TRAVERSE

INTRODUCTION

This case presents a classic example of the failure of governmental checks and balances. The citizens of the nation and those of California, speaking through their respective legislative branches, found their privacy seriously challenged by law enforcement's use of electronic surveillance. In adopting the federal and state wiretap laws, a balance between individual liberties and the interests of law enforcement was reached through inclusion of a rigorous set of requirements imposed upon prosecutors and law enforcement whose acts were carefully supervised by the judiciary and subsequently reviewed by the courts, the legislature, and the public as well.

This case is an outgrowth of the admitted failure of the Los Angeles County District Attorney to fully comply with those requirements, as well as techniques which were devised by that agency to evade both the requirements imposed as well as any subsequent review. The prosecutor's failures (whether a result of bureaucratic sloppiness or intentional misfeasance), and the police agency's overzealous evasion of the law (whether or not counseled by the prosecutor), have combined to defeat the role envisioned for the judiciary, and has caused the bench to be in default of its obligations. This court now has the opportunity to restore the vitality of the checks and balances mandated by the legislative branch.

Though the Office of the District Attorney has admitted some of its non-compliance with the notice and reporting requirements of the law, it has failed to be forthcoming with much of its other defaults, derelictions, and delinquencies. Only through intensive examination of a limited volume of data which petitioners have amassed with little cooperation of the District Attorney has the extent of the tip of the iceberg of non-compliance become apparent. Since the failures have manifested themselves in so many different ways, all of which are part of this action, it is necessary for petitioners to present all the patterns to this court in order to seek compliance with the law. Taken together, however, it comprises a case which requires this Court to mandate full compliance with the various aspects of the wiretapping law, and to prohibit the practices which defeat that law. By doing so, this Court can reassert not only its supervisory role, but also its own primary role in protection of the interests envisioned by the legislature.

ALLEGATIONS IN SUPPORT OF THE RELIEF SOUGHT

IN THE PETITION FOR WRIT OF HABEAS CORPUS

The procedures set forth in People v. Duvall (1995) 9 Cal.4th 464, require the petitioners Traverse to re-allege the facts set out in their petition and either admit or deny factual allegations in the return in order to frame the factual issues that the court must ultimately decide.

For the convenience of the court, the parties, and any future litigation of this matter, the facts, allegations, contentions of law, and additional evidence submitted herein, are set forth below in summary fashion explaining which allegations the People admit or did not deny and thereby entitle petitioners to immediate relief, and which allegations are disputed and therefore in controversy. In support of this Traverse petitioners hereby make the following allegations in support of the Petition and Traverse and in dispute of the Return, re-allege the factual and legal contentions set forth in the Petition, Amended Petitions, and Supplemental Petition for Writ of Habeas Corpus, and dispute any and all contrary allegations made the People in their Return, as follows:

I

Petitioners are Class of Criminal Defendants
Represented by the Public Defender's Office and the
Alternate Public Defenders Office Who are Entitled to Relief Sought

Petitioners are a limited class of identifiable defendants represented by the Los Angeles County Public Defender's Office and the Los Angeles County Alternate Public Defenders Office who have been denied their rights under the state and federal wiretap law to notice of the existence of a wiretap and/or production of wiretap records. Because of the People's failure to follow the law, the names of the Petitioners who are entitled to notice and production are only known to the People and their agents. Without enforcement of the state and federal wiretap laws by this court, Petitioners will continue to be denied their rights.

The People complain that Petitioners fail to distinguish between those who are defendants in a wiretap case who may be entitled to production of wiretap documents and those who have no criminal cases derived from a wiretap but who may be entitled to notice and inventory. Petitioners allege the reason for this is their inability to make such a distinction is because the People have unlawfully denied them their state, federal, and constitutional rights. Only through the People's compliance with the law will Petitioners be able to determine their status.

As shown below, the People have denied that most of the defendants named in various pleadings had cases related to a wiretap operation. However, that denial was made without having conducted any investigation into their own records. Moreover, the People simply refused to admit or deny whether Petitioner Acosta's case or Petitioner Ramirez' case was related.

1. Jorge Rodriguez (BA129352) People refuse to admit or deny.
2. Ariel Hernandez (BA166582) People deny.
3. Oscar Martin Sanchez (BA111830) People deny.
4. Teresa Acosta (BA158245) People refuse to admit or deny.
5. Prisilla Davis (TA038458) People deny.
6. Rosendo Morales (BA160261) People deny.
7. Efren Tapia (BA088009) People deny.
8. Carlos Ramirez (BA095853) People deny.

Petitioners continue to allege that those defendants have cases derived from a wiretap.

Additional evidence to be submitted by Petitioners on this point:

Petitioners will introduce at the hearing additional evidence to establish that named Petitioner Efren Tapia was in fact intercepted and his criminal case was derived from a wiretap.

Petitioners further allege that the following Petitioners also have cases related to wiretap:

1. Miguel Angel Martinez BA124243
2. Manuel Piggue Juvenile Petition
3. Adolpho Lopez Juvenile Petition J5367871
4. Francisco Medina KA039990

II

The People are Aware or Have Exclusive Access to Information

To Determine Which Petitioners Have Been Denied Their Rights

Under the State and Federal Wiretap Laws.

The People are aware of, or have access to, information regarding the names and identities of each and every Petitioner who is entitled to notice because:

A) They were identified in an electronic surveillance order,

B) They were residents of the property subjected to an interception order,

C) They had information derived from an electronic surveillance order used in an arrest warrant, search warrant, or electronic surveillance order,

D) The police violated the law by disclosing and using wiretap information to initiate an investigation when the information related to a crime other than one specifically enumerated in the state wiretap statute,

E) The police violated the law by disclosing and using wiretap information to initiate an investigation without subsequent judicial review and approval when the information related to a crime other than one mentioned in the wiretap order.

F) Information a crime not mentioned in the order obtained from a wiretap was used or introduced in support of a crime not mentioned in the order without subsequent judicial review and approval, or

G) Wiretap derivative evidence was introduced in support of a crime not mentioned in the order without subsequent judicial review and approval, or used against petitioners in a hearing, trial, or other proceeding, were parties to an intercepted communication. That information is necessary to obtain complete relief and is within the People's exclusive possession and control as petitioners do not have access to this information nor can it otherwise be obtained. Moreover, the People are aware of the whereabouts of the wiretap records as well as the contents of all intercepted communications from state wiretaps.

III

Petitioners are Entitled to Relief if they Were Identified in an Interception Order or Intercepted But Not yet Provided with Notice and Inventory

State and federal law minimally require that the People provide the court with sufficient information to cause notice and inventory to be served on all Petitioners within 90 days of the expiration of the wiretap order to Petitioners who were identified in an interception order or intercepted thereby. (18 U.S.C. § 2518(8)(d); Pen. Code § 629.68.)

The People admit they failed to comply with Penal Code section 629.68 and failed to provide courts issuing wiretap orders with all the information necessary to fulfill the service of notice and inventory requirements in the state and federal wiretap laws. Petitioners are therefore entitled to the relief the seek in the habeas, notice and inventory.

IV

All Petitioners are Entitled to Relief

If They Have Not Been Served with Notice and Inventory

Or Production of Wiretap Records Was Not Provided

Prior to the Introduction of Wiretap Derivative Evidence

The People also admit they are under an affirmative obligation to provide Petitioners with a copy of the wiretap application, order, and transcripts ten days prior to the introduction of any evidence derived from a wiretap to enable those persons to challenge the legality of the wiretap order. Such prior production would be required not only to all petitioners identified in or intercepted entitled by a wiretap order, but also to all petitioners who were in control of property upon which the wiretapping occurred, who were identified in a warrant based on information derived from a wiretap, or who have had or will have wiretap derivative evidence introduced against them which was obtained in violation of the state wiretap law in any trial, hearing or other proceeding including a preliminary hearing, hearing on a motion, bail hearing, sentencing proceedings, or probation violation hearing, without disclosing that fact or providing production of those records. (Pen. Code § 629.70.) Petitioners contentions with regard to standing are more fully set forth in the Points and Authorities.

The People have admitted they failed to comply with Penal Code section 629.70. They admit they avoided compliance through a policy and procedure known as the "hand-off." Petitioners are, therefore, entitled to the relief requested, compliance with Penal Code Section 629.70. The prosecution argues that the existence of a wiretap is susceptible of being shielded by the official privilege found in Evidence Code section 1040. Petitioners dispute this allegation not only because there is absolutely no authority submitted by the People for this proposition, but because it is clearly wrong. Even assuming Evidence Code section 1040 did in fact allow a wiretap operation to be shield, it would be unconstitutional.

V

The Petition is Not Moot Simply Because

the People Admitted They Failed to Provide Notice and Inventory

But Promise They Will Follow the Law Eventually

The People allege the petition is now moot and there is no reason for relief because they will provide notice and inventory, as well as production of wiretap records in open cases, but allege petitioners must otherwise show prejudice before obtaining such relief. Petitioners dispute such allegations, factually and legally.

First, Petitioners allege the petition is not moot unless all Petitioners who are entitled to notice, inventory and production of the wiretap related documents are in fact provided with such notice, inventory, and production of records. Petitioners allege the People are not in fact providing full production but are instead continuing to conceal wiretap operations by opposing discovery motions, limiting discovery to only portions of what they consider to be a single order for reporting purposes, and have portions of wiretap affidavits sealed to conceal additional wiretap operations.

Moreover, Petitioners allege the matter cannot be made moot with a mere promise that they are going to obey the law in the future even though they have refused to obey it in the past. Petitioners allege that notice is not being provided as required by law and the People will not comply with the law unless this court orders them to do so and thereafter supervises compliance. The People can no longer be trusted to perform their official duties which would require that they provide the court with full disclosure regarding the identities of persons intercepted. Disclosure is not in the People's interest because it will not only reveal wiretap operations, but it will also reveal the People's own violations of the law. Moreover, Petitioners allege that because the People failed to fully investigate prior to obtaining interception orders they are unaware of the actual identities of the people entitled to notice and will not engage in any investigation to assure that notice is in fact provided. Petitioners further allege that because the People were so remiss in their duties, information in their records will be old and obsolete and any information provided to the court will be meaningless unless a concerted effort is made to obtain current information. Therefore, without an adversary hearing to protect Petitioners' interests, the relief they seek, compliance with the law through notice and disclosure, cannot be assured.

As explained in the several requests for class discovery, the People are refusing to provide production in compliance with Penal Code section 629.70 in closed cases. Apparently the People believe that if they managed to obtain the conviction through their violations of law, they are now "Scott free" from complying with the law. However, Petitioners are entitled to production regardless of whether their case is open or closed and prejudice is irrelevant to that right. The prosecution has a continuing duty to provide notice and disclosure. Title III of the federal wiretap law, which admittedly controls both state and federal courts, expressly states that a motion to suppress "shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion." (18 U.S.C. 2517(9).) Therefore, petitioner's still have a right to move to suppress any evidence. Even if the People's allegations were true, that California law does not provide for such post-conviction procedures, Title III and the Constitution would mandate that such procedures be afforded petitioners irrespective of those prohibitions. However, the fact is that there is nothing in California law that prohibits post-conviction motions to suppress. To the contrary, as a result of the People's concealment of the grounds for a motion to suppress, Petitioners were "denied the opportunity for a 'full determination' of the motion's merits," and must, therefore, receive a hearing. (People v. Memro (1995) 11 Cal.4th 786, 845, People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 199-200.)

VI

The Hand-off Procedure Allowed the People to Evade the Notice and Production Requirements of Law Which Resulted in Violations of Virtually Every Aspect of the Wiretapping Laws and Allowed the People to Conceal Their Mass Surveillance of the Los Angeles County Community

Petitioners alleged and established with evidence presented in the Petition that the "hand-off" procedure existed through transcripts from the Gaxiola case. The "hand-off" allowed the People to violate state, federal, and constitutional laws which required petitioners be provided with notice and production. The People do not deny that they provided training to law enforcement on the "hand-off" procedure, although they allege the idea originated from law enforcement not their office. They admit the "hand-off" procedure allowed information from a wiretap to be disclosed to other law enforcement officers to provide leads for investigations without disclosing that the source of the information was a wiretap operation.

The "hand-off" procedure allowed wiretap applications and orders to be utilized without subsequent objection by the defense and judicial review. It shielded wiretap operations and directly resulted in the mass unlawful surveillance of the Los Angeles County Community. The "hand-off" procedure provided the means for the People to violate virtually every aspect of the wiretap laws, including those "statutory requirements that directly and substantially implement[ed] the congressional intention to limit the use of intercept procedures," without any consequences whatsoever.

A. Concealment of Wiretapping by the Failure to Report as Required by State and Federal Law

The People did not deny petitioners' allegations that the Los Angeles District Attorney's Office concealed its wiretap operations for years. Petitioners submitted to this court evidence which established that the People failed to report wiretap applications and orders, failed to report the number of interceptions which resulted from those orders, and misrepresented statistical information relating to interceptions. None of these allegations were denied or refuted.

The People admit that all interceptions must be reported to the state and federal governments. Reporting procedures were intended to provide the community with assurance that wiretap operations are being properly administered. However, the District Attorney failed to make timely and accurate reports of such interceptions.

Petitioners allege the District Attorney of Los Angeles reported a record high number of wiretap orders for 1997 as a result of Judge Alarcon's ruling in the Gaxiola case which would obviously uncover the extent of their wiretap operations. The People reported 24 interceptions to the Federal Government but 28 to the State Attorney General. Either of these numbers, if true, would be unusually high for California. Between 1989 and 1996, California reported a total of only 39 wiretap operations, 34 of which were reported to be related to Los Angeles County. In fact, all states courts nationwide collectively intercept only about 500 telephones a year according to reports from the Administrative Office of the United States Courts.

Petitioners alleged, without denial, that the People were taking the court's copies of the reporting forms. Petitioners alleged that the People were asserting to judges that the forms would be reported but never in fact were. The federal reporting form numbers in the Wiretap Reports revealed that wiretap orders were reported piecemeal in 1998, rather than 30 days after the order's expiration as required, and the evidence pointed to a correlation between Judge Alarcon's ruling uncovering the Atel Wiretap Operation and the unusually high number of wiretap operations reported in 1998. Those reporting numbers, along with wiretap related documents submitted, revealed the Los Angeles District Attorney's Office has been concealing wiretap operations for years.

Additional evidence submitted by Petitioners on this point:

Petitioner has subpoenaed for October 5, 1998, the actual wiretap reporting forms from the California Attorney General's for submission into evidence. Petitioners believe the forms themselves will reveal the correlation between Judge Alarcon's rulings and the reporting of wiretap operations.

1. The People Failed to Report All Interceptions Separately as Required by Law.

The People admitted reporting the interceptions of multiple telephones as a "single" interception and simply alleged, without explanation or authority, that there was nothing wrong with this procedure and completely failed to address the evidence submitted by petitioners.

Petitioners' Evidence:

Petitioners submitted a copy of the reporting procedures issued by the Administrative Office of the United States Courts pursuant to 18 U.S.C. 2519, which requires a judge issuing an order "approving an interception" to report that fact to the Administrative Office of the United States Courts within thirty days of its expiration, as follows:

"Reports must be filed by: a) any state or federal judge approving or denying an application for a court order authorizing the interception of a wire, oral, or electronic communication; and b) any state or federal prosecuting official who has authorized an application for a court order to permit an interception of a wire, oral, or electronic communication by an investigative or law enforcement officer." (Reporting Procedure of US Courts, p. 1.)

"A report must be submitted for each order. If one application results in two orders authorizing interception of communication, then two reports must be filed with the Administrative Office." (Reporting Procedure of US Courts, p. 3.)

Additional evidence submitted by Petitioners on this point:

To further substantiate the claim that each "interception" must be separately reported, petitioners submit to this court the wiretap reports of the New York City Special Narcotics Bureau, which reported the 162 wiretap orders in 1997,⁽¹⁾ the highest number of interceptions in the country, and Passaic County New Jersey.⁽²⁾ (Exhibit B.) As can be seen from the reports, numerous orders are issued on the same day. (Exhibit C.)

Additional evidence to be established at the hearing:

Petitioners' counsel has spoken to prosecutors in both of the above districts who explained that the reason for multiple orders on one day is the fact that the investigations concerned conspiracies necessitating interception of more than one telephone. While there was an obvious reluctance to assist petitioners through the submission of affidavits, petitioners will establish through compelled testimony at the hearing that while a single application is sometimes submitted requesting interception of more than telephone, courts and prosecutors are required by federal law to report each interception of a telephone line separately.

2. The People Failed to Report the Actual Number Telephones Which were Ordered Intercepted

Petitioners established that state and federal law require the People to report each and every interception of a wire, cellular, or digital display pager. Petitioners established that the County of Los Angeles conducted more interceptions in 1997 than any other state in the nation. The People admitted that reports filed with the state and federal government do not always reflect the number of wiretaps conducted the preceding calendar year but allege there have only been approximately 90 wiretap orders issued as a result of applications submitted by the Los Angeles County District Attorney or a someone acting on behalf of the District Attorney, and listed them as follows:

1993 - 1994 Telemundo Cellular Telephone Company Wiretap Operation:

11 wiretap orders.

1995 Downey Cellular Telephone Company Wiretap Operation:

9 wiretap orders.

1995 Warden Wiretap Operation:

1 wiretap order.

1995 Giraldo Wiretap Operation:

3 wiretap orders.

1996-1998 Atel Cellular Telephone Company Wiretap Operation #1:

1 wiretap order.

1996 - 1998 Atel Cellular Telephone Company Wiretap Operation#2:

1 wiretap order.

1996 Atel Cellular Telephone Company Wiretap Operation #3:

1 wiretap order.

1996 County Jail Alexander Wiretap Operation:

1 wiretap order.

1996 Mendoza Wiretap Operation:

1 wiretap order.

1996 County Jail Wiretap Operation:

4 wiretap orders.

1997 Milsap Wiretap & County Jail Wiretap Operation:

5 wiretap orders.

1997 Wesley Wiretap Operation:

4 wiretap orders.

1997 Dove/May Wiretap operation:

5 wiretap orders.

1997 18 Unnamed Wiretap Operations:

18 wiretap orders involving 18 separate unnamed wiretap operations.

1998 New Unnamed Wiretap Operations:

25 additional wiretap orders.

Additional Evidence Submitted in Support of this Allegation

In addition to the two undisclosed wiretap orders previously established without denial in the Petition, Petitioners submit evidence to establish the existence of following undisclosed wiretap orders:

1. January 6, 1995 by Judge Ouderkirk
2. January 6, 1995 by Judge Ouderkirk (Separate order.)
3. December 21, 1994 by Judge Ouderkirk
4. August 22, 1997 by Judge Rappe

And by Judge Christianson FND, Application of LADA

And by Orange County Judge Toohey, Application of LADA

And by Judge Taylor, Riverside FND, Application of LADA

1. August 22, 1997 by Judge Rappe (Different from above order .)
2. August 27, 1997 by Judge Rappe
3. July 22, 1997 by Orange County Judge Toohey, Application of LADA
4. July 8, 1997 by Orange County Judge Toohey, Application of LADA
5. March 14, 1997 by Judge Rosalyn Chapman

3. The Atel Interception Order, Reported by the People as a Single Interception, Actually Resulted in the Wiretapping of Almost 350 Telephones

In spite of the initial allegation by Captain Ron Seban, from the Los Angeles Police Department stating that agency "has only used two wiretap operations since they were permitted by state law in 1989," the People have admitted approximately 90 wiretap orders. Also admitted was the fact that many of those 90 orders intercepted numerous telephone numbers. The People simply refrain from commenting on the fact that what they characterize as a "single" wiretap in Atel Wiretap Order Number 2, and therefore only "one" of the 90 wiretap orders, in fact lasted almost two years and resulted in the wiretapping of all of the following telephone lines:

1. 2132002405
2. 2132003962
3. 2132004555
4. 2132004651
5. 2132005579
6. 2132006958
7. 2132007362
8. 2132007983
9. 2132008449
10. 2132008719
11. 2132008825
12. 2132009681
13. 2132150061
14. 2132150319
15. 2132150597
16. 2132150993
17. 2132151591
18. 2132151638
19. 2132151929
20. 2132152073
21. 2132152170
22. 2132157363
23. 2132158248
24. 2132158284
25. 2132193258
26. 2132194926
27. 2132198151
28. 2132198183
29. 2132198540
30. 2132201099
31. 2132201938
32. 2132201952
33. 2132202592
34. 2132202654
35. 2132202951
36. 2132203426
37. 2132204188
38. 2132204291
39. 2132204976
40. 2132205249
41. 2132205534
42. 2132206081
43. 2132207189
44. 2132208460
45. 2132208912
46. 2132470587
47. 2132470651
48. 2132471043
49. 2132471096
50. 2132471267
51. 2132471652
52. 2132471741
53. 2132472362
54. 2132472420
55. 2132472948
56. 2132473013
57. 2132473102
58. 2132475403
59. 2132475804
60. 2132476480
61. 2132477109
62. 2132478790
63. 2132479434
64. 2132479594
65. 2132479601
66. 2132479603
67. 2132479614
68. 2132479615
69. 2132479624
70. 2132479820
71. 2132480319
72. 2132483872
73. 2132483981
74. 2132484765
75. 2132485327
76. 2132485947
77. 2132486958
78. 2132487872
79. 2133087375
80. 2133640027
81. 2133640110
82. 2133641221
83. 2133641471
84. 2133641675
85. 2133641759
86. 2133641765
87. 2133645208
88. 2133645213
89. 2133645231
90. 2133645245
91. 2133646437
92. 2133646992
93. 2133647031
94. 2133648612
95. 2133650027
96. 2133690538
97. 2133693892
98. 2133694193
99. 2133694251
100. 2133694651
101. 2133694736
102. 2133695426
103. 2133696904
104. 2133698418
105. 2133699857
106. 2133797545
107. 2133798201
108. 2133921370
109. 2133930981
110. 2133931027
111. 2133931032
112. 2133931157
113. 2133933465
114. 2134071292
115. 2134071294
116. 2134074759
117. 2134340516
118. 2134344326
119. 2134407896
120. 2134485947
121. 2135002891
122. 2135006187
123. 2135007162
124. 2135034434
125. 2135034529
126. 2135036160
127. 2135037456
128. 2135037591
129. 2135037594
130. 2135038227
131. 2135038285
132. 2135038735
133. 2135039060
134. 2135039568
135. 2135053104
136. 2135055975
137. 2135071529
138. 2135071732
139. 2135071849
140. 2135071908
141. 2135075275
142. 2135075387
143. 2135075445
144. 2135076421
145. 2135079378
146. 2135159768
147. 2135485947
148. 2135980731
149. 2135983537
150. 2135983797
151. 2135983821
152. 2135984490
153. 2136051580
154. 2136341464
155. 2137001504
156. 2137009864
157. 2137032612
158. 2137032618
159. 2137033295
160. 2137034174
161. 2137036287
162. 2137036641
163. 2137037935
164. 2137038024
165. 2137038942
166. 2137038952
167. 2137055294
168. 2137180637
169. 2137181051
170. 2137181637
171. 2137182394
172. 2137187386
173. 2137187951
174. 2137601986
175. 2137602076
176. 2137603288
177. 2137609931
178. 2137717077
179. 2138183259
180. 2138190875
181. 2138191028
182. 2138191085
183. 2138191115
184. 2138191461
185. 2138192276
186. 2138193259
187. 2138193276
188. 2138193561
189. 2138194265
190. 2138195419
191. 2138195423
192. 2138195429
193. 2138196307
194. 2139104666
195. 2139479602
196. 2139479603
197. 2139479604
198. 2139992573
199. 3102511813
200. 3102916807
201. 3103398756
202. 3103514063
203. 3103514599
204. 3103514955
205. 3103641368
206. 3103872329
207. 3103872926
208. 3103878233
209. 3103878590
210. 3103878831
211. 3104138943
212. 3104150065
213. 3104159841
214. 3104184084
215. 3104860934
216. 3104867586
217. 3104873690
218. 3104883528
219. 3104883528
220. 3104888846
221. 3105022523
222. 3105600982
223. 3105605435
224. 3106149156
225. 3106174226
226. 3106176879
227. 3107011732
228. 3107021773
229. 3107022298
230. 3107024452
231. 3107025079
232. 3107026928
233. 3107029070
234. 3107029333
235. 3107102321
236. 3107105615
237. 3107106167
238. 3107130640
239. 3107131501
240. 3107204133
241. 3107383984
242. 3107490866
243. 3107494735
244. 3107800929
245. 3107809561
246. 3108502320
247. 3108741996
248. 3108922523
249. 3109046434
250. 3109046434
251. 3109046435
252. 3109046436
253. 3109046437
254. 3109046438
255. 3109046439
256. 3109046440
257. 3109047050
258. 3109047051
259. 3109047052
260. 3109047053
261. 3109406434
262. 3109406435
263. 3109406436
264. 3109406437
265. 3109406438
266. 3109406439
267. 3109406440
268. 3109681462
269. 3109682920
270. 3109917055
271. 3109955785
272. 5624009578
273. 5626198107
274. 5627433089
275. 5627560363
276. 5627561677
277. 5627565332
278. 5628069525
279. 5628690352
280. 6268252453
281. 6268261635
282. 7143095462
283. 7143153065
284. 7143153066
285. 7143280750
286. 7143291521
287. 7143291645
288. 7143377105
289. 7143379524
290. 7143575179
291. 7144018010
292. 7144022473
293. 7144035456
294. 7145011034
295. 8004497911
296. 8053382591
297. 8182611131
298. 8182692697
299. 8182693775
300. 8182982293
301. 8182982293
302. 8182982606
303. 8182987519
304. 8182989474
305. 8183210616
306. 8183215355
307. 8183218324
308. 8183831620
309. 8184001245
310. 8184008490
311. 8184045895
312. 8184068043
313. 8184143265
314. 8184149634
315. 8184227860
316. 8184269558
317. 8184275701
318. 8184294541
319. 8184399116
320. 8184399916
321. 8185152740
322. 8185159745
323. 8185159768
324. 8185170642
325. 8185173528
326. 8185224905
327. 8185229216
328. 8186181515
329. 8189298641
330. 9022259016
331. 9092029612
332. 9092031049
333. 9092189762
334. 9092259016
335. 9092296783
336. 9092363790
337. 9092382461
338. 9092392843
339. 9093136473
340. 9095182271
341. 9095199301
342. 9098169762

4. There Were More than 90 Wiretap Orders Applied for By the People

The number of wiretap orders applied for by the Los Angeles District Attorney's Office is a major contention between the parties. The People initially alleged in their unsworn Return that "state wiretap investigations and authorizations has been fully identified in [their] Return." However, when forced to submit affidavits under the penalty of perjury, the People merely alleged that the "wiretap applications requested by the Los Angeles County District Attorney has been identified in this Return, and the number of cases known to be related to a wiretap has also been identified". They then reference to a list provided to this court. No mention is made that any efforts were taken to determine the exact number of orders applied for by asking those who made such applications. Nor is there any mention that records or logs, which must surely be maintained by the District Attorney or his staff, was consulted to obtain the true number of applications and orders.

Petitioners dispute the People's claim of only 90 wiretap orders.

Petitioner's Evidence:

Petitioner submitted evidence of unreported wiretap orders and applications.

Additional evidence submitted by Petitioners on this point:

Only a total of 62 wiretaps have been reported by the Los Angeles District Attorney's Office since 1993. Petitioners have discovered through partial production of records for 16 wiretap orders. Petitioners have not been provided with extensions for the wiretap orders in Telemundo or Downey Cellular Telephones Company Wiretap Operations. Petitioners allege that additional telephones were added with each extension in same manner as was done in the Atel Wiretap Operation. Petitioners have discovered evidence that at least the following additional telephones were intercepted by the People: :

1. 2132003394
2. 2132206018
3. 2132420976
4. 2132480719
5. 2132484384
6. 2133003970
7. 2133047230
8. 2133090124
9. 2133090439
10. 2133646597
11. 2133649361
12. 2133847230
13. 2133993915
14. 2133995094
15. 2134340616
16. 2135002609
17. 2135003177
18. 2135003970
19. 2135006020
20. 2135092966
21. 2135096808
22. 2135490232
23. 2135490233
24. 2135672347
25. 2135674512
26. 2135674957
27. 2135816961
28. 2135816962
29. 2135816963
30. 2135827564
31. 2135851200
32. 2135851283
33. 2135851392
34. 2135851464
35. 2135851562
36. 2135851693
37. 2135851799
38. 2135851887
39. 2135851998
40. 2135885777
41. 2136004539
42. 2136103290
43. 2137055894
44. 2137182484
45. 2137604914
46. 2138196540
47. 2138282541
48. 2139101931
49. 2139107153
50. 3104081786
51. 3104883846
52. 3105008163
53. 3105034919
54. 3105910918
55. 3106004539
56. 3106141364
57. 3106306808
58. 3106508554
59. 3107108523
60. 3108067042
61. 3108503230
62. 3109272978
63. 3109273077
64. 3109276347
65. 3109277157
66. 3109277387
67. 3109277597
68. 3109279392
69. 5627650363
70. 7146366311
71. 8059442690
72. 8182987619
73. 8182989474
74. 8183178748
75. 8183210616
76. 8183789429
77. 8184004664
78. 8184045895
79. 8184250305
80. 8184275701
81. 8188025648
82. 8888024633
83. 9005192367
84. 9095192367
85. 9097306535
86. 9543899248

Additional Evidence in support of Allegation:

Petitioners have subpoenaed for October 5, 1998, to court copies of each and every expired state interception order submitted to the various hard-line and cellular telephones companies for the County of Los Angeles from 1989 to the present to enable the court to determine whether the People have accurately disclosed all wiretap orders obtained.

5. The People are Connected to the Mass Invasions of Privacy in Los Angeles County from Wiretap Orders for Public Pay Phones

The People do not deny they were involved with the San Bernadino wiretap orders issued by Judge Perry which intercepted over 137,000 people on public pay phones in Los Angeles County while intercepting only 10 incriminating conversations and obtaining no arrests, but instead simply allege their office did not review or approve the applications for those orders, attempting to imply they were not involved. The People do, however, deny that the alleged number of people in Los Angeles County had their conversations intercepted in 1997, without explaining the basis for this denial.

Petitioners' Evidence:

The state and federal wiretap reports disclosed that the federal filing form numbers for those particular San Bernardino wiretap orders were 43023 through 43038. However, Los Angeles County was distributed the 43000 series form. San Bernardino was distributed the 45500 series.

Additional evidence submitted by Petitioners on this point:

Petitioners submit a bulletin from the High Intensity Drug Trafficking Area (HIDTA) Task Force, of which Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (LA IMPACT), Regional Narcotics Suppression Program (RNSP), and Inland Crackdown Allied Task Force (INCA) are all members, which explains that a "Memorandum of Understanding" was "signed by all task force directors" to facilitate a "close cooperative effort" to "share resources, specialized technical equipment, and real time intelligence information; train personnel; and agree on appropriate case 'handoff' procedures." The bulletin reveals their "integrated approach institutionalizes teamwork in a way that truly enhances the overall effectiveness" of the task force. "This intense cooperation is exemplified through a process where the LA HITDA task forces will 'hand off' key elements of major narcotics investigations to other law enforcement organizations in the region for the purpose of taking down some of the main suspects and drugs without jeopardizing the chief target of the primary task force." (Exhibit D.)

Petitioner has further subpoenaed for October 5, 1998, the actual reports submitted by judges and prosecutors from the Attorney general and the Administrative Office of the United States Courts for introduction into evidence which believe will provide further substantiation for this allegation.

Request for Production Order of Public Telephone Wiretap Records:

Petitioners respectfully request that this court utilize its authority as the designated wiretap judge for Los Angeles County to order the records from the wiretap orders issued by the San Bernadino County District Attorney's wiretap operation be unsealed and provide to Petitioners wiretap records involving the five wiretap orders for Public Telephones in Los Angeles County.

6. The Los Angeles County District Attorney Intentionally Withheld Statistical Information to Conceal Unlawful Mass Invasions of Privacy

Petitioners' Evidence:

Petitioners introduced the state and federal wiretap reports which disclosed that the People were not reporting all telephones wiretapped as required by law. In twenty of the twenty-eight cases reported the People stated that the number of people intercepted was "unknown," while four other reports made a vague reference to "over 5" or "more than 10." One of those latter instances was the reported figures related to the wiretapping of three pay phones at the Lynwood County Jail. The People do not deny a wiretap order was issued by Judge Czueleger in 1997 for interception of at least three separate public pay phones in the Lynwood Sheriff's County Jail. Lasting six months and costing in excess of $1,000,000.00, the People reported that there were only 1,782 conversations of more than 10 people intercepted. Statistics provided by the Administrative Office of the United States Courts alone disputed the accuracy of this accounting. Petitioners further alleged that attorneys working on a criminal matter involving the wiretapping of the Lynwood Sheriff County jail informed petitioners' counsel that more than 100,000 telephone conversations had actually been intercepted by that wiretap operation. The People, who obviously obtained a gag order which has forbidden the release of any information connected to that wiretap, do not deny this allegation, but instead allege petitioners offered no evidence of this fact.

Need for Removal of Gag Orders, Notice, and Disclosure of Jail Wiretap Documents

Petitioners, who are indigent and facing criminal prosecution, are undoubtedly being denied their rights. Petitioners allege the investigation in those jail wiretap operations is no longer on-going and the People are without any excuse to deny to petitioners the notice to which they are entitled. Petitioners allege that gag orders were imposed not to protect the investigation in that matter, but were imposed to protect the People from having their unlawful actions disclosed. This is apparent from the fact that the targets of that investigation had already been notified of the wiretap at the time the gag order was imposed. Only through court ordered release of wiretap documents will petitioners be afforded their rights.

B. The Unlawful Hand-off Procedure is Continuing to Allow the People to Violate the Notice and Production Requirements of the Law and Orders by this Court are Necessary to Require the People to Provide Petitioners with the Notice in the All Still Undisclosed Wiretap Related Cases

The People allege that despite the fact that only one of their alleged 90 wiretap orders intercepted over 350 separate telephones lines, there have been only 57 criminal cases filed which are related to all 90 orders. ⁽³⁾ The following case numbers are all cases which have thus far been disclosed as related to a wiretap operation which involve petitioners in this case:

BA095820 Suarez PD

BA095853 Ochoa PD Requested

BA093743 Cardona APD

GA030415 Moral PD

BA121218 McLAIN APD

BA121221 Hargrove/All defendants PD

NA033985 Burr PD

BA108955 Chaidez PD

BA104592 Ramirez PD

BA156928 Perez PD

BA156928 Perez APD

BA149554 Dominguez APD

BA149554 MacLean PD requested

BA132549 Juarez PD Requested

BA132514 Barto PD

BA158256 Jackson APD

BA157012 Castillo APD

BA157012 Cisneros PD

BA161257 Castillo APD

BA159367 Salcido PD

BA162772 Corona PD

BA157459 Ramos PD

BA153899 Lopez PD Requested

BA065313 Alexander APD

TA036750 Leopoldo PD

BA123265 Urrera PD

BA123265 Ofra APD

BA141391 Lopez PD

BA141391 Medina-Bernal APD

BA150039 Abdelkader PD

BA138992 Evans PD

BA138992 Salmon PD

BA108969 Hernandez APD

BA137857 Benabides PD

BA129075 Garcera PD

BA129075 Waters APD

BA156854 Diaz PD

BA160531 Vargas PD

C. Los Angeles County District Attorney Gil Garcetti Violated the State and Federal Wiretap Laws by Authorizing Other Attorneys to Submit Wiretap Applications

Petitioners have established through documentary evidence that the District Attorney unlawfully delegated his authority to apply for wiretap orders in conscious disregard for the known fact that such delegations were unlawful and would require suppression. This is evidenced by the People's own Wiretap Manual,⁽⁴⁾ which explains that it is the policy of the Office to allow the [then] Chief Assistant District Attorney Sandra Buttita to sign such applications any time the District Attorney is out of the county.⁽⁵⁾ Within the limited disclosure provided thus far, at least eight applications by Sandra Buttita have been discovered. Moreover, on February 14, 1995, Deputy District Attorney R. Dan Murphy submitted an application for a Wiretap Extension Order in the Downey Wiretap Operation.

The District Attorney has authorized that applications for wiretap orders be submitted by a Deputy District Attorney acting as the District Attorney. However, Deputy District Attorney Leonard Torrealba denied under oath that he made any such application and petitioners, having no reason to doubt Mr. Torrealba's statement, will accept this fact as proven.

Additional Evidence Supporting the Unlawful Assignment of Authority

to Apply for Wiretap Orders:

Petitioners previously submitted proof that on or about April 27, 1994, and June 1, 1995, applications for wiretap orders were submitted by Assistant District Attorney Sandra Buttita. Both were admitted by the People without disclosing that there have been numerous other instances of wiretap applications submitted by Sandra Buttita including: December 11, 1996, Atel Wiretap Extension Order #6, January 8, 1997, Atel Wiretap Extension Order #7, June 10, 1997, Atel Wiretap Extension Order #12, July 10, 1997, Atel Wiretap Extension Order #13. (Exhibit A.) Moreover, on February 14, 1995, Assistant District Attorney R. Dan Murphy submitted an application for Wiretap Extension Order in the Downey Wiretap Operation. (Exhibit E.)

D. The People Knew and Understood That Only One Judge Could Issue Wiretap Orders But Consciously Obtained Orders from Judges Without Jurisdiction In Disregard for the Law.

The people do not dispute the evidence submitted by Petitioners to establish that there have been no orders filed designating Judge Bascue, Judge Ouderkirk, or Judge McIntyre, or Judge J.D. Smith to issue wiretap orders and the only orders designating Judges were issued as follows:

1. Presiding Judge Ricardo Torres designated Judge Lance Ito on August 11, 1992.

2. Presiding Judge Robert Mallano designating Judge J. Stephen Czueleger October 17, 1994.

3. Presiding Judge Robert Parkin designated Judge Robert Perry on January 8, 1997, and if Judge Perry was "unavailable" Judge Curtis Rappe, followed by Judge Stephen Czueleger, were designated as back-up judges.

The People admit that only the presiding judge of each county or one other judge designated by the presiding judge has jurisdiction to issue wiretap orders. Yet Petitioners have shown that in 1997 the People obtained no wiretap orders from Presiding Judge Parkin but instead obtained orders from Judge Perry, Judge Rappe, Judge Czueleger, Judge Ouderkirk, and Judge Bascue. Petitioner alleges that additional Judges have signed orders authorizing interception orders in violation of the state and federal laws.

Petitioners allege that once Judge Parkin designated Judge Perry, he was without any statutory authority to designated Judge Rappe and Judge Czueleger as "back-up" judges if Judge Perry was unavailable.

The People admit that the state wiretap law provides that only the Presiding Judge or one other judge designated by the presiding judge has authority to issue wiretap orders, but assert the language is vague and subject to an interpretation which could be construed to mean a wiretap application is to be viewed separately and a different designated judge can be assigned to each. Petitioners dispute that assertion and allege that such interpretation is absurd. Petitioners allege that the People never believed this to be the interpretation and never acted in reliance thereon.⁽⁶⁾

Nor is such a defense. Heggy v. Heggy, (10^th Cir 1991) 944 F.2d 1537, 1542.) To the extent the people claim administrative oversight, ignorance, or this creative interpretation of the plain meaning of the California wiretap statute, courts have required even mistakes are alleged, it must "objectively reasonable." Moreover, such defense would only be available "when the attorney involved acted as a 'reasonably prudent' attorney would to investigate the legal question involved in a reasonably prudent manner. United States v. Carson (3^rd Cir. NJ 1992) 969 F.2d 1480, 1494.) Moreover, even under this theory the People lose, since most extensions for wiretap orders are signed by judges other than those who signed the initial order.

Additional evidence submitted by Petitioners on this point:

Petitioners are submitting court availability records from the Los Angeles Superior Court reporting judges availability on specific dates. These records establish that despite the fact that Judge Rappe and Judge Czueleger were designated as back-up in the event of Judge Perry's unavailability, they still lacked jurisdiction to issue wiretap orders because Judge Perry was in fact available on all but one date that either issued such orders. (Superior Court availability records for 1997 and 1998, Exhibit F.) Those records disclose that orders were issued by the back-up judges, regardless of whether or not Judge Perry was on the bench. In fact, there were at least three dates when both Judge Perry and Judge Rappe issued orders on the same date.

Even assuming the People attempt to allege that Judge Perry was busy, he would not be unavailable. The procedures in Title III were "not enacted simply to facilitate electronic surveillance by law enforcement agencies". They were enacted because "Congress recognized that wiretapping could be highly intrusive of privacy," and therefore placed "strict limits on the use of wiretapping" and therefore forbids such unauthorized delegation. (In re United States of America (2^nd Cir. 1993) 10 F.3d 931, 1993.)

Moreover, Petitioners will establish at the hearing that additional Judges have authorized wiretap orders and extensions. Petitioners believe a review of the signatures on wiretap orders subpoenaed for October 5, 1998, will reveal this fact but are prepared to call these judges as well as other witnesses at the hearing on the petition to establish that fact if necessary.

E. The Los Angeles County District Attorney Failed to Insure Particularity and Specificity in Wiretap Orders.

In spite of the People's denial, Petitioners allege that evidence submitted to this court which disclosed a wiretap order issued without a termination date and the Atel order for unknown operators, others as yet unknown, and those unknown persons subsequently changed number based only the District Attorney's assertion without need for an additional order more than established this allegation. (Suppl. Pet. Exh. J; Suppl. Pet. Exh. N, p. 1, 3.)

Additional Evidence in Support of the Allegation:

Petitioners have submitted to this court additional proof in support of the above allegation. The Applications for extensions of Atel Order Number 2 disclosed that when the People could not obtain anything incriminating from a telephone, they would simply go directly to the telephone company and allege the "unknown person" had changed their telephone number, and began wiretapping without any court order whatsoever. (Exhibit A.)

Additional Evidence to be Introduced at the Hearing.

At the hearing of this action, petitioners will compel testimony from telephone company personnel with whom counsel for petitioners has spoken, who will substantiate the fact that law enforcement used this order to obtain interception of telephones without a court a order authorizing such interception.

F. The Los Angeles County District Attorney Unlawfully Invaded Privacy Rights by Failing to Minimize Innocent Conversations.

Despite the fact that failure to minimize is considered a "general search," a violation of the Fourth Amendment, and grounds for suppression, petitioners established that the District Attorney failed to minimize innocent conversations. Petitioners submitted evidence of one wiretap operation which revealed only 11 minimizations of the 209 conversations disclosed by the People. Many conversations, engaged in 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 recited in the logs in a ridiculing manner which suggested blatant invasion of protected privacy of hundreds of thousands of people in Los Angeles who had their conversations overheard on public pay phones in 1997 alone.

G. The Los Angeles County District Attorney Obtained Wiretap Orders Against Cellular Telephones Companies as a Sham to Avoid Using Alternate Investigative Measures to Obtain the Necessary Individualized Probable Cause for the Issuance of the Wiretap Orders

Petitioner's Evidence

Petitioners introduced numerous affidavits in support of applications for wiretap orders which exposed boilerplate language, many identically worded, without any factual showing to support their conclusionary statements.

Additional evidence submitted by Petitioners on this point:

Petitioners are submitting a copy of the applications, affidavits, and orders for the single Atel wiretap order and its extensions as evidence of the People's blatant disregard for the state, federal, and constitutional requirements of wiretap laws which mandate that wiretapping orders be issued only upon probable cause and only after other investigative measures have been tried and failed. (Exhibit A.)

H. The People are Using Wiretaps on Public Pay Phones in County Jail to Gather Evidence through Mass Invasions of Privacy Including Privileged Attorney-Client Communications

Petitioners established that the wiretapping of jail pay phones has also resulted in mass invasions of privacy and may well have infringed upon privileged attorney-client communications. This is of great concern to the Public Defender's Office since the protected privacy of jail pay phones has long been relied upon by this office as a means of facilitating privileged attorney-client communications. Seven separate wiretap operations of Los Angeles County Jail pay phones are known to have existed. Two, spanning the months from March 1996 to June 1997 and costing over one and half million dollars, are now known to have intercepted over one hundred thousand telephone conversations of inmates, many of which are doubtlessly privileged. Petitioners allege that such interceptions are used for the illegal and unauthorized purpose of intelligence and evidence gathering.

Additional Evidence Submitted by Petitioners in support of this allegation:

While the stated purpose of the Lynwood Jail wiretap operation was to halt the murderous plot of certain inmates, this office has located documents which expose the fact that these wiretaps are unlawfully used as evidence-gathering tools and inmates are assigned to wiretapped locations within the jail for the specific purpose of monitoring their personal calls.

Produced by the People in a death penalty case entitled People v. Saeed Baidi, Criminal Case No. SA030613, was an entry in an investigation log which makes reference to a meeting between law enforcement officers to have a key witness in the case "moved/monitored at the 'Crip' module at Century Station." (Exhibit G.)

Necessity for Court ordered Compliance with the Wiretap Laws,Discovery, and Hearing:

Petitioners allege that court ordered compliance with the notice and production requirements in the state and federal laws will reveal the identities of thousands of Petitioners, the on-going mass surveillance for the purpose of intelligence and evidence gathering, the invasions of privacy, and the intrusions of the attorney-client privilege. Petitioners allege that through cross-examination of officers involved at a hearing of this matter, they will further establish that this entry was not simply an isolated instance of manipulation of inmate housing for the purpose of utilizing existing jail wiretap operations for evidence gathering, but that such manipulation is an established pattern and practice.

I. Wiretapping was Used By the People As an Investigative Method of First Choice Without any Prior Investigation Rather than an Extraordinary Investigative Tool of Last Resort

The Atel extension orders attached hereto speak for themselves as examples of the total lack of any investigative work prior to the application for interception of additional telephone lines. In fact, the affidavits not only fail to make any showing that investigative procedures have failed or are useless, but expressly state that "the wire intercept is the main source of the information presently in use by investigators in their attempt to expose the criminal activities of Atel Cellular and Paging and others in the conspiracy." No showing is ever made, other than to recite in each application the form language from past applications. These stock paragraphs were used in almost every application for five years straight and would apply to virtually all drug conspiracy investigations.

No attempt to investigate nor was the court even provided a particularized showing of why, in each individual case, such investigation could not be made. A single sham allegation was asserted; that Atel and its employees were the targets and any and all customers who were engaging in any criminal activity whatsoever were co-conspirators regardless of whether there was any evidence that the Atel owners had knowledge of the new alleged "co-conspirators" activities or intent.

While Judge Bascue never granted an extension, the order is alleged by the People to have continued until March of 1998. On June 21, 1996, another order intercepting most of the same lines of Atel plus additional telephones was issued by Judge Ouderkirk. Every 30 days an extension of the order was allegedly granted authorizing wiretapping of additional telephone numbers lines until it finally ended, almost two years later in March of 1998 having tapped 350 separate telephones lines by that time.

In camera hearings with Deputy District Attorney Jason Lustig and Nancy Lidamore disclosed that the wiretap would have continued indefinitely had Judge Alarcon not refused to withhold the information from the defendants in the Gaxiola case. While many arrests, prosecutions, and convictions were obtained, the owners of Atel were never arrested or prosecuted and both continue to operate Atel Cellular Telephone and Paging Company.

Petitioners established that Atel is the third cellular telephone company tapped by the Los Angeles District Attorney. From 1993 to 1994, Telemundo Communications was a target and in 1995 Downey Communications was a target. The full extent of the telephones tapped by those orders has never been revealed, but the operations also spanned a two year period. Both "corrupt" cellular telephone companies continue to exist.

Additional Evidence in Support of the Petition

Petitioners are submitting all Atel wiretap applications and orders thus far obtained. As can be seen from each affidavit in support of the Atel orders and extensions, the only investigation ever engaged in was to determine each and every new customers' telephone number, the amount of their bill, and the number of calls made to other cellular telephones. No attempt to obtain identities was ever even attempted.

The failure to investigate resulted in more than simple invasions of privacy. Review of Extension 16, reveals one of many instances where the police obtain information regarding "stash locations", then "steal" the money or narcotics from suspects without notice of that fact. This extension order was almost entirely composed of transcript conversations overheard after such an escapade, as if to boast of their cleverness. The police appear to revel in the chaos they caused as they listen to accusations of suspected culprits, threats of violence to be used in revenge, and the desperate pleas for time or money to repay debts. It is almost as if the police are enjoying the barbaric thought of their suspects killing each other for no reason. When a conversation plotting the murder of a women thought to be responsible was overheard, nothing but a short notation is made in the report submitted by the District Attorney. It explains that no help could be offered this woman because the police were unaware who the suspects were. Had a thorough investigation been done, as required by law, the police would have known who the players were and able to offer assistance. But since telephones are randomly wiretapped, the police simply concluded that nothing could be done to save this woman's life. The thought of exposing the wiretap was never even considered. Exhibit A, Extension # 16, p. 27-28.)

That wiretapping is no longer a "last resort" but simply a first choice is best established through the affidavit in support of the District Attorney's application:

"[T]he wire intercept is the main source of the information presently in use by investigators in their attempt to expose the criminal activities of the principal and/or employees of Atel Cellular and Paging and others in the conspiracy." (Exhibit A, Extension # 16, Allegation 10, Affidavit p. 45, .)

J. The People Are Obtaining Wiretap Orders Without Probable Cause

Additional Evidence Introduced in Support of this Allegation

Again the Atel Wiretap Operation submitted unquestionably establishes that wiretap orders are issued with minimal showings of probable cause. The facts alleged in support of the wiretap order failed to establish that the owners of Atel were involved in any of the enumerated illegal activities, or even any illegal acts at all.

Based on the exact same showing of probable cause used to obtain a wiretap on the Downey Cellular Telephone Company, the People simply cut and paste and added the allegation that employees from Downey met with persons at a previously owned company of the present Atel owners. No criminal activity, or even evidence of a conspiracy, was ever established or even alleged. Of interest is the fact that while records from the Downey Wiretap Operation mentioned a number of "meetings" of Downey employees with other cellular telephone companies such as Electroland Cellular and Paraiso Latino Communications, the Atel owner's previous business was never mentioned. Moreover, the police never even bothered to accurately investigate their own records. It was alleged that Downey Communications opened for business on February 16, 1994, shortly after the owner's brother was arrested. However, Downey wiretap records reveal the business was in operation and already under surveillance long before February of 1994.

Most of the facts in support of probable cause seem to rest entirely on the actions and connections of Atel's customers rather than any act committed by the owners themselves. And it appears that the only reason the actions of those customers were even known at all was because they, not Atel, were then under surveillance for narcotics activities.

The affidavit alleged that on March 11, 1996, officers followed two Atel customers to their residence. The surveillance was still continuing two days later when the same men went to Pep Boys and met another man in a gray Honda. This ``highly suspicious'' activity caused the police to continue surveillance on March 14, 1996, where someone, other than either of the men who were customers of Atel, departed the residence. He was followed to the same Pep Boys and thereafter met the same gray Honda. Both were then followed to another residence where they placed a shopping bag in the trunk of a vehicle. This ``highly suspicious'' activity generated probable cause to search the trunk of the car as well the last residence. The officers suspicions were confirmed when the search revealed massive quantities of cocaine.

Aside from the fact that this arrest was the obvious result of a separate wiretap operation, there is nothing in this scenario to establish a connection between Atel and this narcotics arrest other than an attenuated relationship to customer of Atel.

The only other connection the police could find to link Atel with any narcotics activity was derived from a federal wiretap operation the previous year. The targets of that investigation were admittedly a customer of Atel. Atel was alleged to have been intercepted by that wiretap when the target called to order money counters and scramblers, apparently suspecting that it was a wiretap operation which had caused the recent seizure of his contraband.

The police were apparently involved in that investigation and on surveillance of that customer when he was observed patronizing Atel in October of 1995. However, since the police were attempting to imply in their affidavit that they were engaged in the surveillance of Atel, they failed to establish any facts which linked the customer to any criminal activity which could be attributed to Atel.

Under the skewed version of facts submitted in the affidavit, all that was established was that an Atel customer had at some unknown point in time resided in locations which were once the subject of narcotics investigations. For no reason whatsoever, the police followed this Atel customer to various locations and observed counter surveillance techniques until he reached his point of destination, a location which had been investigated more than four years earlier. Parked outside that location was a car registered to a person who was federally indicted a month later for transportation of methamphetamine. (The probable result of the wiretap operation the police were then engaged in.) By attempting to conceal the obvious, the police instead concealed any facts which could have established a connection between this customer and any narcotics activity to attribute to Atel.

It was alleged that the Atel owners sold money counting machines and cellular telephone scramblers, some of which were seized during a number of narcotics investigations. Clearly Atel telephones were used by the targets in those ancillary wiretap operations. But no more than LA Cellular or Air Touch telephones are used. Selling money counters and scramblers is not illegal or even cynical. Both are advertised openly by legitimate companies for legitimate purposes. (Exhibit H.) In fact, Pacific Bell openly advertises "no eavesdropping" cellular telephones in the Yellow Pages. (Exhibit I.) Secure phones are needed by corporations to protect trade secrets, by reporters to protect exclusive stories, and by attorneys to protect attorney-client privileged communications. Scramblers and encryption codes are not unique, they are in demand by anyone in need of security or confidentiality, which includes, but is not limited to, drug traffickers. Moreover, merely providing lawful products is not sufficient probable cause to obtain a search warrant, let alone a wiretap order. If it was, then every telephone company and retail establishment which provide any product used by narcotics traffickers would be equally susceptible to privacy invasion by law enforcement.

The facts failed to establish that owners of Atel were anything other than businessmen who, like every other business and corporation in the United States, may well have refrained from asking its customers, or possibly even caring, what use would be made of their product. In fact, it appears that such was the case. After almost two years of continuous electronic surveillance by the police, the Atel Wiretap records never disclosed a single incriminating conversation by either owner.

Other than coincidental contacts with Atel as a result of ancillary and unrelated narcotics investigations, the only "surveillance" of Atel was on single day, May 6, 1996. The observations made then only established that one owner was visited by someone who drove a car registered to another person whose alleged family members in Arizona were involved in drug trafficking in September of 1991. The remaining evidence submitted showed that these owners took their children to day care, met with customers, and ate lunch. It is difficult, if not impossible, to even suspect anything nefarious by the fact that a customer was driving a car rented from Enterprise Leasing of Nevada and June of 1993, would lead to some narcotics traffickers rented cars from Enterprise Leasing of Nevada.

1. Misrepresentations exist in the application regarding the "corrupt" nature of cellular telephone providers.

The police provide a laundry list of "unusual" business practices of a "corrupt" cellular telephone provider. However, counsel for Petitioners and her investigator conducted interviews with several telephone company employees and officials to compare the allegations in the affidavit with the "usual" business practices of "legitimate" cellular telephone providers. The information obtained from those interviews, as well as other investigations, is provided below. As a result of their unwillingness to reveal their identities, Petitioners will need to present compelled in-camera testimony. That testimony will reveal the police failed to accurately portray the common operation and standard business practices of cellular resellers and therefore misled the court into believing that innocent business practices were indicative of criminal behavior.

There are only two Cellular Telephone Companies in Los Angeles County, LA Cellular or Air-Touch. These two companies sell telephone numbers and service (transmission of calls) at wholesale rates to "resellers" who are themselves a Public Utility Company regulated by the Public Utilities Commission. There are only a total of about 35 resellers. Resellers charge their customers the retail rate or higher and profit from the difference. Clearly high useage customers mean more profits to these companies, as well as to the larger companies who obtain higher usage without the cost of marketing and services. For this reason the resellers concentrate their marketing to high usage customers like sales agents, corporations, real estate agents, and the media offering individual service and catering to their customer's individual business needs with the blessings of the larger companies. According to Mr. Everbach, "legitimate" resellers have such high usage customers that they operate their businesses profitably with as few as fifty telephones numbers.

With this in mind, as well as the additional information given by Mr. Everbach, the officers' profile of "corrupt" resellers appears to be meaningless:

1. Corrupt providers accept fictitious names and addresses.

LA Cellular and Air Touch will provide service to people who use fictitious names and addresses.

2. Customers are beeped to come in to pay bills.

LA Cellular and Air Touch do not provide this service but many small reseller companies deal on such an individual basis with their customers.

3. Corrupt providers put telephones in the name of the company.

This is not unusual. (It should be noted however, that the three telephones connected with Atel's suspected customer were actually not listed in their own names. Under the officer's own theory this would negate any connection to the owners of Atel.)

4. Corrupt providers directly bill the customers.

All resellers directly bill the customers.

5. Corrupt providers engage in these practices to prevent law enforcement from knowing the true identity of the users.

Legitimate resellers engage in these practices to prevent everyone from knowing the true identity of the users.

6. Corrupt providers allow operators to change their numbers frequently.

Legitimate resellers, as well as the larger companies, allow operators to change their numbers as frequently as the customer wants.

In fact, number changing of cellular telephones does not appear to be an unusual event. Since the operator pays for incoming as well as outgoing calls, the easiest way to keep phone bills down is to weed out callers, and the easiest way to do that is to simply change the number.

7. Corrupt providers change operator numbers over the telephone without the need to complete any paperwork.

Legitimate resellers, as well as the larger companies, will perform the task of entering a new telephone number by simply conducting the process over the telephone. Moreover, there is no paperwork involved in changing a telephone number.

8. High usage for a short time, cell phones calling other cell phones, phones used all day, and usage over wide variety of areas.

Again, resellers generally deal exclusively with high usage customers. This criteria is no more indicative of a narcotics trafficker as it is for a sales person, news reporter, real estate agent, or any number of legitimate business persons.

It is clear that the officers either failed to conduct a sufficient investigation of the legitimate business practice of resellers or were simply misrepresenting the true operating practices of the business to the court.

2. The Customer's "Drug Trafficker Profile" fails to provide adequate probable cause.

The officer alleged that through surveillance he could tell that Atel was a "corrupt" provider because Atel customers resembled Downey customers. It was clear from the affidavit that there was no surveillance of Atel except on May 6, 1996. The other observations mentioned in the application where obviously the result of a surveillance on the customer, not Atel. The police then allege that Atel customers have a "drug trafficker profiles" which would include such things as wearing silk floral shirts, pressed denim pants, handstitched leather belts, expensive cowboy boots and sometimes cowboy hats. It appears, however, that these factors would reflect the cultural background of the clientele and surrounding community, rather than illegal activity. The officers opined that drug dealers drove certain cars but then listed a diverse range vehicles which included not only expensive cars, but Chevy Blazers, full sized Chevys, and even Dodge pick-up trucks. Of particular significance to the officer was the fact that Atel customers met in the parking lot. But the affidavit described Atel as being located in a strip mall which brings to mind nothing but a parking lot. Moreover, they only meet with the owners of the company, not other employees. This is not unusual, however, once it is understood that reseller companies market their personal service to customers. The usual counter-surveillance driving, lack of regular jobs, use of public pay phones, and conducting a majority of their business on cell phones or beepers was included but not supported by any evidence observed by the officer.

That the officer's "drug trafficking profile," even in conjunction with his "phone usage profile," was of no consequence whatsoever is best shown by the results of customers wiretapped. The following report was made after 30 days of wiretapping:

Atel Business Lines - No incriminating information reported.

Customer lines Intercepted:

(213) 247-9601 - No information reported.

(213) 598-3821 - No information reported.

(213) 718-1051 - No information reported.

(213) 247-9603 - No information reported.

(213) 598-3797 - No information reported other than a high telephone bill.

(213) 247-9602 - No information reported. Changed⁽⁷⁾

Unauthorized number (213) 247-9604 - No information reported. Changed

Unauthorized number (310) 904-6440 - No information reported. Changed

Unauthorized number (213) 369-8052. Incriminating conversations of Lupe Rojas and Luis Tapin were intercepted between May 24 and June 1, 1996.

(213)247-9615 - No information reported. Changed

Unauthorized number (213)247-7109 - incriminating conversations were overheard on June 14, 1996, regarding a meeting at 57 Freeway and Imperial Highway. A large sum of money was seized but no arrests reported. (Ouderkirk Affidavit p. 26- 27.)

(213) 200-6958: On June 3, 1996 at 8:30 alleged incriminating pager information was obtained on June 11, 1996, intercepting number 213-329-5153. (Ouderkirk Affidavit, p. 38.)

(818) 517-0642 - Incriminating conversations were overheard on May 22, 1996, discussing a delivery of narcotics at a restaurant near the 60 Freeway and Hacienda Blvd. in Hacienda Heights. Three persons were reported arrested. No names were given to the court to provide notice.

On May 23, 1996, two additional persons were arrested and prosecuted by the Los Angeles District Attorney. Again, no identifying information provided. (Ouderkirk Affidavit p. 26.)

(213) 718-1051 - Incriminating conversations were overheard on May 23, 1996, and three persons were arrested. No identifying information provided. (Ouderkirk Affidavit p. 26.)

As can be seen, only two of the original ten telephones numbers resulted in incriminating conversations. The overbroad order allowed for another four interceptions to occur without any application, showing of probable cause, or even authorization. This is nothing but outright illegal wiretapping. Moreover, this first order was by far the best showing of legally obtained evidence in support of probable cause in all 20 applications.

VI I

Many More than Fifty People were Arrested

As a Result of the Atel Wiretap Operation

In spite of the fact that Petitioners introduced transcripts of an in-camera hearing wherein Deputy District Attorney Lustig made an assertion to the court that approximately 50 arrests had resulted from the Atel Wiretap Operation, the People deny this fact.

Additional evidence submitted by Petitioners on this point:

The wiretap applications, supporting affidavits, designations, reviews, and orders for Atel Wiretap Operation thus far obtained are attached hereto as the Exhibit A. Those documents reveal more than 100 arrests disclosed in affidavits in support of the request for extension. In fact, in an affidavit submitted in support of a wiretap order issued by Judge Rappe on October 30, 1997, it was asserted that there had been 75 arrests and $7,514,114 in seizures between May 21, 1996, and October 15, 1997, almost six months prior to expiration of the Atel Operation. (Exhibit A, Atel Number 2, p. 19, mislabeled # 3.⁽⁸⁾) It is also clear from those records that the arrests disclosed are not all the arrests which occurred. Throughout each document there are implications that arrests were made, and petitioners allege that even more arrests will be revealed through further compliance with the law.

VIII

There are Far More than 91 Wiretap-Related Cases Which Have Still

Not Been Disclosed by the People and Will Not Be Disclosed

Unless this Court Orders Compliance With the Law.

The number of arrests which occurred is directly related to the number of wiretap-related cases prosecuted by the Los Angeles District Attorney's Office. This is a major contention between the parties. The People deny that there are large numbers of cases in which the existence of a wiretap has not yet been revealed. However, the lack of truthfulness of this claim is revealed by the People themselves who initially alleged in their unsworn Return that "the number of cases related to a state wiretap has also been fully identified." However, when petitioners demanded that allegations be made under the penalty of perjury, the People merely alleged that "the number of cases known to be related to a wiretap has also been identified" in the referenced attached list provided to the court. No mention is made that any efforts were taken to consult with wire monitoring personnel, law enforcement officers, or records, to determine the alleged number of "hand-offs" and thereby enable the People to make a accurate determination of the number of wiretap related cases.

Additional evidence submitted by Petitioners on this point:

Petitioners submit to this court a chart depicting a comparison of the number of telephone lines subjected to a wiretap and the number of cases claimed by the People to have been derived from wiretap operations. (Exhibit J.)

Petitioners submit a list of wiretap cases that were not included in the People's list. Petitioners discovered these cases through a cursory review of the wiretap records disclosed thus far. Below is a list of 19 "undisclosed cases" which petitioners allege are related to a wiretap operations because those defendant were either shown to have been intercepted or information obtained from a wiretap related to a crime not specifically enumerated in the California wiretap law:

1. Roberto Esparza BA149554
2. Manuel Beltran 7EL10472 01
3. Adolpho Lopez A06761757
4. Samuel Garcia Moreno BA94M10092
5. Israel Hidalgo 6LC03008
6. Octaviano Uicab BA154809
7. Desiree Arnold BA149378
8. Paul Allen Johnson BA149378
9. Duran Mullen BA149378

1. Noel Benitez BA149051
2. Duane Herman Bowen unk
3. Asmed Escarenon BA156160
4. Jose Aceves Venegas 6EL10762
5. Dora Leticia Perez 7CM10333
6. Sylvia Elisa Quintero BA151807
7. Alberto Maclean BA149378
8. Rafael Dominguez 8CM03550
9. Isabel Morante BA096050 (People v Morante (1997) 56 Cal.App.4th 163, rev. granted.)
10. Rafael Flores (Mentioned in People v Morante (1997) 56 Cal.App.4th 163, 166-167.)

The wiretap in Number 29 was disclosed. However, it did not appear on the People's list of all wiretap related cases. Previously cited as People v Morante (1997) 56 Cal.App.4th 163, 166-167, it is presently pending review in the California Supreme Court. The hand-off's

The evidence to establish the connection of a wiretap to these "undisclosed" wiretap-related cases is attached hereto as Exhibit K. As new cases are revealed they will be presented to this court.

IX

The Extent of the People's Mass Invasion of Privacy

Is Substantiated by the FBI's CALEA Report

Which Found 1,080 Simultaneous Interceptions

Of Individual Telephone Lines in Los Angeles County.

The People denied that the FBI's CALEA report found 1,080 simultaneous interceptions and alleged that the report referred to conversations rather than lines intercepted without submitting any authority whatsoever to substantiate that claim.

In the original Petition, Petitioner introduced a copy of the report itself which explained in footnote three that "the word 'lines' refers to transmission paths from a subscriber's terminal to the network via a wireline or wireless medium." It was believed by petitioner that there were 1,080 lines intercepted "between January 1, 1993, and March 1, 1995." However, after consultation with an expert it was revealed that the report sought to determine the highest number of "simultaneous interceptions," rather than cumulative interceptions.

Additional evidence submitted by Petitioners on this point:

Petitioners have subpoenaed for October 5, 1998, copies of each and every expired state interception order submitted to the various telephones companies for the County of Los Angeles during the period covered by the CALEA report which this court would have authority to unseal and review.

Petitioners could not secure declarations for the following information obtained and will therefore need the use of the subpoena power to compel attendance and testimony to establish the following:

At the bequest of the People, Petitioners counsel contacted Ms. Worrel at the FBI Office explaining the need for clarification of the CALEA report. Petitioners counsel was thereafter contacted, at Ms. Worrel's request, by Ted Schwartz, an FBI attorney working on the CALEA litigation. While admitting he was not an expert, Mr. Schwartz informed me that he did not agree with the People's assertion that the number 1,080 referred to conversations, but in fact referred to telephones lines intercepted. In fact, Mr. Schwartz interpreted the report exactly as I had originally interpreted it and believed that there were 1,080 telephones lines intercepted over a two year period. However, as previously explained, that interpretation does not take into account the stated goal of the CALEA Report which was to determine the number of "simultaneous" interceptions.

X

Petitioners Who Have been Intercepted by Any Device

Capable of Obtaining Voice Content is Entitled to Relief

Petitioners asserted, and the People admitted, that some pen registers in the possession of law enforcement within Los Angeles County are capable of acquiring the contents of communications yet are used without obtaining a wiretap order in violation of the procedures established by Title III or Penal Code section 629.50. The People allege that they were unaware that such pen registers required Title III approval if they were only to be used to record numbers dialed. The People finally allege no conversations were intercepted during the use of a pen register.

Petitioners deny and dispute the People's allegations. First, the People's allegation that only numbers were obtained from voice capable pen registers is irrelevant. Title III requires "electronic, mechanical, or other device" "which can be used to intercept a wire, oral, or electronic communication other than" to comply with the procedures set forth therein. (18 U.S.C. 2510(5), emphasis added.)

XI

The People Cannot Unilaterally Determine

Which Cases Are Derived from a Wiretap

The People allege that information from a wiretap merely provided leads to investigations and it was separate investigations which led to independent probable cause to arrest these defendants. The People further allege that it is the Los Angeles County District Attorney's Office which must determine who is entitled to notice of the existence of the wiretap. Petitioners adamantly dispute this allegation of fact and assertion of law.

Petitioners allege that the state law leaves no room for discretion and simply mandates that notice and production be provided to all Petitioners who were identified in an electronic surveillance order, intercepted by wiretap order, had information derived from an electronic surveillance order used as evidence in another electronic surveillance order, or an arrest, search, or wiretap warrant, used in support of a crime not mentioned in the order or not enumerated in the state wiretap law, or used against petitioners in a hearing, trial, or other proceeding,

As explained in the following Points and Authorities, the determination of taint is a question for the court to make in an adversary hearing after full disclosure of the relevant wiretap records. Until now, the People have unlawfully made those determinations in direct violation the wiretap laws as well as their ethical duties as attorneys and officers of the court.

XII

The People Have Violated the Law Through Sham Allegations of

On-Going Wiretap Investigations, Misrepresentations of Wiretap Operations as Confidential Reliable Informants, And Through Perjured Declarations

A. Instances of Perjury.

Rodriguera Case

Between June 20, 1996, and September 24, 1998, the Los Angeles District Attorney, along with the Los Angeles Police Department, obtained an interception order from Judge Ouderkirk in the Atel Wiretap Operation of a cellular telephone used by Oscar Rodriguera Sr. and Oscar Rodriguera Jr., which disclosed that both were trafficking narcotics to Canadian buyers. (Exhibit A; Extension 1, pg 16.) On June 27, 1996, a call was intercepted on Rodriguera's telephone explaining there were problems with completion of the deal with Canadian buyers who were staying at the Ramada Inn in Commerce. Information regarding the buyers' vehicle was handed-off to Canadian Customs Officials who, on June 28, 1996, stopped the buyers at the border and discovered $606,000 in the vehicle. (Ouderkirk ext 1, pg. 12.)

In December of 1997 and March of 1998, the Los Angeles District Attorney again applied for an interception order against Oscar Rodriguera Jr. and Oscar Rodriguera Sr. Coincidentally, the new wiretap again involved Canadian customers of Rodriguera. However, the application alleged that the investigation originated from a Canadian wiretap on certain Canadians under investigation by the Canadian Mounties. In the December 1997 application, no mention was made of the previous wiretap on Oscar Rodriguera Sr. and Jr., and, in fact, the standard statement concerning previous applications for interceptions was completely omitted, in violation of the wiretap law. (Pen. Code § 629.50(f); 118 U.S.C. 2518(1)(e).) In the March, 1998, application, again no mention was made of the previous wiretap on Oscar Rodriguera Sr. and Jr. However, both the Los Angeles District Attorney and the Los Angeles Police Department made statements under the penalty of perjury that no wiretaps, other than the December, 1997, wiretap, had ever been made.

Disclosure of Wiretap Operations In-Camera

The People alleged, under the penalty of perjury, that the District Attorney's Office would provide discovery to the defense if the wiretap investigation was no longer ongoing, or obtain approval from the court in-camera if the investigation was still continuing.

Petitioners' attorney has reviewed most of the minute orders from the cases thus far revealed by the People and has discovered that very few cases have involved any in-camera hearings or proceedings whatsoever. Petitioners ask this court to take judicial notice of the minute orders for the cases listed by the People. The facts will clearly establish that regardless of whether a wiretap operation was ongoing or not the People refused to disclose its existence.

B. Misrepresentations of Attorney General Records

Contained within a number of wiretap applications is a statement that the officer had checked with the California Attorney General's Office and no other wiretap for the same person, place, or facility was found.

Evidence to be Submitted in Support of this Allegation at the Hearing:

Petitioners have contacted the Attorney General's Office. Deputy Attorney General John Vance informed Counsel that such information is not complied in a fashion which would allow information regarding a specific person, place, or facility to be obtained by law enforcement. While there was an obvious reluctance to assist petitioners through the submission of affidavits, petitioners will establish this allegation at the hearing through compelled testimony.

C. Misrepresentations of Wiretap Disclosures as Confidential Reliable Informants.

Counsel has obtained several affidavits presented by law enforcement to Los Angeles Judicial Officers which untruthfully aver that certain information was obtained from a confidential reliable informant when in fact the information was obtained from a wiretap. One such example involved a Federal Wiretap. (Exhibit L.)

1. The Robles case.

On September 19, 1997, Assistant United States Attorney Rebecca S. Lonergan submitted to the United States District Court the "Second Ten Day Report and Order" for wiretap reference number 31634-(B) GHK which was then ongoing. On September 8, 1997, a series of telephone calls were intercepted wherein target Jaime Robles discussed the delivery of one kilogram of cocaine. (Exhibit L, p. 16-18.) One call, intercepted at 1:26 P.M., discussed delivery of three kilos of cocaine "right now." (Exhibit L, p. 17.) At 1:55 P.M. Robles is overheard by federal authorities discussing the fact that only one kilogram was delivered. (Exhibit L, p. 18.)

The federal authorities thereafter contacted a "Los Angeles Police Department ("LAPD") narcotics team" which was advised "of Robles' pending delivery" and thereafter "set up surveillance of Robles at South Central Auto Body." (Exhibit L, p. 9:1-8.) "The LAPD units observed an unidentified male arrive in a vehicle, remove a cardboard box from the vehicle, and deliver the box to South Central Auto Body." (Exhibit L, p. 9:8-10.) Shortly thereafter "Robles was seen exiting the shop with the same box from the vehicle" and "departing in his vehicle, a Ford Thunderbird." (Exhibit L, p. 9:10-12.) "The LAPD units stopped Robles a short time later, seized one kilogram of cocaine, and arrested Robles and a juvenile who was in the same vehicle." (Exhibit L, p. 9:12-14.)

In an affidavit for application of a search warrant presented to the Los Angeles Municipal Court, Los Angeles Police Department Detective Brian Agnew stated that on "09-08-97 at approximately 13:30," four minutes after the 1:26 interception, "affiant Det-I Brian Agnew #24635, contacted by a CONFIDENTIAL RELIABLE INFORMANT." (Exhibit L, "Statement of Probable Cause" p. 1, emphasis in original.") The affidavit claimed that "[t]he CRI told your affiant that a male Hispanic that goes by the name of Robles, . . . was waiting for a shipment of three kilograms of powder cocaine to . . . (South Central Auto Body)." (Exhibit L, "Statement of Probable Cause" p. 1.) "The CRI is reliable in that he/she has provided your affiant and other detectives with information on more than five occasions within the last three months which have resulted in the arrests being made and the seizure of evidence to narcotics violations. Your affiant has never known this informant to give false or misleading information." (Exhibit L,"Statement of Probable Cause" p. 4.) The wiretap was similarly referred to as CRI in the LAPD Arrest Report. (Exhibit L, Arrest Report, p. 2.)

Defendant Jaime Robles was charged with the sale and possession for sale of cocaine in case number TA038070. He proceeded through the preliminary hearing without disclosure of the fact that the evidence introduced was derived from a wiretap. As evidenced by their return in of August 4, 1998, the District Attorney has still not admitted that TA038070 was a wiretap-related case. (Exhibit L.)

2. The Rodriguera Case.

As explained above, Oscar Rodriguera Sr. and Oscar Rodriguera Jr. were intercepted between June and September 24, 1996. On June 25, 1996, Rodriguera was actually being followed by police surveillance units while conversations were being intercepted. (Ouderkirk ext. 1, Pg 5.) Within the affidavit in support of the subsequent applications in December of 1997 and March of 1998, it was alleged that a "CRI" in May or June of 1997 was within 50 feet of Rodriguera while he used his cellular phone and overheard him discussing narcotics deals. (Ouderkirk ext 1, Pg 5 .) While no direct evidence is yet available, petitioners believe the reference may actually be referring to an instance similar⁽⁹⁾ to the above-mentioned incident where a police surveillance unit was following Rodriguera while he was talking on cellular telephone which was, at that time, wiretapped. Petitioner's cannot imagine any other way a "CRI" could "overhear" such a conversation on a cellular phone from 50 feet away, which is the approximate distance a car would be in attempting to conduct an undercover suvreillance. .

3. The Beltran Case.

In a number of Atel spin-off orders, affidavits allege that a target had "personally spoke to" a "confidential reliable informant." One such affidavit was submitted in support of an application by the Los Angeles District Attorney for a wiretap order against a target named Fermin Beltran who was alleged as a co-conspirator of Martin Uriarte, an existing target of the Atel Ouderkirk wiretap. The affidavit alleged target Beltran "personally spoke to" a "confidential reliable informant" in February of 1997, and disclosed "to" the CRI information regarding drug transactions. (Rappe order 9/11/97, Affidavit, pp. 15-16, previously submitted, emphasis added.)

Crucial to this statement, yet omitted from the affidavit, is the fact that the Los Angeles District Attorney obtained the Atel Ouderkirk order in June of 1996. A review of that order and its extensions disclosed that in support of the application for the February 1997 Atel extension was evidence of an intercepted conversation between Franscisco Beltran and another individual discussing drug deals concerning someone named "Martin." (Exhibit A, Extension No. 8 - Affidavit p. 25.)

A reasonable explanation for why affidavits allege a defendant "spoke to" the CRI and the CRI did not conversely speak to a target is because the informant is in fact a wire monitor officer.

XIII

The People are Still Concealing Wiretap Operations From Petitioners

And Will Continue to do so Unless This Court Takes Action to Enforce the Law

The disingenuousness of the People's claimed promise to comply with the law and assertions that they are now forthcoming with wiretap information is best seen by the fact that no disclosures were made, nor records produced, until the Petition in this case was filed. As can be seen from the allegations contained herein, the People are still unwilling to provide disclosure and production of wiretap records and will continue to evade the mandates of the law unless this court orders them to do so, requires an investigation, affords an adversary hearing, and supervises compliance with the law.

The People are still engaging in the same illegal maneuvers to prevent petitioners from knowing that evidence in their case was derived from a wiretap, including procurement of ex parte, in-camera hearings, gag orders, and sealing orders pursuant to People v. Hobbs (1994) 7 Cal.4th 948.

9. This Petition is Appropriately Filed and Petitioners who Have Not Been Provided Notice, Inventory or Production of Required Wiretap Documents Because the People are Continuing to Disregard the Law have no Alternative Relief Available.

XIV

Intervention by this Court is Necessary Because Few Los Angeles

County Courts Are Bothering to Research or Enforce the Law

Other than Judge Alarcon in the Gaxiola case, and a handful of other judges throughout the county, most courts are continuing to provide the People with in camera hearings and are refusing to require disclosure of what are obviously wiretap hand-offs, or even divulge the basis for the in-camera hearing. Unlike previous informant proceedings, where the privilege was asserted and the defense was entitled to submit questions and thereafter provided with as much information as possible without revealing the identity of the informant, these in camera proceedings, as can be seen from the case presently before this court, afford no such due process protections whatsoever. The People are systematically engaging in ex parte, in-camera conferences without any assertion of any privilege on the record or any explanation of what grounds existed for such extraordinary hearings.

While some discovery has been provided, compliance with the law has been slow, sparse, and inadequate, some missing entire sections which had been sealed. Moreover, while it is the position of the People that the Atel order was a "single" order for the purposes of reporting to the state and federal governments, they have taken a contrary position in the trial courts. In response to discovery requests, the People are alleging that a defendant is entitled only to the individual extension which the People themselves have unilaterally determined was the only period within which such defendant was intercepted. As a result, the "single" Atel order issued by Judge Ouderkirk and attached hereto is incomplete despite the fact that numerous clients of the Public Defender's Office are facing charges based on that order.

Title III and Penal Code section 629.70 require that wiretap operations be disclosed and defendants be provided with copies of order, application, and transcripts in any trial, hearing, or other proceeding in a Federal or State court. Such hearings have included detention hearings, bail review hearings, sentencing hearings, parole revocation hearings, or any other proceeding in which evidence is being introduced affirmatively by the government. (United States v. Salerno (2^nd Cir.1986) 794 F.2d 64, 69; United States v. Farese (5^th Cir. 1980) 611 F.2d 67, 71.)

Alderman v. United States, supra, 89 S.Ct. 961 mandates disclosure "even though attended by potential danger to the reputation or safety of third parties or to the national security," and said that the prosecutor's choice was "dismissal of the case" or "disclosure of the information." (Id. at p. 970-971.) Alderman was codified by 18 USC 3504, and requires a prosecutor in federal court to respond to a claim of unlawful electronic surveillance by denying, admitting, or stating the party was aggrieved by a lawful intercept. (Wiretapping and Eavesdropping, 2^nd Ed. (1995) Clifford Fishman and Anne T. McKenna, p. 20-17.) While there are no corollary state procedures, Alderman itself would mandate similar procedures in state courts.

In In re Grand Jury Matter (3^rd Cir. 1982) 683 F.2d 66, the government declined to affirm or deny the existence of an illegal wiretap during a grand jury proceeding and instead made an ex parte, in-camera presentation to the district court because of the on-going investigation. After the in-camera hearing the judge concluded that no unlawful electronic surveillance had occurred. Like petitioner in this case, the contemnor was faced solely with a conclusion by the district court based on statements made by the Government. The District Court of Appeal held that an "ex parte, in-camera proceeding may be sufficient" in some instances regarding wiretap cases, but "only after an explicit denial has been made by the Government." (Id. at p. 67-69.)

The trial court in this case made significant rulings and orders in response to defense motions which substantially affected the rights of all defendants in this case yet deprived the defendants the right of knowing what rulings were made and what orders were issued. It appears that information disclosed in-camera related either to an informant, a wiretap, or a ruse. Petitioner believes the in-camera hearing was yet another attempt by the People to conceal an ongoing wiretap. If so, no decision should have been made, let alone sealed, without either a denial of the existence of wiretap by the People or an adversary hearing. (Alderman v. United States supra, 89 S.Ct. 961, 971; Russo v. Byrne (1972) 93 S.Ct. 21, 22.) However, even if related to an asserted claim of a confidential reliable informant, petitioner was entitled to know the basis of the privilege and be provided an opportunity to submit questions concerning the validity of the grounds for maintaining such confidentiality. (People v. Hobbs (1994) 7 Cal.4th 948, 973.)

XV

Already Responsible for Issuing of Wiretap Orders

And Enforcing the Wiretap Laws

This Court Should Seriously Consider Assuming Responsibility

For Litigating the Suppression Motions in the Interest of Judicial Economy

That there are a great number of legal grounds for suppression of evidence in most of the wiretap cases thus far revealed by the people is undeniable. There is no escaping the fact that criminal justice system in Los Angeles must now deal with great numbers of wiretap cases involving great number of issues. But even assuming the People were being honest about there being only 57 cases, the work necessary to litigate just those 57 cases will be arduous.

Petitioners believe that centralization of litigation is necessary in this case. As a result of considerable pressure from the trial court to move Mr. Salcido's case along, Petitioner counsel has reluctantly filed a filed motion to suppress raising these same challenges. However, reproduction of the paper work alone has been a great burden. It is inconceivable that the trial court will not find that task and the objective sought irreconcilable.

Regardless of how many times the same motion will need to be litigated, competent counsel will need to make the same obvious challenges and present the same evidence as has already been introduced in this case. Moreover, any conscientious bench officer will need to spend a considerable amount of time just researching the vast wealth of law available, not to mention the voluminous pages of wiretap orders, evidence, and legislative intent, to make an honestly intelligent decision.

The People argue that centralization is unnecessary and these cases should be sent back to their original courts. They allege the interests of justice don't require a hearing. Petitioners question whose "interests" the People speak. Clearly it is not the interests of those Petitioners who are still unaware that their prosecutions are related to wiretaps and have never been served with notice, inventory, or production of wiretap related documents. Nor could the People be concerned with the interests of the same law-abiding citizens in Los Angeles County whose rights they ignored and whose privacy they infringed on for at least the last three years. The People's objective is obvious. It is their last hope that their bad acts will be lost in the shuffle bodies and paperwork. But the People have ignored justice and should therefore ignored when requesting the same.

Clearly a single evidentiary hearing is needed to unravel the tightly knit web of facts in this case. And a single ruling, fully litigated and decided by knowledgeable officers of the court, is in everyone's best interest, including the People of the State of California. Moreover, since, as both the wiretap judge and as a trial court which already has numerous wiretap already disclosed, it would seem that this court would be best qualified to handle collectively, the litigation of the legal issues arising from the motions to suppress.

Dated: October 5, 1998

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 traverse filed in the above-entitled 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 traverse filed in the above-entitled petition for writ of habeas corpus 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 5^th day of October, 1998, at Los Angeles, California.

_________________________________

KATHY QUANT

Deputy Public Defender

POINTS AND AUTHORITIES

I

APPLICABLE WIRETAP LAWS AND LEGISLATIVE INTENT.

A. Federal Law

1. The Fourth Amendment Protect Telephone Communications

The United States Supreme Court ruled in Katz v. United States (1967) 389 U.S. 347, 88 S.CT. 507, 19 L.ED.2D 576, that telephone conversations were protected by the Fourth Amendment of the United States Constitution. When law enforcement intercepts a telephone conversation, it is an invasion of that protected privacy and therefore a "search and seizure." The same Fourth Amendment guarantees applicable to a search of a citizen's home apply to interceptions of private telephone conversations. As such, law enforcement is constitutionally required to obtain a warrant based on probable cause and to give notice and inventory of the search.

2. Title III Allowed Only Limited Use of Wiretapping Under Strict Conditions

Wiretaps were thereafter outlawed until Congress passed Title III in 1968. Title III allowed wiretapping but intentionally "limit[ed] the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." (United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) Congress was concerned by the fact that telephonic interceptions could not limit the "search and seizure" to only the party named in the warrant. When enacting Title III, additional protective measures and reporting requirements were included in the law, to further ensure its limited use.

3. Suppression is Required for All "Aggrieved Parties"

Title III mandates that an "aggrieved party" may move to suppress all communications intercepted, as well as all evidence derived from those conversations, on the following grounds:

(i) the communication was unlawfully intercepted;

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

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

4. Violations by Law Enforcement are Enforced by Civil and Criminal Penalties

Moreover, Title III provided for additional remedies.

"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 (1969) 89 S.Ct. 961.)

The United States Supreme Court has ruled that suppression is required whenever a violation of Title III results in 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.) Moreover, while the term "aggrieved party" was statutorily defined as someone intercepted or against whom the interception was directed, standing was expanded in Alderman v. United States, supra, 89 S.Ct. 961, to owners of an intercepted residence, who were equally protected by the Fourth Amendment. (Id. at p. 969; 18 U.S.C. § 2510.)

5. Wiretapping is Limited to Enumerated Serious Felonies

Title III mandates that wiretapping be limited to the investigation of serious felonies which are specified in the statute. (18 U.S.C. § 2516(2); 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.)

6. Only the Highest Ranking Prosecutor May Apply for a Wiretap Order

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

7. Only Courts of Authorized by a Statute have Competent Jurisdiction to Issue Orders

Title III authorizes only a court of "competent jurisdiction" to issue wiretap orders. The term is defined as a "court of general criminal jurisdiction of a State who is authorized by a statute of that State" to issue wiretap orders. (18 U.S.C. § 2510(9)(b).) California, for the same reasons, "centralized" that authority to a single person and authorized only "the presiding judge of the superior court or one other judge designated by the presiding judge" to issue such orders. (Pen. Code § 629.50, emphasis added.) 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).)

8. Notice and Inventory are Required

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, supra, 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652; Senate Report No. 1097, 90th Cong., 2d Sess. 66 (1968), U.S.Code Cong. & Admin.News 1968, 2194.)

While the United States 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, supra, 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.)

9. Production of Records is a Condition Precedent to the Introduction of Evidence Derived from a Wiretap

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.

10. Judges are Required to Report Each Individual Interception

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.

11. Prosecutors are Required to Report Interceptions and Statistics to allow Public Monitoring of Government Wiretapping

Prosecutors are required by the federal law to provide statistical information regarding each completed intercept order 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.)

12. Wiretap Applications and Orders are Public Information

Moreover, wiretap applications and orders are public information. Like all other warrants, they must be docketed. While sealing of the information contained therein may be appropriate during the pendency of the interception, the courts cannot simply conceal such orders altogether. (Application of Newsday, Inc., (2^nd Cir. 1990) 895 F.2d 74, 78-79; In re Washington Post Co. (4^th Dist. 1986) 807 F.2d 383, 393; Press-Enterprise II (1986) 106 S.Ct. 2735, 92 L.Ed.2d .) Sealing and closure of any and all criminal proceedings, warrants, or wiretap applications, affidavits and orders are only constitutional if:

"(1) closure serves a compelling interest; (2) there is a 'substantial probability' that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest. Moreover, the court may not base its decision on conclusory assertions alone, but must make specific factual findings." (In re Washington Post Co., supra, 807 F.2d 383, 393.)

As explained by the United States Supreme Court in Nixon v. Warner Communications, Inc. (1978) 98 S.Ct. 1306, 435 U.S. 589, 55 L.Ed.2d 570, the government has no right to prevent public review of public documents:

"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. In contrast to the English practice, [citation], American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies, [citation] and in a newspaper publisher's intention to publish information concerning the operation of government." (Id. at p. 598.)

There is no exception to that general right to inspect for wiretap applications, affidavits, or orders as expressly held by the Federal Courts:

"The presence of material derived from intercepted communications in the warrant application does not change its status as a public document subject to a common law right of access, although the fact that the application contains such material may require careful review by a judge before the papers are unsealed." (Application of Newsday, Inc., supra, 895 F.2d 74, 78-79.)

As can be seen from the foregoing 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.

13. Title III Sets minimum Standard for the States and Requires an Enabling Statute

Title III mandates that before any State may allow law enforcement officers to utilize wiretaps, it must pass an enabling statute which, at minimum, affords the same protections as the federal law. (18 U.S.C. 2516(2); People v. Chavez (1996) 44 Cal.App.4th 1144, 1158; People v. Otto (1992) 2 Cal.4th 1088, 1092, fn. 1, 1098; Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 1818.)

B. California Law.

1. The State Enabling Statute Was Passed in 1989

Not until 1989 did the Legislature finally pass a wiretap statute which would allow state law enforcement officers to use wiretaps. However, as will be seen below, state law imposed more onerous restrictions and controls on law enforcement's use of this extraordinary investigative tool than were required by the federal wiretap law. Since amended, California's enabling statute is embodied in Penal Code Sections 629.50 through 629.94.

2. California Afforded Greater Protections and Standing than the Federal Law

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, supra, 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.

3. Notice and Inventory Mandatory for Anyone Intercepted

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.)

4. Civil Liability for Law Enforcement Violations is Greater

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).)

5. Criminal Liability for Law Enforcement Violations is Greater

Penal Code section 629.84 provides that any violation of wiretap laws is punishable by a imprisonment in the county jail one year or by imprisonment in the state prison.

6. Wiretaps may Only be used in cases of Murder, Kidnap, and Sale of More than 3 Pounds of Cocaine, Heroin, PCP, or Methamphetamine but Not Marijuana

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.)

7. Only One Judge Per County Superior Court May Issue Orders

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.)

8. Both Disclosure and Use of Wiretap Information is limited to the Above Enumerated Offenses

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).)

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).)

9. Any Party Has Standing to Suppress if the Law was Violated

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.

In Alderman v. United States, supra, 89 S.Ct. 961, the United States Supreme Court expanded standing to homeowner and residents, but refused to expand standing beyond existing rules. It noted, however, that "state legislatures may extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose." (Id. at p. 986, emphais added.)

The California Legislature did exactly that. It extended standing to "any person," rather than limiting challenges to simply the "aggrieved party." (Pen. Code § 629.72.) It also broadened the grounds for suppression beyond the three grounds expressed in Tittle III for evidence "unlawfully intercepted," derived from a facially invalid order, or resulting from non-conformity with the order. It additionally required that evidence obtained in violation the state wiretap law be suppressed as well. (Pen. Code § 629.72.)

C. Legislative History and Intent of California's Wiretap Act.

The legislative intent to exclude all evidence of the wiretap law clearly supports this fact. Defeated 12 times over 18 years, Senator Presely proposed yet another wiretap enabling statute in December of 1986. (Exhibit M, Sen. Presley News, Dec. 12, 1986.) It was advanced by its sponsor as the "tightest wiretap statute in the nation." As "an investigatory tool of 'last resort' for law enforcement, to be tried when all other methods fail," the proposed law went "beyond the minimum provisions of the federal wiretap law by including" additional safeguards such as prohibition of covert entry into private residences, requiring special training and certification, designation of "only one judge" to review wiretap requests, mandating reports every 72 hours, and limiting the crimes for which wiretaps could be obtained. (Sen. Presley News, Dec. 12, 1986, Att. Gen. letter dated May 28, 1987.) An "application for eavesdropping must first be approved by the chief executive officer of the law enforcement agency submitting the request and then either by the district attorney or the attorney general. Once the application has been approved, the presiding judge of the superior court, or a specific judge he or she designates," make specific findings. Moreover, "all persons whose communications were intercepted must be notified of that fact. Contents of such communication cannot be used in evidence until every party to the proceeding is furnished with both a transcript of the communication and a copy of the application for the wiretap order. A violation of any of the above restrictions would be punished as a felony or a contempt of court . . ." (Att.Gen. letter dated May 28, 1987.)

However, despite major revisions which would bar the use of wiretap derivative evidence to support crimes or investigations not mentioned in the original wiretap order, Senate Bill 83 still found itself stalled in the Public Safety Committee in June of 1987. (Memorandum dated Aug. 18, 1988, Sen. Lockyer, Sen. Com. Jud.)

Rather than attempt to move Senate Bill 83 along, Senator Presely instead amended a prison construction bill, Senate Bill 1499, with the revised language of Senate Bill 83. (Memorandum dated Aug. 18, 1988, Sen. Lockyer, Sen. Com. Jud.) In addressing the Legislature's continuing concern during debate of the Senate Bill 1499, the California District Attorney's Association (CDAA) addressed the Legislature's concerns regarding the consequences imposed by the new legislation "if the law [was] violated." CDAA published and widely distributed a question and answer sheet which explained:

• "The evidence is made inadmissible in court."
• "Law enforcement officers who violate this provision may be punished by imprisonment in the state prison."
• "The person has the right to sue civilly including punitive damages and attorneys fees."

April 14, 1988, Senator Presely managed to get the wiretap Act passed through the California Assembly. However, it was discovered on April 18, 1998, that one of main revisions of Senate Bill 83 made by the Public Safety Committee in June of 1988 had been omitted from the printed version of the Senate Bill 1499. As explained in a memorandum from staff counsel to Senator Gene Lockyer, this revision was a key factor in eliminating the Committee's concern that law enforcement would use wiretapping as "fishing expeditions" for investigation of other crimes not specified in the order. The revision prohibited both disclosure and use of such information in police work, or criminal proceeding unless it was obtained through an independent source or inevitable discovery, and even then only after judicial authorization. (Memorandum dated Aug. 18, 1988, Sen. Lockyer, Sen. Com. Jud.) Additional concerns were raised by the fact that Senate Bill 1499 had passed the Assembly by less than a 2/3 vote, which was believed would have effectively allowed passage of the wiretap law without any of the remaining statutory limitations still contained in the bill. (Ibid.)

Facing the possibility of defeat in the Senate, Senator Presely addressed both issues in a letter to the Senate Journal on May 5, 1988, and an opinion from the Legislative Counsel. In his letter, Senator Presley promised he would "clean-up" Senate Bill 1499 to reflect the previous limiting provisions by reviving Senate Bill 83 as a "trailer bill" with those provisions intact. Included in his published letter was the following:

"During the Senate Judiciary Hearings on Senate Bill 83, it was agreed by all parties concerned that prosecution of crimes other than those for which original authorization is granted would be severely restricted with a limited number of exceptions.

"The May 2, 1988, clean-up version of Senate Bill 83 returns Senate Bill 1499 to the June 8, 1987, language of Senate Bill 83. Thus for the purposes of legislative intent, the sole purpose of Senate Bill 83, as amended May 2, 1988, is to restore the originally agreed upon language and no other inference should be considered.

"For a court attempting to interpret Section 629.32 it should refer solely to the statutory language contained in Senate Bill 83, as amended June 8, 1987, and other indicia of legislative intent that exist regarding that bill...

"4. Proposition 8 and Section 629.32 relating to other crimes.

"As noted above, it was the intent of all parties that the prosecution of crimes other than those in the original authorization would be restricted. . . . consider Section 629.32 to be an essential and integral part of the Act as enacted by SB 1499 and amended by SB 83 . . . and . . . does not violate the strictures of Proposition 8 . . . as [t]he net effect of the Act is to permit the introduction of evidence, and thus is in accord with the spirit of Proposition 8." (Sen. Presley letter, May 12, 1988; emphasis in original.)

To further address the concerns of the impact of Proposition 8 on the Act's exclusionary rules, Senator Presley distributed a Legislative Counsel Opinion which explained that Proposition 8 would not bar exclusion of such evidence. Legislative Counsel explained that Title III already barred the use of such evidence in California. The proposed wiretap law was, therefore, an "inclusion" of evidence, not an imposition of an exclusion of evidence. It merely lifted the previous barriers created by Title III but did not lift them as far as the federal law would have allowed. (Leg. Counsel Opin., May 12, 1998.) As a result, Senate Bill 1499 was thereby passed into law and Senate Bill 83 was again revived.

In the Bill Statement for Senate Bill 83 it was explained that the bill was not intended to expand the wiretap law but to limit the use of evidence obtained through a legal wiretap to the crimes specified in the act, avoid "judge shopping" by authorizing "only one judge per superior court" to "review wiretap warrant requests," and require review of applications by the head of law enforcement prior to submission to the District Attorney. (Bill Statement.) The Enrolled Bill Report further explained that the existing law barred disclosure of evidence obtained by the wiretap which related to crimes not specified in the act and this act would clarify the admissibility and release of evidence obtained for crimes not specified in the order. (Enrolled Bill Report.)

When the wiretap law was later again before the Legislature for extension, the bill's history and legislative intent was again summarized.

"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.)

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 M.) 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.)

Despite the wealth of legislative history and express intent of the Legislature, the People have continued to cite federal case law on issues of standing and exclusion of evidence. While those authorities are relevant to the minimum rights afforded to persons prosecuted in California, they are inapposite to the maximum protections afforded.

Moreover, any possible argument which could have been raised regarding the application of federal exclusionary rules has long since been laid to rest. Article I, section 28, of the California Constitution makes specific exception for laws statutorily requiring suppression, as does the state wiretap statute when evidence is obtained in violation of the state wiretap law, when it is enacted by a two-thirds vote of the membership in each house of the Legislature.

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. (Complete History of SB 1016.)

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. (Complete History of SB 688.) 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.

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.) 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.

II

A DEFENDANT HAS AN UNQUALIFIED RIGHT TO

DISCLOSURE OF ALL WIRETAP EVIDENCE

A disclosure of defendant's statements is "practically a matter of right even without a showing of materiality" and relevance has been broadly interpreted when applied to such statements. (United States v. Lanoue (1^st Cir. 1995) 71 F.3d 966, 974; United States v. Bailleaux (9th Cir.1982) 685 F.2d 1105, 1114; United States v. Haldeman (D.C.Cir.1976) 559 F.2d 31, 74 n. 80 (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250.)

Both Title III and Penal Code section 629.70 require that wiretap operations be disclosed and defendants be provided with copies of the order, application, and transcripts prior to the introduction of any evidence derived from a wiretap at any trial, hearing, or other proceeding in a Federal or State court. Such hearings have included detention hearings, bail review hearings, sentencing hearings, parole revocation hearings, or any other proceeding in which evidence is being introduced affirmatively by the government. (United States v. Salerno (2^nd Cir.1986) 794 F.2d 64, 69; United States v. Farese (5^th Cir. 1980) 611 F.2d 67, 71.)

As long ago as 1969 in Alderman v. United States (1969) 89 S.Ct. 961, the United States Supreme Court held that the Fourth and Fifth Amendments to the United States Constitution mandated disclosure "even though attended by potential danger to the reputation or safety of third parties or to the national security," and provided that the prosecutor's only choices were "disclosure of the information" or "dismissal of the case." (Id. at p. 970-971.)

In United States v. Apple (4^th Cir. 1990) 915 F.2d 899, the Fourth Circuit Court of Appeal reiterated:

"We cannot, however, affirm the district court's rulings simply on the basis that the court can, in certain circumstances, make independent source and attenuation rulings that would permit admission of evidence derivative at some level from illegally intercepted conversations. The Court in Alderman specifically addressed the procedures to be followed in resolving the ``ultimate issue'' before the court--whether the evidence against the defendant ``grew out of his illegally overheard conversations or conversations occurring on his premises.'' (394 U.S. at 180, 89 S.Ct. at 970.) The fundamental teaching of Alderman is that the claimant must be provided with the records of his own illegally intercepted communications so that he has a reasonable opportunity to prove the extent of the taint. (394 U.S. at 182-85, 89 S.Ct. at 971-73.) Section 3504(a)(1) facilitates the claimant's effort to demonstrate that evidence employable against him is tainted by requiring the government to affirm or deny the occurrence of the alleged unlawful act. (See United States v. Williams, 580 F.2d at 583.) The same logic that compelled the Court's conclusion that surveillance records must be disclosed to the claimant, not screened for relevance by the government, (see Kolod v. United States, 390 U.S. 136, 137-38, 88 S.Ct. 752, 753, 19 L.Ed.2d 962 (1968) (per curiam), or by the trial court in camera, (see Alderman, 394 U.S. at 182-84, 89 S.Ct. at 971-72, compels our conclusion in this case--our criminal justice system depends upon adversary proceedings with well-informed advocates as the principal means for attaining justice and reducing the incidence of error. "To compel a party who objects to the use of evidence obtained as a result of unlawful wiretapping to go forward with a showing of taint, and then to withhold from him the means or tools to meet that burden, is to create an absurdity in the law." (United States v. Huss, 482 F.2d 38, 47 (2d Cir.1973) (citation omitted)."

With the enactment by Congress of 18 U.S.C. § 3504, prosecutors in federal court are additionally required to respond to a claim of unlawful electronic surveillance by making inquiry of other law enforcement agencies and thereafter either deny or admit unlawful interception, or by stating that the party was aggrieved by a lawful intercept whenever a claim is made that evidence being introduced in any hearing is alleged to be the result of an wiretap. (Wiretapping and Eavesdropping, 2^nd Ed. (1995) Clifford Fishman and Anne T. McKenna, p. 20-17.) While there are no corollary state procedures, Alderman itself would mandate similar procedures in state courts.

As can be seen by the evidence established in these proceedings, the People have unilaterally determined that the "hand-off" procedure insulated their wiretap operations from disclosure because arrests and prosecutions were based on "independent probable cause." However, the question of whether subsequently obtained evidence is "derived" from a wiretap or "tainted" by the disclosures made from monitored conversations is a question of fact for the court to determine in an adversary hearing. There is no legal or ethical authority whatsoever to support the procedure employed by the Los Angeles County District Attorney for at least the last six or seven years wherein they alone with law enforcement made such legal determinations. Nor is there legal or ethical authority for the procedures now being engaged in by the People whereby disclosures are being made in-camera for judicial determination of relevancy, necessity, taint, and disclosure without an adversary hearing.

The procedures to be taken in post-conviction discovery of wiretap evidence is explained in Alderman, its predecessor, Russo v. Byrne (1972) 409 U.S. 1219, 93 S.Ct. 21, 22, and most recently and succinctly in United States v. Apple (4^th Cir. 1990) 915 F.2d 899. In Apple, a friend of the defendant had been wiretapped and the information handed-off to other law enforcement agencies. As required by law, the intercepting agencies disclosed this fact to the target and apparently other individuals intercepted by information handed-off to other law enforcement agencies. Unlike California's law, the federal law, as well as many state laws, do not require that every person intercepted be provided notice of that fact and the defendant only learned of the wiretap operation when it was disclosed to her friends. Apple thereafter requested disclosure of such wiretap records alleging as a result of her friendship with the intercepted parties, she called the intercepted number regularly during the period of interception and, therefore, must have been intercepted. The prosecutor submitted information to the court and an unsworn statement by federal authorities asserting they knew of no wiretap. This assertion was accepted by the court on face value and disclosure was denied based both on an insufficient showing of standing as well as a finding that, even if intercepted, there was sufficient independent evidence and attenuation to purge any taint.

On review, the District Court of Appeal held that while it was true that the defendant "had not proven, and may never prove, that any of her conversations were intercepted" she "should be given a more meaningful opportunity to prove her case . . . given the relationship" which existed and the fact that it was "reasonable to assume that. . . evidence from the . . . investigation was passed along to the state and federal authorities investigating" her.

The trial court was found to have abused its discretion when it ruled on the independent source issue before the government had adequately denied the occurrence of the alleged illegal surveillance and for that reason the judgment was required to be vacated. The trial court was ordered to conduct further proceedings on remand and require the government to "make a factual, unambiguous, unequivocal showing that none of [the defendant's] conversations were intercepted during the wiretap." "If the government discovers that some of [the defendant's] conversations were intercepted during the wiretap, the records of those conversations must be disclosed; the district court may then exercise its discretion to determine whether additional disclosure should be ordered. (See Alderman, supra, 394 U.S. at 184-85, 89 S.Ct. at 972-73.) The district court will then be in a position to consider the independent source issue." Judgment could be reinstated only under the following circumstances:

1. The government demonstrated that the wiretap was not unlawful;

2. The court found the government's evidence was developed from independent sources or was sufficiently attenuated from the illegal interceptions unlawful, or;

3. The government adequately denies the occurrence of the alleged unlawful act "based on inquiries to the relevant government agencies and requests for searches of agency files." However, the "predicate for acceptance of the government's denial is that the government official making the denial have sufficient information upon which a reasonable response can be based." "In general, we shall expect the Government's denial to be amplified to the point of showing that those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place...." The previously submitted unsworn letter based on inquiries to irrelevant agencies was an inadequate response. The government would need to submit evidence of an official inquiry of authorities involved in the investigation of the defendant and only after review the logs or tapes of the surveillance and other first-hand inspection. Hearsay testimony would similarly be deficient at it provides no assurance that any of his sources were in a position reasonably to ascertain, by having checked the tapes or the logs, whether or not the defendant's conversations had been intercepted.

The court found that any "[c]ontrary findings [would] necessitate a new trial with the tainted evidence suppressed."

United States v. Lanoue (1^st Cir. 1995) 71 F.3d 966, came to same conclusion and held that if a statement was not disclosed at any time before the government uses it, or in enough time that the defense could make use of it, "a mistrial was the only appropriate remedy." (Id. at p. 978.)

The failure to disclose subverted the purpose of federal law, which was intended to facilitate the fair and efficient pre-trial determination of the admissibility of a defendant's statements. (Id. at p. 977.) Defendant would necessarily be prejudiced because the failure to disclose their statements would deprive them "the opportunity to effectively prepare for trial and to design an intelligent trial strategy." (See Alvarez, 987 F.2d at 85; United States v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied, 467 U.S. 1218, 104 S.Ct. 2666, 81 L.Ed.2d 371 (1984); Gladney, 563 F.2d at 71 F.3d 966.)" "That the statement was not actually introduced in evidence does not show lack of prejudice. An improper question alone can require a mistrial or other potent remedy if it causes prejudice." (Id. at p. 978.)

In In re Grand Jury Matter (3^rd Cir. 1982) 683 F.2d 66, the government declined to affirm or deny the existence of an illegal wiretap during a grand jury proceeding and instead made an ex parte, in-camera presentation to the district court because of the on-going investigation. After the in-camera hearing the judge concluded that no unlawful electronic surveillance had occurred. Like petitioners, the contemnor was faced solely with a conclusion by the district court based on statements made by the Government. The District Court of Appeal held that an "ex parte, in-camera proceeding may be sufficient" in some instances regarding wiretap cases, but "only after an explicit denial has been made by the Government." (Id. at p. 67-69.)

It is now known from the People's own admissions that trial courts in Los Angeles County have made and continue to make significant rulings and orders in response to defense motions which have substantially affected the rights of petitioners in their criminal cases yet deprived those petitioners the right of knowing what rulings were made and what orders were issued. Moreover, portions of wiretaps documents which are being produced are sealed without either a denial by the People of the existence of another wiretap operation or an adversary hearing to determine what impact a wiretap has on the pending case. (Alderman v. United States supra, 89 S.Ct. 961, 971; Russo v. Byrne (1972) 93 S.Ct. 21, 22.)

While Petitioners believe such sealing is yet another attempt to conceal other wiretap operations, the procedures used violate Petitioners' rights even if they are in fact related to a confidential reliable informant, since petitioners are absolutely entitled to know the basis of claim of any privilege and must be given an opportunity to submit questions concerning the validity of the grounds for maintaining such confidentiality. (People v. Hobbs (1994) 7 Cal.4th 948, 973.)

A. The Meaning of "Evidence Derived" from a Wiretap.

Courts "look to illegal search and seizure cases as an analogy, to determine the meaning of the well established term of art, 'evidence derived therefrom.' The fruit of the poisonous tree doctrine is not so broad as to exclude evidence that would not have been discovered but for the wiretap. (See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). 'Evidence derived' from an illegal wiretap is 'the product of the primary evidence, or that is otherwise acquired as an indirect result of the [wiretap], up to the point at which the connection with the [wiretap] becomes 'so attenuated as to dissipate the taint.' " (Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988). We look to Murray, a search and seizure case, for guidance, because Gelbard teaches us that the statutory phrase `evidence derived therefrom'' imports the fruit of the poisonous tree doctrine used in search and seizure cases. If the evidence is derived from an independent source, not the wiretap, then it can be used. (Murray, 487 U.S. at 537-38, and 542 n. 3, 108 S.Ct. at 2533-34, and 2536 n. 3; see also United States v. Reed, 15 F.3d 928, 933 (9th Cir.1994).) The government cannot profit from the illegal wiretap, whether private or public, but cannot be put into a worse position than it would have occupied had the wiretap not taken place. (Murray, 487 U.S. at 541, 108 S.Ct. at 2535.)'' Chandler v. U.S. Army (9th Cir. 1997) 125 F.3d 1296, 1304; See also United States v. Kahn (1974) 94 S.Ct. 977 94 S.Ct. 977, 415 U.S. 143.)

B. Last resort.

"[E]ven within an ongoing investigation of a suspected drug conspiracy, the government may not simply "move swiftly from wiretap to wiretap." . . . Rather, under Title III, it must always "paus[e] to consider whether normal investigative procedures could be used effectively, particularly in light of any evidence obtained as a result of each succeeding wiretap." United States v. Castillo-Garcia (10^th Cir. 1997) 117 F.3d 1179, 1197; emphasis added.)

As clearly expressed in both Title III and Penal Code section 629.52, subdivision (3), subsection (d), an electronic surveillance order cannot be obtained unless the government fully explains in its application what investigative techniques have been tried against the target of the wiretap. (18 U.S.C. §§ 2518(1)(c), 2518(3)(c).)

The legislative history of Title III as well as case law have referred to the following categories of normal investigative techniques which must tried prior to application for electronic surveillance or a particularized showing made why each would be unsuccessful or too dangerous: (1) standard visual and aural surveillance; (2) questioning and interrogation of witnesses or participants (including the use of grand juries and the grant of immunity if necessary); (3) use of search warrants; and (4) infiltration of conspiratorial groups by undercover agents or informants; 5) installation of a pen registers or trap and trace device. Generally, the government must first consider the least intrusive technique of review available. (United States v. Killingsworth (10^th Cir. 1997) 117 F.3d 1159, 1187-1188, 1163.)

One thing is certain, however, "Congress did not intend the statutory phrase 'normal investigative procedures' to include electronic eavesdropping techniques." (United State v. Castillo-Garcia (10th Cir. 1997)117 F.3d 1186, 1187; citing Castillo-Garcia, supra, 920 F.Supp. at 1545; United States v. Bianco (2d Cir.1993) 998 F.2d 1112, 1127; United States v. Uribe (1st Cir.1989) 890 F.2d 554, 556; United States v. Lambert (6th Cir.) 771 F.2d 83, 91; 117 F.3d 1179.)

"Interception of wire and oral communications is a special technique which shall not be considered as a substitute for normal investigative procedures and shall be authorized only in those circumstances where it is demonstrated that the information is necessary for a criminal investigation and cannot reasonably be obtained in some other, less intrusive manner." (32 CFR 42.2(c).)

In Castillo-Garcia, a wiretap was obtained which revealed other co-conspirators and spin-off wiretaps were requested. While usual surveillance techniques were conducted prior to application for the first two applications, the government failed to even attempt any investigation before application of the third spin-off. The court held that the government cannot rely wholly on conclusionary language which would apply to every member of every suspected drug conspiracy to explain why visual surveillance of suspects was never attempted and would not have worked. Statements were made in the applications explaining that surveillance of each member of the suspected conspiracy would require 24-hour monitoring which could not likely be conducted for more than a brief period time before it was discovered, possibly placing the entire investigation in jeopardy. The court noted that while "necessity" requirement should be "read in a common sense fashion," such an approach will not rehabilitate the government's failure to include statutorily required information in a wiretap application. (United States v. Mondragon (10th Cir.1995) 52 F.3d 291, 293.) While "common sense" would show that wiretapping is normally the safest and most efficacious way for law enforcement officers to gain useful information about a suspected drug conspiracy, there cannot be a per se rule that wiretapping is always "necessary" when there is probable cause to believe that the suspects are engaged in a drug conspiracy. (Id. at pp. 293-294.) The necessity requirement directly and substantially implements the congressional intention to limit the use of intercept procedures to those situations clearly calling for their employment. As a result, failure to satisfy this requirement requires that the contents of the intercepted communications and the evidence derived therefrom be suppressed. (Id. at p. 294 citing United States v. Donovan, supra, 429 U.S. 413, 433-34, 97 S.Ct. 658, 671, 50 L.Ed.2d 652.)

The Congressional intent of "necessity" requirement of Title III was explained by the United States Supreme Court in United States v. Giordano (1974) 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341:

Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. (Id. at 515, 94 S.Ct. at 1826-27.)

Despite the clear language of state and federal statutory and case law, the applications for wiretapping of telephones failed to contain any evidence other than stock paragraphs that had been used in almost every application for five years straight that would apply to virtually all drug conspiracy investigations without even an attempt to make any investigation or a particularized showing of why in each individual case such investigation could not be made.

As in Castillo-Garcia, the Los Angeles District Attorney never attempted any investigative techniques against any of the other persons tapped in the Atel wiretap operation. A single allegation was asserted; that Atel and its employees were the targets and any and all customers who were engaging in any criminal activity whatsoever were co-conspirators regardless of whether there was any evidence that the Atel owners had knowledge of the new alleged "co-conspirators" activities or intent. Law enforcement never explained their failure to investigate any of the persons who operated any new telephone lines, they simply asserted:

"That the wire intercept is the main source of the information presently in use by investigators in their attempt to expose the criminal activities of the principal and/or employees of Atel Cellular and Paging and others in the conspiracy."

(Exhibit A, Extension #16, 45-46. )

C. Subterfuge.

Unlike California law, which expressly prohibits disclosure of "non-enumerated crimes" for investigative purposes, Title III would allow law enforcement officials who lawfully overheard evidence relating to "other crimes" to disclose that information to other law enforcement officials who were acting in the course and scope of their duties. However, even under federal law an interception is unlawful "when it is motivated by an illicit purpose--e.g., 'subterfuge' interceptions where the government applies to intercept conversations relating to offenses specified in [the law] while intending to intercept conversations relating to offenses for which interceptions are unauthorized or for which it has no probable cause to obtain an interception order.'' (United States v. London (1st Cir. 1995) 66 F.3d 1227, 1234.)

The Atel wiretap operation was a classic example of a subterfuge warrant designed merely to sanction an investigation of all persons using cellular telephones who were possibly engaged in unlawful dealings by methods not normally available for such investigations. There was never any evidence that either Atil Nath or John Lopez were major actors in the distribution of narcotics in Los Angeles County. No controlled buys or sales of narcotics were effectuated or even attempted against them. The police didn't even attempt to obtain a cellular telephone with false information or imply they needed the telephones to conduct narcotics sales to see if either owner would turn them down. Not only were neither convicted, neither were even ever arrested on criminal charges, and for good reason, no evidence was ever discovered. There was no good-faith in wiretapping Atel Cellular and the only reason for doing so was the ease facilitated by the Los Angeles County Courts. The legislative history of the wiretap laws indicate that the "evidence of other crimes should be intercepted 'incidentally' during the course of a lawfully executed order." While that need not necessarily mean inadvertently or unanticipated, they must be "the by-product of a bona fide investigation of crimes specified in a valid warrant." Both Congress and California Legislature made clear that wiretapping was not to be used simply as a "fishing expedition." (United States v. McKinnon (1^st Cir.1983) 721 F.2d 19, 22 fn 2.)

The court in McKinnon saw no "danger of abuse inherent in permitting the use of evidence of 'other crimes' because a "subterfuge search" would be subject to review not once but twice, when applying for the warrant and again when the sufficiency of that showing was later reviewed if the initial judgment was later questioned. However, when year after year, and wiretap operation after wiretap operation, that judgment is never questioned or even available for subsequent review, the danger is not only inherent, but inevitable. (Id. At p. 24.)

After reading the Daily Journal Article's regarding the "hand-off" procedure used by Los Angeles County District Attorney and law enforcement officers, Clifford Fishman, considered the leading expert in the area of wiretapping and cited by almost every court in the country, including the United States Supreme Court, addressed the issue in a recently published supplement to his treatise on wiretapping and expressly warned of the possible dangers, which have unfortunately already been realized:

"If law enforcement officials obtain and execute an interception order with the expectation that its existence will never be discovered by those targeted, the temptation to cut corners, to bend the rules, and, perhaps even to knowingly violate the law, will be substantial. This is not a healthy development for law enforcement as an institution, and could prove to be a disaster for individual law enforcement officials who give in to the temptation.

"Except in those rare cases where officials legitimately fear that a judge might leak information to wrongdoers, it is difficult to conceive of circumstances in which it is an acceptable practice to deliberately mislead a judge. Reports in the media strongly suggest that in many cases, police officers and prosecutors in Los Angeles may have deliberately misled the judges who issued interception orders about why the interception order was sought and what its results were, and also misled the judges before whom the ``team 2'' cases were brought, as to the underlying origins of the evidence. Query how likely it is that judges will regard with much credibility anything these officials tell them in the future.

"When it becomes public knowledge that law enforcement officials flout the law, the public's respect for the law suffers accordingly. And when people who have learned of such matters serve as jurors, they become less willing to believe police testimony from the witness stand. Neither of these developments is a healthy one." (Wiretapping and Eavesdropping, 2^nd Ed. Cumulative Supp., (1998) Clifford Fishman and Anne T. McKenna, pp. 108-109.)

III

THERE IS NO AUTHORITY FOR THE PROPOSITION THAT EVIDENCE CODE SECTION 1040 CAN SHIELD A WIRETAP FROM THOSE PERSONS AGAINST WHOM DERIVITIVE EVIDENCE IS BEING INTRODUCED

The prosecution argues that the existence of a wiretap is susceptible of being shielded by the official privilege found in Evidence Code section 1040. Petitioners dispute this allegation not only because there is no authority for this proposition, but because it is clearly wrong. First, since the notice provisions of the wiretap law are constitutionally founded, any claim of privilege would always result in disclosure, since no claim of confidentiality could outweigh the need to comply with the constitutional duty to disclose. Secondly, the complete statutory scheme governing disclosure of wiretap information is inconsistent with, and precludes application of, the official governmental privilege. Thirdly, the fact of the existence of the wiretap is not ``information acquired in confidence,'' and thus cannot be shielded by the official privilege. Finally, since the federal wiretap statutes mandate state statutes at least as protective as the federal laws, any attempt to use the official information privilege to shield notice or disclosure is barred by the supremacy clause.

A. NOTICE AND DISCLOSURE ARE CONSTITUTIONALLY REQUIRED

AND CANNOT BE AVOIDED

The People assert that the information regarding the federal wiretap was sealed and disclosure would have compromised that ongoing investigation. (Opposition p. 11.) They further allege that the use of in-camera proceedings to assert the governmental priviledge in Penal Code section 1040 and deny discovery pursuant to 1054.7 are appropriate to protect the secrecy of that wiretap. The People are wrong.

First, Evidence Code section 1040, subdivision (b), creates a "privilege to refuse to disclose official information, and to prevent another from disclosing official information" which may be claimed by a person "authorized" by that entity. It is doubtful that the federal authorities have authorized the Los Angeles District Attorney's Office to assert that the wiretap should not be disclosed to a criminal defendant against whom evidence derived from that wiretap is being introduced at a preliminary hearing. ⁽¹⁰⁾

Secondly, the privilege is available only under two circumstances, when disclosure is "forbidden by an act of the Congress of the United States or a statute of this state" or disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice. (Pen.Code §1040(b)(1)&(2).) The former is an absolute privilege and the later a conditional privilege if the court determines, in accordance with precise statutory standards, that disclosure is against the public interest. (Rubin v. City of Los Angeles (1987) 190 Cal.App.3d 560, 583; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540; Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123.) In making the determination of whether disclosure is against public interest, the interest of the public entity as a party in the outcome may not be considered. (Evid. Code, § 1040, subd. (b)(2).)

Here, both state and federal law require disclosure of this information making the absolute privilege in subsection (b)(1) unavailable to the District Attorney. The only possible basis for the assertion of the privilege is that disclosure is "against the public interest." However, the right to notice, inventory, and disclosure is not only a statutory right, but a constitutional right.

"In United States v. Donovan, 429 U.S. 413, 429 n. 19, 97 S.Ct. 658, 669 n. 19, 50 L.Ed.2d 652 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. § 2518 (8)(d)." (Dalia v. United States (1979) 441 U.S. 238, 243; 99 S.Ct. 1682, 1688.)

Clearly infringement of that constitutional right be against the interest of the public, such a construction of the governmental privilege would make Penal Code section 1040 unconstitutional.

B. THE COMPLETE SCHEME OF DISCLOSURE IN THE WIRETAP LAW PRECLUDES USE OF THE OFFICIAL INFORMATION PRIVILEGE TO SHIELD WIRETAP DISCLOSURES

The Legislature of California has enacted a comprehensive scheme governing the use of wiretaps. That scheme includes specific provisions governing notice and disclosure of wiretapping. General reporting provisions of the number of wiretaps and their nature and frequency is required by 18 USC § 2519 and Penal Code section 629.62. The specific disclosure requirements for notice of wiretaps is found in 18 USC § 2517 (8) and Penal Code section 629.68:

``Within a reasonable time, but no later than 90 days, after the termination of the period of an order or extensions thereof, or after the filing of an application for an order of approval under Section 629.56 which has been denied, the issuing judge shall cause to be served upon persons named in the order or the application, and other known parties to intercepted communications, an inventory which shall include notice of all of the following:

...

``(c) The fact that during the period wire, electronic digital pager, or electronic cellular telephone communications were or were not intercepted.''

``The judge, upon filing of a motion, may, in his or her discretion, make available to the person or his or her counsel for inspection the portions of the intercepted communications, applications, and orders that the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge, the serving of the inventory required by this section may be postponed. The period of postponement shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted.'' (Pen. Code § 629.68.)

The Legislature also mandated disclosure of any wiretapping where evidence ``derived'' from the wiretap is used in evidence at trial:

``The contents of any intercepted wire, electronic digital pager, or electronic cellular telephone communication or evidence derived from it shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding, except a grand jury proceeding, unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a transcript of the contents of the interception and with a copy of the court order and accompanying application under which the interception was authorized. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding, and that the party will not be prejudiced by the delay in receiving that information.'' (Pen. Code § 629.70; see also 18 USC § 2517.)

These provisions evince a legislative intent to enact a comprehensive scheme governing notice and disclosure of interceptions done during wiretapping. It is the position of People that all these provisions may be trumped by use of the official governmental privilege, Evidence Code section 1040. (Ret., pp. 32-37.) People treats Evidence Code section 1040 as an ultimate trump card, playable at the government's whim, to block disclosure otherwise expressly mandated by several quite clear statutes.

Not surprisingly, People cites no authority in support of this astonishing claim. They are, in fact, compelled to admit that no California case has upheld assertion of the official information privilege to wiretapping.

It would be very odd indeed if the Legislature's careful delineation of notice and disclosure in the wiretapping statutes could be simply obliterated by a general privilege provision. It is evident that the Legislature's intent in enacting the wiretap statutes was to compel notice and disclosure, not the contrary.

The wiretap statutes enact a quite specific scheme governing notice. The fact that there is a general official information privilege cannot mean that the carefully drafted, narrow wiretap statutes requiring notice can be nullified by the general information privilege. Such a construction would render the notice provisions of the wiretap statutes nugatory; this should be avoided:

``We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous. (People v. Craft (1986) 41 Cal.3d 554, 560 [224 Cal.Rptr. 626, 715 P.2d 585]; Gates v. Salmon (1868) 35 Cal. 576, 587.) The whistleblower statute was a legislative expression intended to encourage and protect the reporting of unlawful governmental activities, and to effectively deter retaliation for such reporting. The Legislature clearly intended to afford an additional remedy to those already granted under other provisions of the law; otherwise section 19683 would be rendered meaningless. (Cf. Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408 [261 Cal.Rptr. 384, 777 P.2d 157].)'' (People v. Tanner (1979) 24 Cal.3d 514, 522.)

Moreover, the specific statutes control over the general, even where the two might otherwise overlap. ``A specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates. (Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123 P.2d 505].)'' (People v. Tanner, supra, 24 Cal.3d 514, 521.)

As the Court of Appeal explained:

``A special statute dealing expressly with a particular subject constitutes an exclusion, so as to take precedence over a conflicting general statute on the same subject. (Kennedy v. City of Ukiah (1977) 69 Cal.App.3d 545, 552 [138 Cal.Rptr. 207]; Busic v. United States (1980) 446 U.S. 398 [64 L.Ed.2d 381, 100 S.Ct. 1747].) This rule applies regardless of whether the special statute was enacted before or after the general one. (People v. Randano (1973) 32 Cal.App.3d 164 [108 Cal.Rptr. 326]; Warne v. Harkness (1963) 60 Cal.2d 579, 588 [387 P.2d 377].)'' (State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 238.)

``As a broad proposition, it is said that a specific statutory provision on a particular subject controls over general statutory provisions on the same subject, and a statute of general application will not ordinarily be held to repeal by implication a former statute of special or limited application. A repeal of the special statute will be found, of course, where there is something in a later general statute that discloses the legislative intent to repeal, but laws of special and local application are never deemed repealed by general legislation except upon the most unequivocal manifestation of intent to that effect, or where there is such a manifest repugnancy as to make plain a legislative intent to repeal an earlier special statute. Conversely, when a subsequently enacted specific statute directly conflicts with an earlier, more general provision, it is settled that the subsequent legislation effects a limited repeal of the former statute to the extent that the two are irreconcilable.''

The Supreme Court has explained:

``Where the terms of a later specific statute apply to a situation covered by an earlier general one, the later specific statute controls (People v. Haydon, 106 Cal.App.2d 105, 111 [234 P.2d 720]). As we held in Rose v. State, 19 Cal.2d 713, 723, 724 [123 P.2d 505]: ''It is well settled, also, that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.'' (See also People v. Moroney, 24 Cal.2d 638, 644 [150 P.2d 888]; Coker v. Superior Court, 70 Cal.App.2d 199, 201 [160 P.2d 885]; Whittemore v. Seydel, 74 Cal.App.2d 109, 120 [168 P.2d 212].)'' (County of Placer v. Aetna Cas. etc. Co. (1958) 50 Cal.2d 182, 189.)

This is a very well-settled proposition. (See, e.g., 58 Cal Jur 3d, Statutes, § 69; Code of Civil Procedure section 1859; Governing Board v. Mann (1977) 18 Cal.3d 819, 828.) Evidence Code section 1040, the general official information privilege section, was enacted effective 1967. The quite specific wiretap notice and disclosure statutes were enacted in 1995. The specific and later-enacted wiretap notice and disclosure statutes cannot be trumped by the older and general official information privilege. Thus, the latter privilege may not be asserted to avoid the mandatory notice and disclosure provisions of the wiretap law.

C. THE EXISTENCE OF A WIRETAP IS NOT "INFORMATION ACQUIRED IN CONFIDENCE," AND THUS CANNOT BE SHIELDED BY THE OFFICIAL PRIVILEGE

The second flaw in the People's argument is that the fact of the existence of a wiretap cannot qualify as ``information acquired in confidence,'' a necessary foundational element of the official privilege. Thus, no privilege may be asserted with respect to the existence of a wiretap.

Evidence Code section 1040, subdivision (a), codifies the official governmental privilege, but a prerequisite for any claim of that privilege is that there must be ``information acquired in confidence.'' Evidence Code section 1040 provides that ``a public entity has a privilege to disclose official information.'' (Evid. Code § 1040, subd. (b).) But the section has a quite specific definition of ``official information'': ``As used in this section, `official information' means information acquired in confidence . . . . '' (Evid. Code § 1040, subd. (a).)

Case law has made it clear that the foundation for any claim of privilege depends on a showing that there was ``information acquired in confidence.'' The Supreme Court has stated, ``We note at the outset that the conditional privilege, like the absolute privilege, is applicable only to `information acquired in confidence ....' (§ 1040, subd. (a).)'' (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 124.)

The Court of Appeal has restated this point:

``Preliminarily, we note section 1040 of the Evidence Code `represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.' (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540 [113 Cal.Rptr. 897, 522 P.2d 305], italics added.) `It essentially establishes two different privilegesan absolute privilege if disclosure is forbidden by a federal or state statute (subd. (b)(1)), and a conditional privilege in all other cases pursuant to which privilege attaches when the court determines, in accordance with precise statutory standards, that disclosure is against the public interest (subd. (b)(2).)' (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123 [130 Cal.Rptr. 257, 550 P.2d 161].) Moreover, either privilege is applicable only to `information acquired in confidence.' (Evid. Code, § 1040, subd. (a).)'' (Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 905.)

Thus, not everything the government wishes to keep secret can be shielded by the official privilege; only information ``information acquired in confidence'' can form the basis of a claim of privilege. It should be noted that petitioners are unaware of case applying the official privilege to wiretaps. Even the prosecution is forced to admit that no California case has found the privilege applicable to wiretaps. However, People argues that analogous case law supports application of the privilege to wiretaps.

The People cite two cases involving the location or substance of vehicle identification numbers (VIN), People v. Marghzar (1987) 192 Cal.App.3d 1129, 1134-1136, and In re David W. (1976) 62 Cal.App.3d 840, 846-848. (Ret., pp. 33-34.) These cases say that the formula used for a secret VIN number, and the location of that number, are properly shielded by the official governmental privilege. However, neither supports a claim that the very existence of the VIN number may be shielded. People is not merely claiming that the contents of the conversations overhead during the wiretap are shielded, but the very fact of the wiretap itself.

Apart from the VIN cases, the prosecution relies on the observation post cases in support of their claim that the official information privilege should apply to wiretaps. (Ret., pp. 34-36.) Although People cites all the observation post cases, only two of those cases actually address the issue at stake here: whether this is ``information acquired in confidence'' capable of being shielded by the official governmental privilege.

First, the People rely on Hines v. Superior Court:

``Petitioner contends that Weir's surveillance location does not come within the privilege because the record does not show that the location was `acquired in confidence ... during the course of his ... duty.'

``Petitioner takes too restrictive a view of the statutory word `acquire' The term does not exclude information that is generated by the person claiming the privilege. To acquire means `to come into possession ... of often by some uncertain or unspecified means.' (Webster's Third New Internat. Dict. (1981) p. 18.) To hold, as petitioner seems to suggest, that the location could be official information if petitioner was told of it by Officer Wells rather than discovering it himself creates a distinction which is neither required by the statute nor consistent with the purpose of the privilege. We hold the surveillance location was information to which the privilege could apply.'' (Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 1234; internal quotation marks omitted.)

Next, the People relies on People v. Montgomery:

``Appellant claims that Officer Weir's testimony did not provide a basis for the People's claim of the privilege. We do not agree. In Hines v. Superior Court (1988) 203 Cal.App.3d 1231[251 Cal.Rptr. 28], Division Four of this district held on facts practically identical to those before us that the surveillance location used by Officer Weir to observe the corner of Fifth and Grove Streets (one block from the corner in question here) was information to which the privilege could apply, even though the officer may have `acquired' the information from himself. (Id., at p. 1234.) We agree that one effect of section 1040 is to establish, under appropriate circumstances, a `surveillance location privilege' in California. (See Com. v. Lugo (1987) 23 Mass.App. 494, 497 [503 N.E.2d 974, 976], and cases collected therein.)

``This legislative policy of protecting surveillance locations finds strong support in an analogy to the confidential informer privilege. `Like confidential informants, hidden observation posts may often prove to be useful law enforcement tools, so long as they remain secret. Just as the disclosure of an informer's identity may destroy his [or her] future usefulness in criminal investigations, the identification of a hidden observation post will likely destroy the future value of that location for police surveillance. The revelation of a surveillance location might also threaten the safety of police officers using the observation post, or lead to adversity for cooperative owners or occupants of the building. Finally, the assurance of nondisclosure of a surveillance location may be necessary to encourage property owners or occupants to allow the police to make such use of their property.' (Com. v. Lugo, supra, 23 Mass.App. at p. 498 [503 N.E.2d at p. 976], quoting United States v. Green (D.C. Cir. 1981) 670 F.2d 1148, 1155; see also McCray v. Illinois, supra, 386 U.S. at p. 308 [18 L.Ed.2d at p. 69].)

``While we find the analogy to the informer privilege apt, we think it reasonable to afford even more protection to information of a surveillance location and thereby to people who permit their homes to be used as surveillance locations. An informer whose identity is revealed, rightly or wrongly, probably has a fairly good chance of hiding because of the anonymity of our predominantly urban environment. But a person whose address is revealed has no place to hide.'' (People v. Montgomery (1988) 205 Cal.App.3d 1011, 1018-1019; internal quotation marks omitted.)

These cases in fact support petitioners' contention that the very existence of a wiretap cannot be ``information acquired in confidence'' to permit application of the privilege. The issue in the observation post cases is not the very existence of the observation posts, but the location of those posts. These cases support the claim that the location of the posts can qualify as ``information acquired in confidence.''

If the People's analogy applied, these cases would support application of the official government privilege to the very existence of the observation posts. But nothing in the above-quoted language supports such an approach. The above cases address only the issue of shielded the location of observation posts, not their existence.

In fact, the existence of a wiretap, an observation post, or a VIN is not, and cannot, qualify as ``information acquired in confidence.'' The location of an observation post or a VIN number, or the contents of communications overheard during a wiretap, can qualify as ``information acquired in confidence.'' But the mere existence of each of these items is not ``information,'' nor can they be said to have been ``acquired in confidence.''

Moreover, as shown above, the federal wiretap statutes require notice and disclosure. (18 USC § 2519; 18 USC § 2517 (8).) Even assuming Penal Code section 1040 allowed concealment of the existence of a wiretap, it would be preempted by federal wiretap statute's mandates.

"Although defendants relied exclusively on federal law at trial, the Court of Appeal also considered defendants' state law claims based on the California Privacy Act (Pen. Code, §§ 631, 632). State law, however, cannot be less protective than the federal Act. (United States v. McKinnon (1st Cir. 1983) 721 F.2d 19, 21, fn. 1.)'' (People v. Otto (1992) 2 Cal.4th 1088, 1092.)

The underlying rationale of the preemption doctrine is that the supremacy clause invalidates state laws that interfere with or are contrary to federal laws. (Chicago & N. W. Tr. Co. v. Kalo Brick & Tile Co. (1981) 450 U.S. 311, 317 [67 L.Ed.2d 258, 265, 101 S.Ct. 1124].)'' (Smith v. County of Santa Barbara (1988) 203 Cal.App.3d 1415, 1422.)

"State law which conflicts with a federal statute is invalid under the supremacy clause of the United States Constitution.'' (In re Marriage of Hillerman (1980) 109 Cal.App.3d 334, 341, Article VI, clause 2, of the United States Constitution.)

III

THE PEOPLE CITE NO AUTHORITY FOR THE PROPOSITION THAT, DESPITE THE CLEAR LANGUAGE OF THE STATE AND FEDERAL WIRETAP STATUTES WHICH BAR THE USE OF WIRETAP DERIVATIVE EVIDENCE PRIOR TO THE PROSECUTOR PROVIDING NOTICE AND DISCLOSURE, THEY MAY STILL WITHHOLD SUCH INFORMATION FROM THE DEFENSE

The People assert that the sealing requirements contained in the state and federal wiretap laws and United States v. Florea (6^th Cir. 1976) 541 F.2d 568, barred disclosure of the existence of a wiretap to defendants because of the existence of an ongoing wiretap investigation. (Opposition p. 10.)

The people's reliance on both are misplaced. First, while the wiretaps statutes require orders and investigations to be sealed, they also provide that the "presence of the seal, . . . or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517." The existence of the seal is, therefore, not bar to the introduction of the existence of a wiretap. Akin to the requirement that notice and disclosure be made prior to the introduction of evidence, the sealing requirement is a prerequisite to the introduction of wiretap derivative evidence. (United States v. Ojeda Rios (1990) 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224.) In other words, the fact that the original application and order were still sealed at the time of the preliminary hearing is irrelevant. Those documents will remain sealed until a motion to suppress is run to determine the legality of the wiretap at which point they will be retrieved to determine if the seal is still appropriately in place to allow admission of all such wiretap derivative evidence.

Secondly, Florea did not stand for the proposition that the sealing requirement could be used to conceal the existence of the wiretap to those against whom derivative evidence was being introduced was permitted. To the contrary, the defendant in Florea were given notice and had the opportunity to litigate a motion to suppress to determine if the wiretap derivative evidence could properly be introduced at trial. (Id. At p. 575.)

The People seem to take issue with the United State Supreme Court ruled that disclosure of wiretap evidence ". . . must be made even though attended by potential danger to the reputation or safety of third parties or to the national security--unless the United States would prefer dismissal of the case to disclosure of the information." (Alderman v. United States (1969) 89 S.Ct. 961, 970-971.)

However, rather than cite any case that supports their position that, despite the clear language in the state and federal wiretap statutes requiring disclosure and the express ruling of the United States Supreme Court requiring disclosure even at the risk of potential danger to third parties or national security, the People simply make a negative assertion that Alderman does not stand for the proposition that a court has a right to deny wiretap discovery in-camera. Without explaining why Alderman and Russo are not binding on them, the People simply state that the quotations are "out of context." (Opposition p. 12.)

The People cite Taglianetti v. United States (1969) 394 U.S. 316, and Stoddard v. United States (2^nd Cir. 1983) 710 F.2d 21, for the proposition that in-camera proceedings are appropriate "to address various wiretap issues." (Opposition p. 14.) While there may well be some situations where in-camera hearings are appropriate with regards to issues regarding a wiretap operations, neither cases stands for the proposition that a prosecutor may deny disclosure to a defendant whose conversations have been intercepted. That right is absolute.

In fact, the appellants involved in both Stoddard and Taglianetti were actually given notice of the existence of a wiretap. In Stoddard the appellant was given notice despite the fact that there were no pending charges. Under Federal law, it is left to the discretion of the court whether persons who were intercepted but not named in warrant should be provided notice. The People are required to provide the court with all the information regarding those persons so the court may make an intelligent decision on whether the interests of justice would require the People to notice, one of is the prosecution of criminal charges as a result of the interception. (United States v. Donovan, supra, 429 U.S. 413, 439, fn. 26, 97 S.Ct. 658, 50 L.Ed.2d 652.) Apparently the court in Stoddard determined that notice should be provided despite the fact that investigations were still ongoing but simply denied disclosure of materials which are not otherwise required to be disclosed.

Taglianetti explains why Alderman and like cases require disclosure:

"[A]n adversary proceeding and disclosure were required in those cases, not for lack of confidence in the integrity of government counsel or the trial judge, but only because the in camera procedures at issue there would have been an inadequate means to safeguard a defendant's Fourth Amendment rights." (Id. At p. 1100-1101, emphasis added.)

For that express reason the court in Taglianetti held that the defendant in that case was "entitled to see a transcript of his own conversations" but the in-camera proceeding could be used with regards to other records requested by the defendant and to ensure the accuracy of the prosecutor's claims. (Id. At p. 1100-1101, emphasis added.)

A. ADMISSION OF THE USE AND EXISTENCE OF WIRETAP

DERIVATIVE EVIDENCE RENDERS MOOT ARGUMENTS ADVANCED BY THE PEOPLE IN THEIR OPPOSITION

The People's reliance on United States v. D'Andrea (3^rd Cir. 1974) 495 F.2d 1170, 1174, is similarly misplaced since D'Andrea did not involve the use of evidence derived from a wiretap. The defendant in D'Andrea asserted there was a wiretap involved in his case. The prosecutor made a diligent search of all agencies which could possibly be involved in a wiretap and statements under the penalty of perjury were filed by all such law enforcement agencies denying the use of electronic surveillance or its fruit in investigating and prosecuting the case. The prosecutor thereafter went in camera and apparently explained where the information was obtained as the court held that the "in camera proceeding here did not deal with the question of whether existing illegal taps tainted the proceedings, it dealt with the prior question of whether the alleged illegal surveillance had occurred at all." It is clear that had the prosecutor in D'Andrea told the court in camera that wiretap evidence had tainted the proceedings, no in-camera would have been allowed.

Here, the People have admitted that wiretap derivative evidence is involved. As such, their arguments regarding the propriety of in-camera hearings to establish facts that no wiretap was involved are moot.

B. NOTICE AND DISCLOSURE PRIOR TO THE INTRODUCTION OF WIRETAP DERIVATIVE EVIDENCE CANNOT BE WAIVED BY THE COURT

While Penal Code section 629.70 provides that the 10-day period may be waived if the judge finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding, and the party would not be prejudiced by the delay, there is no provision in either the state and federal wiretap law for waiver of the requirement to furnish the information. The reason for this is that the notice, inventory, and disclosure are not only statutory requirements, there are constitutionally requirements. Only upon a showing of "good cause" may such notice and inventory be postponed, but even that delay can be no longer than is necessary to achieve the purposes for which it was granted, and in no event any later than the introduction of the first piece of derivative evidence. (United States v. Donovan, supra, 429 U.S. 413, 428-429, 97 S.Ct. 658, 668-669, 50 L.Ed.2d 652; Berger v. State of New York (1967) 388 U.S. 41, 63; 87 S.Ct. 1873, 1884;18 L.Ed.2d 1040.)

IV

A CLAIM OF ADMINISTRATIVE OR MISCONSTRUCTION OF THE LAW PROVIDES NO RELIEF FOR THE LOS ANGELES COUNTY DISTRICT ATTORNEY BECAUSE THERE IS NO DEFENSE OF MISTAKE UNDER TITLE III

To the extent the people claim administrative oversight, ignorance, or this creative interpretation of the plain meaning of the California wiretap statute, courts have required even mistakes are alleged, it must "objectively reasonable." Moreover, such defense would only be available "when the attorney involved acted as a 'reasonably prudent' attorney would to investigate the legal question involved in a reasonably prudent manner. United States v. Carson (3^rd Cir. NJ 1992) 969 F.2d 1480, 1494.)

As for any claim of mistake, case law has long held "there is no 'good faith' defense based on a misunderstanding of the law" "under Title III." In re Thompson (10th Cir.1990) 894 F.2d 1227, 1228, relying on Campiti v. Walonis (1st Cir.1979) 611 F.2d 387, 394-95.) "The law's reluctance to allow testimony concerning subjective belief after the fact reflects an obvious concern with the reliability of such testimony." Heggy v. Heggy, (10^th Cir 1991) 944 F.2d 1537, 1542.) Even under this theory the People lose, since most extensions for wiretap orders are signed by judges other than those who signed the initial order.

CONCLUSION

Based on the foregoing wealth of evidence and legal authorities submitted in this case, Petitioners respectfully request that this court exercise its authority to order compliance with the wiretap laws as requested by petitioners.

Dated: October 5, 1998

MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA

By ______________________________

KATHY QUANT
Deputy Public Defender

1. It should be noted that New York City has a population three times as great as the City of Los Angeles and a more lenient wiretap law than California, which was intended by the California Legislature to be the "strictest wiretap law in the nation." For instance, the New York State law allows more than one judge to issue a wiretap order. The number of wiretap orders in 1997 was almost twice as high as the preceding year.

2. New Jersey had the second highest number of wiretap orders in the country.

3. The People allege 91 cases relate to a wiretap, but 34 of those cases were related to a federal wiretap rather than 90 wiretap orders referred to in their Return.

4. The People attempt to deny that "Overview of Wiretap Law" prepared by Anthony Meyer and containing the Office of District Attorney seal, is a Wiretap Manual for the Los Angeles County District Attorney's Office. Petitioners allege this is the Wiretap Manual for the Los ANgeles County District Attorney's Office.

5. Petitioners accurately recited that leave from county, and not country, is considered sufficient grounds for a deputy to become "acting district attorney" and thereby empowered to make application.

6. Nor could officers, required to be trained by the Attorney General believe this. (Exhibit N, Attorney's General Manual.)

7. It should be remembered that the order provided for the interception of telephones of unidentified operators and their subsequently changed numbers. It is apparent from the report that when there was no incriminating information, the People would simply go to the telephone company and allege the unidentified target changed their telephone number and would be provided interception of new number. Such procedures were confirmed by cellular telephone company personnel. It should, however, be clearly understood by this court that there were no orders authorizing interception of these telephone numbers.

8. When reviewing the People's Return is was assumed that the Bacue Order was Atel No. 1, the ouderkirk Order, Atel No. 2, and this Rappe Order Atel No. 3, and was so labeled when, within the last few days, Petitioners obtained a copy of this Order. However, it was actually labeled Atel No. 2. It is now unclear what order the People are referring to in their List of Wiretap Orders. Federal Filing Form Numbers for these Orders appear to have been intentional omitted.

9. There is also a possibility that they were referring to the same incident referenced in their application for extension which was mentioned in their June 1996 extension of the Atel wiretap order, which summarized events in May and June of 1996, and the declarant simply lied about the year to avoid an appearance of staleness of information. Again, petitioner has as yet no proof of this.

10. In fact, it is fairly obvious the only reason the Federal Authorities did not themselves arrest the defendants was precisely because they knew they would be required to disclose the wiretap operation once criminal proceedings were under way. Apparently they also knew that the Los Angeles District Attorney's Office was managing to bypass that legal requirement.