IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
| TERESA ACOSTA,
Petitioner, v. SUPERIOR COURT OF THE LOS ANGELES JUDICIAL DISTRICT, Respondent,
THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. |
2nd Dist. No. B- ________
(Sup. Court No. BA158245) |
SUPPLEMENTAL POINTS AND AUTHORITIES
IN SUPPORT OF
PETITION FOR WRIT OF MANDATE
SUPPLEMENTAL POINTS AND AUTHORITIES
IN SUPPORT OF
PETITION FOR WRIT OF MANDATE
TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE
CALIFORNIA COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION FIVE:
INTRODUCTION
While petitioner is unaware of what showing the People made in this case during the in-camera
hearing, petitioner submits the following supplemental points and authorities in case the People
submitted to the trial court federal authority regarding third party standing. Under the federal
wiretap law, the People would not be required to divulge the existence of a wiretap where the
defendant was neither the person named in the order nor one whose communication was
intercepted. However, as will be seen below, the California Legislature sought to provide its
citizens with greater rights and protections than are provided for under the federal law. Penal
Code section 629.72 conferred on all persons, not just those "aggrieved" by personal intrusion,
their own personal right to exclude any evidence derived from a wiretap if any of the required
wiretap procedures were violated. Passed by more than two-thirds vote of both houses, that
exclusionary rule is both constitutional and binding on the courts.
I
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 if
California's Wiretap Procedures were Violated
Under both the state and federal law, defendant would have standing to suppress all evidence derived from her own intercepted communication, if she was named or otherwise identified in a wiretap order, or owned the premises or property which such conversations took place. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68; Alderman v. United States (1969) 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176.) Under Title III of the federal wiretap law, a defendant would not have standing to contest evidence which was derivative of a third party's intercepted communication, there being no right under the federal law to assert the standing of a third party. (Alderman v. United States (1969) 394 U.S. 165, 176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176.)
However, under California's wiretap statute such a defendant would have standing to object to the introduction of such evidence, not because they have vicarious standing through the infringement upon a third party's rights, but because their own rights under the state wiretapping law were infringed. That California's wiretap law is broader and affords greater protections to its citizens' individual privacy rights is clear. Notice of a wiretap 90 days after the order expires is mandatory under the state law to all persons intercepted by a wiretap, rather than merely discretionary as provided by federal law. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68.) Civil damages for any violation of the law is $100 a day, rather than the federal compulsory damage award of only $50 a day. (18 U.S.C. §§2520, 2511(4); Pen. Code §629.86(c).) The suspected crimes for which a wiretap may be issued are severely more limited than the federal law. (18 U.S.C. 2516(2); Pen. Code § 629.52.) The authority for making a wiretap application to a judge is also more limited. Only "the" District Attorney, Gil Garcetti, may make such an application and, unlike the federal law, that authority cannot be delegated to anyone else. (18 U.S.C. 2516(1); Pen Code §629.52.) Moreover, 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 judge of any court of general criminal jurisdiction of a State who is authorized by a statute" to issue such orders, and California has authorized only one judge per county to issue such wiretap orders. (18 U.S.C. 2516(2); Pen. Code §629.50.)
Of importance to the issues presently before this court is the difference between disclosure and use of information obtained from a wiretap. Title III allows police officers to disclose to other officers, and thereafter use and evidence derived therefrom, almost any information which is obtained from an intercepted communication. (18 U.S.C. §2517.)
However, California severely restricts both disclosure and use of information derived from a wiretap, as well as the authority of any court to authorize such disclosure or use. Penal Code section 629.82 places limitations on disclosure and use of any information obtained from an intercepted communication, as well as judicial authorization of disclosure and use, other than that which was specifically authorized by the wiretap order. Those limitations are as follows:
Moreover, if any intercepted communication is used to obtain a search warrant--which would include a wiretap order--or an arrest warrant, the person named in the warrant is entitled to notice of the wiretap and a copy of the contents of all intercepted communications used. (Pen. Code §629.82(c).)
Finally, California does not restrict who may move to suppress evidence derived from a wiretap. Under the federal law, only an "aggrieved person" may move to suppress derivative evidence. (18 U.S.C. §2518.) An "aggrieved person" is defined by statute as one who is intercepted, and defined by the federal courts as one named in an order from whose premises or property the intercepted communication was derived. (18 U.S.C. §2510.) The federal law limits the grounds for suppression to communications "unlawfully intercepted," orders which are insufficient on their face, or interceptions which are not in conformity with an order.
Penal Code section 629.72 affords far greater rights and standing to challenge the introduction of derivative evidence. It provides:
"Any person in any trial, hearing, or proceeding, may move to suppress some or all of the contents
of any intercepted wire, electronic digital pager, or electronic cellular telephone communications,
or evidence derived therefrom, only on the basis that the contents or evidence were obtained in
violation of the Fourth Amendment of the United States Constitution or of this chapter. The
motion shall be made, determined, and be subject to review in accordance with the procedures set
forth in Section 1538.5." (Pen. Code §629.72; 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 of evidence of other crimes in a 'layered' manner. If the criminal information is not related to the crime that is the subject of the surveillance order, but is related to another crime for which a surveillance order may be obtained, the information and any derivative evidence may be disclosed to other officers and may be used as testimony in criminal proceedings if the judge finds that the information was otherwise intercepted in accordance with state law. If, in comparison, the criminal information does not relate to the surveillance order and does not relate to a crime for which an electronic surveillance order may be obtained, that information and derived evidence may be used (1) to prevent the commission of a crime, and (2) as evidence in court where the evidence was [from an] independent source or inevitably would have been discovered, and the use is authorized by a judge who find that the information was otherwise intercepted in accordance with state law." (Sen. Com. Crim. Proc., 1995-1996 Regular Session, SB 1016, p. 16., attached as Appendix 1; http://SB 1016; http://www.leginfo.ca.gov/pub/95-96/bill/sen/sb_1001-1050/sb_1016_cfa_950403_104435_sen_
comm.html.) .)
The legislative intent also discloses that the author of SB 1016 sought to have those limitations excluded from the revised state wiretap law and thereby "allow the use of any information obtained in an electronic surveillance operation for law enforcement purposes." "According to the sponsor, under federal law, law enforcement, with judicial approval can use what they learned during a judicially authorized intercept about crimes other than those specified in the order." (Sen. Com. Crim. Proc., 1995-1996 Regular Session, SB 1016, p. 16. attached as Appendix 1.) However, while SB 1016 was passed into law, it was passed without those proposed changes which would have limited the state law and provided to California citizens only those rights and protections afforded by the federal wiretap law.
Therefore, any person against whom evidence derivative of an intercepted communication is introduced has a right to challenge its introduction and to obtain suppression of any such evidence if any of the evidence was obtained in violation of the state wiretap law.
For example, if there existed a wiretap order against one defendant in this case for crimes relating to the sale or distribution of cocaine in an amount which exceeded three pounds, the officer in the wire room could not disclose to any other officer any information about any crime other than one involving three pounds of cocaine. If the wiretap disclosed a conversation between two of the three defendants revealing that all three defendants were transporting 2.99 pounds of cocaine, the only thing law enforcement could do would be to stop the crime.
Under California law, law enforcement could not "hand-off" the information to another officer to conduct a surveillance, or try to obtain more evidence. Law enforcement could only disclose the information for the limited purpose of telling another law enforcement officer to stop the crime but seizing the cocaine. Law enforcement could not use any information derived from the wiretap to establish probable cause for the seizure, let alone the arrest. While the cocaine would be confiscated as contraband, no arrest would be possible unless the officers could establish that there existed an independent source of evidence or that such evidence would inevitably have been discovered, such as if the three defendants were transporting the cocaine to an undercover officer in Los Angeles. But even then, the officers would have had to establish they complied with the requirements of judicial review and authorization beforehand, and the court would be required to review the procedures used to see that they were in accordance with state law.
Therefore, under California law, all three defendants in the above scenario would be entitled to
notice and disclosure and all three would have standing to make a motion to suppress pursuant to
Penal Code section 1538.5 on the basis that their rights under the state procedures were violated.
However, the making of that motion is dependant on the defendants obtaining notice of the fact
that a wiretap operation existed.
B.
The United States Supreme Court has made clear 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. Here, any and all evidence derived from a wiretap could be challenged by any person against whom it is being used. However, even questionable issues regarding relevancy would require disclosure. The United States Supreme Court has plainly stated that the "issue of relevancy should not be resolved in camera, but in an adversary proceeding." (Russo v. Byrne, supra, 409 U.S. 1219, 93 S.Ct. 21, 22.)
Moreover, "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 [People] 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.) To that extent, cases involving electronic surveillance differ from those situations where in-camera procedures have been found acceptable, such as the "disclosure of informant's identity." (Alderman v. United States, supra, 394 U.S. 165, 89 S.Ct. 961, 971, fn. 14.)
Therefore, if this court has learned any information regarding a wiretap in this case, regardless of
whether or not defendants were themselves intercepted, the defendant has a right to know of the
wiretap. If ultimately there is no standing or the wiretap was legal, then the defendant will obtain
no relief from this court. However, who have a right in California to at least know where the
information came from and make any and all appropriate challenges. Any reliance by the People
in-camera to persuade this court that the defendant does not have standing or the wiretap
operation is still ongoing should not prevail against defendant's right to notice.
C.
The fact that suppression would not be afforded to defendants under the Federal Constitution or Title III is irrelevant. Title III establishes only "minimum" standards for admissibility, it does not bar states from being more protective of their citizen's privacy rights. (People v. Otto (1992) 2 Cal.4th 1088, 1098.)
Moreover, Article I, section 28, of the California Constitution is no bar to suppression of evidence obtained in violation of the state law, it provides:
"Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each
house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding,
including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile
for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall
affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code,
Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or
constitutional right of the press."
Article 4, section 2, subdivision (a), of the California Constitution established that the Senate shall have a membership of forty Senators and the Assembly a membership of 80 Assemblymen. Therefore, any statute barring evidence in a criminal proceeding which is passed by more than 54 votes in the Assembly, and 27 votes in the Senate may exclude otherwise relevant evidence from a criminal proceeding.
On July 6, 1995, the Senate passed Senate Bill 1016 by a vote of 28 ayes to two noes. On September 1, 1995, the Assembly passed Senate Bill 1016 by a vote of 62 ayes to 5 noes. On May 15, 1997, the Senate passed Senate Bill 688 by a vote of 33 ayes to 0 noes. Senate Bill 016 was Chaptered on October 16, 1995, and went into effect on January 1, 1996.(1)/
On May 15, 1997, the Senate passed Senate Bill 688 by a vote of 33 ayes and 0 noes. On August 11, 1997, the Assembly passed Senate Bill 688 by a vote of 76 ayes to 0 noes. Senate Bill 688 was Chaptered on August 26, 1997, and went into effect on January 1, 1998. /(2) Senate Bills 1016 and 688 are embodied in Penal Code sections 629.50 et. seq., which includes both Penal Code sections 629.70 and 629.72. (Appendix 2, 3.)
Therefore, California's exclusionary rule for evidence obtained in violation of the state wiretap
statute, having been passed by a more than two-thirds vote of both houses, may lawfully and
constitutionally exclude evidence obtained in violation of the state wiretap laws.
CONCLUSION
Based on the foregoing arguments and authorities, this court should reveal whether any evidence
against defendant was derived from a wiretap to allow the defendant the ability to fully litigate in
an adversary hearing, both standing and the legality of the evidence in this case.
Respectfully submitted,
MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA
Albert J. Menaster,
Jenny Brown,
Kathy Quant,
(State Bar No. 118603)
Deputy Public Defenders
By ____________________________________
KATHY QUANT
Deputy Public Defender
Attorneys for Petitioner
2.
2/ 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 3.Filed June 19, 1998