure in compliance with state and federal wiretap law, in open court. Open admissions of the existence of wiretap orders is required despite the fact that there may well be an ongoing investigation, for the People can delay disclosure no longer than the introduction of the first piece of derivative evidence at a trial, preliminary hearing, or other proceeding. Petitioners, many of whom have already had evidence introduced against them either at their preliminary hearing, motion to suppress, trial, or sentencing, may now well be in unlawful custody, since the failure to disclose prior to the introduction of that evidence would make such evidence inadmissible as a matter of law, possibly mandating reversal of convictions or dismissals pursuant to Penal Code section 995. Petitioners, having further established many such wiretap orders were completely unlawful, have made more than a sufficient showing to require an Alderman-type hearing in this case.

IV

DEFENDANT IS ENTITLED TO A SUPPRESSION HEARING IF THE SURVEILLANCE, OR OTHER EVIDENCE IN THIS CASE, WAS THE RESULT OF INFORMATION OBTAINED FROM A WIRETAP

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

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

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

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

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

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

If an officer overhears a communication relating to a crime which is not specified in the wiretap order, but is a crime for which a wiretap order could have been issued, the police may only disclose the information to another officer and thereafter use evidence derived therefrom, if, as soon as practicable, they thereafter go to the judge and make an application to use such information. The issuing judge may only authorize law enforcement's use of that information if it reviews the procedures used and determines that the wiretap was in accordance with the state wiretap laws. (Pen. Code §629.82(a).)

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

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

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

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

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

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

"To allay these fears, a 'compromise' was fashioned which allowed the use of evidence of other crimes in a 'layered' manner. If the criminal information is not related to the crime that is the subject of the surveillance order, but is related to another crime for which a surveillance order may be obtained, the information and any derivative evidence may be disclosed to other officers and may be used as testimony in criminal proceedings if the judge finds that the information was otherwise intercepted in accordance with state law. If, in comparison, the criminal information does not relate to the surveillance order and does not relate to a crime for which an electronic surveillance order may be obtained, that information and derived evidence may be used (1) to prevent the commission of a crime, and (2) as evidence in court where the evidence was [from an] independent source or inevitably would have been discovered, and the use is authorized by a judge who find that the information was otherwise intercepted in accordance with state law." (Sen. Com. Crim. Proc., 1995-1996 Regular Session, SB 1016, p. 16. attached as Appendix 1; http://SB 1016; http://www.leginfo.ca.gov/pub/95-96/bill/sen/sb_1001-1050/sb_1016_cfa_950403_104435_sen_comm.html.).)

The legislative history discloses that the author of Senate Bill 1016 sought to have those limitations excluded from the revised statute and sought to convince the Legislature to "allow the use of any information obtained in an electronic surveillance operation for law enforcement purposes." "According to the sponsor, under federal law, law enforcement, with judicial approval can use what they learned during a judicially authorized intercept about crimes other than those specified in the order." (Sen. Com. Crim. Proc., 1995-1996 Regular Session, SB 1016, p. 16. attached as Exhibit X.) However, while Senate Bill 1016 was passed into law, it was passed without those proposed changes.

Therefore, any petitioner against whom derivative evidence of an intercepted communication was introduced has standing and a right to challenge its introduction and have suppressed any such evidence if it was obtained in violation of the state wiretap law. However, the making of that motion is dependent on the defendants obtaining notice of the fact that a wiretap operation existed.

However, the Attorney General best explained the intent of the California Legislature:

"Six primary concerns were expressed by those who opposed allowing law enforcement the authority to intercept criminal communications.

First, law enforcement would not use interception as a investigative technique of last resort.

Second, law enforcement would not limit interception to major cases.

Third, there would be attempts to select "rubber stamp" judges who would not carefully consider nor carefully monitor the use of the privilege to intercept criminal communications.

Fourth, once given the authority to intercept, law enforcement would be overzealous in exercising the authority to the detriment of the privacy of those whose communications came under surveillance.

Fifth, evidence in the form of recordings would be poorly preserved and, therefore, not reliable.

Sixth, personnel who listened were not trained and, therefore, not careful about the exercise of authority.

"Both the Legislature and law enforcement listened to these concerns. The Legislature crafted a law which incorporated safeguards and preventive measures. Law enforcement implemented a protocol and training to ensure the careful, conscientious use of the law.

"Experience has shown that the requirement that interception is available as a 'last resort' has meant law enforcement does not seek to use interception except in situations where all other investigative avenues are not productive. Simply put, the opponent's claims have proven to be groundless.

"The present proposal now pending before the Legislatures does not eliminate any of the safeguards incorporated to meet the concerns of misuse or overuse. Law enforcement has honored these safeguards and has found they are not an impediment to effective, appropriate application of the law." (Interceptions of Criminal Communications, Report to the Legislature 1993, p. 2-3.)

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

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

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

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

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

On July 6, 1995, the Senate passed Senate Bill 1016 by a vote of 28 ayes to two noes. On September 1, 1995, the Assembly passed Senate Bill 1016 by a vote of 62 ayes to 5 noes. On May 15, 1997, the Senate passed Senate Bill 688 by a vote of 33 ayes to 0 noes. Senate Bill 016 was Chaptered on October 16, 1995, and went into effect on January 1, 1996. /⁽²⁵⁾

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

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

CONCLUSION

The entire notion of secret wiretapping, concerted efforts by prosecutors to conceal wiretapping operations, and secret in-camera court hearings to evade providing notice of wiretap operations to protect their continued existence, is repulsive to a democratic society and repugnant to the congressional and legislative intent of the wiretapping laws. As explained by the United States Supreme Court in Gelbard v. United States, supra, 408 U.S. at p. 51, 33 L.Ed.2d at pp. 189, and reiterated by the California Supreme Court in People v. Otto (1992) 2 Cal.4th 1088, the legislative concern in enacting the privacy law was "the integrity of the courts of admitting illegally procured evidence" and suppression was required to "not only to protect the privacy of communications, but also to ensure that the courts do not become partners to illegal conduct." It is, therefore, clear that this court cannot permit the District Attorney to violate the law any longer for to do so would place this court in the tenuous position of effectively becoming a party to those unlawful acts by allowing them to continue. Therefore, based on the foregoing arguments and authorities, this court should grant petitioners the relief they seek.

Dated: July 2, 1998

MICHAEL P. JUDGE, PUBLIC DEFENDER

OF LOS ANGELES COUNTY, CALIFORNIA

By ______________________________

KATHY QUANT

Deputy Public Defender

1. ^0/ Petitioners have yet been unable to obtain copies of the federal wiretap report for 1992. However, the state report attributed this intercept to an Orange County Regional Narcotics Suppression investigation which, as can be seen by comparing other wiretap reports, usually means the application was made by Gil Garcetti and the orders are issued by Los Angeles County. These may well be attributable to Los Angeles as well.

2. ^0/ Counsel for petitioners has been unable to confirm whether or not the Lynwood Sheriff's wiretap is the order issued by Judge Czueleger in December of 1996. It appears that all attorneys who are involved with cases involving the Lynwood Sherriff's wiretap are currently under a broad gag order since prior consultations with such attorneys ceased abruptly yet they will neither confirm nor deny the existence of such gag order.

3. ^0/ Petitioners believe that further discovery ordered by this court will reveal more such evidence.

4. ^0/ No information was provided regarding how this wiretap was able to continue into 1998 if the last extension was granted in January of 1997.

5. ^0/ Since at least 1993, the District Attorney has alleged a number of different cellular telephone companies as "targets" of their wiretaps. Most, however, are still in operation despite numerous wiretap operations against them.

6. ^0/ While only 39 orders were issued in California, the Attorney General has always complied with Penal Code section 629.62 which requires reporting on all "interceptions" and has revealed that its own first application granted in 1990 and the Ventura order of November 10, 1997, provided for two separate interceptions. Apparently since both were simply extensions in the same house and affected the same individuals, they were counted as only one interception.

7. ^0/ There are no reported wiretap orders but petitioners have found evidence of the fact that this order was granted. (Exh. F-9, p. 6.)

8. ^0/ This application makes reference to dates in August of 1993. However, there are no reported wiretap orders or application denied which correspond to this date. There is evidence that this order was actually issued. (Exh. F-9, p. 9.)

9. ^0/ Moreover, federal filing forms for Los Angeles in 1996 did not begin with the number "4," they began with the number "3." Moreover, the fact that the District Attorney's Office copied Ply-1 and Ply-3 of the federal reporting form, further establishes that no reporting of this order was made. The District Attorney is required to give Ply -1 to the judge so that he may report the wiretap order who must thereafter send it to the Administrative office of the united States Court. United to the court to report the wiretap to the federal government. is required to be given to the which must be given to the judge was made of of federal form which, if no extensions were granted, should have been sent to the Administrative Office of the United States Courts on or before January 31, 1997.

10. ^0/ As will be seen below, Judge Bascue never had jurisdiction to issue wiretap orders.

11. ^0/ This form would have been in timely compliance with the law had it been filed.

12. ^0/ Petitioners allege that the Los Angeles District Attorney may have a practice of retaining the court's copy and asserting to judges that they will report the orders but then never in fact report them. This practice is evidenced by the fact that the District Attorney produced Ply-1 of the federal reporting form in compliance with Judge Alarcon's discovery order in Gaxiola which should have been given to the judge so that he may report with the 30 days reporting period following the expiration of the order.

13. ^0/ This form would have been in timely compliance with the law had it been filed.

14. ^0/ This would be considered a 1995 order because it lasted nine months and ended in 1995.

15. ^0/ There does exist a March 18, 1994, but it is not reported as a cellular telephone, but instead a single family dwelling.

16. ^0/ These orders were revealed in the affidavit in support of Petitioner Cisneros order. (Exh. I, p. 27.)

17. ^0/ Petitioner alleges that this further establishes that the decision to reveal wiretap orders was done in a piecemeal fashion. The fact that the numbers have no relationship to date, but are instead related to judges, also establishes that fact. Moreover, petitioners believe that some of the wiretap orders which acutally made the January 31, 1998, deadline would not have been filed but for Judge Alarcon's ruling.

18. ^0/ The United States Courts reported Judge Perry as issuing the June 12, 1997, order, while the Attorney General reported Judge Rappe as having issued that same order.

19. ^0/ Counsel for petitioners made numerous calls to clerks throughout the Superior Court attempting to determine if there was a designated judge who was issuing wiretap orders. Counsel for petitioners was advised she could contact either Judge Czueleger, Judge Rappe, Judge Perry, or Judge J.D. Smith.

20. ^0/ The date the application was submitted was left blank as well.

21. ^0/ Another concern is how the Telephone Companies allowed this interception to last two years without the issuance of additional orders. Petitioners are unable to obtain this information without an order issued by this court and hereby respectfully make such request in their prayer in the interests of justice.

22. ^0/ Until all the orders and their logs are disclosed it impossible to determine the number of people affected by these wiretap orders. A half a million is probably a conservative estimate considering the District Attorney admits that only 20 orders in 1997 intercepted almost 173,000 people. But the District Attorney reports in another 20 orders from 1997 that the number of people are "unknown." This is so despite the fact that their wiretapping equipment automatically calculates these numbers. The remaining orders are simply reported as "over 5" or "over 10" people. This is another method for concealing the real numbers as it is "known" that in one wiretapping order for the Lynwood Sheriff's jail it was claimed that "over 10" people were intercepted but the actual number of conversations intercepted exceeded 100,000.

23. ^0/ In their original petition, petitioners asserted that the FBI report included interceptions by pen registers "which previously only recorded telephone numbers" but "are now capable of acquiring the contents of communications as well" and therefore "subject to the requirements of Title III," "regardless of whether such monitoring device is disabled or not." (Wiretapping and Eavesdropping, 2^nd Ed., (1995) Clifford Fishman and Anne T. McKenna, pp. 4-30; 4-31, underlining added.)

24. ^0/ In an effort to reduce the volume of documents in this Supplemental Petition, Petitioners have attached only the relevant portions of certain official governments.

25. ⁰ The "Complete History of SB 1016" obtained from http://www.leginfo.ca.gov/pub/95-96/bill/sen/sb_1001-1050/sb_1016_bill_history.html is attached hereto as Exhibit Y.

26. ⁰ The "Complete History of SB 1016" obtained from http://www.sen.ca.gov/leginfo/ bill/current/sb/from0600/sb0688/history.txt is attached hereto as Appendix Y.