IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ___



TERESA ACOSTA

Petitioner,

v.

SUPERIOR COURT OF THE

LOS ANGELES JUDICIAL DISTRICT,

Respondent,

THE PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest

 2nd Dist. No. B- ________

(Sup. Court No. BA158245)



PETITION FOR WRIT OF MANDATE

TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE CALIFORNIA COURT OF APPEAL, SECOND APPELLATE DISTRICT

INTRODUCTION

Petitioner requested disclosure of the existence of wiretapping in this case. However, rather than order the People to disclose evidence of a wiretap if one existed, the Honorable Judge Robert O'Neill instead granted the People's request for an in-camera hearing, took evidence and made rulings regarding relevancy at that in-camera hearing, ordered the People to produce certain documents, and thereafter sealed the entire record including any rulings made therein.

Based on evidence produced by the People in accordance with the in-camera order, as well as other public documents, petitioner made a showing to support her claim that evidence being used against her was derived from a secret wiretap, made a showing through transcripts of sworn police testimony that the Los Angeles District Attorney's Office has developed and trained other law enforcement agencies on a procedure known as the "hand-off" which would conceal the fact that evidence was derived from a wiretap. However, the trial court is refusing to require the People to either admit or deny the existence of a wiretap, is refusing to reveal to petitioner whether the in-camera hearing revealed the existence of a wiretap, and refuses to conduct an adversarial hearing to explore that claim.

The United States Supreme Court has ruled that, unlike cases involving informants, information regarding wiretapping operations must be turned over to a defendant "without being screened in camera by the trial judge" and it is "a task which should not be entrusted wholly to the court in the first instance." (Alderman v. United States (1969) 394 U.S.165 [22 L.Ed.2d 176, 89 S.Ct. 961, 971.) Similarly, the "issue of relevancy should not be resolved in camera, but in an adversary proceeding." (Russo v. Byrne (1972) 409 U.S. 1219, 93 S.Ct. 21, 22.) In fact, "this disclosure must be made even though attended by potential danger to the reputation or safety of third parties or to the national security." (Id. at pp. 970-971.)

In support of this petition, petitioner Theresa Acosta, by and through her attorney, Michael P. Judge, Public Defender of Los Angeles County, hereby alleges as follows:I

The parties directly interested in these proceedings are the named petitioner, a defendant in criminal case number BA158245 and respondent, the Superior Court of the Los Angeles Judicial District. The People of the State of California, by their attorney, Gil Garcetti, District Attorney for the County of Los Angeles, are the real party in interest.

II

On December 16, 1997, a two count felony information was filed against petitioner Teresa Acosta, co-defendant Jose Ciriaco Torres, and co-defendant Jesus Ramon Felix, alleging that on or about October 21, 1997, each violated Penal Code section 182(a)(1), conspiracy, and Health and Safety Code section 11351, possession of cocaine for sale. It was further alleged that each violated Penal Code sections 12022(a)(1) (armed with a firearm); 12022(a)(2) (armed with an assault rifle), 12022(c) (personally armed); 12022(d) (knowledge that the principal was armed).

A copy of the felony information is attached hereto as Exhibit A and made a part of this petition.

III

On December 16, 1997, petitioner was arraigned on the felony information, pled not guilty, and the matter was continued to January 16, 1998, for a pretrial conference, and thereafter continued to March 13, 1998, for hearing on a motion made pursuant to Penal Code section 1538.5.

Copies of the minute orders are attached hereto as Exhibit B and made a part of this petition.

IV

On March 4, 1998, counsel for co-defendant Torres filed a motion for pretrial discovery. Petitioner Acosta joined in that motion. Among other things, the motion requested disclosure of all wiretap transcripts, applications, and orders, as well as copies of all tape recordings statements made by petitioner or co-defendants. Hearing on the motion was set for March 13, 1998.

A copy of the Discovery Motion is attached hereto as Exhibit C and made a part of this petition.

V

On March 13, 1998, the case was called for hearing on the motion for discovery. At that time, Deputy District Attorney Jason Lustig requested, and the Honorable Judge Robert O'Neil, Judge presiding in Department 125, granted, an in-camera hearing. The court continued the hearing on the discovery matter to April 2, 1998.

VI

On March 31, 1998, the court conducted an ex parte, in-camera hearing with Deputy District Attorney Jason Lustig. The proceedings were thereafter ordered sealed.

VII

On April 2, 1998, Deputy District Attorney Jason Lustig served petitioner and co-defendants with additional discovery materials along with a cover letter dated March 30, 1998. Disclosed were surveillance logs, surveillance photos, and a report dated March 24, 1998, all of which were related to the residence where surveillance of petitioner and co-defendants began.

A copy of that letter and the reports disclosed are attached hereto as Exhibit D and made a part of this petition.

VIII

On April 2, 1998, the matter was again called for hearing on the Discovery Motion, the Motion to Suppress pursuant to Penal Code section 1538.5, and a Motion to Dismiss pursuant to Penal Code section 995.

With regards to the Discovery motion, the court disclosed that the in-camera hearing regarding discovery had taken place and further disclosed that it had directed the district attorney to comply with the orders made in-camera.

Counsel for co-defendant Torres inquired whether the substance of the in-chambers hearing matter related to wiretapping. In response, the court simply stated that it had ordered the District Attorney to comply with the orders it made in-camera and those proceedings and orders were sealed.

Counsel for petitioner asked how petitioner could know if compliance was made if petitioner was unaware of the substance of that order. The court simply asked Deputy District Attorney Jason Lustig if he had complied with its orders. Deputy District Attorney Jason Lustig stated that he had complied with those orders.

The court thereafter denied the motion made pursuant to Penal Code section 995 and began testimony relevant to the Penal Code section 1538.5 motion. That hearing was continued to April 8, 1998, at which time it too was denied. The matter was then continued to May 20, 1998, for trial.

IX

On May 15, 1998, Philip De Massa filed a Motion to Continue Trial and requested that the court allow a substitution of attorney to allow Mr. De Massa the opportunity to represent co-defendant Felix. Counsel for petitioner and co-defendant Torres joined in that motion.

A copy of that Motion to Continue is attached hereto as Exhibit E and made a part of this petition.

X

On May 18, 1998, the District Attorney's Office filed an Opposition to the Motion to Continue, asserting that Attorney De Massa had failed to provide a declaration in support of the motion and the Delay Reduction Project for the Superior Courts in the Criminal Courts Building in Los Angeles.

A copy of the People's Opposition is attached hereto as Exhibit F and made a part of this petition.

XI

A Declaration in Support of Defendant's Motion to Continue was filed on March 19, 1998. In that Motion Attorney De Massa declared that the basis for the continuance was the belated discovery disclosed by the district attorney on April 2, 1998, and was further necessary to provide an opportunity for defendant Felix to suppress evidence derived from an illegal electronic wiretap surveillance in June and July, and continuing through November, of 1997, pursuant to Penal Code section 629.72. (Exh. G, p. 2:4-3:12.)

Attorney De Massa informed the court that, as a result of being counsel in People v. Gastelum, Gaxiola, et. al., Case Numbers BA132597 and BA109547, he obtained certain information which the court may not have been aware of at the time it made its in-camera ruling. (Exh. G, p. 3:7-12.) Attorney De Massa then continued to inform the court of the following: The Los Angeles County District Attorney's Office, and Deputy District Attorney Jason Lustig in particular, was actively involved in attempts to conceal wiretaps from official review. In fact, Deputy Lustig had himself unsuccessfully invoked the official privilege in Penal Code section 1040 in an ex parte, in-camera hearing in Gastelum in an effort to keep a wiretap concealed, despite the fact that evidence derived from the wiretap was the basis for the prosecution in that case. (Exh. G, 3:7-27.)

Testimony in Gastelum disclosed a unique police investigative technique called the "hand-off." (Exh. G, 4:19-21.) This technique would shield the wiretap as the true source of information to effectuate an arrest for the purpose of allowing the wiretap to continue. (Exh. G, 4:22-25.) Investigation reports in "hand-off" cases always start with the commencement of a surveillance without reason and never include the source of such surveillance. (Exh. G, 5:3-17.) Officers further testified that wiretap information was disclosed, or "handed-off," to jurisdictions outside of the Los Angeles Police Department. (Exh. G, 4:25-28.)

Attorney De Massa further declared that the Los Angeles County District Attorney's Office in general, and Deputy District Attorney Jason Lustig in particular, has not only failed to disclose the presence of wiretaps to persons intercepted, but has failed to report such wiretap orders to the State Attorney General and the Administrative Office of the United States Courts as required by law. (Exh. G, 3:24-4:13.)

In fact, the wiretap order in the Gastelum case, applied for by Deputy Lustig at a time when he was well aware of the "hand-off" procedure, was issued by Judge Basque on May 21, 1996, and managed to continue until January of 1998. (Exh. G, 4:14-5:2.) Moreover, the order permitted the interception of not one, but 22, telephone numbers throughout Los Angeles and Orange Counties. (Exh. G, 4:14-16.)

Attorney De Massa declared that a review of the facts and evidence in this case disclosed that it was a "classic pattern of such a 'hand-off' case." (Exh. G, p. 5:4-6.) Investigative reports in the case revealed that "a surveillance" was established at a particular location at 7:00 A.M. on the morning of October 21, 1997, without further clarification. (Exh. G, p. 5:4-17.) Attorney De Massa declared there was reasonable cause to believe that the case then before the bench was based on evidence derived from a wiretap. (Exh. G, p. 5:15-17.)

A copy of the Declaration in Support of the Motion to Continue is attached hereto as Exhibit G and made a part of this petition.

XII

On March 20, 1998, petitioner Acosta filed a Demand for Notice of Wiretap pursuant to Penal Code section 629.68 and noticed a motion to challenge, pursuant to Evidence Code section 402, all evidence which was to be presented against her at trial as being derivative of a wiretap. In support of her Demand for Notice, petitioner presented the following evidence:

The Arrest

Petitioner introduced police reports which established that on October 21, 1997, at approximately 7:00 in the morning a surveillance was established by members of the Regional Narcotics Suppression Program (R.N.S.P.) at a residence in Anaheim, California, but no reason is ever given why such surveillance was initiated. (Exh. H, p. 2.)

Almost two and half hours later the police see a blue Honda leave the garage of the residence occupied by a man, woman, and child, and R.N.S.P. officers follow the car from Orange County to Los Angeles County. (Exh. H, p. 2.) No reason is given why the car was followed.

Once the car reaches its destination, R.N.S.P. officers requested, and allegedly obtained, permission to search the location and discovered narcotics and weapons. Again no explanation is given for why permission to search was requested.(Sheriff's Department Follow-up Report, 97-56066.)

Photographs were taken on July 4, 1997, and disclosed by the prosecution, without any explanation of why the photographs were taken. (Exh. H, p. 2.) The police reports disclosed that in addition to narcotics, both cellular telephones and pagers were seized from the defendants. (Exh. H, p. 8.)

The Hand-Off Procedure

Transcripts of sworn police testimony regarding a policy, practice, and procedure known as the "hand-off," disclosed during the hearings in Case Numbers BA132597 and BA109547, were also introduced in support of the demand. Those transcripts established the following:

The "hand-off" was developed by the Los Angeles County District Attorney's Office who taught officers the procedure many years ago as a concerted effort to prevent the disclosure of wiretap operations in Los Angeles County. (Exh. H, p. 2-3.)(1) The procedure required that officers, without express knowledge of the wiretap, be provided detailed specific information from the wiretap regarding a specific person, location, or chain of events, told to look for facts to arrest the person, and report those facts as the basis for the arrest and thereby alleviate the need to disclose the existence of the wiretap operation. (Exh. H, p. 2-3.)(2)

In practice, the procedure operated by having a supervising officer, who maintained continual contact with "wire room" officers throughout each day of surveillance, obtain information from intercepted communications and disclose the detailed information to another officer under his command without expressly telling the recipient officer that the information was obtained from a wiretap, but instead simply ordering the officer to "conduct a surveillance." (Exh. H, p. 2-3.)(3) Officers would often times switch roles, sometimes "handing-off" the information and at other times receiving it. (Exh. H, p. 3-4.)(4)

Regardless of whether recipient officers were informed that the information was obtained from a wiretap, informed they were "getting a hand-off," or simply given information and told to conduct a surveillance, it was generally understood that the information was obtained from a wiretap but that fact must not be divulged and they should instead attempt to identify other factors upon which to base an arrest and include only those factors in all written reports. (Exh. H, p. 4.)(5)

"Hand-offs" are not "unusual," but simply a "type and style" of "normal" investigations for the Los Angeles Police Department. (Exh. H, p. 4.)(6) In fact, a single Los Angeles Police Department officer admitted under oath that he alone was involved in literally "hundreds" of hand-off cases. (Exh. H, p. 4.)(7)

The information regarding "hand-off" cases are provided to commanding officers and the District Attorney's Office through Sergeants' Daily Reports, logs, "Trend Reports," activity reports, and 72-hour reports, and may reflect that a particular interception led to the arrest of certain individuals. (Exh. H, p. 4-5.)(8)

Despite the fact that the District Attorney's Office is aware of the use of evidence derived from a wiretap, defendants are not given notice of that fact. (Exh. H, p. 5.)(9) Notice and disclosure of intercepted communications is denied despite the fact both L.A.P.D. officers and Deputy District Attorneys admit the direct relationship of the arrest and the interception and that the arrests "wouldn't have happened without" the wiretap information. (Exh. H, p. 5.)(11)

Relevant Wiretapping Activity

Petitioner introduced, in support of the demand for disclosure, reports from the California Attorney General and the Administrative Office of the United States Courts. (Exh. H, p. 5 [Attached to Demand as Exhibits E, F, and G].)(12) State and federal law require the court and prosecutor to report all applications and orders regarding the issuance or denial of a wiretap orders, as well as statistical information regarding any wiretap order issued, to these agencies on a yearly basis. (Exh. H, p. 7, 12.) Those reports disclosed the following:

Judges within the State of California issued sixty wiretap orders in 1997, making it the third highest in the nation for the issuance of wiretap orders. Forty-seven wiretap orders related to Los Angeles County. Forty-one orders were issued by three different Los Angeles Judges; Judge Czueleger, Judge Rappe, and Judge Perry. In fact, Judge Rappe and Judge Perry issued a number of orders on the exact same days. Two different Los Angeles District Attorneys applied for wiretap orders; District Attorney Garcetti and District Attorney Torrealba.(13) Thirteen wiretap orders were issued by Judge Toohey in Orange County.

Four of the Orange County orders were directly connected to thirteen orders issued by Los Angeles Judge Perry as part of a reported large scale narcotics electronic surveillance operation throughout Los Angeles and Orange Counties. However, the applications for these orders were all submitted by the San Bernadino County District Attorney. (Exh. H, p. 5.) While listed by the Attorney General as a San Bernadino County wiretap statistic, no wiretap order issued to intercept any telephone lines in San Bernadino. All of these wiretap orders were omitted from the Attorney General's "main" report to the Legislature, which asserted there were 37 wiretap orders issued in California for the year 1997, but were instead separately listed as "additional" interception orders received. (Exh. H, pp. 16-17.) They were entirely omitted from the Wiretap Report of the Administrative Office of the United States Courts, despite the fact that they are required to be reported 30 days after expiration and would be included if they were reported anytime before February 1, 1998. (Exh. H, p. 5, 13; 18 U.S.C. §2519(2).)

On June 24, 1997, Los Angeles Judge Perry began issuing wiretap orders in what was to become the largest reported major narcotics wiretap investigation in the State's History. He was joined by Judge Toohey in Orange County on July 3, 1997, who signed four separate orders in a single day. The investigation continued for six months and eventually grew to include seventeen separate but related wiretap orders and was reported as a single combined effort costing $623,110. On November 24, 1997, the final order was issued for 30 days without extension. The orders issued for the interception of public telephones, wire telephone lines, cellular telephones, and pagers. Of significance were three orders issued by Judge Perry on October 16, 1997, for the interception of cellular telephones and pagers. (Exh. H, p. 6.) It was reported that as a result of those seventeen orders, 158,820 people were subjected to the wiretapping. (Exh. H, p. 5.)(14) Despite the fact that 158,820 people were intercepted in this major narcotics operation, no arrests were reported.

Attorney General reports for 1993 and 1994 disclosed that the "Orange County" Regional Narcotics Suppression Program engaged in numerous wiretap operations, an overwhelming majority of which were not, as expected, related to Orange County, but instead intercepted communications in Los Angeles County, were applied for by the Los Angeles District Attorney, and were obtained from Los Angeles County Judges. (Exh. H, p. 5-6.)

Petitioner asserted that the evidence clearly established she was the victim of a wiretap "hand-off" and demanded notice and disclosure of that fact pursuant to Penal Code sections 629.68, 629.60, 629.66, 629.64, 629.74, and 629.76. Penal 629.68 requires notice and inventory no more than 90 days after the expiration of a wiretap order, and more than 90 days expired. While the law provides that there may a good cause showing to delay notice, Penal Code section 629.70 limits the ability to delay notice any longer than the introduction of derivative evidence in a hearing or trial and, in fact, conditions admissibility on notice, disclosure, and transcripts. Petitioner further asserted that such wiretap orders were illegal because Penal Code section 629.50 only allows one judge per county to issue wiretap orders, and allows only the District Attorney, not a Deputy District Attorney, to file an application. She asserted that failure to provide notice would result in reversal on appeal. (In re Sassounian, (1995) 9 Cal.4th 535, 545, fn. 7, People v. Kasim 56 Cal.App.4th 1360, 1382, fn. 16.)

A copy of Demand for Notice of Wiretap is attached hereto as Exhibit H and made a part of this petition. A copy of the Notice of the Evidence Code section 402 Motion is attached hereto as Exhibit I and made a part of this petition.

XIII

On May 20, 1998, the matter came on calendar for trial before the Honorable Judge Robert O'Neil, Judge Presiding in Department 125. The court read and considered the Petitioner's Demand for Disclosure. The court refused to disclose its in-camera ruling on the defense discovery motion, refused to disclose whether or not the case involved a wiretap, refused to disclose whether it would have ordered the People to provide notice if a wiretap was involved, and refused to disclose what documents it ordered the People to provide to the defense so the defense could determine if there had in fact been compliance with the court's order. The court based its ruling on the People's indication that they had complied with the court's in-camera order. The court ordered the People to provide a copy of the documents so they could be made a part of the in camera record.

The court then allowed co-defendant Felix to substitute Mr. De Massa as attorney of record and granted the defense request for a continuance to June 22, 1998, for trial.

XIV

The trial court erred by conducting an in-camera hearing to determine petitioner's request for discovery of secret wiretapping, by allowing the People to present evidence in that in-camera hearing rather than conducting an adversary proceeding to determine petitioner's claim that evidence in the case was obtained through a wiretap, and by making a relevancy determination ex parte. Unlike informant cases, information regarding wiretapping operations must be turned over to a defendant "without being screened in camera by the trial judge" and it is "a task which should not be entrusted wholly to the court in the first instance." (Alderman v. United States, supra, 394 U.S, 165 (89 S.Ct. 961, 971.) Similarly, the "issue of relevancy should not be resolved in camera, but in an adversary proceeding." (Russo v. Byrne, supra, 409 U.S. 1219, 93 S.Ct. 21, 22.) Moreover, the denial of notice and disclosure of the existence of a wiretap has denied petitioner her right to suppress evidence pursuant to Penal Code sections 629.72 and 1538.5.

XV

A copy of the reporter's transcript of the oral proceedings on May 20, 1998, was ordered on May 29, 1998. When it is received, it will be lodged with this court by petitioner. This petition alleges the facts with sufficient particularity to provide this court with all the relevant information.

A copy of the Order for Preparation of transcripts is attached hereto as Exhibit J and made a part of this petition.

XVI

No other petition for writ of mandate has been made on petitioner's behalf.

XVII

Appeal is not an adequate remedy at law. The refusal to disclose the existence of a wiretap is not in itself an appealable order. Mandate is an appropriate means of litigating the propriety of pretrial discovery orders. (See, e.g. People v. Memro (1985) 38 Cal.3d 658, 675.) Writ review is also available to review proceedings conducted in camera. (People v.Hertz (1980) 103 Cal.App.3d 770, 780.)

XVIII

The matter has now been set for trial on June 22, 1998. No stay appears necessary at this time.

WHEREFORE, your petitioner prays that a peremptory writ of mandate issue directing that respondent court unseal the transcripts of the in-camera, to order the People to immediately disclose to petitioner whether or not a wiretap or evidence derived therefrom is involved in this action, to provide petitioner with a copy of the order, application, and transcripts of any and all wiretap involved in this case, or to conduct an adversarial hearing to determine petitioner's claim of secret wiretapping and all issues of relevancy pertaining thereto.

MICHAEL P. JUDGE, PUBLIC DEFENDER

OF LOS ANGELES COUNTY,CALIFORNIA



By _______________________________

Jenny Brown

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 petitioner in the foregoing petition for writ of mandate and I make this verification as her attorney acting on her behalf in that the allegations made therein are more within my knowledge than petitioner's.

I have read the foregoing petition and know of my own personal knowledge that the matters alleged therein are true, based on the exhibits attached hereto and my appearances in court with petitioner.

Executed this 1st day of June, 1998, at Los Angeles, California.

_____________________________

Jenny Brown

Deputy Public Defender

POINTS AND AUTHORITIES

I

THE LAW DOES NOT, AND CANNOT, ALLOW SECRET WIRETAP OPERATIONS

The entire notion of secret wiretapping, concerted efforts by prosecutors to conceal wiretapping operations, and secret in-camera court hearings to evade providing notice of wiretap operations to protect their continued existence is repulsive to a democratic society and repugnant to the congressional and legislative intent of the wiretapping laws. That fact is best seen by viewing the constitutional history of the wiretapping law as well as the overall course and scope of the state, federal wiretapping laws. The United States Supreme Court ruled, in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, that telephone conversations were protected by the Fourth Amendment and an interception of a telephone conversation was an invasion of that protected privacy and therefore a "search and seizure."

Wiretaps were thereafter outlawed until Congress passed Title III in 1968, which allowed wiretapping, but intentionally "limit[ed] the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." (United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) When enacting Title III, additional requirements and protective measures were included to further ensure its limited use. One such requirement was the passage of an enabling statute by states seeking to allow its law enforcement officers to utilize wiretaps. California's enabling statute became effective in 1989 and is contained in Penal Code section 629. 50 through 629.98. (People v. Chavez (1996) 44 Cal.App.4th 1144, 1158.) However, the federal law still "establishes minimum standards" and California is barred from being any less protective of its citizens privacy rights. (People v. Otto (1992) 2 Cal.4th 1088, 1092, fn. 1, 1098; Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 1818.) However, California's wiretap statute provide, generally, even greater protections than the federal law.

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

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

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

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

Similarly, only judges specifically authorized by statute have the power to issue wiretap orders and California limited jurisdiction to one judge per county who is either the presiding judge or one designated by the presiding judge. (18 U.S.C. § 2516(2); Pen. Code § 629.50.) Again the belief that centralization which would lead to an identifiable person for ultimate responsibility would curtail abuse of the wiretapping laws. To insure the integrity of wiretapping operations, judges issuing orders are required to insure that all intercepted conversations are recorded, sealed, and maintained for at least 10 years. (18 U.S.C. § 2518(8)(a).)

Notice and inventory of the 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 are filed. (United States v. Donovan (1977) 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652.) While 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, California law mandates notice to all persons whose conversations were intercepted. (18 U.S.C. § 2518(8)(d); cf. Pen. Code § 629.68.) Moreover, the prosecutor has an obligation to provide the issuing judge with all relevant information regarding persons intercepted so that the judge may cause such notice to be served. (United States v. Donovan (1977) 429 U.S. 413, 97 S.Ct. 658, 439, fn. 26, 50 L.Ed.2d 652.) Because "notice of surveillance is a constitutional requirement," the failure to provide notice, especially when intentional, requires suppression. (United States v. Donovan, supra, 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652; United States v. Harrigan, (C.A.1 1977) 557 F.2d 879, 884-885; United States v. Eastman (3d Cir. 1972) 465 F.2d 1057.)

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

As an added measure of safety against unlawful use of wiretapping, both state and federal law require that before any evidence derived from a wiretap may be introduced in any trial or hearing, a party must be given a copy of the order. (18 U.S.C. § 2518(9).) California law goes one step farther and mandates that transcripts be provided as well. (Pen. Code § 629.70.) While a showing of inability to produce the transcripts a full ten days ahead of time may allow for postponement, all evidence is inadmissible until such notice and disclosure are provided. (Pen. Code § 629.70.) Because it is constitutionally required, notice can never be waived entirely.

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

Prosecutors must provide statistical information regarding each completed intercept order reported, to the Administrative Office of the United States Courts no later than January 31st of the next year. (18 U.S.C. § 2519(2).) 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).)

As can be seen from the forgoing overview of the law, the entire congressional and legislative intent of the wiretap laws has been thwarted by the District Attorney's unlawful "hand-off" procedure. This court cannot permit the District Attorney to violate the law any longer and effectively hide wiretap operations nor allow the trial courts to become parties to those unlawful acts, by hiding that fact and thereby allowing it to continue.

II

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

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

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

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

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

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

It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to dismiss some prosecutions party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally..." (Id. at p. 972.)

It is, therefore, clear; there can be no secret wiretap operation once criminal charges are filed.

III

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

Under federal law, even an unsupported claim of illegal electronic surveillance is sufficient to require the prosecution to make a response, under oath, of the existence or non-existence of a wiretap. United States v. Vielguth (9th Cir. 1974) 502 F.2d 1257, 1258-59; United States v. Tobias (9th Cir. 1988) 836 F.2d 449, 453.) Petitioner, however, has gone beyond what is necessary to obtain an answer to her question of whether any evidence against her was derived from a wiretap. She has presented affirmative evidence to establish the probability that wiretapping was used in this case. Petitioner proved that Los Angeles District Attorney's Office is engaged in an unlawful procedure called the "hand-off," which has been utilized for numerous years and has successfully allowed the Los Angeles District Attorney to evade the mandates of the state and federal wiretap laws and use evidence derived from a wiretap without ever disclosing that fact. Petitioner further established an independently verifiable connection between the law enforcement agency which arrested her, the Regional Narcotics Suppression Program, and the Los Angeles District Attorney's Office, through their own records as relayed to the Attorney General.

Moreover, petitioner established the probability that her arrest, as well as evidence which is to be used against her in trial, was derived from a wiretap. The first wiretap order in a major narcotics wiretapping operation involving Los Angeles and Orange Counties was issued on June 24, 1997, for public telephones, wire telephone lines, cellular telephones, and digital pagers. The record in this case discloses that evidence produced by the prosecutor only after the in-camera hearing established that surveillance in this case commenced only six days later, on June 30, 1997. Also provided only after the in-camera hearing, are photographs of the Orange County residence from which petitioner was originally seen by officer. Those photographs were taken on July 4, 1997, the day following the issuance of four wiretap orders by Judge Toohey in Orange County. The police reports establish that just five days after the issuance of three more related wiretap orders for cellular phones and pagers from a joint narcotics investigation operation between Los Angeles and Orange Counties, the Regional Narcotics Suppression Program just happens to conduct a surveillance of petitioner and co-defendants, just happens to follow them from Orange County to Los Angeles, just happens to ask if they can search their residence, and then just happens to find narcotics, cellular phones, and pagers.

Petitioner asserted that wiretaps, rather than happenstance, were responsible for the arrests and seizure in this case, and demanded notice and disclosure be provided as required by state, federal, and constitutional law. However, to date, the Los Angeles District Attorney's office has neither admitted nor denied that such a wiretap ever took place.

Moreover, the trial court refused to require such admission or denial. This is so despite the fact that petitioner explained that while notice may be delayed for good cause arising from a continuing investigation, it could be delayed no longer than the first piece of evidence derived from the wiretap being introduced at a trial, hearing, or proceeding. Petitioner, having already had evidence introduced against her at the preliminary hearing, may well now be in unlawful custody if there is in fact a wiretap involved in this case, as the failure to notify and disclose prior to its introduction would make it inadmissible as a matter of law.

Petitioner further established that any such wiretap order being revealed may well have been an unlawful order, since Penal Code section 629.50 gives only one judge per county the jurisdiction to issue an order. It was entirely possible Judge Perry was not that one designated judge, depriving him jurisdiction to even issue any such orders.

Petitioner's showing in the trial court was more than sufficient to require the court to engage in an Alderman-type hearing in this case.

CONCLUSION

Based on the foregoing facts and law, this court should issue its writ of mandate and order the trial court to unseal its in-camera proceedings, require the District Attorney to immediately admit or deny under oath whether there existed any wiretaps in connection with this case, and allowan Alderman-type adversarial hearing to explore the prospect that wiretap operations did in fact contribute to the evidence against petitioner.

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER

OF LOS ANGELES COUNTY,CALIFORNIA

Albert J. Menaster,

Jenny Brown,

Kathy Quant,

Deputy Public Defenders

By __________________________________

KATHY QUANT

Deputy Public Defender

Attorneys for Petitioner

31

1. [R.T. 12-12-97, p. 17:4-19; 18:5-20:21; R.T. 12-16-97, p. 26:23-28:23; R.T. 1-23-98, p. 79:22-80:3]

2. [R.T. 12-12-97, p.]

3. [R.T. 12-15-97, p. 3:10-25; R.T. 12-16-97, p. 17:24-27; 25:14-17, 29:20-24; 45:1-4; R.T. 12-12-97, p. 17:4-19; 31:21-25.]

4. [R. T. 12-12-97, p. 23:13-16; 24:9-10; 25:1-12; 30:11-22; 20:10-21; 31:11:20.]

5. R.T. 12-12-97, p. 6:10-28; 7:4-22; 9:19-26; 32:28-33:20; 11:20-12:3; 22:15-19; 23:3-6.

6. (R.T. p. 12-12-97, p. 6:10-28; 31:11-16.)

7. (R.T. 1-23-98, p. 42:7-11.)

8. R. T. 12-12-97, p. 93:3-95:26; p.97:5-10; p.98:21-100:16; R.T. 12-15-97, p. 3:10-25; R.T. 12-16-97, p.3:9-15.

9. (10)

10. 10 -- - -

11. [R. T. 12-12-97, p. 98:4-10; p. 98:21-100:16 100:1-28; 102:24-103:7.]

12. Exhibit E of the Demand is a copy of the Attorney General's report for California wiretaps in 1997. Exhibit F of the Demand is a chart made by the Public Defender's Office of the information obtained from Exhibit E. Exhibit G of the Demand is a copy of the "Wiretap Report" issued by the Administrative Office of the United States Courts for wiretaps conducted in 1997.

13. While there is no District Attorney Torrealba, petitioner asserted that there is a Deputy District Attorney Torrealba in the Major Narcotics Division of the District Attorney's Office.

14. The Attorney General Reports are attached as Exhibits F and G of the Demand for Notice and Disclosure.