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TRANSCRIPT
WIRETAP
MANUALLOS ANGELES COUNTY
DISTRICT ATTORNEY’S OFFICE
JACKIE LACEY DISTRICT ATTORNEY
Prepared by
Past and Current Members
of the Major Narcotics Division
2015 EDITION
DATE OF PRINTING: January 2015 Word Processor: Cary Mahler-Eley
Copyright 2015 by the Office of the Los Angeles County District Attorney – all rights
reserved. This manual was written by current and former prosecutors with the Los
Angeles County District Attorney’s Office and contains attorney work product such as
statutory and case law interpretations, impressions, opinions, conclusions, legal research
and theories. It is intended for active prosecutors and law enforcement personnel only.
Acceptance of this manual by active prosecutors and law enforcement personnel is
conditioned upon the agreement that it be treated as confidential pursuant to Government
Code section 6254.5(e). Reproduction of this manual without the prior, express written
consent of the Office of the Los Angeles County District Attorney is prohibited.
LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE
STATE WIRETAP MANUAL
This manual is intended to provide deputy district attorneys and law enforcement officers with
materials that pertain to the California State Wiretap Statute (Penal Code Section 629.50 et seq.)
Hopefully, these materials will assist in the preparation of the documents necessary for a wiretap
application and for the subsequent operation of the wiretap.
This manual has been periodically revised to reflect modifications in the forms involved in
wiretap applications and changes in the law. The forms in this manual reflect the wiretap statute
in existence as of January 2015.
For easier reference, this manual is divided into six parts, plus an appendix, as follows:
1. Overview of the California Wiretap Statute and Related Legal Issues
2. Forms Pertaining to the Wiretap Application
3. Forms Pertaining to Operation of the Wiretap
4. Issues and Procedures Related to State Wiretaps
5. How to Prosecute a Case Involving a Wiretap
6. California Cases on the State Wiretap Law, Electronic Surveillance, and Eavesdropping
The Appendix contains the California wiretap statute.
Some of the forms and documents in this manual contain language that complies with or refers to
court orders of the Los Angeles County Superior Court. Although these court orders apply to Los
Angeles County wiretaps, it would be prudent for non-Los Angeles County wiretaps to retain
this language. Whether or not such language should be deleted or modified in non-Los Angeles
County wiretaps is in the sound discretion of the persons involved in the operation of the
wiretap.
This manual has been prepared and organized by past and present members of the District
Attorney’s Major Narcotics Division. Special acknowledgement should be given to Deputy
District Attorneys Philip Marshall, Mark Burnley, Eugene Miyata, Grace Rai, Kenneth Von
Helmolt, Ryan Dibble, Robert Schirn and Barbara Turner, and Head Secretary Cary Mahler-Eley
for providing the bulk of secretarial services.
NOTE: Unless otherwise indicated, all code section references are to the California Penal Code
(PC).
Jackie Lacey, District Attorney
Los Angeles County District Attorney’s Office
i.
It’s here! The Internet website for the Los Angeles County Regional Criminal Information Clearinghouse
(LACRCIC) or “LA CLEAR”. The site address is:
https://www.laclear.com
On the LA CLEAR website you will find information about the clearinghouse, our services, training schedules
and signup, publications, safety bulletins, current statistics and a whole lot more.
To visit the LA CLEAR website you must first gain access to what we call the website’s “Front Porch” so to
speak. We only provide porch accounts to law enforcement and associated agencies. In this way we restrict
who can access our front door and the registration page. The LACLEAR front porch account for your agency
is:
Username: clearskiesat
Password: theclearinghouse
Remember “clear skies at the clearinghouse” is easy to remember!
Site access and registration steps are as follows:
1) Enter https://www.laclear.com into your Internet browser address box and press enter or click go. You
must type the “https://” since the “s” signifies to use a secure/encrypted protocol.
2) Enter the porch account username and password in the popup dialog box and press enter or click ok.
You will not see any LACLEAR website pages until you authenticate with the porch account.
3) If this is your first visit, you must register for a personal account. Click on the registration link and
follow directions in filling out the form. After verification, you can return to the site and logon with your
personal account.
If you have any problems with accessing the site or need immediate access please call 323-869-2555. We hope that
the LA CLEAR website will give you the information you need. See you there!
ii.
TABLE OF CONTENTS
INTRODUCTION PAGE NUMBER
PART I – OVERVIEW OF THE CALIFORNIA WIRETAP STATUTE
AND RELATED LEGAL ISSUES
1. A Summary of California Wiretap Law ................................................................... 1
2. The Chronology of a Wiretap .................................................................................. 5
3. Wiretap Checklist .................................................................................................... 8
PART II – SAMPLE DOCUMENTS PERTAINING TO THE WIRETAP APPLICATION
1. Application
a. District Attorney.........................................................................................1
b. District Attorney Alternate ........................................................................5
2. CEO Review
a. CEO ............................................................................................................6
b. CEO Designee ...........................................................................................7
3. Affidavit
a. Introduction ................................................................................................8
b. Outline for Narcotics Affidavit ..................................................................10
c. Narcotics Affidavit .....................................................................................17
d. Outline for Murder/Gang Affidavit ...........................................................33
e. Murder Affidavit ........................................................................................39
f. Gangs ..........................................................................................................55
4. Order ..............................................................................................................56
5. Emergency Order
a. Procedures ..................................................................................................68
b. Methods......................................................................................................69
c. Script ..........................................................................................................70
d. Sample Written Confirmation Order .........................................................74
PART III – SAMPLE FORMS PERTAINING TO OPERATION, INVENTORY, AND
SEALING
1. Wiretap Room Instructions ...................................................................................... 1
2. Ten-day Reports ....................................................................................................... 25
a. Ten-Day Report Schedule ..........................................................................27
b. Ten-Day Report: Interim...........................................................................28
c. Ten-Day Report: Final ..............................................................................35
3. Sealing Order Protocol; Sealing Order
a. Protocol ......................................................................................................37
b. Sealing Order .............................................................................................39
4. Inventory
A. Inventory Protocol ............................................................................................. 41
B. Postponement of Inventory ............................................................................... 43
iii.
C. Service of Inventory .......................................................................................... 47
D. Cover Letter .............................................................................................54
5. People’s Motion to Use Evidence of Crimes Not Specified in Wiretap
Interception Order (Penal Code Section 629.82)
a. Overview ....................................................................................................55
b. People’s Motion .........................................................................................57
c. Declaration .................................................................................................58
d. Order ..........................................................................................................60
PART IV – ISSUES AND PROCEDURES RELATED TO STATE WIRETAPS
1. Pen Registers
a. Overview…;…………………………. ................................................................ 1
b. Application For Pen Register ............................................................................... 3
c. Court Order Under Seal ....................................................................................... 9
2. Los Angeles County Court Orders
A. Ruling on Petition for Habeas Corpus……..………………………………........12
B. Clarification of Ruling………………………………………………………..…14
C. Conclusion of Hearing re: Alleged Violation of Court Order………………..…16
3. Protocol for Reports Regarding Wiretap Activity ................................................... 18
A. California (EICOS) 10-day Report
1. EICOS Instructions ........................................................................................ 19
a. Blank Reporting Form .................................................................................... 20
b. Blank Reporting Form – Continuation Sheet ................................................. 21
B. Annual Federal and State Reporting
1. Instructions ..................................................................................................... 22
a. Blank Form WT1 .......................................................................................... 31
b. Blank Form WT2 (Part 1) ............................................................................. 32
c. Blank Form WT2 (Part 2)………………………………………. ................ 33
d. Blank Form WT3……………………………………………………………34
e. Sample Completed Form WT2 (Part 1) ........................................................ 35
f. Sample Completed Form WT2 (Part 2) ......................................................... 36
g. Memorandum to Judge ................................................................................. 37
4. Designation of Civilian Monitors ............................................................................ 38
5. Interception of Conversations of Persons in Custody .............................................. 40
a. Court Order for “Kelley Wire” ............................................................................ 42
6. Privileged Communication and Wiretaps ................................................................ 48
PART V – PROSECUTING A WIRETAP CASE
1. How to Prosecute a Case Involving a Wiretap ....................................................... 1
PART VI – CALIFORNIA CASES ON THE STATE WIRETAP LAW, ELECTRONIC
SURVEILLANCE, AND EAVESDROPPING
1. California Supreme Court Decisions on the State Wiretap Law ..................1
2. California Court of Appeals Decisions on the State Wiretap Law ................3
3. Selected California Supreme Court Decision on Electronic Surveillance
and Eavesdropping .........................................................................................8
4. Selected California Court of Appeals Decisions on Electronic
Surveillance and Eavesdropping ....................................................................10
5. Selected Federal Ninth Circuit Cases on Wiretaps (Post 2000) ....................14
iv.
APPENDIX
1. Penal Code sections 629.50, et seq………………………………………….1
v.
PART I
OVERVIEW OF THE CALIFORNIA WIRETAP STATUTE
AND RELATED LEGAL ISSUES
TABLE OF CONTENTS PAGE
1. A Summary of California Wiretap Law: .......................................................1
2. The Chronology of a Wiretap ........................................................................5
3. Wiretap Checklist ..........................................................................................8
1.
SUMMARY OF CALIFORNIA
WIRETAP LAW
A SUMMARY OF CALIFORNIA WIRETAP LAW
WHO MAY APPLY FOR THE COURT ORDER - APPLICATION (see forms) 1. Attorney General
2. Chief Deputy Attorney General
3. Chief Assistant Attorney General, Criminal Division
4. Any District Attorney, and Chief Deputy (Second-In-Command)
WHO MAY AUTHORIZE COURT ORDER (see forms) 1. WHICH JUDGE CAN SIGN
A. Presiding judge of the county
B. Presiding judge’s designee judge
C. Successive designees upon unavailability of ‘A’ and ‘B’
2. WHICH COUNTY HAS JURISDICTION
A. Hardline: county where hardline is located
B. Cell phone
i. Where call initially intercepted (location of wire room)
a. United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992 and United
States v. Luong 471 F.3d. 1107(9th Cir. 2006) held that jurisdiction exists
where the tapped telephone is located, as well as where the contents of the
redirected communications are heard first
ii. Where calls are initiated
iii. Nexus to county based on cell-site data
C. Policy re: Jurisdiction
i. The listening post is located in your county (PC 629.52)
ii. There are sufficient facts connecting the target and/or target crime to your
county
iii. The hardline is in your county
THE PAPER TRAIL
1. AFFIDAVIT for ORDER (see forms)
A. Name all involved law enforcement agencies; Designate a primary agency
B. Targeted Criminal Activity (Probable Cause)
i. Murder
ii. Solicitation to commit murder
iii. Bombing of public or private property
iv. Aggravated kidnapping, PC 209
v. Drug cases involving 10 gals. liquid or 3 pounds solid containing heroin,
cocaine, meth, PCP or their analogs and precursors (can aggregate)
vi. Narcotics money laundering over $100,000 (HS 11370.6)
vii. Any felony violation of PC 186.22
viii. Weapons of mass destruction
ix. Human Trafficking, PC 236.1
x. Attempt or conspiracy to commit any of the above
Part I – Page 1
C. Targeted Subjects (Probable Cause)
i. Name, if known
ii. Otherwise describe as best you can
D. Targeted Facilities
i. Telephone, pagers, email address… and location (clone pagers are
governed by wiretap statute)
ii. Subscriber, billing address
iii. If subscriber is not a Targeted Subject, explain
iv. No roving wiretaps (“any phone used by Targeted Subject”)
D. Relationship between Targeted Subject, Crimes and Target Telephone(s)
i. What do you expect to hear and why?
ii. How do these conversations relate to the targeted criminal activity?
E. Duration and Extensions
i. Only as long as necessary to obtain desired results
ii. Maximum 30 days, if necessary
a. The 30 days are measured from the date of first interception, or
b. 10 calendar days after signing; whichever comes first.
iii. Extensions allowed, if justified
a. Maximum 30 days
b. Explain progress or lack thereof
c. Number of communications intercepted pursuant to original order
F. Exhaustion/ Necessity
i. Why haven’t or why won’t traditional investigative techniques work in
this case?
G. Previous Applications on Targets
i. Same persons or facilities
ii. Whether granted or not
iii. Check with California Attorney General and U.S. Department of Justice
2. CHIEF EXECUTIVE OFFICER (or Designee) Must review (see forms)
3. COURT ORDER
A. Findings of Probable Cause based on APPLICATION
B. Commencement of interceptions as soon as practicable
C. Ten-Day Reports required to Court
4. REPORT ENTRY OF ORDER TO CALIFORNIA ATTORNEY GENERAL
A. Within 10 days of signing of Order (PC 629.61) E.I.C.O.S form
5. WHO CAN MONITOR THE WIRE
A. Peace officer or federal law enforcement officer or other persons/linguistic interpreters
who have completed the California Attorney General's certification course of training
6. INSTALLATION
A. No covert entries of residences
B. No “bugs”
C. Phone company usually does the hook-up; wire room may also be involved
Part I – Page 2
7. WHAT CAN I LISTEN TO?
A. Conversations by the targets named in the order regarding the crimes named in the
order (pertinent calls)
B. Conversations regarding other listed crimes, or a violent felony; requires subsequent
court approval to use as evidence
8. MINIMIZATION: WHAT CAN’T I LISTEN TO?
A. Privileged conversations: As soon as determination of privilege is made, immediately
off for 2 minutes; then up to 30 seconds on; then 2 minutes off; repeat until call is
terminated or privilege no longer exists
i. Except (L.A. County Rule): All attorney-client interceptions must immediately
terminate (e.g., no “up for 30 second” spot checking)
B. Conversations unrelated to specified crimes: code does not specify time periods; 2
minutes off, up to 30 seconds is okay
C. Conversations between unnamed, undescribed people: No time specified in code, but 2
minutes off, up to 30 seconds on would presumptively be okay to determine if parties
change and call becomes pertinent
9. WHAT USE CAN I MAKE OF INTERCEPTED CONVERSATIONS INVOLVING
CRIMES NOT INCLUDED IN INTERCEPT ORDER
A. If it involved a specified (i.e., crime qualifying for a wiretap) but as yet unauthorized
crime or a violent felony and judge later approves: use it as evidence in court, leads for
this and other cases, warrants
B. If it involved an unspecified crime that is not a violent felony, can only use to stop
commission of a crime or MAYBE to get search or arrest warrant
10. THE EQUIPMENT
A. Must use device that is metered, precludes editing or alteration and assures immediate
verification of authenticity and originality
11. WHAT DO I DO WITH THE TAPES/DISKS AND ORIGINAL APPLICATION/
ORDER WHEN ORDER EXPIRES?
A. Judge must order original recordings to be sealed immediately
B. Judge must also order sealing of original application (including affidavit) and order
C. Judge determines who/where retains custody of tapes
D. Must retain for 10 years
12. NOTIFICATION REQUIREMENTS
A. Within not more than 90 days of expiration of order
B. Named persons in order or application and every identifiable person intercepted must
be notified of the intercept
C. Good cause permits delay in notice
13. DISCOVERY TO DEFENSE: (PC 629.70) DOCUMENTS REQUIRED FOR COURT
A. At least 10 days prior to entry of plea of guilty or nolo contendere, or prior to use of
any evidence derived from the wire, in any trial, hearing or other proceeding, except
grand jury, DA must provide transcript, copy of application and order, unless judge finds
no prejudice in delay in providing or lack or transcript
B. Court can issue order limiting disclosures upon a showing of good cause
Part I – Page 3
14. LITIGATION: HOW DO THE SUSPECTS ATTACK THE WIRE? (PC 629.72)
A. Suppression motions governed by PC 1538.5 rules
B. Fourth Amendment grounds: quash, traverse…
C. Violation of statutory rules: may require suppression
D. Any person may be able to move to suppress contents of intercepted communication
in any hearing, trial or proceeding; but argue standing
15. ORAL WIRETAPS
A. Emergency situation exists involving substantial danger to life or limb; requires
written application submitted to court within 2 court days
16. CONSEQUENCES OF UNLAWFUL INTERCEPTS
A. Any violation of wiretap law is wobbler
B. Civil remedies for persons whose communications are unlawfully intercepted,
disclosed or used
i. Civil cause of action
ii. Actual damages or $100 per day for unlawful intercepts up to $1,000
iii. Punitive damages
iv. Reasonable attorney’s fees and court costs
v. Good faith reliance on court order is complete defense to civil and
criminal actions
ANNUAL REPORT TO STATE ATTORNEY GENERAL AND UNITED STATES COURT
ADMINISTRATOR
A. Any prosecutorial agency, which sought an order, must report certain info to AG and
Administrative Office of U.S. Courts each year
B. Submitted to the State and Federal legislatures, respectively
Part I – Page 4
2.
THE CHRONOLOGY
OF A WIRETAP
THE CHRONOLOGY OF A WIRETAP
IN LOS ANGELES COUNTY
A. The Preparation and Signing of the Wiretap Order
1. The investigating officer contacts the Major Narcotics Division of the District
Attorney’s Office. There is a discussion about the case between the investigating
officer, Head Deputy, Assistant Head Deputy and the DDA who will be assigned
to this wiretap.
2. The investigating officer submits his/her proposed affidavit.
3. The Head Deputy and/or Assistant Head Deputy, and usually the assigned DDA
review the affidavit. The investigating officer is contacted within 24 hours and
advised of our questions and/or proposed changes. If it is determined that the
affidavit is sufficient to submit to court, a wiretap notebook is prepared, which
includes the application, C.E.O. review, affidavit and order.
4. The investigating officer takes a copy of the affidavit and the original C.E.O.
review to that agency’s Chief Executive Officer or specified designee for his/her
signature on the C.E.O. review.
5. Simultaneous with the investigating officer obtaining his/her CEO’s signature, a
copy of the notebook is submitted initially to the District Attorney’s Director of
Specialized Prosecutions for review. The Head Deputy, Assistant Head Deputy,
or assigned DDA, prepares a Confidential Memorandum summarizing the
investigation. This memo is attached to the cover of the wiretap notebook and is
initialed by the Director of Specialized Prosecutions. The original notebook,
containing the CEO’s signature, is then submitted to the District Attorney. The
District Attorney’s signature is required on the original application. At the time
of signing, the District Attorney removes the Confidential Memorandum from the
cover of the original notebook and retains it in his/her own file. A copy of the
initialed Confidential Memorandum is retained by the DDA.
6. Either the copy or original notebook is also submitted to the designated wiretap
judge for his/her review. Currently, Judge Fidler is the primary judge designated
to sign wiretap orders for the County of Los Angeles.
7. After obtaining the signatures of the C.E.O. and DA, the investigating officer and
the assigned DDA appear before the designated judge for the signing of the order.
The investigating officer is sworn and the judge signs the original. An order is
valid for no more than 30 days from the day of the initial interception, or 10 days
after the issuance of the order, whichever comes first.
Part I – Page 5
B. Procedures after the Wiretap Order is Signed
1. The DDA assigned to the case provides the investigating officer with written
Wiretap Instructions specific to this wiretap, who will give them to the certified
monitors who will be participating during this specific wiretap.
2. Within 10 days of the signing of the order, the investigating officer sends an
E.I.C.O.S Form to the California Attorney General (pursuant to PC 629.61)
describing the persons, facilities/devices and/or locations subject to interception.
3. A written Ten-Day report is filed with the court every ten days during the duration
of the wiretap. This report is submitted by the DDA assigned to the wiretap. It
includes statistical data regarding the numbers of incoming and outgoing calls,
summaries of pertinent intercepted calls, as well as an update on the investigation.
The report is based on information provided by the investigating officer. The
Ten-Day reporting period begins at the time of the signing of the order, regardless
of the initial intercept. As a result, there may be a fourth Ten-Day report.
4. On the first court day following the expiration of the order, a sealing order is
prepared. The DDA and investigating officer appear before the judge within one
to two court days following the expiration of the order. The original storage
media (e.g. cassettes, optical disks) containing the recordings of the intercepted
calls, along with the original wiretap application (including signed affidavit and
order), are physically sealed.
5. Within 90 days of the termination of a wiretap (i.e. when monitoring is stopped),
the judge issues an order for notice of inventory. Along with an application for
order directing service of inventory, the DDA submits to the court a list of every
person who was a named target in the application, as well as every person who
was intercepted, or whose identity was “derived” from the wiretap. Notice must
be provided to every person within each of the following categories: 1
a. Persons named in the order or the application;
b. Known parties to intercepted communications;
c. Persons for whom telephone subscriber information has been obtained as a
result of the telephone being used in an intercepted conversation;
d. Persons identified as a result of surveillance based on intercepted
conversations; and
e. Persons arrested as a result of intercepted conversations;
f. Unknown callers who later become identified.
The court then orders that notice of the wiretap be sent to each of these people.
The court can postpone the filing and service of the inventory upon a showing of
good cause.
Part I – Page 6
1 The issue of who is entitled to notice, and whose identity was “derived” from a wiretap has been the subject of
extensive litigation in Los Angles County. The Los Angeles District Attorney's Office is currently operating
pursuant to Judge Fidler’s order of July 26, 2000, which specifies the classes of persons entitled to notice.
6. Notice is then mailed to every eligible person, often numbering into the hundreds.
7. Between 10 and 30 days before any hearing where the prosecution intends to
admit intercepted telephone calls or evidence derived from the wiretap, defense
must be provided with a copy of the notebook along with transcripts of the
pertinent calls. (Note: The wiretap statute (PC 629.70) specifies 10 days, whereas
the more general discovery statute (PC 1054.7) states 30 days.)
C. Additional Office Procedures Re: Wiretaps
1. When extensions of a wiretap order are sought, the entire process outlined above
in Section A is repeated. New original signatures are required from the Affiant,
C.E.O., and DA. Likewise, a new Confidential Memorandum is prepared. This
new order is identified as an extension to the existing wiretap number.
2. In the event a new telephone number is identified in an existing wiretap
investigation, a wiretap application is submitted under a new wiretap number.2
Provisions for a modification of an existing order are stated in PC 629.50(8), in
the event the target subject simply changes telephone numbers.
3. It is this office’s practice to have the initial affidavit reviewed by the Head or
Assistant Head Deputy within 24 hours of its submission. As a result, the normal
turnaround time for wiretaps, from the investigating officer’s initial submission of
the affidavit to the DA’s office until the judge’s signing of the order, is usually
five court days or less.
Part I – Page 7
2 If either the telephone number or the ESN number has changed but the subscriber information remains the
same, neither a new wiretap application nor number is required. This event is provided for in the original
Order.
3.
WIRETAP CHECKLIST
WIRETAP CHECKLIST
A. Affidavit
1. Identity of affiant (investigating officer) and law enforcement agency (PC 629.50(a)(1) and
PC 629.50(a)(2))
2. Affiant must be P.O.S.T. certified (PC 629.94)
A. For certification class information contact California Department of Justice at (916)
464-1200.
3. Type of communication to be intercepted (PC 629.50(a)(4)(D); PC 629.51):
A. Wire communication
B. Electronic communication
4. Probable cause that an enumerated offense has been/is being/or is about to be committed (PC
629.50(a)(4)(A); PC 629.52(a))
A. Narcotics (heroin, methamphetamine, cocaine, PCP or precursors or analogs) (10
gallons or 3 pounds)
B. Narcotics-related money laundering (over $100,000)
C. Murder, solicitation to commit murder, bombing of public or private property, or
kidnapping
D. Any felony violation of PC 186.22 (gang-related offenses)
E. Weapons of mass destruction
F. Human Trafficking, PC 236.1
G. Attempt or conspiracy to commit any of the above-mentioned crimes
5. Probable cause that communications concerning illegal activities will be obtained through that
interception (including communications to rescue kidnap victim) (PC 629.50(a)(4);
PC629.52(b))
A. Establish probable cause that named Target Subject is using Target Telephone or
location to commit offenses
i. Summarize background
ii. Focus on use of facility/device (e.g. wire, email, cell phone, etc.)
(PC 629.50(a)(4)(C); PC 629.52(c); PC 629.52(d))
iii Recent and current activity of device (i.e., device used within 2 weeks)
6. Identification or description of those persons expected to be intercepted (PC 629.50(a)(4)(e);
629.50(a)(4)(E); PC 629.52(d))
7. Location of the facility where the interception is to occur (in Los Angeles County); no
roving interceptions
8. Statement of necessity: (PC 629.50(a)(4)(B))
A. Informants
B. Undercover
C. Surveillance
Part I – Page 8
D. Pen register, trap and trace, toll analysis
E. Search warrants
F. Interviews
G. Trash searches
H. Wall stops, arrests, seizures
I. Other
9. Length of time for interception, and justification for continuing interception (PC 629.50(a)(5))
10. May not exceed 30 days (PC 629.58)
11. Facts of all previous wiretap applications (PC 629.50(a)(6))
A. Federal (Electronic Surveillance; an “ELSUR” check: 703-488-4522)
B. California (LA CLEAR deconfliction: 800-522-5327 or WSIN: 800-952-5258)
12. Results of original wiretap application where the application is for an extension
13. Request for authorization to intercept any changed number assigned to the Target
Telephone and subscriber
A. Cellular telephone: same electronic serial number (ESN)
B. Review of Application/Affidavit (Los Angeles County Procedures)
1. Review by Head Deputy or Assistant Head Deputy of Major Narcotics Division
A. Preparation of Confidential Memorandum
2. Preparation of Wiretap Notebook
A. Application
B. CEO Review (law enforcement agency)
C. Affidavit
D. Order
3. Review and signature of CEO (law enforcement) (PC 629.50(a)(3); PC 629.50(c))
4. Provide designated judge with a copy to review while waiting for final authorization
5. In-house review
A. Confidential Memorandum initialed by:
i. Assigned DDA
ii. Head Deputy or Assistant Head Deputy
iii. Director of Specialized Prosecutions
6. Review and signature of District Attorney or designee (PC 629.50)
A. DA or designee retains original Confidential Memorandum
B. DDA retains a copy of initialed Confidential Memorandum
Part I – Page 9
C. Procedure for Obtaining Court Order
1. Arrange time for signing with judge (e-mail/ call clerk in advance)
2. Assigned DDA and affiant meet with judge, in-camera
3. Affiant put under oath
A. Court may require additional sworn testimony and interlineation
4. Affiant retains wiretap notebook with original signatures.
A. Applications and orders shall be sealed and retained where judge orders (PC 629.66)
5. Immediately after signing, the affiant shall e-mail (pdf) or fax copies of all signature pages
contained within the wiretap notebook to the DDA. The DDA and investigator should each keep
working copies including copies of signed pages
6. Investigating officer notifies California Attorney General within 10 days (PC 629.61). See
E.I.C.O.S. form
D. Conducting Interception
1. Prepare Ten-Day report schedule
A. Provide to investigation officer
2. Prepare Wiretap Instructions for this wiretap
A. Meet with monitors for wiretap instructions (Affiant keeps signed log re: instructed
monitor
3. Monitors must be P.O.S.T. certified (PC 629.94)
A. Investigative or law enforcement officers (PC 629.94(b)(1))
B. Interpreters may assist peace officers, for linguistic purposes only (PC 629.58)
i. Must be certified (PC 629.58)
ii. Designated by District Attorney or Attorney General (PC 629.94(b)(2)
iii Must be supervised by investigative or law enforcement officer (PC 629.94(b)(2))
4. Minimization
A. Non-relevant conversations (PC 629.58)
B. Privileged conversations (PC 629.80)
5. Equipment must be tamper-proof (PC 629.64)
6. Every Ten Days prepare and file Ten-Day Report
A. DDA reviews and signs
7. Extensions
A. Same requirements as original affidavit
Part I – Page 10
B. Statement setting forth number of communications intercepted pursuant to original
order C. Results thus far obtained from original interception, or reasonable explanation of
failure to obtain results
8. Modifications (PC 629.50(8))
A. Same requirements as original affidavit
B. Results thus far obtained from original interception, or explanation
E. Post-Interception
1. Sealing (PC 629.64; PC 629.66)
A. Must be immediately sealed under the judge’s direction; delay can result in
suppression (PC 629.64)
B. Extensions
C. Prepare sealing order
D. Arrange for sealing time with court
i. DDA and investigating officer meet with judge
ii. Tapes/disks and original application (including the signed affidavit and order)
are presented to the judge who initials and seals, as witnessed by the affiant/
investigating officer.
iii. Sealed tapes/disks and application are maintained where court orders for 10
years
iv. Duplicate tapes and copies of application may be used for disclosure or
investigative purposes (PC 629.64)
2. Inventory
A. Within 90 days after termination of order or extensions, must serve notice of
interception to each of the following individuals:
i. Persons named in the order or the application;
ii. Known parties to intercepted communications;
iii Persons for whom telephone subscriber information has been obtained as a
result of the telephone being used in an intercepted conversation;
iv. Persons identified as a result of surveillance based on intercepted
conversations; and;
vi. Persons arrested as a result of intercepted conversations.
vii. Unknown callers who later become identified.
B. Application for Inventory provides notice of:
i. Fact of entry of order
ii. Date of entry and period of authorization
iii. Whether communications were intercepted
Postponement of service of inventory for “good cause”
3. Annual Prosecutor Summary (PC 629.62)
A. File with judge within 30 days of termination
B. Send to California Attorney General
C. Send to Administrative Office of the U.S. Courts
Part I – Page 11
F. Disclosure/Discovery (PC 629.70)
1. Defendant shall be notified before plea of guilty or nolo, if identified through wiretap.
2. Contents of any intercepted communication or evidence derived from it shall not be received
into evidence or otherwise disclosed in any trial, hearing or other proceeding, unless:
A. At least 10 days before the trial, hearing or proceeding each party has been provided
with:
i. A transcript of the contents of the interception
ii. A copy of all recorded interceptions from which evidence against the
defendant was derived
iii. A copy of the court order,
iv. A copy of the accompanying application
v. Monitoring logs
3. Grand jury exception
4. 10 day period waived if judge finds:
A. Not possible to provide the required information within 10 days, AND
B. No prejudice to party
5. Court may issue an order limiting disclosure upon a showing of good cause
**KEEP TRACK OF ALL CASES DERIVED FROM INTERCEPTION, EVEN IF A
“WALL” OR INDEPENDENT PROBABLE CAUSE EXISTS**
Part I – Page 12
PART II
SAMPLE DOCUMENTS PERTAINING TO THE WIRETAP APPLICATION
TABLE OF CONTENTS PAGE
1. Application
A. District Attorney ......................................................................................1
B. District Attorney Designee .......................................................................5
2. CEO Review
A. CEO ..........................................................................................................6
B. CEO Designee ..........................................................................................7
3. Affidavit
A. Introduction ..............................................................................................8
B. Outline for Narcotics Affidavit ................................................................10
C. Narcotics Affidavit ...................................................................................17
D. Outline for Murder/Gang Affidavit..........................................................33
E. Murder Affidavit ......................................................................................39
F. Gangs ........................................................................................................55
4. Order ..............................................................................................................56
5. Emergency Order
A. Procedures ................................................................................................68
B. Methods ....................................................................................................69
C. Script ........................................................................................................70
D. Sample Written Confirmation Order........................................................74
1.
APPLICATION
A. District Attorney
B. District Attorney’s Designee
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(DISTRICT ATTORNEY)
JACKIE LACEY District Attorney for the County of Los Angeles By: Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) OF THE DISTRICT ATTORNEY OF THE ) COUNTY OF LOS ANGELES FOR AN ORDER ) WIRETAP NO. XX-XX AUTHORIZING THE INTERCEPTION OF ) WIRE AND ELECTRONIC ) APPLICATION COMMMUNICATIONS )
)
APPLICATION PURSUANT TO PENAL CODE SECTION 629.50, et seq.
I, Jackie Lacey, District Attorney for the County of Los Angeles state:
1. I am the District Attorney of the County of Los Angeles.
2. After reviewing the Affidavit In Support Of Application For An Order
Authorizing The Interception Of Wire And Electronic Communications of XXXX (the affiant),
and relying thereon, I approve making this application and hereby apply to the Los Angeles
County Superior Court for authorization to intercept wire and electronic communications to and
from the communication devices (the "Target Devices") described below. The Affidavit is
attached hereto and incorporated herein by this reference.
3. I have assigned the Deputy District Attorneys assigned to the Major Narcotics
Division to present this application to the Court and to make the periodic reports required by
Penal Code section 629.60.
///
Part II – Page 1
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4. XXXX is the law enforcement officer seeking authorization to intercept wire and
electronic communications pursuant to Penal Code section 629.50(1). He is certified by the
California State Attorney General's Office in wiretaps, as set forth in the Affidavit.
5. Pursuant to Penal Code section 629.50(a)(2), the XXXX is the agency that will
execute this order and, pursuant to Penal Code section 629.50(a)(3), XXXX of the XXXX
reviewed the Affidavit and approves this application (see Review of the Chief Executive Officer
filed herewith).
6. Based on my review of the Affidavit, I believe there is probable cause to conclude
the Target Subjects set forth in the Affidavit have committed, are committing, and will continue
to commit the crimes of importation, possession for sale, transportation, and sale of controlled
substances, and conspiracy to commit those offenses, involving a substance containing cocaine,
where the substance exceeds three pounds of solid substance by weight, in violation of Health
and Safety Code sections 11351 and 11352. There is probable cause to believe the Target
Subjects possess information about the crimes listed herein and will discuss these matters over
the Target Telephones [or Target Accounts].
7. Pursuant to Penal Code section 629.50(a)(4)(C), following are particular
descriptions of the devices from which the communications are to be intercepted and their
locations:
a. Target Telephone #1 is a cellular telephone serviced by [INSERT
PROVIDERr] assigned telephone number XXXX, with electronic serial number (ESN) XXXX,
and subscribed to XXXX, California; and was established on [INSERT DATE]. Target
Telephone #1 is primarily used by Target Subject XXXX. As of [INSERT DATE], Target
Telephone #1 is being serviced by [INSERT PROVIDER] and is an active account placing and
taking calls.
///
///
Part II – Page 2
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b. Target Account #1 is an electronic mail (e-mail) account, account
address, [INSERT EMAIL ADDRESS], subscribed to [INSERT SUBSCRIBER], with service
provided by [INSERT SERVICE PROVIDER] and used primarily by [INSERT Target
Subject]. Target Account #1 was established on [INSERT DATE]. As of [INSERT DATE]
Target Account #1 is being serviced by [INSERT SERVICE PROVIDER] and is an active
account sending and receiving e-mails.
8. The actual interception and monitoring post will be in Los Angeles County.
9. The communications to be intercepted are wire and electronic communications
between the Target Subjects and other known and unknown associates and/or co-conspirators
concerning the offenses set forth above, as set forth in Penal Code section 629.52(a).
10. I have been informed and believe that conventional investigation techniques have
been attempted without success or reasonably appear too dangerous or unlikely to succeed if
attempted, as explained in the Affidavit.
11. Due to the ongoing nature of the conspiracy related to the above offenses, and
because there is probable cause to believe that multiple communications related to those offenses
will occur during the course of interception and monitoring, I request that authority to maintain
this intercept be granted for thirty (30) days and request that the authority not be deemed to
automatically terminate upon interception of the first communication of the type described
above.
12. I request that this Court order that [LIST THE TELECOMMUNICATIONS
COMPANIES AND/OR E-MAIL SERVICE PROVIDERS THAT ARE INVOLVED IN THIS
INVESTIGATION], and any other affected telecommunications companies, subsidiaries, or
entities (the “Telecommunications Companies”) or electronic mail service providers [the e-mail
service providers] upon request of law enforcement, to provide the technical assistance necessary
to accomplish the interception unobtrusively and with a minimum of interference of the services
Part II – Page 3
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being provided to the Target Subjects. The Telecommunications Companies or the E-mail
service providers shall be compensated by the agency executing the court order for the
reasonable costs of furnishing the facilities and technical assistance.
13. I request this Court to order the Telecommunications Companies or the E-mail
service providers not to disclose to the subscriber or any unauthorized person the fact that the
court has authorized this wiretap.
14. I request that this application, review, affidavit and order be sealed and kept in the
custody of the agency executing this Court’s Order or the District Attorney's Office and to be
disclosed only upon a showing of good cause before a judge of competent jurisdiction in
accordance with Penal Code section 629.66.
15. I am unaware of any previous relevant wiretaps other than those set forth in the
Affidavit within the meaning of Penal Code section 629.50(a)(6).
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, except as to those matters declared on information and belief,
which matters I believe to be true, and that this Application was executed in Los Angeles,
California.
DATED:
JACKIE LACEY
DISTRICT ATTORNEY
COUNTY OF LOS ANGELES
Part II – Page 4
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(DISTRICT ATTORNEY ALTERNATE) JACKIE LACEY District Attorney for the County of Los Angeles By: Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION OF THE ) DISTRICT ATTORNEY OF THE COUNTY OF ) LOS ANGELES FOR AN ORDER AUTHORIZING ) WIRETAP NO. THE INTERCEPTION OF WIRE AND ) ELECTRONIC COMMUNICATIONS ) APPLICATION )
APPLICATION PURSUANT TO PENAL CODE SECTION 629.50, et seq.
I, John K. Spillane, Chief Deputy District Attorney for the County of Los Angeles state:
1. Jackie Lacey is the District Attorney of the County of Los Angeles, and I am the
person designated to act as District Attorney in her absence pursuant to Penal Code section
629.50(a).
2. The District Attorney is unavailable and I am acting in her absence.
3. After reviewing the Affidavit In Support Of Application For An Order
Authorizing The Interception Of Wire And Electronic Communications of XXXXX (the affiant),
and relying thereon, I approve making this application and hereby apply to the Los Angeles
County Superior Court for authorization to intercept wire and electronic communications to and
from the [Target Telephones or Target Accounts] described below. The Affidavit is attached
hereto and incorporated herein by this reference.
4. The Deputy District Attorneys assigned to the Major Narcotics Division have
been assigned to present this application to the Court and to make the periodic reports required
by Penal Code section 629.60.
(NOTE: The rest of the application for the District Attorney’s alternate is identical in wording
to the application of the District Attorney. REMEMBER TO CHANGE THE SIGNATURE
LINE, PG 4)
Part II – Page 5
2.
CEO REVIEW
A. CEO
B. CEO DESIGNEE
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(CEO REVIEW SAMPLE)
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION ) OF THE DISTRICT ATTORNEY OF THE ) WIRETAP NO. COUNTY OF LOS ANGELES, FOR AN ) ORDER AUTHORIZING THE INTERCEPTION ) OF WIRE AND ELECTRONIC )
COMMUNICATIONS )
)
REVIEW OF THE CHIEF EXECUTIVE OFFICER
NAME, TITLE, LAW ENFORCEMENT AGENCY, states:
1. I am the [TITLE AND LAW ENFORCEMENT AGENCY]
2. I am the Chief Executive Officer within the meaning of California Penal Code
section 629.50(a)(3).
3. The Affiant is [TITLE, LAW ENFORCEMENT AGENCY, AND
ASSIGNMENT];
4. I have reviewed Wiretap No. XX-XX, including the Affidavit of [AFFIANT],
which requests authority to monitor [residential] [cellular telephone] lines in the Los Angeles
County area.
5. I APPROVE THE APPLICATION
DATED:
[NAME]
[TITLE]
[LAW ENFORCEMENT AGENCY]
Part II – Page 6
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(CEO REVIEW BY DESIGNEE) THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION ) OF THE DISTRICT ATTORNEY OF THE ) WIRETAP NO. COUNTY OF LOS ANGELES, FOR AN ) ORDER AUTHORIZING THE INTERCEPTION ) OF WIRE AND ELECTRONIC ) COMMUNICATIONS )
)
REVIEW OF THE CHIEF EXECUTIVE OFFICER
NAME, TITLE, LAW ENFORCEMENT AGENCY, states:
1. The Chief Executive Officer for [LAW ENFORCEMENT AGENCY] is
NAME AND TITLE.
2. I am the [TITLE, LAW ENFORCEMENT AGENCY AND ASSIGNMENT].
3. I am the Chief Executive Officer’s designee for wiretaps, within the meaning
of California Penal Code section 629.50(a)(3).
4. The Affiant is [TITLE, LAW ENFORCEMENT AGENCY AND
ASSIGNMENT].
5. I have reviewed the above-referenced wiretap, including the Affidavit of
[AFFIANT], which requests authority to intercept [RESIDENTIAL AND CELLULAR
TELEPHONES], in the Los Angeles County area.
6. I APPROVE THE APPLICATION.
DATED:
NAME
TITLE
LAW ENFORCEMENT AGENCY
Part II – Page 7
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3
AFFIDAVIT
1. Outline for the Preparation of
Affidavit for Narcotics
i. Affidavit for Narcotics
2. Outline for the Preparation of
Affidavit for Murder/Gangs
i. Affidavit for Murder
ii. Affidavit for Gangs
FORMAT FOR AN AFFIDAVIT IN SUPPORT OF A STATE WIRETAP
ORDER; HOBBS FORMAT; JAIL PHONES
Attached are two examples of an affidavit in support of a state wiretap order for (1)
narcotics, and (2) for a murder/gang investigation. Both examples are preceded by an
outline that operates as a checklist for what should be included in the affidavit.
It cannot be emphasized enough that the attached formats must be particularized to the
investigation being conducted. Especially in the exhaustion section of the affidavit,
specific facts and investigative techniques employed must be set forth.
The two examples included are:
A. Affidavit for narcotics investigation;
B. Affidavit for murder/gang investigation (extension).
Hobbs Format (Acevedo)
The California Supreme Court case of People v. Hobbs (1994) 7 Cal.4th 948 held that all or
part of the probable cause portion of a search warrant affidavit may be sealed to protect
the identity of an informant. Since search warrant principles are applicable to wiretap
affidavits (see the Points and Authorities in Part V, pages 32-33 of this manual), a strong
argument can be made that the Hobbs holding applies to state wiretaps.
The Hobbs case did not set forth the format under which the holding of the case could be
carried out. The following affidavits demonstrate the recommended way that the Hobbs
holding can be implemented.
In both the narcotics investigation affidavit and the murder/ gang affidavit, the information
from the informant is contained in a “Hobbs Attachment” that is affixed at the end of the
affidavit and incorporated therein. The court then states in its order that the “Hobbs
Attachment” is sealed pursuant to Hobbs.
The authors of this Manual prefer this approach, since the “Hobbs Attachment” can be
easily removed from the affidavit for sealing, without disturbing the remainder of the
affidavit.
In 2012, the case of People v. Acevedo (2012) 209 Cal.App.4th 1040 held that the
procedures outlined in Hobbs apply not only to search warrants, but also wiretap
application orders. (See Part VI – Page 3).
Part II – Page 8
Jail Phones
In People v. Loyd (2002) 27 Cal.4th 997, the California Supreme Court held that
California law now permits law enforcement officers, without a court order, to monitor
and record unprivileged communications between inmates and their visitors to gather
evidence of crime. Thus, conversations between jail inmates and visitors over an
internal jail telephone can be monitored and recorded.
However, Justice Moreno in his concurring opinion pointed out that outgoing calls made
by inmates over a public telephone system are subject to the Omnibus Crime Control
and Safe Streets Act of 1968. The interception of these calls would require a wiretap
order unless the inmate is given meaningful notice, such as by a signed
acknowledgement form, a monitoring notice posted by the outbound telephone, or a
recorded warning that is heard by the inmate through the telephone receiver, prior to his
or her making the outbound telephone call.
In People v. Kelley (2002) 103 Cal.App4th 853, the defendant’s jailhouse conversations
were recorded without a court order and introduced in his murder trial. The defendant’s
housing unit had a warning sign above its telephones stating that telephone calls may be
monitored and recorded. In addition, the jail phone system contained a warning (brand)
at the beginning of each call stating that all calls were subject to monitoring or
recording. The Court of Appeal held that the defendant/prisoner was given meaningful
notice that his telephone calls were subject to monitoring, and his decision to engage in
conversations over those phones constituted implied consent to that monitoring without
the necessity of a court order. The Kelley holding was reaffirmed in People v. Windham
(2006) 145 Cal.App.4th 881.
Although the Kelley case does not require a court order to intercept an inmate’s
outgoing telephone calls when meaningful notice is given, some Sheriff’s Departments
have insisted on a court order before they will allow the monitoring and recording of
such calls. A sample court order that should satisfy the custodial agency is located in
Part IV, Section 5 of this Manual.
Part II – Page 9
OUTLINE FOR THE PREPARATION OF AN AFFIDAVIT FOR
NARCOTICS UNDER THE CALIFORNIA WIRETAP STATUTE
Attached is a format for the preparation of an affidavit for a narcotics investigation pursuant to
the California Wiretap Statute.
An affidavit for a wiretap is really nothing more than a search warrant affidavit with the added
(but very important) statutory requirement for establishing necessity for the interceptions.
Accordingly, there are three things that every affidavit for a wiretap order should seek to
establish.
1. Probable cause that the target violators are committing the target offenses.
2. Necessity, in that alternative investigative techniques have been tried and have failed,
reasonably appear unlikely to succeed if tried, or are too dangerous.
3. Target devices are being used to facilitate the commission of the target offenses.
Although all three requirements are needed for a valid wiretap affidavit, experience has shown
that on the rare occasions that a wiretap affidavit has been quashed and the evidence suppressed,
it has not been for lack of probable cause. It has been for an insufficient showing of necessity.
The attached format is therefore designed to ensure that all these requirements are properly
addressed in a wiretap affidavit.
Part II – Page 10
PREPARATION OF AN AFFIDAVIT FOR NARCOTICS
UNDER THE CALIFORNIA WIRETAP STATUTE
I.
INTRODUCTION
Introduction section should include the following:
1. Affiant sets forth his/her background, training, and expertise.
2. Affiant is certified pursuant to Penal Code PC 629.94.
3. State that this is an affidavit in support of a wiretap application pursuant to PC 629.50 et
seq. for a designated narcotics offense described in PC 629.52 to wit, ____________.
4. Based on the information contained in the affidavit, affiant makes application to intercept
the wire and electronic communications over the Target Telephones.
II.
TARGET DEVICES
List the Target Telephones and/or Target Accounts including the subscriber information and
ESN (or other or additional identifying number(s), if known). Consider including language
authorizing continuing interception if Target Device is discarded and replaced.
III.
TARGET SUBJECTS
List the Target Subjects with a brief description and biography, if known. Include all persons
that are the subjects of the investigation, even if known only by nickname. Unknown Target
Subjects may be designated as John/Jane Doe, “UM”/ “UF” (Unidentified Male/Female), or
“FNU LNU” (First Name Unknown Last Name Unknown).
IV.
PRIOR APPLICATIONS
List any prior applications involving the same Target Subjects and/or Target Telephones.
V.
PROBABLE CAUSE
(The following is a sample introduction for the probable cause section that should be modified to
conform to the particular investigation.)
There is probable cause to believe that the following will be obtained through the interception of
the Target Telephones (and/or Target Accounts).
1. Identity of the head of the drug trafficking organization (“DTO”).
2. Identities of the individuals involved in the DTO.
3. Roles of the various individuals in the organization.
Part II – Page 11
4. Full identification of the persons who provide narcotics (or precursor chemicals for the
manufacture of narcotics) to the organization.
5. Full identification of the persons who obtain narcotics from the organization.
6. Locations where members of the organization store their narcotics.
7. Methods by which the organization imports and distributes its narcotics.
8. Methods by which the organization launders, distributes, or conceals the assets acquired
as a result of its narcotics-trafficking activities.
Information regarding the Target Subjects and their use of the Target Telephones/Target
Accounts.
1. Historical overview of Target Subject, including previous arrests and previous
investigations.
2. Personal knowledge.
3. Information from other law enforcement officers, including review of reports prepared by
other officers.
4. Confidential informants/confidential sources
(a) Establish reliability, if applicable.
(b) Connection of informant to Target Subject or Target Organization.
(c) Specific information (including basis of informant's personal knowledge)
(d) Be aware of staleness issues.
(e) Consider using a Hobbs Attachment to protect informant.
5. Prior intercepted conversations, whether from wiretaps or consensual recordings.
(a) Set forth circumstances of the interception, including the specific wiretap, the date
and time, the identities of the parties, and the contents of the conversation.
(b) Provide the interpretation of the conversation immediately after setting forth the
conversation in the affidavit. If a series of conversations pertain to a single
significant event, the interpretation of these connected calls may be made
immediately after they are collectively set forth in the affidavit.
(c) Extensions should describe a sufficient number of calls to establish that the Target
Devices are being used to facilitate the trafficking of narcotics. Extensions should
explain why further interceptions are justified under the circumstances.
VI.
TOLL ANALYSIS
Describe whether toll records and/or pen register records were obtained and for what time
periods.
1. List total number of calls, with a breakdown of calls to cellular phones, pagers, and to
other countries or states.
2. List numbers called whose subscribers are members of Target Organizations.
3. List numbers called where subscribers can be connected to narcotics activity (prior
conviction, information from confidential sources, targets of previous investigations.)
4. For a spin-off telephone or replacement telephone, show similarity of calls made from
these phones with original Target Telephone.
5. Extensions usually do not need a toll section because calls have already been intercepted
from these telephones.
Part II – Page 12
VII.
NECESSITY
(The following is a sample introduction to the Exhaustion and Necessity section that should
be modified to conform to the particular investigation.)
Normal investigative procedures have been tried and have failed, reasonably appear unlikely
to succeed if tried, or will be too dangerous to employ. These investigative procedures are
detailed further below. The requested interception is necessary to enable the Government to
achieve the objectives of this investigation, i.e., to obtain evidence that will convince a jury
beyond a reasonable doubt of the following:
1. Identity of the head of the trafficking organization;
2. Identities of the individuals involved in the narcotics-trafficking organization;
3. The roles of the various individuals;
4. The full identification of the persons who provide narcotics (or precursor chemicals for
the manufacture of narcotics) to the organization;
5. The full identification of the persons who obtain narcotics from the organization;
6. The locations where members of the organization store their narcotics.
7. The methods by which the organization imports and distributes its narcotics; and
8. The methods by which the organization launders, distributes, or conceals the assets
acquired as a result of its narcotics trafficking activities.
(The following is a comprehensive list of investigative procedures that might be tried in a
narcotics investigation. It is not necessary to discuss each of these procedures in the
Exhaustion and Necessity Section, but those procedures that might apply to the particular
investigation at issue should be discussed.)
A. Undercover agents/confidential informants
Describe undercover agents and confidential informants limitations, and the reasons for the
limitations. For example, if applicable, discuss the following:
1. Confidential informant's refusal to testify or be identified.
2. Organization has a history of violence.
3. Physical limitations of confidential informant (i.e., no longer involved with organization
or currently in jail, or only has contact with lower-level members of organization).
4. Organization consists largely of close-knit family members and/or close associates which
would be difficult for an undercover agent or confidential informant to penetrate.
5. Organization is compartmentalized in order to protect the organization. Suppliers,
distributors, and money launderers in many instances do not know each other. Therefore,
an undercover agent or confidential informant will not be able to fully penetrate the
organization.
B. Physical surveillance
Describe surveillance conducted and limitations to additional surveillance. For example, if
applicable, discuss the following:
Part II – Page 13
1. Surveillance of subscriber location of Target Telephone, and whether subscriber
information is a valid or fictitious address.
2. Surveillance thus far conducted and why the surveillance has not achieved the goals of
the investigation.
3. Narcotics dealers often do not physically possess narcotics or go to narcotics storage
locations.
4. Lack of locations to surveil and what these locations appear to be (residence, business,
stash location, etc.)
5. Difficulty in conducting surveillance (e.g., location is in a cul-de-sac, multi-unit
apartment, dangerous neighborhoods, suspect engages in counter-surveillance driving.).
6. Wire interception combined with physical surveillance gives meaning to the surveillance
and is far more effective than physical surveillance by itself.
C. Pen registers, trap-and-trace devices, toll analysis, and subscriber
information
Describe such records and information already obtained. Discuss limitations of such evidence
including the following, if applicable:
1. Although these devices and the information derived therefrom may establish a pattern of
telephone activity, they do not establish who is using the communication devices or what
is the conversation.
2. Subscriber information is often false and many resale companies supplying
communication devices will compromise an investigation if subpoenaed
D. Search Warrants
Describe search warrants already executed, including the results or lack thereof. Discuss
limitations to the use of search warrants including the following, if applicable:
1. Head of organization will rarely be in physical possession of narcotics, and a wiretap will
often be the only way to develop a prosecutable case against him/her.
2. Search warrants will only be served on low-level workers at the stash house.
3. Search warrants alone will not identify all the stash houses used by an organization.
4. Search warrants notify violators of an investigation.
5. Search warrants will still be utilized when appropriate in the investigation.
6. Search warrants in conjunction with intercepted conversations provide for stronger
prosecution evidence
E. Grand Jury Subpoenas/Immunity
Explain if there are persons willing to cooperate, if any, and their limitations. Explain if there
are persons unwilling to cooperate, if any, who might be given immunity and called to testify
before a Grand Jury. Point out that this type of investigative technique notifies violators of the
investigation. Also point out that if the witness is an accomplice, he/she must be corroborated
under California law (PC 1111) and that testimony from an accomplice often does not have
sufficient convincing force for the jury to convict.
Part II – Page 14
F. Closed Circuit Television Monitoring
Describe any closed circuit monitoring that has been conducted. Discuss its limitations (e.g., that
it only shows who is entering or leaving a location and does not gather evidence of conversations
or agreements).
G. Trash Searches
Describe any trash searches conducted. Discuss limitations of trash searches including the
following, if applicable.
1. List all locations that a trash search can be conducted, and locations that they cannot be
conducted (e.g., subscriber address is false; apartment complex; nature of the
neighborhood.)
2. Explain that narcotics traffickers rarely throw out evidence proving the conspiracy.
3. Explain that even if there is evidentiary paperwork in trash, such paperwork is usually
very limited in its scope.
H. Consensual Recordings
Describe any consensual recordings that may have been obtained in the investigation.
1. Explain that the use of such evidence is subject to the same limitations as those explained
in the Undercover Agent/Confidential Information discussed above. Furthermore, if
there is no Undercover Agent or Confidential Informant, there will be no consensual
conversations.
I. Financial Investigations
Describe any financial investigations conducted. Discuss limitations or inapplicability of
financial investigations including the following, if applicable:
1. The true identities of the violators may not be known.
2. The financial resources of the violators may not be known.
3. A financial investigation may trace narcotics proceeds, but it may not achieve the goals
of the investigation to fully identify and develop prosecutable evidence against all
members of the organization.
J. Other Wiretaps
Describe why other wiretaps have not achieved the goals of the investigation. [If inapplicable,
delete this section from the affidavit.]
VIII.
DURATION OF INTERCEPTION
(PC 629.50(a)(5) states that the affidavit should contain a statement that the intercept order
should not terminate after the first conversation is intercepted. The following is a sample
"Duration of Interception" section that may need to be modified to conform to the investigation.)
Part II – Page 15
This affidavit is in support of an application to intercept wire and electronic communications for
a period not to exceed thirty (30) days. It is the goal of this investigation to prove the full scope,
membership and methods of operations of the conspiracy. Therefore, I request that interceptions
not be ordered terminated upon the first interception of conversations regarding narcotics
trafficking, but be allowed to continue until the full scope of the conspiracy, and the persons
involved and their respective roles, are determined or for thirty (30) days, whichever come first.
Further, I request that [LAW ENFORCEMENT AGENCY] execute such order, establishing an
interception and listening post in [APPLICABLE COUNTY]. All intercepted conversations will
first be heard in [APPLICABLE COUNTY], and the interception will automatically take place in
[APPLICABLE COUNTY] regardless of where the telephone calls are placed to or from.
(United States v. Luong (9th Cir. 2006) 471 F.3d 1107, 1109.)
IX.
CONCLUSION
(The following information should be included in the affidavit and may be put in the Conclusion
portion of the affidavit if not located elsewhere.)
Law enforcement agency that will conduct the wiretap investigation.
Location of wire room where wire conversations will be intercepted and recorded.
Include a Hobbs request to seal a portion of the affidavit, if appropriate.
A final summation regarding the affiant's belief that the target communication devices are being
used to facilitate narcotics trafficking in the amounts required under the California wiretapping
statute.
X.
EXTENSIONS (PC 629.50(a)(7))
If this is a request for an extension, the affidavit should contain the following:
1. A statement setting forth the number of communications intercepted pursuant to
the original order.
2. The results thus far obtained from the interception, including phone calls, seizures,
and other aspects of the investigation; or a reasonable explanation of the failure to
obtain results.
3. Update exhaustion (e.g., surveillance, etc.)
Page II – Page 16
AFFIDAVIT
A. Narcotics (with Hobbs Sealing Request)
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A: SAMPLE AFFIDAVIT—NARCOTICS
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION ) OF THE DISTRICT ATTORNEY OF THE ) WIRETAP NO.: COUNTY OF LOS ANGELES, FOR AN ) ORDER AUTHORIZING THE INTERCEPTION ) OF WIRE AND ELECTRONIC ) COMMUNICATIONS )
)
AFFIDAVIT IN SUPPORT OF APPLICATION
FOR AN ORDER AUTHORIZING THE
INTERCEPTION OF WIRE AND
ELECTRONIC COMMUNICATIONS
I.
INTRODUCTION
[AFFIANT] declares as follows:
1. I am an investigative or law enforcement officer as set forth in Penal Code section
629.50(a)(1). I have been a [TITLE] for the [LAW ENFORCEMENT AGENCY] [LENGTH
OF SERVICE] years. I am currently assigned to [ASSIGNMENT]. [SUMMARY OF
EXPERIENCE IN THE AREA OF NARCOTICS]
2. I am certified by the California State Attorney General’s Office in the practical,
technical, and legal aspects of court ordered wiretaps. (Penal Code section 629,.50 et seq.)
3. Based upon the information contained herein, I hereby make application to
intercept the wire and electronic communications of [Target Telephone] [Target Accounts]
between [TARGET SUSPECTS], and others as yet unknown (hereinafter collectively referred
to as the “Target Subjects” and any additional co-conspirators known and unknown.
Part II – Page 17
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4. Based upon the investigation in this case, set forth in detail below, I assert that there is
probable cause to believe that the wire and electronic communications to be intercepted will tend
to establish the guilt of the Target Subject[s] as traffickers in controlled substances, specifically
cocaine. The following statement of facts and circumstances detail the particular offenses that
have been, are being, or are about to be committed. Those offenses are importation, possession
for sale, sale and transportation of [TYPE OF CONTROLLED SUBSTANCE, e.g., cocaine]
controlled substances in violation of Health and Safety Code sections [APPLICABLE CODE
SECTIONS, e.g., 11352 and 11351] and conspiracy to commit those offenses in violation of
Penal Code section 182, with respect to a substance containing cocaine exceeding three pounds
of solid substance by weight. [NOTE: If the Target Subject[s] is/are also involved in the
secondary trafficking of other narcotics, these should also be included as designated narcotics
offenses.]
5. I request the [LAW ENFORCEMENT AGENCY] and others assisting, be
ordered to execute such wire intercept order. The interception and listening post will be in Los
Angeles County.
6. The following statement of facts and circumstances detail the historical
involvement of the Target Subject[s] in drug trafficking and their current use of the Target
[Telephone] [Accounts] to facilitate drug trafficking.
II.
TARGET TELEPHONE(S)
7. According to [TELEPHONE COMPANY], the Target [Telephone] [Account] is
described as follows:
a. Target Telephone # 1 is a Nextel Communications cellular telephone subscribed
to [INSERT NAME AND ADDRESS] assigned telephone number [XXX-XXX-XXXX],
Part II – Page 18
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with an International Mobile Security Identifier number (IMSI) of [XXXXX],
Electronic Serial Number (ESN) XXXXXXXXX, Subscriber Identification Module
(SIM) [XXXXXXX], and Direct Connect—Member ID (UFMI) [XXXXXXXXX], and
used primarily by Target Subject [XXXXXXX]. (The term “Target Telephone” refers to
any subsequently changed telephone number assigned to the same IMSI/ESN/ISM/UFMI
with the same subscriber information, and/or any subsequently changed
IMSI/ESN/ISM/UFMI assigned to the same telephone number with the same subscriber
information. It is not unusual for narcotics traffickers to change telephone numbers for
cellular telephone they currently use, nor is it unusual for them to discard a cellular
telephone, while using the telephone number of the discarded telephone on a new cellular
telephone.)
b. Target Account # 1 is an [NAME OF E-MAIL PROVIDER, e.g., AOL] electronic mail
account subscribed to John Smith, 1234 Main Street, Los Angeles, California, assigned
account address [E-MAIL ADDRESS, e.g., [email protected]], and used primarily by Target
Subject Jane.
III.
TARGET SUBJECTS
8. [ANY INFORMATION IDENTIFYING TARGET SUSPECTS]
Part II – Page 19
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IV.
PRIOR APPLICATIONS
9. [DESCRIBE ANY KNOWN PRIOR APPLICATIONS PERTAINING TO THE
SAME PERSONS, FACILITIES, NUMBERS, OR PLACES AND THE ACTION TAKEN BY
THE JUDGE ON EACH OF THOSE APPLICATIONS]
State the result of inquiries to federal and state databases.
Sample language: I am not aware of any applications that have been made to any
court in the United States for authorization to intercept wire or electronic communications
involving any of the same persons, facilities/devices, or locations specified in this application.
V.
STATEMENT OF PROBABLE CAUSE1
10. [STATE THE FACTS WHICH ESTABLISH PROBABLE CAUSE TO BELIEVE
THAT THE TARGET SUBJECTS HAVE COMMITTED AN ENUMERATED CRIME; THAT
PARTICULAR COMMUNICATIONS CONCERNING THE ILLEGAL ACTIVITY WILL BE
OBTAINED THROUGH THE INTERCEPT; THAT THE FACILITIES OR PLACES FROM WHICH
THE COMMUNICATIONS ARE TO BE INTERCEPTED ARE USED BY THE PERSON WHOSE
COMMUNICATION IS TO BE INTERCEPTED.]
11. IF APPROPRIATE, INDICATE THAT PART OF THE PROBABLE CAUSE IS
INCLUDED IN A HOBBS ATTACHMENT. (ALSO SEE FOOTNOTE NEXT PAGE).
Part II – Page 20
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VI.
TOLL ANALYSIS
12. I have received toll records for Target Telephone #1 and determined the
following: From to Target Telephone #1 made
approximately calls. During this time period, Target Telephone #1 called
different cellular telephones approximately times. Target Telephone
#1 made calls to telephone numbers in Mexico on approximately
occasions. One of the Mexico telephone numbers, , has been identified as
.
a. On , Target Telephone #1 called telephone number .
This number is subscribed to .
b. (Discuss other numbers called by the Target Telephone that are subscribed
to persons who can be connected to narcotics investigations)
13. Given the telephone activity over Target Telephone #1 during this period, I
believe that utilizes Target Telephone #1 to contact his narcotics trafficking
and money-laundering associates in order to facilitate his narcotics trafficking activities in the
Los Angeles area. The cumulative pattern that emerges from analysis of Target Telephone
contacts between Target Telephone #1 and the telephones listed above further supports my
belief regarding the use of Target Telephone #1 to facilitate the narcotics trafficking and
money-laundering activities of this narcotics-trafficking organization.
Part II – Page 21
1 [If you are including a Hobbs attachment, include the following in a footnote]: Additional information related to
Probable Cause may or may not be contained in the section entitled “CONFIDENTIAL HOBBS ATTACHMENT”
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VII.
EXHAUSTION
14. The following is a list of the investigative techniques which have been used or
which I have considered using to date in this investigation and an explanation concerning why
these techniques are not likely to succeed in identifying the full scope of this conspiracy:
UNDERCOVER AGENTS/CONFIDENTIAL INFORMANTS
15. [As stated in the affidavit, information derived from confidential informants, both
tested and untested, has been used to assist in the investigation of this cocaine-smuggling
organization. Additionally, your affiant has attempted to infiltrate this organization through the
use of confidential informants, which attempts were met with resistance and ultimately rebuffed
by members of the organization.]
16. [There are currently no other informants available who are known to your affiant
who are able to furnish additional information regarding the current smuggling activity of this
organization. Nor is it anticipated that any such additional informants will be developed in the
near future. It appears that this organization is a close-knit, family-run organization whose
members are either blood relatives, mutual friends and/or very familiar with one another. Your
affiant is aware that it is a common concern of large-scale narcotics organizations that neither
customers, would-be thieves, nor the police learn the identity of all members of the organization,
or the locations where they store large amounts of narcotics or illicit proceeds. Therefore, lower-
echelon members shield those members higher up on the distribution chain from potential
customers, and multiple locations are used to store lesser amounts of cocaine, and/or money, and
additional locations are used to meet with customers. This method of operation allows suspects
Part II – Page 22
attached hereto and incorporated herein by this reference.
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to minimize the risk of discovery and loss to the organization in the event the customer is an
informant.]
17. [It appears that since no other informant is available or expected to become
available, your affiant is currently unable to determine the scope of this criminal enterprise, the
identity of other co-conspirators, the sources and location of the cocaine, and their methods of
operation.]
UNDERCOVER POLICE OFFICERS
18. [Due to the close-knit structure of this organization, infiltration by an undercover
police officer appears to be an investigative technique fraught with failure. As an illustration on
point, an attempt was made by officers to introduce an undercover officer to members of this
organization through the use of a confidential informant as a potential customer for large
amounts of cocaine. This attempt was also met with resistance and ultimately rebuffed.]
SURVEILLANCE
19. [Your affiant believes that without the aid of wire intercepts, regular surveillance
will compromise the investigation because prolonged, regular surveillance increases the
opportunities for detection by the Target Subjects. If surveillance were to be detected, I believe
the traffickers’ perpetual suspicions that they are the subjects of law enforcement investigations
would in their minds be confirmed. The subjects would not only likely flee the area, they would
also engage in wholesale abandonment of their communication facilities. By using the wiretap,
agents will be able to initiate selective surveillance when it appears that criminal activity is
taking place. This selectivity will reduce the chances of having surveillance compromised and
will help maintain the integrity of the investigation.]
Part II – Page 23
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20. [Surveillance operations have been successful to the extent they have established
persons and/or vehicles arriving at, and/or departing from principal locations, and extended the
scope of the investigation to additional locations and co-conspirators. However, surveillance
operations cannot establish the purpose of any observed meetings, nor identify other conspirators
who do not make personal appearances. Therefore, surveillance appears unlikely to yield the
sources of the cocaine supply, fully identify each of the conspirators, their places of operation
and the manner in which their operation is conducted.]
21. [No locations or persons associated with the organization have been identified and
thus no surveillance opportunities exist at this time.]
SEARCH WARRANTS
22. [Your affiant has been preparing an ongoing affidavit to search the principal
locations involved in this investigation. However, execution of a search warrant at any one of
the multiple locations involved would only serve to alert members of this organization that they
are the subject of an ongoing law enforcement investigation. Although a seizure of an
intermediate quantity of cocaine might result, such action would not likely lead to a successful
conclusion of this investigation since the primary objective of this investigation is to identify all
members of this organization, all locations used to store cocaine and/or illicit proceeds, and the
organization’s source of supply. The execution of a search warrant would in all probability
terminate the present investigation. Experience has demonstrated that large-scale narcotics
traffickers adapt their routines to investigative procedures utilized by law enforcement. This
includes utilizing multiple locations to store cocaine and money, and the use of other locations to
Part II – Page 24
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conduct business. Execution of a search warrant at one or more locations would in all
probability terminate the present investigation and preclude identification of other associates,
additional locations, and the organization’s sources of supply.
PEN REGISTERS AND TELEPHONE TOLLS
23. [The analysis of data derived from the use of a pen register and telephone tolls is
one of the techniques that has been utilized during this investigation. It has been helpful in
determining patterns, if any, of telephone activity and confirming the volume of telephone calls
between telephones, suspects and locations already identified in this investigation through
surveillance, as well as new locations. Your affiant has also learned that members of this
organization communicate primarily through the use of pagers and cellular telephones. Although
the review of those records does reveal the names of subscribers to the numbers called, your
affiant knows from experience that drug traffickers often list their residential telephones, cellular
telephones, and pagers in the names of other persons in an attempt to avoid identification from
law enforcement personnel. In addition, the information derived from the pen register and
telephone tolls is insufficient as a basis for successful prosecution, especially in light of the
familial structuring of this organization. Specifically, the details of the involvement of the
participants, and the dates, times, and places that narcotics transactions are to occur must be
revealed before successful surveillance operations, prosecutions or both may be initiated.]
24. [Based on the above, your affiant believes that pen registers, toll analysis, and
subscriber information, without the aid of a wire intercept, will not help your affiant achieve the
objectives of the investigation.]
Part II – Page 25
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GRAND JURY
25. [The last technique which could be employed in the investigation of narcotics
offenses is the initiation of grand jury proceedings. It is noted that the use of the grand jury to
investigate narcotics offenses is not a technique normally employed in the State of California by
state prosecutors. In addition, even if this investigation met existing criteria for submission to a
grand jury, there is no reason to believe that any of the principal suspects in this investigation or
their co-conspirators would cooperate with the grand jury, with or without grants of immunity.
In fact, the mere initiation of a grand jury investigative proceeding would render continued
investigation difficult by revealing the existence of the investigation by law enforcement to the
targets of this investigation.]
CLOSED CIRCUIT TELEVISION MONITORING
26. [Exterior closed circuit monitoring shows who is entering or leaving the location.
It is your affiant’s opinion that this type of monitoring does not gather evidence as to
conversations, agreements, and other arrangements necessary for this investigation.]
TRASH SEARCHES OF TARGET LOCATIONS
27. [Regular trash searches at the principal locations identified in this affidavit would
be difficult, if not impossible, based upon the physical placement of the locations on cul-de-sacs.
They would be conspicuous to the residents of the location and/or persons living in the area.
Further, it is a limited investigative tool, which is unlikely to result in the recovery of evidence
sufficient for conviction. Additionally, any time a trash search is conducted, it is possible that
officers will be spotted. At this time, your affiant feels that the potential returns to be gained do
not justify the risks.]
Part II – Page 26
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MAIL COVER REQUESTS
28. Mail covers are a service provided by the United States Postal Service whereby a
list of all sender and receiver names and addresses on each piece of mail received at the target
location can be obtained. Although information obtained by mail covers is valuable to this
investigation in identifying individuals receiving mail at the suspected locations as well as those
sending the mail, it does not provide information of the Target Subjects’ suspected criminal
activity, only possible leads that will assist investigators in corroborating other information
received in the course of the investigation.
29. On [DATE], agents initiated a mail cover request with the United States Postal
Service. Since the mail cover request was initiated, there has been no information obtained
regarding any senders or receivers. Additionally, based on previous information obtained I know
that the subjects using the residences located at [LOCATION] and [LOCATION] are using
several different aliases to obtain utilities, telephone service, and driver’s licenses. They are also
driving several different vehicles all of which are registered under different names. I do not
believe the subjects using these residences are receiving mail in their true names.
VIII.
NECESSITY
30. Normal investigative techniques have been and will continue to be used.
However, it is your affiant’s opinion that these techniques alone will not allow investigators to
obtain the critical information which your affiant believes will be discussed over the described
Target Telephone. Interception of wire and electronic communications over the Target
Telephone and Target Accounts are necessary in this matter to enable your affiant to achieve the
objectives of this investigation, that is, to identify:
Part II – Page 27
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a. The full scope, extent and personnel of the [NARCOTICS, e.g. cocaine]
trafficking conspiracy of the Target Subjects;
b. The identity and role of all suppliers of [NARCOTICS, e.g. cocaine] to the
identified conspirators; and
c. The management and disposition of proceeds generated by the organization’s
[NARCOTICS e.g. cocaine] trafficking.
31. For the reasons set out in this affidavit, it is your affiant’s opinion that the only
reasonable and effective way to develop the necessary evidence to discover and prosecute the
person(s) involved in this conspiracy is to obtain authorization for the interceptions requested
herein.
32. Permission is hereby requested to intercept wire and electronic communications
and dialed number information on the Target [Telephone] [Account] and any changed telephone
number subsequently assigned to the instrument bearing the electronic serial number or cap code,
and to any changed electronic serial number or cap code assigned to the same telephone number
and/or same telephone, used by the individuals named herein and any co-conspirators who are
later identified.
IX.
DURATION OF INTERCEPTION
33. This affidavit is in support of an application to intercept wire and electronic
communications for a period not to exceed thirty (30) days. It is the goal of this investigation to
prove the full scope, membership and methods of operations of the conspiracy. Therefore, I
request that interceptions not be ordered terminated upon the first interception of conversations
regarding narcotics trafficking, but be allowed to continue until the full scope of the conspiracy,
and the persons involved and their respective roles, are determined or for thirty (30) days,
Part II – Page 28
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whichever comes first. Further, I request that [LAW ENFORCEMENT AGENCY] execute such
Order, establishing an interception and listening post in [APPLICABLE COUNTY]. All
intercepted conversations will first be heard in [APPLICABLE COUNTY], and the interception
will automatically take place in [APPLICABLE COUNTY], regardless of where the telephone
calls are placed to or from. (United States v. Luong (9th Cir. 2006) 471 F.3d 1107, 1109.)
X.
CONCLUSION
34. The use of a wire and electronic intercept would allow [LAW ENFORCEMENT
AGENCY] to develop additional evidence of the trafficking/transportation of multi-kilo
quantities of [NARCOTICS, e.g. cocaine] and identify additional suspects.
35. The particular type of communications that are to be intercepted and which I
believe will be obtained through this interception are: wire and electronic communications
between, [TARGET SUSPECTS] and other co-conspirators, known and unknown, concerning
the possession for sale, transportation and sales of multi-kilo quantities of cocaine and the
proceeds derived from the illegal sales.
36. Your affiant requests that the portion of this affidavit designated as the
CONFIDENTIAL HOBBS ATTACHMENT be ordered sealed in order to implement the
privilege under Evidence Code sections 1040-1042 and to protect the identity of any confidential
sources and/or official information, pursuant to the California Supreme Court decision in People
v. Hobbs (1994) 7 Cal. 4th 948. If any of the information within the sealed portion of the
affidavit is made public, it will reveal or tend to reveal the identity of any confidential
informant(s), impair further related investigations, and endanger the life of any confidential
informant(s). It is further requested that this sealed portion of the affidavit be kept
Part II – Page 29
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in the custody of your affiant and/or [LAW ENFORCEMENT AGENCY] pending further order
of the Court.
37. Your affiant requests that [LIST THE TELECOMMUNICATIONS
COMPANIES AND E-MAIL SERVICE PROVIDERS THAT ARE INVOLVED IN THIS
INVESTIGATION], and any other affected telecommunication entity (hereinafter referred to as
the “Telecommunications Companies”) shall, upon request of the applicant, authorize the
installation and/or use of equipment known as pen registers or dialed number recorders to detect
and record all numbers dialed or pulsed by the telephones connected to the targeted numbers.
Additionally, for the installation and/or use of trap equipment to trace and identify the telephone
numbers of persons placing calls to the Target Telephone numbers to include the activation of
“caller ID” and any calling features such as “call forwarding” and “speed dialing” currently
assigned to the Target Telephone numbers.
38. Your affiant requests this court to order the Telecommunications Companies and
E-mail Service Providers upon request of the applicant, to provide the technical assistance
necessary to accomplish this interception unobtrusively and with a minimum of interference with
the services said company provides the people whose communications are to be intercepted, and
to provide records identifying subscribers and providing subscriber information on any and all
telephone and account numbers identified through this intercept/pen register, and any changed
numbers whether published or not, including, but not limited to past telephone bills and records.
39. Your affiant requests the court to order the Telecommunications Companies and
E-mail Service Providers not to disclose to the subscriber or any unauthorized person the fact
that the order has authorized this wire interception, or of its existence.
Part II – Page 30
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40. It is further requested that this application and affidavit be ordered sealed and kept
in the custody of [AFFIANT] to be disclosed only upon a showing of good cause before a court
of competent jurisdiction.
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed in Los Angeles, California.
DATED:
[AFFIANT]
Part II – Page 31
CONFIDENTIAL HOBBS ATTACHMENT
[INCLUDE ALL CONFIDENTIAL INFORMATION THAT IS TO BE SEALED]
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed in Los Angeles, California.
DATED:
[AFFIANT]
Part II – Page 32
OUTLINE FOR THE PREPARATION OF AN AFFIDAVIT
FOR MURDER OR STREET GANG PARTICIPATION UNDER THE
CALIFORNIA WIRETAP STATUTE
I.
INTRODUCTION AND EXPERTISE
Affiant sets forth his/her background, training, and expertise.
1. Affiant is certified to conduct wiretaps pursuant to PC 629.94.
2. This is an affidavit in support of a wiretap application pursuant to PC 629.50 et seq. for
wire and electronic communications relating to an investigation of murder and/or the
crimes enumerated in PC 186.22.
3. Based on the information contained in this affidavit, affiant makes application to
intercept the wire and electronic communications over the Target Telephones.
II.
TARGET TELEPHONES
List the Target Telephones and/or Target Accounts including the subscriber information and
ESN (or additional identifying number, if known).
1. If an extension, include a summary of telephone activity over previous interception order.
III.
TARGET SUBJECTS
List the Target Subjects with a brief description and biography, if known. Include all persons
that are the subjects of the investigation even if known only by nickname. Unknown Target
Subjects may be designated as John/Jane Doe, “UM”/”UF” (Unidentified Male/Female), “FNU
LNU” (First Name Unknown Last Name Unknown). Include gang affiliation, if relevant.
IV.
PRIOR APPLICATIONS
List any prior applications involving the same Target Subjects and/or Target Telephones
V.
PROBABLE CAUSE
1. State the facts which establish probable cause to believe that the Target Subjects are
engaged in murder and/or criminal street gang activity, that particular communications
concerning this illegal activity will be obtained through the intercept, and that the
Part II – Page 33
facilities (i.e. telephone devices) or places from which the communications are to be intercepted
are used by the person whose communications are to be intercepted.
2. If this is an extension, probable cause can be established by reference to the original
application and by intercepted calls from the previous wiretap.
3. If appropriate, indicate that part of the probable cause is included in a Hobbs Attachment.
VI.
TOLL ANALYSIS
If this is an original application, rather than a request for an extension, the affidavit should
contain a toll analysis to establish the number and nature of calls made from the target telephone.
2. Calls to other gang members and/or criminal associates.
3. For a spin-off telephone or replacement telephone, show similarity of calls made from
these telephones compared with original Target Telephone.
4. Extensions usually do not need a toll section because calls have already been intercepted
from these telephones.
VII.
CRIMINAL STREET GANG
(If relevant)
Include expert opinion regarding the street gang in question.
1. Establish that the gang in question is a criminal street gang as defined in PC 186.22(f) in
that they consist of three or more members; they are engaged in the commission of one or
more criminal acts enumerated in PC 186.22(e) paragraph 1-25, and they have a common
name with a common identifying symbol.
2. Establish that the Target Subjects are members of the street gang in question.
VIII.
PATTERN OF CRIMINAL GANG ACTIVITY
(If relevant)
Include incidents showing a "pattern of criminal gang activity" as defined in Penal Code §
186.22(e) involving the commission or conviction of two or more of the offenses enumerated in
Penal Code § 186.22(e) paragraph 1-25.
Part II – Page 34
IX.
NECESSITY AND EXHAUSTION
The following is a comprehensive list of investigative procedures that might be tried in a murder
and/or criminal street gang investigation.
A. Undercover agents/confidential informants
Describe the limitations of undercover agents and confidential informants, as well as the reasons
for the limitations. For example, if applicable, discuss the following:
1. Confidential informant's refusal to testify or be identified.
2. Organization has a history of violence.
3. Physical limitations of confidential informant (i.e., no longer involved with organization
or currently in jail, or only has contact will lower-level members of organization).
4. Organization consists largely of close associates which would be difficult for an
undercover agent or confidential informant to penetrate.
B. Physical surveillance
Describe surveillance conducted and limitations to additional surveillance. For example, if
applicable, discuss the following:
1. Surveillance of subscriber location of Target Telephone, and whether subscriber
information is a valid or false address.
2. Surveillance thus far conducted and why the surveillance has not achieved the goals of
the investigation.
3. Lack of locations to surveil and what these locations appear to be (residence, business,
stash location, etc.).
4. Difficulty in conducting surveillance (e.g., location is in a cul-de-sac, multi-unit
apartment, dangerous neighborhoods; suspect engages in counter-surveillance driving,
etc.).
5. Wire interception combined with physical surveillance gives meaning to the surveillance
and is far more effective than physical surveillance by itself.
C. Pen registers, trap-and-trace devices, toll analysis, and subscriber
information
Describe such records and information already obtained. Discuss limitations of such evidence
including the following, if applicable:
1. Although these devices and the information derived therefrom may establish a pattern of
telephone activity, they do not establish who is using the communication devices or what
is the conversation.
2. Subscriber information may be false, and some resale companies supplying
communication devices may compromise an investigation if subpoenaed
Page II – Page 35
D. Search Warrants
Describe search warrants already executed, including the results or lack thereof. Discuss
limitations to the use of search warrants including the following, if applicable:
1. Search warrants alone will not result in a prosecutable case.
2. Search warrants notify violators of an investigation.
3. Search warrants will still be utilized when appropriate in the investigation.
4. Search warrants in conjunction with intercepted conversations provide for stronger
prosecution evidence
E. Grand Jury Subpoenas/Immunity
Explain if there are persons willing to cooperate, if any, and their limitations; explain if there are
persons unwilling to cooperate, if any, who might be given immunity and called to testify before
a Grand Jury. Point out that this type of investigative technique notifies violators of the
investigation. Also point out that if the witness is an accomplice, he/she must be corroborated
under California law (Penal Code § 1111) and that testimony from an accomplice often does not
have sufficient convincing force for the jury to convict.
F. Closed Circuit Television Monitoring
Describe any closed circuit monitoring that has been conducted. Discuss its limitations (e.g., that
it only shows who is entering or leaving a location and does not gather evidence of conversations
or agreements).
G. Trash Searches
Describe any trash searches conducted. Discuss limitations of trash searches including the
following, if applicable.
1. List all locations that a trash search can be conducted, and locations that they cannot be
conducted (e.g., subscriber address is false, apartment complex, nature of the
neighborhood, etc.)
2. Explain that law violators rarely throw out evidence proving the criminal acts.
3. Explain that even if there is evidentiary paperwork in trash, such paperwork is usually
very limited in its scope.
H. Consensual Recordings
Describe any consensual recordings that may have been obtained in the investigation.
1. Explain that the use of such evidence is subject to the same limitations as those explained
in the Undercover Agent/Confidential Information discussed above. Furthermore, if
there is no Undercover Agent or Confidential Informant, there will be no consensual
conversations.
I. Financial Investigations, (If Applicable)
Describe any financial investigations conducted. Discuss limitations or inapplicability of
financial investigations including the following, if applicable:
Part II – Page 36
1. The true identities of the violators may not be known.
2. The financial resources of the violators may not be known.
3. A financial investigation may trace illegal proceeds, but it may not achieve
the goals of the investigation to fully identify and develop prosecutable
evidence against all members of the organization.
J. Other Wiretaps
Describe why other wiretaps have not achieved the goals of the investigation. [If inapplicable,
delete this section from the affidavit.]
K. Mail Cover Requests
Describe any mail cover request made to the United States Postal Service.
1. Any list of sender and receiver names and addresses on mail received at Target location.
2. Explain any connection of names and addresses received to ongoing investigation.
X.
STIMULATION/STRATEGY
For (cold) murders and gang investigations, consider “stimulation”, i.e. police activity that will
encourage or stimulate target subjects and associates to discuss crime over the target telephones.
1. Indicate type of police activity that will be conducted to stimulate conversations, and
when such police activity has, or will, occur.
a. Search warrants (locations, blood samples, etc.)
b. Interviews (including family and friends)
c. Parole/probation searches
d. Media
XI
DURATION OF INTERCEPTION
(PC 629.50(a)(5) states that the affidavit should contain a statement that the intercept order
should not terminate after the first conversation is intercepted. The following is a sample
“Duration of Interception" section that may need to be modified to conform to the
investigation.)
This affidavit is in support of an application to intercept wire and electronic communications for
a period not to exceed thirty (30) days. It is the goal of this investigation to fully establish the
identities and roles of the persons engaged in the murder and/or criminal street gang activity
under investigation. Therefore, I request that interceptions not be ordered terminated upon the
first interception of conversations regarding the murder and/or criminal street gang activity, but
be allowed to continue until the full scope of the persons involved and their respective roles, are
determined, or for thirty (30) days, whichever come first. Further, I request that [LAW
ENFORCEMENT AGENCY] execute such order, establishing an interception and listening post
in [APPLICABLE COUNTY]. All intercepted conversations will first be heard in
Part II – Page 37
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[APPLICABLE COUNTY], and the interception will automatically take place in
[APPLICABLE COUNTY], regardless of where the telephone calls are placed to or from.
(United States v. Luong (9th Cir. 2006) 471 F.3d 1107, 1109.)
XII
CONCLUSION
(The following information should be included in the affidavit and may be put in the Conclusion
portion of the affidavit if not located elsewhere.)
1. Agency that will conduct the wiretap investigation.
2. Location of wire room where wire conversations will be intercepted and recorded.
3. Include a Hobbs request to seal a portion of the affidavit, if appropriate.
4. A final summation regarding the affiant's belief that the target communication devices are
being used to discuss and facilitate the crimes being investigated.
XIII.
EXTENSIONS (PC 629.50(a)(7))
If this is a request for an extension, the affidavit should contain the following:
1. A statement setting forth the number of communications intercepted pursuant to
the original order.
2. The results thus far obtained from the interception, including telephone calls, seizures,
and other aspects of the investigation; or a reasonable explanation of the failure to
obtain results.
3. Update exhaustion (e.g., surveillance, etc.).
Part II – Page 38
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AFFIDAVIT
B. Murder (Extension with Hobbs
Sealing Request)
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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF [LOS ANGELES]
IN THE MATTER OF THE APPLICATION )
OF THE DISTRICT ATTORNEY OF THE ) WIRETAP NO. XX-XX
COUNTY OF [LOS ANGELES] FOR AN )
ORDER AUTHORIZING THE )
INTERCEPTION OF WIRE AND )
ELECTRONIC COMMUNICATION )
__________________________________________)
AFFIDAVIT IN SUPPORT OF APPLICATION FOR AN ORDER
AUTHORIZING THE INTERCEPTION OF WIRE AND
ELECTRONIC COMMUNICATIONS
I.
INTRODUCTION AND EXPERTISE
Detective [INSERT AFFIANT NAME] declares as follows:
1. [USE FOLLOWING FORMAT]: I am a sworn peace officer within the meaning
of Penal Code section 830, and have been so employed for the past seventeen (17) years. I have
been a sworn member of the Los Angeles Police Department (LAPD) for fourteen (14) years,
and have spent the last ten years as a detective in investigative assignments. My experience has
ranged from property crimes and domestic violence investigations, to sexual assaults and
homicides. I have worked as a homicide detective since 2003, and have personally investigated
69 homicides and have assisted to varying extent in the investigation of over 100 additional
homicides. I am currently assigned as a homicide detective at the Criminal Gang Homicide
Division. In the course of my duties, I have interviewed numerous suspects and witnesses for the
offenses of murder, attempted murder, rape, assault, and other felony crimes, and have
questioned them regarding the manner in which they commit these crimes, dispose of or hide
evidence, and avoid discovery by law enforcement. I have attended postmortem
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examinations, and consulted with Medical Examiners. I have received both formal and informal
training within the Los Angeles Police Department in regards to violent felonious assaults and
homicide cases. I have attended seminars and presentations regarding the investigation of
assaults and homicides. I have testified on numerous occasions regarding such crimes in
Superior Court.
2. I have been the affiant on numerous search warrants, which focused on the
investigation of sexual assaults and homicides, often involving gang members. These
investigations include crimes committed for the benefit, on behalf of, or to promote criminal
gang activity. As a detective, I have interviewed and arrested numerous suspects involved with
sexual assaults, property crimes, homicides, and other offenses. Through these investigations I
have learned to identify patterns in criminal behavior. Additionally, I have gained experience
with how evidence is often concealed from law enforcement. My investigative experience is
further enhanced through the exchange of information with other members of law enforcement.
3. I am certified by the California State Attorney General’s Office in the practical,
technical and legal aspects of conducting court ordered wiretaps, as authorized in California
Penal Code section 629.50 et seq.
4. The purpose of this application for a court authorized wiretap is as follows:
a. To investigate a specific case of murder (Penal Code section 187) as listed in
Penal Code section 629.52(a)(2). Your affiant has been assigned to assist with
the investigation regarding the murders of [INSERT VICTIMS]. [SET
FORTH A VERY BRIEF OVERVIEW OF THE CRIME. USE
FOLLOWING FORMAT]: On [DATE], [VICTIM] was
Part II – Page 40
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[SHOT/ STABBED/ ETC.] at [LOCATION]. The murder was reported under
[LAW ENFORCEMENT REPORT NUMBER].
5. Based upon the investigation, set forth in detail below, I assert that there is
probable cause to believe that evidence regarding the involvement and/or knowledge of
[INSERT NAME(S) OF TARGET SUBJECT(S)] in the murders of [VICTIMS] will be
discovered from the interception of the wire and electronic communications of the Target
Telephones. I believe interception of the Target Telephones will allow investigators to develop
proof of the involvement and specific actions of [INSERT TARGET SUBECTS], and potentially
unidentified additional suspects, in the murders of [VICTIMS].
6. I further believe that interception of the Target Telephones will allow
investigators to develop potential information on, and therefore aid in the recovery of, possible
physical evidence related to the crime.
7. I hereby make application to intercept the wire and electronic communications of
Target Telephone #1 (NAME OF TARGET SUBECT), Target Telephone #2 (NAME OF
TARGET SUBJECT), as well as communications among and between the Target Subjects,
and between the Target Subjects and potentially other yet-to-be identified principals,
conspirators, or confidants.
8. I request the [INSERT LAW ENFORCEMENT AGENCY] and others assisting
be ordered to execute this wire intercept order. The interception and listening post will be in Los
Angeles County. All intercepted conversations will be first heard in Los Angeles County, and
interception will automatically take place in Los Angeles County, regardless of where the
telephone calls are placed to or from. (United States v. Luong (9th Cir. 2006) 471 F.3d 1107,
1109.)
Part II – Page 41
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II.
TARGET TELEPHONES
9. According to the subpoenaed Telephone Companies’ business records that I
reviewed:
a. Target Telephone #1 is a cellular telephone serviced by [TELEPHONE
COMPANY] and is subscribed to [INSERT SUBSCRIBER NAME EXACTLY
AS IT APPEARS IN PHONE RECORDS]. Target Telephone #1 is assigned
telephone number [INSERT TELEPHONE NUMBER] and was established on
[DATE]. Based upon information contained herein, Target Telephone #1 is
primarily used by [INSERT NAME OF TARGET SUBEJCT]. As of [DATE],
Target Telephone #1 is being serviced by [TELEPHONE COMPANY] and is an
active account placing and taking calls.
b. Target Telephone #2 is a cellular telephone serviced by [TELEPHONE
COMPANY] and is subscribed to [INSERT SUBSCRIBER NAME EXACTLY
AS IT APPEARS IN PHONE RECORDS]. Target Telephone #2 is assigned
telephone number [INSERT TELEPHONE NUMBER] and was established on
[DATE]. Based upon information contained herein, Target Telephone #2 is
primarily used by [INSERT NAME OF TARGET SUBJECT]. As of [DATE],
Target Telephone #2 is being serviced by [TELEPHONE COMPANY] and is an
active account placing and taking calls.
Part II – Page 42
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INCLUDE THE FOLLOWING IF THIS IS AN APPLICATION FOR AN EXTENSION:
10. Between [DATE], and [DATE], the following number of communications were
intercepted over the Target Telephones pursuant to Wiretap No. XX-XX:
Completed Pertinent Privileged
Target Telephone #1 236 14 2
Target Telephone #2 103 17 0
III.
TARGET SUBJECTS
11. Information concerning the Target Subjects has been obtained from the
following sources and criminal indices, as available: California Department of Motor Vehicles
(DMV), California Law Enforcement Telecommunications System (CLETS), National Crime
Information Center (NCIC), and records of the Los Angeles County Sheriff’s Department and
the Los Angeles Police Department.
12. [NAME OF TARGET SUBJECT] is a 19-year old [INSERT RACE] male, with
a birth date of [DOB]. [TARGET SUBJECT] is approximately 5’5” tall and weighs
approximately 145 pounds with black hair and brown eyes.
a. [TARGET SUBJECT] has the following identification numbers assigned to
him: California Driver’s License #, CII #.
b. [TARGET SUBJECT]’s most recent documented address is 320 W. Temple
Street, Los Angeles, CA.
c. [INLCUDE GANG AFFILIATION IF RELEVENT]
d. [TARGET SUBJECT]’s arrests and/or convictions include: [USE
FOLLOWING FORMAT]:
Part II – Page 43
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13. 08/11/2011 PC 71 36 months probation
a. Discovery of Target Telephone #1
i. IV. [EXPLAIN HOW TARGET TELEPHONE #1 WAS DISCOVERED
AND WHY YOU BELIEVE THE TARGET SUBJECT IS USING IT.]
PRIOR APPLICATIONS
14. On [DATE], your affiant made an inquiry to the California Attorney General’s
Office and United States Department of Justice pursuant to Penal Code 629.50(a)(6), and was
informed that no other applications have been made to any State or Federal Court for
authorization to intercept wire and electronic communications of Target Subjects [INSERT
NAMES] or the Target Telephones in this affidavit.
V.
STATEMENT OF PROBABLE CAUSE1
MURDERS OF [INSERT VICTIMS’ NAMES]
[SET FORTH THE CIRCUMSTANCES AND DETAILS OF CRIME, INVESTIGATION
THUS FAR CONDUCTED, AND POSSIBLE USE OF THE TARGET TELEPHONES IN
CONNECTION WITH THE CRIME. INCLUDE THE DISCOVERY OF THE BODY,
WITNESS INTERVIEWS, CRIME SCENE ANALYSIS, AUTOPSY RESULTS, RESULTS
OF SCIENTIFIC ANALYSES, FOLLOW-UP INTERVIEWS, PHOTOGRAPHIC LINE-UPS,
Part II – Page 44
1 Additional information regarding Probable Cause is contained within a Confidential Hobbs Attachment section.
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TOLL AND CELL TOWER ANALYSIS OF THE TARGET TELEPHONES, ETC.
PROBABLE CAUSE SHOULD BE LAID OUT CHRONOLOGICALLY.]
Crime Scene
15. [INSERT DETAILS]
Witnesses
16. [INSERT DETAILS]
Autopsy
17. On [DATE] the postmortem examination of [VICTIM] (Coroner Case # XXXX)
was conducted by [NAME] of the Los Angeles County Coroner’s Office. [DESCRIBE CAUSE
OF DEATH. INCLUDE ANY EVIDENCE (BULLETS, ETC.) THAT WAS LOCATED
DURING THE AUTOPSY.]
Area Surveillance Video
18. [INSERT DETAILS, IF RELEVANT]
Evidence Processing & Special Testing
19. [INSERT DETAILS, IF RELEVANT]
Ballistics Evidence
20. [INSERT DETAILS, IF RELEVANT]
Cell Phone Analysis / Toll Analysis of Target Telephones and Cell Site Timeline
21. [INSERT DETAILS, IF RELEVANT]
Toll Analysis of Target Telephones
Part II – Page 45
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22. An analysis of toll records for the Target Telephones for the time period of
[DATE] through [DATE] established:
a. There have been a total of [INSERT NUMBER OF CALLS] made from
[TARGET SUBJECT/TARGET TELEPHONE] to [TARGET
SUBJECT/TARGET TELEPHONE] over this time period.
Presentation of Case to District Attorney’s Office
23. On [DATE], detectives from [LAW ENFORCEMENT AGENCY] met with the
Head Deputy of the Major Crimes Division of the Los Angeles County District Attorney’s
Office. It was the opinion of the District Attorney’s Office that at present there is currently
insufficient evidence to support a successful prosecution in this case. The District Attorney’s
Office was therefore unwilling to file charges without additional evidence.
Status of Investigation
24. Law enforcement has no additional leads or evidence sufficient to submit the
murders of [VICTIMS] for filing consideration to the Los Angeles County District Attorney’s
Office.
The Last Pertinent Calls for Target Telephone #1
25. There are no last pertinent recorded/monitored calls because the Target
Telephones have not yet been captured by a listening device.
VI.
NECESSITY
[NECESSITY IS THE AREA THAT THE DEFENSE WILL MOST LIKELY
CHALLENGE IN A MOTION TO SUPPRESS. BOILERPLATE ASSERTIONS THAT
Part II – Page 46
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MERELY DESCRIBE INHERENT LIMITATIONS OF NORMAL INVESTIGATIVE
PROCEDURES AND ARE UNSUPPORTED BY SPECIFIC FACTS RELEVANT TO THE
PARTICULAR CIRCUMSTANCES OF THE CASE AND TRUE OF MOST IF NOT ALL
INVESTIGATIONS ARE INSUFFICIENT. A FULL AND COMPLETE STATEMENT OF
NECESSITY MUST SPECIFY WHY, IN THE PARTICULAR CASE AT HAND, THESE
INHERENT LIMITATIONS WILL BE INSUFFICIENT.]
26. The investigating officers believe that two of the perpetrators in the murders of
[VICTIMS] were [TARGET SUBJECTS]. Unfortunately, detectives have only circumstantial
evidence at this point and are completely unable to determine whether it was [TARGET
SUBJECTS] (or an unknown third principal to the crime), who actually wielded the weapon
used in these murders.
27. While some information has been obtained to point law enforcement in a
particular direction, additional evidence is needed to ensure the identification, location and
successful prosecution of all those involved in the murders of [VICTIMS], as well as the
identification of additional evidence to aid in the prosecution of any other individuals involved in
these murders.
28. Interception of wire and electronic communications to and from the Target
Telephones will enable law enforcement to fully achieve the objectives of this investigation,
namely, to obtain direct evidence that will convince a jury beyond a reasonable doubt of the
following:
a. The identification and successful prosecution of all those involved in the
murders of [VICTIMS];
b.
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c. The involvement of [TARGET SUBJECTS], and any/all unidentified
additional principals in the murders of [VICTIMS].
d. The actual specific actions taken by [TARGET SUBJECTS], and any/all
additional unidentified principals to the crime. To include the identity of, and
evidence against, the principal for whom the personal use of a [WEAPON]
allegation may be secured.
e. The location of the [WEAPON(s)] used in the murders of [VICTIMS].
29. Your affiant believes the interception of the wire and electronic communications
to and from the Target Telephones is necessary in this matter because normal investigative
techniques have been tried and/or have failed to fully achieve the objectives of this investigation,
and/or appear reasonably unlikely to succeed if tried, and/or are too dangerous to be tried, as
more fully explained below.
[IF THIS IS AN APPLICATION FOR AN EXTENSION, YOU MUST ADDRESS
PENAL CODE SECTION 629.50(a)(7) AND EXPLAIN THE RESULTS THUS FAR
OBTAINED FROM THE INTERCEPTION OR A REASONABLE EXPLANATION FOR THE
FAILURE TO OBTAIN RESULTS.]
30. The following is a list of the investigative techniques which have been used
and/or which the investigating officers have considered using, to date, in this investigation and
an explanation for some concerning why these techniques are not likely to succeed in identifying
and successfully prosecuting the perpetrator(s) of these crimes.
Media Broadcast and Public Assistance
31. [DISCUSS, IF RELEVANT]
Part II – Page 48
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Monetary Reward Offer
32. [DISCUSS, IF RELEVANT]
Witness Interviews, Law Enforcement Contacts, and Arrests
33. [DISCUSS]
Surveillance Video
34. [DISCUSS, IF RELEVANT]
Evidence Processing and Special Testing
35. [DISCUSS IF RELEVANT]
Undercover Agents (UC) and/or Confidential Informants (CI)
36. [DISCUSS IF RELEVANT]
Surveillance
37. [DISCUSS. BE SPECIFIC AS TO PRIOR USE OF SURVEILLANCE AND
LIMITATIONS OF CONTINUED SURVEILLANCE.]
Closed Circuit Television Monitoring
38. [DISCUSS. BE SPECIFIC AS TO WHY CCTV USE IS NOT FEASIBLE OR
BENEFICIAL TO THE INVESTIGATION.]
Probation/Parole Searches
39. [DISCUSS]
Vehicle Tracking Devices
40. [DISCUSS]
Jailhouse Monitoring
41. [DISCUSS]
Part II – Page 49
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Search Warrants
42. [DISCUSS]
Trash Searches
43. [DISCUSS]
DNR and Pen Registers
44. [DISCUSS]
45. During the course of this investigation so far, detectives have utilized and will
continue to utilize information from pen registers, trap and trace devices, and toll analysis to
further this investigation. Pen register and toll information provide identifying information
regarding calls made from a particular telephone and their frequency. This technique, however,
will only provide us with a list of the numbers called, and will not establish the identities of all
the persons called or the content of the conversations.
46. A trap and trace device is simply the complement of a pen register, it identifies
the number of the telephone that has called the Target Telephones and is subject to the same
limitations. Trap and trace devices, like pen registers, do not identify the speakers or contents of
a telephone conversation.
Grand Jury Empanelment
47. [DISCUSS]
48. The empanelment of a grand jury at this stage of the investigation would not, in
your affiant’s opinion, disclose any further information or evidence to aid in the successful
prosecution of the murders of [VICTIMS.] Calling a Target Subject as a witness would require
a grant of use immunity and would not necessarily produce truthful or reliable testimony. The
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use of a grand jury would also alert the Target Subjects of the ongoing investigation, and the
fact that they are known to be involved.
Social Media
49. [EXPLAIN ATTEMPTS TO ACCESS FACEBOOK, MYSPACE, ETC. AS
PART OF THE INVESTIGATION.]
VII.
STRATEGY
50. [DISCUSS SPECIFIC STRATEGY TO BE USED AFTER THE WIRETAP IS
ACTIVE.]
51. It is your affiant’s belief that the implementation of the above-listed investigative
procedures will stimulate conversation by the Target Subjects on the Target Telephones, and
that these conversations will assist in the identification of the persons responsible, the possible
location of evidence, the identification of potential witnesses, and provide utterances of guilt or
the manufacture of alibis.
VIII.
DURATION OF INTERCEPTION
52. The facts set forth in this affidavit establish that the Target Subjects were
involved or have specific knowledge in the murders of [VICTIMS]. Your affiant also believes
that the Target Subjects will communicate with others who may have specific knowledge of
these murders and also the possible identity of additional unidentified suspects. Your affiant
believes that the evidence sought in these murder investigations will be intercepted on a
Part II – Page 51
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continuing basis following the first receipt of the particular communications, which are the
subject of this request.
53. Your affiant therefore requests this court’s authorization for interception not
terminate when the communications described herein are first intercepted, but may continue until
the full scope of the criminal investigation is completed, including the identities of all
participants, the locations of fruits (cellphones) and instrumentalities (firearm, vehicle) of the
crime, the Target Subjects method of operation, and the various activities in which they have
participated in the murders as outlined in this affidavit, or for a period of (30) thirty days. Your
affiant further requests that the [Los Angeles Police Department’s Criminal Gang Homicide
Division] execute the order, establishing an interception and listening post in [Los Angeles
County].
IX.
CONCLUSION
54. Detectives [NAMES], with the assistance of the personnel assigned to the
Criminal Gang Homicide Division will continue to use normal investigative techniques in this
investigation. These techniques will include, but will not be limited to those activities outlined in
the previously noted Probable Cause and Necessity sections. However, it is the opinion of the
lead investigators and your affiant that these techniques alone will not allow investigators to
obtain all critical information, establish the identity of a third possible suspect, or identify the
particular shooter in the murders being investigated. Interception of the Target Telephones will
allow the investigators to obtain critical incriminating evidence in this matter and to successfully
prosecute [TARGET SUBJECTS]. Therefore, your affiant respectfully requests permission
from the Court to implement an intercept of Target Telephones #1 and #2.
Part II – Page 52
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55. [INSERT FOLLOWING LANGUAGE IF AFFIDAVIT INCLUDES A HOBBS
ATTACHMENT.] Finally, I request the court seal the section of this affidavit entitled
Confidential Hobbs Attachment pursuant to People v. Hobbs (1994) 7 Cal.4th 948, People v.
Acevedo (2012 Cal.App. LEXIS 1038), and Evidence Code sections 1040-1042. If this
information is revealed, it will compromise the sources of any confidential information and place
any confidential sources and/or undercover operatives in jeopardy as well as disclose the
ongoing investigation targeting the Target Subjects detailed within this affidavit.
56. This application will be kept in the custody of the [LAW ENFORCEMENT
AGENCY] to be disclosed only upon a showing of good cause before a court of competent
jurisdiction.
I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge, and that this affidavit was executed in [Los Angeles County], California.
Dated: ________________________________
[AFFIANT NAME]
[AFFIANT AGENCY]
Part II – Page 53
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BEGINNING OF CONFIDENTIAL HOBBS ATTACHMENT
WIRETAP NO. XX-XX
PROBABLE CAUSE (cont.)
[INCLUDE ANY INFORMATION REGARDING INFORMANTS OR OTHER
CONFIDENTIAL INFORMATION. THE DEFENDANT IS NOT ENTITLED TO A COPY
OF THE HOBBS ATTACHMENT ABSENT A COURT ORDER.]
I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge, and that this affidavit was executed in [Los Angeles County], California.
Dated: ________________________________
[AFFIANT NAME]
[AFFIANT AGENCY]
END OF CONFIDENTIAL HOBBS ATTACHMENT
WIRETAP NO. XX-XX
Part II – Page 54
3.
GANGS
SPECIAL INSTRUCTIONS FOR GANG AFFIDAVIT
Penal Code section 629.52 (a)(3) provides that a wiretap order may be issued for “any felony
violation of section 186.22.”
Penal Code section 186.22 is part of the Street Terrorism Enforcement and Prevention (S.T.E.P.)
Act, which calls for increased penalties when a criminal street gang is involved in the
commission of criminal acts.
The gang affidavit under the state wiretap statute is similar to the affidavit for murder with the
additional requirements that the existence of (1) a criminal street gang and (2) a pattern of
criminal gang activity should be set forth in the affidavit.
1. Criminal Street Gang. The affidavit should establish that the gang in question is a criminal
street gang as defined in Penal Code section 186.22(f) in that it consists of more than three
members; it is engaged in the commission of one or more criminal acts enumerated in Penal
Code section 186.22 (e) paragraph 1-25; and it has a common name with a common identifying
symbol. The affidavit should also establish that the Target Subjects are members of the street
gang in question.
2. Pattern of Criminal Gang Activity. The affidavit should include incidents showing a “pattern
of criminal gang activity” as defined in Penal Code section 186.22(e) involving the commission
or conviction of two or more of the offenses enumerated in Penal Code section 186.22 (e)
paragraph 1-25.
The language that appears on the following pages should be included in sections VII and VIII of
the sample a murder affidavit that appears in Part II, Section B if it is desired to prepare a
murder/gang affidavit.
Part II – Page 55
4.
ORDER
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION ) OF THE DISTRICT ATTORNEY OF THE ) COUNTY OF LOS ANGELES FOR AN ORDER ) WIRETAP NO. XX-XX AUTHORIZING THE INTERCEPTION OF ) WIRE AND ELECTRONIC COMMUNICATIONS )
)
ORDER AUTHORIZING THE INTERCEPTION OF COMMUNICATIONS
AS PROVIDED IN PENAL CODE SECTIONS 629.50 ET SEQ.
Jackie Lacey, the District Attorney for the County of Los Angeles, State of California, has
made application to this Court applied to this Court, pursuant to Penal Code section 629.50 et seq.,
requesting authorization to intercept wire and electronic communications to and from certain
telephones or electronic mail (“e-mail”) accounts described below (hereinafter the Target
Telephone(s) or Target Accounts). The application was accompanied by the affidavit of [affiant]
from [law enforcement agency] and the review of [name, title, law enforcement agency]. This court
has read and considered each of those documents, referred to hereinafter as the "Application."
IT APPEARING TO THIS COURT:
(1) There is probable cause to believe that the individual identified and/or referred to in
the Application as [Target Subject] and other co-conspirators (the “Target Subjects”) have
engaged in, have committed, are committing, and will continue to commit the crime of
importation, possession for sale, transportation, and sale of a controlled substance in violation of
Health and Safety Code sections 11351, 11352, 11378 and 11379 with respect to a substance
containing cocaine and methamphetamine exceeding three pounds of solid substance by
weight, possession of narcotics proceeds in violation of Health and Safety Code section
Part II – Page 56
11370.6, and conspiracy to commit said offenses in violation of Penal Code section 182, within
the meaning of Penal Code sections 629.52(a)(1) and 629.52(a)(6) (hereinafter the “Target
Offenses”).
(2) There is probable cause to believe that particular wire or electronic communications
concerning said crimes (the illegal activities) will be obtained through this interception. (Penal
Code section 629.52(b).)
(3) There is probable cause to believe that the facilities from which, or the place where
the wire or electronic communications are to be intercepted, are being used, or are about to be used,
in connection with the commission of said offenses, or are leased to, listed in the name of, or
commonly used by the persons whose wire or electronic communications are about to be
intercepted, and is within the territorial jurisdiction of this court. (Penal Code section 629.52(c).)
(4) Normal investigative procedures have been tried and have failed and appear to be
unlikely to succeed if tried and/or are too dangerous. (Penal Code section 629.52(d).)
IT IS HEREBY ORDERED:
(1) Interception of the wire and electronic communications to and from the
communication device (the “Target Telephones”) or e-mail accounts (the “Target Accounts”)
described below including the installation and use of pen registers, dialed number recorders and
trap-and-trace devices on the Target Telephones, is hereby authorized.
(2) The actual interception and listening post shall be in Los Angeles County. This
authorization extends to wire or electronic communications occurring outside California where
Part II – Page 57
the contents of the redirected wire or electronic communications are first heard or accessed in
Los Angeles County. (See United States v. Rodriguez (2d Cir. 1992) 968 F.2d 130 and United
States v. Luong (9th Cir. 2006) 471 F.3rd 1107.)
(3) Properly trained investigators and monitors working with the [law enforcement
agency] are authorized to intercept the wire or electronic communications of the Target Subjects
concerning the above-described offenses to and from the Target Telephones for a period of thirty
days. (Penal Code sections 629.54(a) and (b).) The Target Telephones1 are described as follows:
a. Target Telephone #1: (XXX) XXX-XXX is a [Telecommunication
company] cellular telephone. The subscriber information is listed as [Name,
address] Target Telephone #1 is used by [Target Subject].
b. The term "Target Telephone" refers to any subsequently changed telephone
number assigned to the same MSID/ESN with the same subscriber
information, and /or any subsequently changed MSID/ESN assigned to the
same telephone number with the same subscriber information.
(4) That the particular types of communications authorized to be intercepted are wire
and electronic communications concerning the commission of said offenses. (Penal Code section
629.54(c).)
(5) That the [law enforcement agency] is the agency authorized to intercept the
communications. (Penal Code section 629.54(d).)
(6) That the District Attorney of Los Angeles County, State of California, is the applicant for
Part II – Page 58
1 Additional identifying language concerning the Target Telephones may be contained in the Application and
Affidavit and incorporated herein.
this interception. (Penal Code section 629.54(d).)
(7) This order is valid for thirty days. The thirty days commence at the hour and
minute of the initial interception or ten days after the hour and minute the order was signed,
whichever comes first. A day is defined as a 24-hour period. This order shall not automatically
terminate when the described communication has been first obtained because the affidavit
describes the ongoing nature of the illegal activities. (Penal Code section 629.54(e)).
(8) The intercept shall be executed as soon as practicable, shall be executed in such a
way as to minimize the interception of communications not otherwise subject to interception, and
shall terminate upon attainment of the authorized objective, or in any event, no longer than 30 days
from the day of the initial interception or 10 days after the issuance of the order, whichever comes
first, unless an extension is granted. (Penal Code section 629.58). In the event the intercepted
communication is in a code or foreign language and an expert in that foreign language or code is not
reasonably available during the interception period, minimization may be accomplished as soon as
practicable after such interception.
(9) That Tracfone, BlackBerry Corporation, RESEARCH IN MOTION
CORPORATION (RIM), Cellco Partnership D.B.A.Verizon Wireless, Verizon Communications
and its subsidiaries, T-Mobile USA, Metro PCS, Sprint/Nextel Boost Mobile Wireless, AT&T,
AT&T Wireless Services, AT&T Broadband, Conexone Wireless, Nextel, Nextel
Communications, Sprint-Nextel, Sprint PCS, T-Mobile, Sprint Spectrum L.P., Sprint Long
Distance, U.S. Sprint, T-Page Plus Communications, Pacific Bell Telephone Company, Pacific
Part II – Page 59
Telesis Group, Pacific Bell Wireless, Cingular Wireless, Cingular Wireless West Coast, SBC,
General Telephone Company, Allegiance Telecom, Verizon California Inc, Verizon New York,
Verizon West Coast Inc, Verizon, Verizon Wireless, Cellco Partnership doing business as
Verizon Wireless, Qwest, Qwest Wireless, Qwest Corporation, U.S. West, WorldCom,
WorldCom Wireless, MCI, MCI WorldCom, In Touch Communications, Cellular One, U.S.
Telepacific Communications, MPower Communications, Tuyo Mobile (an IDT Company),
Virgin Mobile; Time Warner Telecom, Optel Telecom, GST Telecom Inc, XO, XO California
Inc, PacWest Telecomm, CCCA Inc, d.b.a. Connect Communications Corporation, BellSouth,
Cox, Cox Communications Inc, d.b.a. Cox California Telecom Inc, Citizens Communications,
Continental Cablevision, Northwestern Bell, Evans Telephone Company, Central Wireless
Partnership, Arch Wireless, TSR Wireless, Airstar Paging, Winstar Telecommunications,
Network Services LLC, Tri State Radio Paging Inc, PageNet, PageMart, Southwest Paging,
AirTouch Paging, Metrocall, Weblink Wireless, T-Mobile USA, Boost Mobile, Sprint
Communications/Time Warner Telecom, Google, AOL, Earthlink, Yahoo!, Hotmail, MySpace,
HotPop, Apple Inc., Microsoft, and any other telephone, long distance, calling card, paging,
cellular, wireless or other telecommunication or electronic mail service providers (hereinafter
referred to as the Telecommunication Companies or Email Service Providers) shall, upon oral or
written request of law enforcement, provide technical assistance necessary to accomplish the
interception unobtrusively and with a minimum of interference with the services which said
companies are providing to the people whose communications are to be intercepted and shall
Part II – Page 60
provide caller identification where possible.
(10) That the Telecommunications Companies or E-mail Service Providers, upon oral or
written request of law enforcement under this order, which complies with Section 2703(d) of Title
18 of the United States Code, shall, within 48 hours (including after-business hours, weekends, and
holidays), without delay:
a. Provide any and all information related to any telephone(s), pager(s), text
messaging devices, cellular/wireless telephones, calling cards, and other communication devices
contacting or being contacted by the Target Telephones or Target Accounts and, the subscriber(s) of
any such communication devices(s). Such information shall include, but not be limited to, all
numbers and accounts associated with the primary number/account, service and billing information
(billed and unbilled), activation date, credit information, co-signer information, contact address(es)
and telephone number(s), call identification information whether published or non-published,
Global Positioning System (GPS) data and all information identifying the communication device(s)
such as electronic serial number (ESN) international mobile subscriber identifier (IMSI),
international mobile equipment identifier (IMEI), subscriber identity module (SIM) number, any
and all encryption keys/codes or other identifier.
b. Provide toll information, including any and all historical data for any period
requested by law enforcement within 48 hours of the request, call detail, including direct connection
/ push-to-talk information, call records, originating and terminating call detail, Global Positioning
System (GPS) information, extended dialed digit information, dialed digit extraction, and/or post
Part II – Page 61
cut-through digits from any and all telephones calling to or being called by each Target Telephone
number.
c. Provide cell site data including, but not limited to, cell site location
(physical address) of call initiation, Global Positioning System (GPS) information, call
termination, and call progress locations (Automated Message Accounting Data) connected to the
use of each Target Telephone number and any and all cellular telephones calling to or being
called by each Target Telephone number, on an ongoing and/or real time basis, pursuant to Title
18 USC Section 2703(d). This request for data and information in this paragraph shall apply to
any and all other telephones calling to or being called by the Target Telephones, that are linked
to this investigation by facts known to law enforcement from electronic intercepts or other
investigative methods. The authorization to intercept cellular telephone GPS information is based
upon a finding of probable cause as required by Penal Code section 629.52 and the United States
Supreme Court’s decision in United States v. Jones (2012) 565 U.S. ___.
d. Authorize the installation and/or use of equipment known as dialed number
recorders to detect and record all numbers dialed or pulsed by the telephones connected to each
Target Telephone number.
e. Authorize the installation and/or use of equipment to trap and trace and
identify the telephone numbers of persons placing calls to and from the target telephone numbers,
including the activation of caller identification feature, (e.g. “caller ID”), any calling features such
as "call-forwarding" and "speed dialing" currently assigned to the primary telephone numbers, and
Part II – Page 62
that the tracing operation and the use of the caller ID service be without geographical limits.
f. Provide access and access codes to voice mail and voice mail features.
g. Authorize the installation and/or use of all facilities to enable the
interception and monitoring of all functions and capabilities of the Target Telephones or Target
Accounts, and that law enforcement be provided all access necessary to install the necessary
equipment required to implement such interception, including but not limited to, all wireless
digital functions, wireless analog functions, push-to-talk/direct connect/digital dispatch/direct
dispatch functions, Voice over IP communications, automatic mode switching functions, “short
message service,” text messages, packet data services, instant messages, and data services to
include video mail, video messaging, picture messaging and/or picture mail. This includes
interception of cellular communications occurring outside California where the contents of the
redirected communications are first heard or accessed in Los Angeles County. (See United
States v. Rodriguez (2d Cir. 1992) 968 F.2d 130 and United States v. Luong (9th Cir. 2006) 471
F.3rd 1107.) This authorization excludes the interception of Internet web browsing activities
using any Uniform Resource Locator (URL) and Uniform Resource Identifier (URI), including
but not limited to Hypertext Transfer Protocol (HTTP), Hypertext Transfer Protocol Secure
(HTTPS), File Transfer Protocol (FTP), and Hypertext Markup Language (HTML).
h. Provide all information related to pre-paid cellular telephones including
historical, past, present, current, and on-going activity related to hours, minutes, and money left
on the pre-paid telephone account.
Part II – Page 63
i. Provide pass codes, user ID, passwords, access codes, and usernames and
identify any other features specific to the Target Telephones with GPS capabilities.
j. Provide all published and non-published subscriber information, including
Buddy List information and subscriber information pertaining to the Buddy List, as well as pass
codes, user ID, passwords, access codes, and usernames, and identify any other features specific to
any and all telephones calling into or being called by each Target Telephone number.
k. Provide an itemized bill to the law enforcement agency for services
rendered for the implementation of this order.
(11) Where applicable, the Federal Bureau of Investigation (FBI) is authorized to assist
with the delivery of call content and data between the Telecommunications Companies or Email
Service Providers and the listening posts in Los Angeles County.
(12) That there shall be written reports to this court for every ten-day period,
commencing with the date of the signing of the order, during the interception showing what
progress has been made toward achievement of the authorized objective, or a satisfactory
explanation for a lack thereof and the need for continued interception; each ten-day report is to be
completed and presented to this court at the earliest possible time from the end of each ten-day
period, or as this court further directs. (Penal Code section 629.60).
(13) That the Telecommunications Companies or Email Service Providers shall not
disclose to the subscriber or any other unauthorized person any information regarding this
Part II – Page 64
interception, or the fact that it exists, unless authorized by further written order of this court or of
another court of competent jurisdiction.
(14) Pursuant to Penal Code section 629.64, the court copy of the analog tape recordings
shall be sealed on a daily basis and presented to this Court upon expiration of this order or any
extensions thereof. If, pursuant to Penal Code section 629.64, the recordings are made on a digital
optical disk or other digital recording media, that recording media shall be presented to this Court
upon expiration of this order or any extensions thereof.
(15) The agency executing this order shall maintain records so that an inventory pursuant
to Penal Code section 629.68 can be prepared. Such an inventory shall be sent to the following
classes of individuals: (1) persons named in the order or the application; (2) known parties to
intercepted communications; (3) persons for whom telephone subscriber information or email
address information has been obtained as the result of the telephone or e-mail address being used in
an intercepted conversation; (4) persons identified as the result of surveillance based on intercepted
conversations; (5) persons arrested as a result of intercepted conversations.
(16) The agency executing this order shall maintain a list of all persons described in the
previous paragraph who are identified during this wiretap and provide the Major Narcotics Division
of the District Attorney’s Office with said list upon the conclusion of the wiretap.
(17) The agency executing this order shall determine the result of an investigation,
Part II – Page 65
including the arrest of any individuals, whenever information derived from the wiretap is
communicated to another law enforcement agency or to another investigative team.
(18) The agency executing this order shall maintain a list of all persons arrested during
this wiretap and provide the Major Narcotics Division of the District Attorney’s Office with said list
upon the conclusion of this wiretap.
(19) The agency executing this order may make an application in the ten-day reports for
authorization to use the contents or intercepted communications and evidence derived there from,
for crimes not specified in the wiretap interception order, pursuant to Penal Code section 629.82.
(20) Pursuant to Penal Code section 629.61, the agency executing this order shall report
to the Attorney General, within 10 days after the order was issued, the persons, facilities, and places
that are to be intercepted pursuant to this order.
(21) All interception (i.e. monitoring) of conversations which include an attorney (or
other party to a privileged communication), shall immediately cease, as soon as the privileged
nature of the call is determined, unless there is reason to believe that the services of the lawyer (or
other party to a privileged communication) are being sought or obtained to enable or aid anyone to
commit or plan to commit a crime or fraud.
(22) The Application and the court order shall be sealed and kept in the custody of the
[law enforcement agency] and a copy of the same shall be kept in the custody of the Los Angeles
County District Attorney’s Office. [It is further ordered that the sections of this affidavit entitled
“Confidential Hobbs Attachment” be sealed until further order of this court, pursuant to People
Part II – Page 66
v. Hobbs (1994) 7 Cal.4th 948, People v. Acevedo (2012) 209 Cal.App.4th 1040, and Evidence
Code sections 1040-1042].
DATE:
TIME:
HONORABLE LARRY P. FIDLER
LOS ANGELES COUNTY SUPERIOR COURT
Part II – Page 67
5.
EMERGENCY ORDER
1. Procedures
2. Methods
3. Script
4. Sample Order
PROCEDURES FOR EMERGENCY WIRETAP AUTHORIZATION
Penal Code section 629.56 authorizes the court to “grant oral approval for an interception,
without an order” based on an informal application when “an emergency situation exists”
involving a “substantial danger to life or limb” and there is insufficient time for an
application for an order, with due diligence, to be submitted and acted upon. The parties to
the informal application and order must include:
1. A judge (who is wiretap designated)
2. The District Attorney or Chief Deputy (applicant)1
3. An affiant (“wiretap certified” investigating officer)
It is the policy of the Los Angeles County District Attorney's Office that the following parties
also be included:
4. Head Deputy or Assistant Head Deputy of the Major Narcotics Division (or
designated DDA from the Major Narcotics Division)
5. The DDA overseeing the prosecution, if known at the time
6. If the oral application is being recorded through the DA Command Post, then the
District Attorney investigator at the Command Post who is coordinating/
recording the multiple-party conference call.
It is expected that the affiant/officer will have made arrangements with and/or alerted the wire
room and relevant telephone companies prior to obtaining an emergency order.
1 Penal Code sections 629.50(a) and 629.56(a) authorize “a district attorney, or the person designated to act as
district attorney in the district attorney’s absence.” In Los Angeles County the Chief Deputy District Attorney is
designated to act as District Attorney in the District Attorney’s absence. While the statute empowers both the
District Attorney and Chief Deputy with equal authorization to submit applications for wiretap orders, it is the
policy of Los Angeles County District Attorney JACKIE LACEY that she shall make all wiretap applications to the
court, unless she is unavailable.
Part II – Page 68
METHODS FOR OBTAINING THE EMERGENCY ORDER
1. The easiest method is when the parties (or any combination of involved parties) can meet
at one location. Any party who is not present shall be included through a speaker
telephone/conference call. All statements that are part of the application process shall be
recorded.1
a. If this emergency arises during business hours, it is preferred to conduct this
meeting in the court’s chambers (in-camera) with a court reporter recording the
entire conference including all statements made by parties over the
telephone/conference call.
(1) Be sure to arrange to obtain the transcript as soon as possible so that it can
be incorporated as an attachment to the affidavit that must be submitted to
the court within two court days.
2. If each party is in a separate location, arrangements for the conference call and recording
of the call should be made through the District Attorney’s Command Post, (213) 974-
3607.
a. Be sure the affiant/officer obtains the original recording of that conversation,
which should be sealed along with the application. This tape must also be
transcribed immediately in order to be included as an attachment to the written
affidavit that must be submitted to the court within two court days.
1 Penal Code section 629.56 does not require that the informal application and oral order be recorded. However,
oral affidavits for search warrants must be “recorded and transcribed” (Penal Code section 1526 (b) (1)). By
analogy to search warrant procedures, it is recommended that the informal application and oral affidavit for an
emergency wiretap order also be recorded and transcribed. In addition, the preparation of the written application
that must be submitted within two court days, is greatly simplified by simply attaching the transcription of the
proceedings to the written application.
Part II – Page 69
SCRIPT FOR PARTIES TO ORAL APPLICATION
FOR EMERGENCY WIRETAP
1. Affiant/officer contacts Head Deputy or Assistant Head Deputy of the Major Narcotics
Division (213-974-6831) during normal business hours, or through the DA Command
Post (213-974-3607) after-hours, and discusses case. If the deputy district attorney
believes the case is appropriate for an emergency wiretap application, the Deputy District
Attorney will prepare a written EMERGENCY ORDER AUTHORIZING THE
INTERCEPTION OF WIRE OR ELECTRONIC TELEPHONE COMMUNICATIONS
AS PROVIDED IN PENAL CODE SECTIONS 629.50, et seq.1
2. The Major Narcotics Division Head Deputy will coordinate with the Command Post in
contacting the judge and District Attorney (or Chief Deputy) to advise them of the
pending application for an oral emergency wiretap.
3. The affiant/ officer should be prepared to attest to the following:
a. Affiant/ officer’s identity, agency, relevant expertise, and the fact that
he/she is certified pursuant to PC 629.94;
b. Statement of details of offense establishing probable cause to believe that:
1) An individual is committing, has committed or is about to commit one
of the qualifying offenses (PC 629.52(a)(1) through (5));
2) There is a substantial danger to life or limb; and
3) There is a necessity for immediate interception before a written
application could be submitted and acted upon.
c. Description of Target Subject(s) to the extent known, including:
1) Involvement with the crime/investigation;
2) Criminal history (if known); and
3) Physical description (if known).
d. Description of target telephone(s) including:
1) Nature, location and description of target telephone(s);
4) Why these Target Telephone(s) is/ are connected to the investigation;
and
5) Why it is believed the Target Telephone(s) will be used.
1 The Penal Code authorizes “oral approval” of a court order issued pursuant to this section. However, telephone
companies generally require a faxed copy of a written order before they will enable interception. (An example of an Emergency Order is attached to the memo, and is also included in the State Wiretap Manual).
Part II – Page 70
4. The DA Command Post sets up a conference call between the affiant/ officer, Head
Deputy, District Attorney (or Chief Deputy) and the judge.1 The telephonic recording
device is set up. When all parties are on the line, the recorder is turned on and the person
working the recorder announces, "Recorders are on." [Note: It is not essential that the
recording be done through the DA Command Post, but the entire conversation should be
recorded. A simple suction cup style induction coil and cassette tape recorder may be
attached to the affiant/ officer's phone - as long as the recording is intelligible and other
sides of the conversation are recorded].
5. The Major Narcotics Division’s Head Deputy introduces him/herself, and asks others to
do so2. All parties must identify themselves each time they speak and should speak
slowly and clearly.
6. The Head Deputy asks the judge to swear the officer. The affiant/officer is sworn. [If the
investigating officer is not wiretap-certified, and is relying on the assistance of a wiretap-
certified affiant, the judge should swear both officers].
7. The Head Deputy asks the affiant/ certified officer to state the facts that establish
probable cause for the wiretap application (as described in item 3 above).
8. The affiant/officer states the facts fully and completely. [If the statement of the facts of
the investigation is based on the representations of the non-certified officer, the certified
affiant should indicate that he is relying on the statement of the non-certified officer. The
non-certified investigator will then continue with the oral affidavit].
9. The District Attorney, judge, Head Deputy or assigned Deputy District Attorney can ask
questions to expand on the affiant/ officer’s narrative.
10. The Head Deputy asks the District Attorney if he/she is making this application for oral
approval of an interception.
11. If the District Attorney agrees, he/she answers “yes.”
12. The Head Deputy asks the judge if he/she is satisfied that the requirements for oral
approval of an emergency wiretap have been satisfied.
13. If the judge approves, he/she answers “yes,” and states the following findings:
1 The DA investigator at the Command Post may need to arrange to have the Command Post telephone service
provider set up the conference call due to the number of parties participating in this conference call.
2 The Head Deputy should ensure that all the necessary information is included in this informal application and oral
order (followed by the written emergency order)
Part II – Page 71
a. There are sufficient grounds upon which an order could be issued
under this chapter.
b. There is probable cause to believe that an emergency situation
exists.
c. There is probable cause to believe that a substantial danger to life
or limb exists justifying this authorization for immediate
interception before an application for an order could with due
diligence be submitted and acted upon.
d. This emergency oral order is issued upon the condition that,
within 2 court days of this oral approval, a written application for
an order shall be filed with this court, and the order shall recite the
oral approval that has been issued under this subdivision 629.56,
and is retroactive to the time of this oral approval.
14. The judge states the date and time of his/her oral approval of the application.
15. The deputy district attorney informs the parties that the oral application process is
complete, and authorizes the command post to stop the recording. The judge and affiant
are requested to remain on the phone.
16. After verification that the recording has stopped, the deputy district attorney makes
arrangements with the judge to fax the written emergency order to the judge’s location.
The judge signs the order, with the date and time, and returns the order to the affiant.
17. The affiant/investigator faxes the signed order to the wire room or telephone company,
depending on what arrangements have been made.
At this point telephone interception and monitoring should begin. The recording of the oral
application should be transcribed. The affiant/officer and deputy district attorney who assisted in
obtaining the order should listen to the tape/recording and verify and correct the transcription.
This transcription should be used as an attachment to the written application and affidavit that
must be submitted to the court within two court days.
The written wiretap application (including the District Attorney’s application, the review of the
Chief Executive Officer of the law enforcement agency, the affiant’s affidavit incorporating the
transcript of the oral application, and the written order) must be submitted to the judge who
issued the oral order within two court days of the issuance of that oral order.
Part II – Page 72
PC 629.56. Oral approval for interception
(a) Upon informal application by the Attorney General, Chief Deputy Attorney General, or Chief
Assistant Attorney General, Criminal Law Division, or a district attorney, or the person
designated to act as district attorney in the district attorney’s absence, the presiding judge of the
superior court or the first available judge designated as provided in Section 629.50 may grant
oral approval for an interception, without an order, if he or she determines all of the following:
(1) There are grounds upon which an order could be issued under this chapter.
(2) There is probable cause to believe that an emergency situation exists with respect to the
investigation of an offense enumerated in this chapter.
(3) There is probable cause to believe that a substantial danger to life or limb exists justifying the
authorization for immediate interception of a private wire or electronic communication before an
application for an order could with due diligence be submitted and acted upon.
(b) Approval for an interception under this section shall be conditioned upon filing with the
judge, by midnight of the second full court day after the oral approval, a written application for
an order which, if granted consistent with this chapter, shall also recite the oral approval under
this subdivision and be retroactive to the time of the oral approval.
Part II – Page 73
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JACKIE LACEY
District Attorney
By
Deputy District Attorney
Major Narcotics Division
320 W. Temple St., Room 345
Los Angeles, CA 90012
Telephone: (xxx) xxx-xxxx
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE
APPLICATION OF THE DISTRICT
ATTORNEY OF THE COUNTY OF LOS
ANGELES FOR AN ORDER
AUTHORIZING THE INTERCEPTION
OF WIRE AND ELECTRONIC
COMMUNICATIONS
)
)
)
)
)
)
)
WIRETAP NO.
WRITTEN CONFIRMATION OF ORAL APPROVAL FOR
EMERGENCY INTERCEPTION OF WIRE AND ELECTRONIC
COMMUNICATIONS AS PROVIDED IN PENAL CODE SECTION 629.56
JACKIE LACEY, the District Attorney for the County of Los Angeles, State of
California, has made an informal application to this court pursuant to Penal Code Sections
629.56 requesting oral authorization to intercept to intercept communications to and from
telephone number(s):
(the Target Telephone(s)).
The Target Telephone(s) is/are described as ______________________________
____________________________________________________________________________
Part II – Page 74
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The Target Subject(s) is/are:
IT IS HEREBY ORDERED:
(1) That an “emergency” wire, electronic pager and electronic cellular telephone
intercept and pen register on the Target Line(s) is hereby authorized.
(2) That [LIST THE TELECOMMUNICATIONS COMPANIES THAT ARE
INVOLVED IN THIS INVESTIGATION], and any other affected telecommunications entity
(hereinafter referred to as the “Telecommunications Companies”) shall, immediately upon
request of law enforcement, provide the technical assistance necessary to accomplish the
interception unobtrusively and with a minimum of interference with the services which said
companies are providing to the people whose communications are to be intercepted and shall
provide caller identification where possible.
(3) That the Telecommunications Companies, upon request of law enforcement, shall,
without delay:
a. Provide any and all information related to any telephone(s), pager(s), text
messaging devices, cellular/wireless telephones, calling cards, and other communication devices
contacting or being contacted by the Target Devices(s) and, the subscriber(s) of any such
communication devices(s). Such information shall include, but not be limited to, all numbers and
accounts associated with the primary number/account, billing information (billed and unbilled),
activation date, credit information, co-signer information, contact address(es) and telephone
Part II – Page 75
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number(s), and all information identifying the communication device(s) such as electronic serial
number (ESN) international mobile subscriber identifier (IMSI), international mobile equipment
identifier (IMEI), subscriber identity module (SIM) number or other identifier.
b. Provide toll information, including any and all historical data, originating
and terminating call detail, extended dialed digit information, dialed digit extraction, and/or post
cut-through digits from any and all telephones called or being called by each Target Telephone
number.
c. Provide cell site data including, but not limited to, cell site location (physical
address) of call initiation, call termination, and call progress locations (Automated Message
Accounting Data) connected to the use of each Target Telephone number and any and all cellular
telephones called or being called by each Target Telephone number, pursuant to Title 18 USC
Section 2703(d).
d. Authorize the installation and/or use of equipment known as dialed number
recorders to detect and record all numbers dialed or pulsed by the telephones connected to each
Target Telephone number.
e. Authorize the installation and/or use of equipment to trap and trace and
identify the telephone numbers of persons placing calls to and from the target telephone numbers to
include the activation of caller identification feature, “caller ID,” any calling features such as "call-
forwarding" and "speed dialing" currently assigned to the primary telephone numbers, and that the
tracing operation and the use of the caller ID service be without geographical limits.
f. Provide access and access codes to voice mail and voice mail feature
g. Authorize the installation and/or use of all facilities to enable the
Part II – Page 76
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interception and monitoring of all functions and capabilities of the Target Device(s), including
but not limited to, all wireless digital functions, wireless analog functions, direct connect/digital
dispatch/direct dispatch functions, automatic mode switching functions, and “short message
service.” This includes interception of cellular communications occurring outside California
where the contents of the redirected communications are first heard or accessed in Los Angeles
County. (See United States v. Rodriguez (2nd Cir. 1992) 968 F.2d 130 and United States v.
Luong (9th Cir. 2006) 471 F.3d 1107.)
h. Provide all information related to pre-paid cellular telephones including
historical, past, present, current, and ongoing activity related to hours, minutes, and money left
on the pre-paid telephone account.
(4) That the Telecommunications Companies shall not disclose to the subscriber or
any other unauthorized person any information regarding this interception, or the fact that it
exists, unless authorized by further written order of this court or of another court of competent
jurisdiction.
(5) That this written confirmation of oral approval is retroactive to the date and time
of the oral approval issued by this Court on ___________________ at _________.
(Date) (Time)
DATE:
TIME:
LOS ANGELES SUPERIOR COURT JUDGE
Part II – Page 77
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PART III
SAMPLE FORMS PERTAINING TO OPERATIONS, INVENTORY, AND SEALING
TABLE OF CONTENTS PAGE
1. Wiretap Room Instructions ............................................................................1
2. Ten-Day Reports ............................................................................................25
A. Ten-Day Report Schedule .......................................................................27
B. Ten-Day Report: Interim ........................................................................28
C. Ten-Day Report: Final ...........................................................................34
3. Sealing Order Protocol; Sealing Order
A. Protocol ...................................................................................................37
B. Sealing Order...........................................................................................39
4. Inventory
A. Inventory Protocol...................................................................................41
B. Postponement of Inventory .....................................................................43
C. Service of Inventory ................................................................................47
D. Cover Letter ............................................................................................54
5. People’s Motion to Use Evidence of Crimes Not Specified in Wiretap
Interception Order (Penal Code Section 629.82)
A. Overview ..................................................................................................55
B. People’s Motion .......................................................................................57
C. Declaration ...............................................................................................58
D. Order ........................................................................................................60
1.
WIRETAP ROOM INSTRUCTIONS
[Name] District Attorney for the County of [County] By: [Name], Deputy District Attorney Major Narcotics Division [Address] [Address] Telephone [Number] IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) OF THE DISTRICT ATTORNEY OF THE ) WIRETAP NO. XX COUNTY OF LOS ANGELES FOR AN ORDER ) AUTHORIZING THE INTERCEPTION OF ) WIRE AND ELECTRONIC ) WIRETAP ROOM COMMUNICATIONS ) INSTRUCTIONS )
TO ALL LAW ENFORCEMENT AND OTHER PERSONNEL participating in the
monitoring of the wire and electronic communications to and from the following
telephone number: [insert Target Telephone] being used by [insert Target Subject]:
1. Before participating in any interception, you must read carefully (1) the
wiretap application, including the affidavit of [insert affiant’s title and name], and the
court order; and (2) these wiretap instructions. When you have done so, and before you
begin monitoring, sign the log sheet certifying that you have done so. The log sheet is in
the back of the wiretap instructions. A copy of the wiretap application and these wiretap
instructions must be available in the wire room at all times during the operation of the
electronic surveillance.
2. All peace officer monitors must be certified by the Attorney General's
Office in wiretaps. All civilian monitors must not only be certified by the Attorney
Part III – Page 1
General's Office in wiretaps, but also be designated by the District Attorney. Please
verify that this is true.
3. Your task is to carry out the court's order, being careful to monitor only
those conversations which are authorized for interception and to minimize all other non-
pertinent or privileged communications.
4. The law does not distinguish between intercepting, listening to,
overhearing, or monitoring a conversation. Wire and electronic interceptions are
generally treated like search warrants; that is, they authorize a limited search and seizure
of evidence. Any intercepted conversation, whether or not it is recorded or otherwise
preserved, is "seized" and subject to the court's order limitations.
5. You are not allowed to intercept freely every communication carried on
the designated telephone line.
6. To ensure that the court can later review exactly what was intercepted,
where and when minimization took place, and whether or not the monitoring was
conducted in accordance with its order, the interception equipment has been wired in
such a way as to interconnect with recording and monitoring functions. You must not be
able to monitor any conversation without said conversation being automatically and
simultaneously recorded. Likewise, you must not be able to record any communication
without it being automatically and simultaneously monitored. A single switch will
activate both interception and recording so that when you tie into a telephone line to
monitor a communication, you will have also activated the recorder. When you shut off
the switch to end your interception, the recording must cease at the same time. In other
Part III – Page 2
words, do not record any conversation without simultaneously listening. Do not record
and subsequently listen and minimize.
7. We must establish that you neither listened to nor recorded conversations
that you had no right to overhear. The original recording establishes that. For that
reason, no machine is to be left unattended or on automatic.
8. Should some malfunction develop with the recording equipment, or if
storage space on a disk runs out during interception, continue monitoring the
conversations and write out the contents as accurately and completely as possible. At
the close of the interception, immediately notify the staff supervisor or supervising
attorney of the malfunction. In this case, your notes will serve the function of the
recording and must be carefully preserved. The time, duration, and nature of the
malfunction must also be noted on the wire room log and in the monitoring log.
CONVERSATIONS WHICH MAY BE LISTENED TO
9. We have obtained permission from the court to intercept the pertinent
wire and electronic communications of the Target Subject(s) and other co-conspirators
about the [Insert Crime and Code section], as they occur on the Target Telephone. You
are authorized to intercept and monitor any communication that concern the crime(s)
listed above pursuant to [Insert applicable Penal Code sections, e.g., if narcotics, then
Penal Code sections 629.52(a)(1) and 629.52(a)(6); if murder, then Penal Code sections
629.52(a)(2) and 629.52(a)(6), if gangs, then Penal Code sections 629.52(a)(3) and
629.52(a)(6)].
Part III – Page 3
10. You should listen to the beginning of each conversation for as long as,
and only as long as, it is necessary for you to determine if it is pertinent to the subject
and activities targeted by the order. If you determine it is pertinent, you will continue
the interception. If you determine that it is not pertinent or that it is a privileged
communication, you will terminate the interception (both monitoring and recording,
simultaneously) and begin minimization.
EVIDENCE OF OTHER CRIMES
11. If intercepted conversation relates to an offense for which an intercept
order could have been obtained in the first instance, (e.g., murder, aggravated
kidnapping or certain other drug crimes), or relates to a violent felony as defined by
Penal Code section 667.5, the results may be used as substantive evidence upon approval
of a new application. On the other hand, if the conversation does not relate to an offense
for which an application could have been obtained in the first instance and does not
relate to a violent felony as defined by Penal Code section 667.5, the results may or may
not be used substantively. However, you may use the information to prevent a crime or
to obtain an arrest or search warrant. (Note: Please be aware that an arrest or search
warrant may cause discovery obligations requiring disclosure of the existence of the
wiretap pursuant to Penal Code section 629.82(c)).
12. Penal Code section 629.82 sets forth the procedure that must be followed
in the event that communications relating to crimes other than those specified in the
Part III – Page 4
order of authorization are intercepted. This information can be used and shared with
other agencies, but only so long as we notify and receive permission from a judge.
13. Penal Code section 629.82(c) states that the use of wiretap
communications relating to crimes other that those specified in the order of authorization
to obtain a search warrant or an arrest warrant entitles the person named in the warrant
to notice of the intercepted communication and a copy of the contents thereof that were
used to obtain the warrant. Law enforcement should therefore never include any
information from a wiretap in a search warrant affidavit without consulting the Major
Narcotics Division.
MINIMIZATION
14. If you determine at the outset that a communication is either non-
pertinent or is privileged, stop recording/monitoring.
a. A pertinent communication is a communication that is related to
the crime or crimes that are named in the order signed by the judge.
b. A non-pertinent communication is a communication that is not
related to the crime or crimes that are named in the order signed by the
judge. However, you may monitor conversations related to an offense for
which an intercept order could have been obtained in the first instance
(murder, kidnapping, etc.), violent felonies or to prevent a crime or public
offense from occurring. (See paragraphs 11-13 above.)
c. A privileged communication is a communication, either
Part III – Page 5
pertinent or non-pertinent, between parties that falls within a legally
recognized and protected privileged relationship. These privileged
relationships include attorney-client, clergyman-parishioner, doctor-
patient and husband-wife relationships.
15. Since an initially innocent or privileged conversation can progress into
one involving the Targeted Subjects and criminal activities, you can periodically re-
intercept the line and activate the recorder to spot-monitor the conversation. If the
conversation has become pertinent, continue listening and recording it. If it remains
non-pertinent or privileged, terminate the interception again. There are special rules
regarding minimization of privileged conversations. (See below.) If the conversation
overheard is in a language for which there is no certified foreign language monitor
available, it is our policy that the conversation be monitored and recorded. The
minimization will occur later when it is listened to by the proper foreign language
monitor.
CONVERSATIONS IN WHICH OUR NAMED SUBJECTS ARE NOT
PARTICIPANTS
16. We have authority to intercept pertinent conversations even when our
named subjects are not participants because the authorization includes co-conspirators
who are involved with our named subjects’ illegal activities. Nonetheless, be extremely
careful if you intercept a conversation that does not include the named subject(s). Make
every effort to become familiar with the voice of our named subject(s) and other
frequent participants in conversations on the phones so that you can identify them and
Part III – Page 6
pinpoint patterns of innocence and involvement as soon as possible in the wire and
electronic surveillance.
17. It is quite possible that you will be able to identify new subjects who
function as co-conspirators or accomplices in this investigation. As soon as you identify
such a person, notify the wiretap supervisor or the supervising Deputy District Attorney.
PRIVILEGED COMMUNICATIONS
18. There are special restrictions relating to any and all conversations that fall
under a legal privilege. Privileges exist within attorney-client, clergyman-parishioner,
doctor-patient and husband-wife relationships. You must strictly comply with
minimization requirements as it relates to privileged communications.
19. If you monitor a call that includes an attorney [or other party to a
privileged communication], immediately cease monitoring as soon as the privileged
nature of the call is determined, unless there is reason to believe that the services of the
lawyer [or other party to a privileged communication] are being sought or obtained to
enable or aid anyone to commit or plan to commit a crime or a fraud.
20. Penal Code section 629.80 requires that a peace officer or civilian foreign
language monitor, while engaged in intercepting wire or electronic communications,
intercepts wire or electronic communications that are of a privileged nature, he or she
shall immediately cease the interception for at least two minutes. After a period of at
least two minutes, interception may be resumed for up to 30 seconds during which time
the officer shall determine if the nature of the communication is still privileged. This
Part III – Page 7
procedure is to be followed until the time that the communication is no longer privileged
or the communication ends.
21. Synopses should be prepared concerning every monitored phone call,
regardless of whether or not it was a "pertinent" call.
ATTORNEY-CLIENT PRIVILEGE
22. If you determine an attorney is participating in an intercepted
conversation, immediately notify the supervising agent and/or attorney. All interception
(i.e. monitoring) of conversations which include an attorney shall immediately cease
as soon as the privileged nature of the call is determined. Whatever you have heard of
the conversation up to that point, you should summarize in the monitoring logs. The
conversation must then be classified as “privileged” in the software.
23. If you are able to learn the name of any attorney and/or law firm and/or
the telephone number of any attorney or law firm who participates in the conversations
on these lines, post that name(s) and/or telephone number in a prominent location in the
wire room.
24. Do not apply the procedure outlined in paragraph 20 to calls
involving attorney-client communications. Monitoring shall immediately terminate
and not be re-initiated unless it is absolutely clear that the services of the attorney
are being sought or obtained to enable or aid anyone to commit or plan to commit a
future crime or a fraud.
25. In the event that a privileged call was intercepted, you must address the
Part III – Page 8
privileged call in the ten day report. You must explain the circumstances surrounding the
interception, how quickly the call was recognized as privileged, the steps taken to minimize
the call, and what steps will be taken to prevent future interceptions of privileged
communications.
26. Failure to minimize phone calls involving an attorney or the telephone
number may result in suppression of all pertinent phone calls seized during the
establishment of the wiretap and any evidence obtained as a result of information
gathered during the wiretap.
27. A client is anyone who seeks advice from a lawyer whether or not the
lawyer is actually assigned to, paid by or appointed for the person seeking advice.
PARISHIONER-CLERGYMAN PRIVILEGE
28. All conversations between a parishioner and his/he clergyman are to be
considered privileged. We could not obtain an interception order to listen to a person
confessing to a priest in a confessional booth; similarly, we must not listen to a subject
discuss his or her personal, financial or legal problems with his or her priest, minister,
rabbi, etc. Thus, if it is determined that a clergyman is party to a communication being
intercepted and the communication is penitential in nature, turn off the monitor, stop
recording per Penal Code section 629.80, and classify the call as privileged in the
software. Then call the supervising agent and/or supervising attorney.
29. In the event that a privileged call was intercepted, you must address the
privileged call in the ten day report. You must explain the circumstances surrounding the
interception, how quickly the call was recognized as privileged, the steps taken to minimize
the call, and what steps will be taken to prevent future interceptions of privileged
communications.
Part III – Page 9
HUSBAND-WIFE PRIVILEGE
30. There is also a privilege concerning communication between spouses.
You are to discontinue monitoring if you discover that you are intercepting a personal
conversation solely between husband and wife. If the conversation deals with private
matters between a husband and wife, it is a privileged communication. The procedure
outlined in Penal Code section 629.80 may be applied to communications between
spouses.
31. If the conversation deals with an ongoing or future crime or fraud, as
opposed to past violations of law, it is not a privileged communication. The crime or
fraud exception is limited: it does not permit the disclosure of communications that
merely reveal a plan to commit a crime or fraud; the exception permits disclosure only
of communications made to enable or aid anyone to commit or plan to commit a crime
or fraud. Unless the communication is for the purpose of obtaining assistance in the
commission of the crime or fraud, or in furtherance thereof, it would not fall within the
crime or fraud exception.
32. All privileged communications that are intercepted between a husband
and a wife shall be classified as privileged in the software.
33. In the event that a privileged call was intercepted, you must address the
privileged call in the ten day report. You must explain the circumstances surrounding the
interception, how quickly the call was recognized as privileged, the steps taken to minimize
the call, and what steps will be taken to prevent future interceptions of privileged
communications.
Part III – Page 10
PHYSICIAN-PATIENT PRIVILEGE
34. Conversations between a physician and a patient are to be considered
privileged. You are to stop listening and recording a conversation once you determine
that it is a conversation between physician and patient that arises out of the professional
relationship. Then notify the supervising agent and/or attorney. The procedure outlined
in Penal Code section 629.80 may be applied to communications between a physician
and a patient.
35. All privileged communications that are intercepted between a physician
and a patient shall be classified as privileged in the software.
36. In the event that a privileged call was intercepted, you must address the
privileged call in the ten day report. You must explain the circumstances surrounding the
interception, how quickly the call was recognized as privileged, the steps taken to minimize
the call, and what steps will be taken to prevent future interceptions of privileged
communications.
OTHER RELATIONSHIPS
37. No legal privilege exists with regard to conversations between a subject
and his or her paramour (boyfriend/girlfriend). Similarly, no legal privilege exists with
regard to conversations between a subject and his or her children or relatives. Keep in
mind, however, that our function is to intercept and record conversations related to
illegal activities, not indiscriminately to invade the privacy of our subjects and others.
MINIMIZATION OF NON-PERTINENT CONVERSATIONS
38. The fact that a conversation does not fall within one of the privileged
categories discussed above does not automatically sanction its monitoring and recording.
Part III – Page 11
The order authorizes the interception of only those conversations that pertain to the
illegal activities of the Target Subject(s) and other co-conspirators. The order does not
authorize the interception of communications not otherwise subject to interception
pursuant to the wiretap statutes.
39. Unlike with privileged communications, the Penal Code does not
explicitly state the manner in which non-pertinent communications are to be minimized.
The computer software that is used to monitor wire and electronic communications
keeps track of the number of times that a call was minimized and the duration of the
minimization. Always remember that eventually a court will decide whether the order
has been executed in a proper manner. The standard by which a court is likely to
determine whether there was overly broad listening to non-pertinent conversations is
simple: "Did the agents make a good faith effort to comply with the restrictions and
requirements of the wiretap order?"
MINIMIZATION OF FAXES
40. With regard to facsimile (fax) transmissions, minimization shall be
executed as follows:
a. All fax content should be reviewed by designated monitor(s) in real time
as they are being intercepted; All fax content intercepted during periods
when real time review is not reasonably possible shall be reviewed, as set
forth in these instructions, as soon as is reasonably possible.
b. All fax messages will first be reviewed by one or more designated
monitors, who are not associated with the current wiretap investigation.
Designate a specific monitor for each shift to perform this duty. The
Part III – Page 12
same designated monitor or monitors should perform this duty until the
expiration of the authorization to intercept messages. The designated
monitors will review the contents of faxes in accordance with the
standards set forth in the proceeding paragraphs. The faxes will be
placed into a notebook that divides the faxes into pertinent and non-
pertinent categories. Other law enforcement officers shall have the
opportunity, if necessary, to review all of the faxes placed in the pertinent
and non-pertinent categories to determine if their pertinent/non-pertinent
status should be changed based on other developments in the case. Any
privileged passages shall not be printed out but will be retained on the
computer system. The designated monitors are instructed not to pass
privileged information to the other monitors, law enforcement officers, or
prosecutors.
c. All of the faxes shall be retained and sealed pursuant to Penal Code
section 629.64.
MINIMIZATION OF TEXTS (MULTIMEDIA MESSAGE SERVICE – MMS)
41. Multimedia Messaging Service (MMS) is a way to send messages that
include multimedia content to and from mobile phones. Multimedia can include
combinations of text, audio, still images, animation, and video.
42. With regard to the Multimedia Message Services of the Target
Telephone(s), minimization shall be executed as follows:
a. All MMS content should be reviewed by designated monitors in real time
as they are being intercepted; All MMS content intercepted during
periods when real time review is not reasonably possible shall be
Part III – Page 13
reviewed, as set forth in these instructions, as soon as is reasonably
possible.
b. All MMS text or electronic messages will first be reviewed by one or
more designated monitors, who are not associated with the current
wiretap investigation. Designate a specific monitor for each shift to
perform this duty. The same designated monitor or monitors should
perform this duty until the expiration of the authorization to intercept
messages. The designated monitors will review the contents of messages
in accordance with the standards set forth in the proceeding paragraphs.
The MMS content will be written or printed out, depending on their
length and whether there are any images, and placed into a notebook that
divides the messages into pertinent and non-pertinent categories. Other
law enforcement officers shall have the opportunity, if necessary, to
review all of the messages placed in the pertinent and non-pertinent
categories to determine if their pertinent/non-pertinent status should be
changed based on other developments in the case. Any privileged
passages shall not be printed out but will be retained on the computer
system. The designated monitors are instructed not to pass privileged
information to the other monitors, law enforcement officers, or
prosecutors.
c. All of the MMS content shall be retained and sealed pursuant to Penal
Code section 629.64.
Part III – Page 14
MINIMIZATION OF TEXTS (SHORT MESSAGE SERVICE – SMS)
43. With regard to the text message/short message services of the Target
Telephone(s), because the transmission of electronic messages over Target Telephone(s)
occurs instantaneously, and sent messages are typically short (less than 200 characters),
minimization shall be executed as follows:
a. All SMS content should be reviewed by the designated monitors in real
time as they are being intercepted; All SMS content intercepted during
periods when real time review is not reasonably possible shall be
reviewed, as set forth in these instructions, as soon as is reasonably
possible.
b. All SMS text or electronic messages will first be reviewed by one or
more designated monitors, who are not associated with the current
wiretap investigation. Designate a specific monitor for each shift to
perform this duty. The same designated monitor or monitors should
perform this duty until the expiration of the authorization to intercept
messages. The designated monitors will review the contents of messages
in accordance with the standards set forth in the proceeding paragraphs.
The text messages will be written or printed out, depending on their
length, and placed into a notebook that divides the messages into
pertinent and non-pertinent categories. Other law enforcement officers
shall have the opportunity, if necessary, to review all of the messages
placed in the pertinent and non-pertinent categories to determine if their
pertinent/non-pertinent status should be changed based on other
developments in the case. Any privileged passages shall not be printed
out but will be retained on the computer system. The designated
Part III – Page 15
monitors are instructed not to pass privileged information to the other
monitors, law enforcement officers, or prosecutors.
c. All SMS content shall be retained and sealed pursuant to Penal Code
section 629.64.
WEB/INTERNET CONTENT
44. California’s wiretap law does not permit the monitoring or interception
of Internet web browsing activities. Therefore, law enforcement cannot monitor the
web/Internet activity of a Target Subject on a Target Telephone.
45. JSI Telecom’s VoiceBox software used by LA CLEAR cannot
differentiate between MMS and web pages. MetroPCS in particular sends web page
data and any MMS data to LA CLEAR on the same data stream or channel. To receive
MMS data, LA CLEAR has no choice but to receive the web page data.
46. In order to prevent access to web content, LA CLEAR technicians have
constructed filters. These filters, if used properly, allow a monitor to determine whether
unknown incoming data is either MMS data or web data without viewing the actual
content of the data. The filters are set up so a monitor cannot determine the web page
address (i.e., CNN.com, LASD.org, etc.) that has been accessed by the Target
Telephone.
47. Once identified, web data shall be classified as “unauthorized content.”
Law enforcement does not have the ability to access or view unauthorized content unless
access is granted by an LA CLEAR administrator. MMS data will be reviewed and
minimized accordingly.
48. The following procedure shall be used to monitor a MetroPCS smart
Part III – Page 16
phone or any other smart phone subscribed to a telecommunications provider that sends
web content data and MMS data on the same data stream or channel:
a. LA CLEAR shall set up filters to identify incoming web/MMS data. The
filters shall be constructed such that incoming web/MMS data will be
identified as either “web content” or “MMS.” The web address of the
accessed site shall not be identified.
b. Any “web content” will be immediately classified as “unauthorized
content” by the monitor.
c. MMS messages will be monitored and minimized pursuant to the
procedure outlined above.
SEALING DISKS
49. You should be aware that statutes which empower the court to issue
interception orders also place upon us the obligation to record intercepted conversations
in a manner that will protect the recordings from editing or other alterations, regardless
of the recording medium. It is also our responsibility to make available to the judge who
issues the interception order all of the recordings of the intercepted conversations which
are then to be placed under seal. Failure to carry out these responsibilities may result in
the suppression of evidence.
50. If digital media such as compact disks or digital optical disks are used,
they will be sealed upon removal from the digital recorder at the expiration of the thirty-
day order. Immediately upon the conclusion of the interception period, including any
Part III – Page 17
extensions, these original ("court copy") digital recording media shall be placed in a box
or an envelope and brought to the issuing judge. The box or envelope shall then be
sealed under the judge’s direction. The judge will then order that the box or envelope be
maintained in a sealed condition for a period of 10 years.
RECORD KEEPING
51. Monitors are to prepare abstracts or summaries of each conversation at
the time of interception. The abstracts or summaries are to be included in the
monitoring logs. If the conversation was not entirely recorded, an appropriate notation
should be made indicating the incomplete nature of the conversation. (e.g., "interception
discontinued") and why the full conversation was not intercepted (e.g., "non-pertinent"
or "privileged"). Where the exact words used by the participants are important, a
transcript of that portion of the conversation should be prepared shortly thereafter.
52. The logs are to reflect all activity occurring at the listening post
concerning the intercepted conversations as well as the equipment itself (e.g., replaced
disk 2 with disk 3, malfunction of recorder, no overheard conversations). These logs
will ultimately be used by you to explain your actions taken in intercepting particular
communications. Therefore, it is vitally important to describe:
(a) The parties to each conversation (e.g., "Lou and Bill" or unknown male and
unknown female);
(b) The nature of each conversation (e.g., discusses landscaping, talked about
antiques); and
Part III – Page 18
(c) The action taken and why (e.g., "interception discontinued," "not pertinent,"
"privileged").
53. All monitors will indicate in the call synopses whenever interception was
minimized. The notations in the logs should be as detailed as possible. Keep in mind
that the logs are the only guide available at a later time to describe the use of the
recordings. Clarity is critical; the logs must be understandable.
54. Investigators shall maintain regular contact with the assigned Deputy
District Attorney regarding the investigation. If the assigned Deputy District Attorney is
unavailable, please contact the Assistant Head Deputy or Head Deputy in the Major
Narcotics Division.
TEN DAY REPORTS
55. The judge who issued the order has required us to make reports in
accordance with the law. The reports shall be filed with the court for each period of ten
days, commencing with the date of the signing of the order.
56. These reports are to outline to the judge the progress of the investigation
and the manner in which the orders are being executed. Since these reports are
generated from the line sheets prepared by the wire monitors, clarity and accuracy in the
line sheets are critical.
57. In the event that a privileged call was intercepted, you must address the
privileged call in the ten day report. You must explain the circumstances surrounding the
interception, how quickly the call was recognized as privileged, the steps taken to minimize
Part III – Page 19
the call, and what steps will be taken to prevent future interceptions of privileged
communications.
58. The time may come when a search warrant, additional wiretap, or some
other legal advice or decision will be needed. The assigned Deputy District Attorney
shall be the one to approach for such assistance. In order to be able to make the periodic
reports and give you competent advice, the assigned Deputy District Attorney will need
to know what is going on and must receive a copy of all logs, transcripts, and
surveillance reports regularly during the course of the interception of wire and electronic
communications. Additionally, a daily oral report should be made providing all relevant
information on the operation of the interceptions as well as detailing all important
communications. This report will be used along with the logs to prepare the ordered
progress reports for the judge. WHEN PREPARING LOGS OR PERTINENT CALL
SHEETS CERTAIN PROCEDURES MUST BE FOLLOWED OR THE DOCUMENTS
WILL BE RETURNED TO YOU TO BE REWRITTEN. PLEASE BE SURE TO DO
THE FOLLOWING:
a). Write legibly so all who review the document can read it.
b). Provide all the all the required information including date, time, line, and call
number. Be sure your name is clearly printed with your serial number.
c). Do not use pronouns in completing reports. Do not use words such as "he," "she,"
"they," "them," "we," etc. Use only names or monikers which precisely identify the
individual to whom you are referring.
Part III – Page 20
TRANSCRIPTS
59. Penal Code section 629.70(c) requires that in order for the contents of
intercepted calls to be received into evidence at a preliminary hearing, trial or other
proceeding (not applicable to arraignment or grand jury proceedings) the defense
must be provided with a transcript of the calls, the audio recordings, the court
order, the affidavit, and the monitoring logs/line sheets ten days prior to the
preliminary hearing or trial.
60. Monitors shall prepare verbatim translations/transcriptions of all pertinent
calls as soon as possible after the call(s) was intercepted. Do not wait until criminal
charges have been filed to start preparing transcripts of pertinent calls.
INVENTORY
61. Within 90 days of the expiration of the wiretap, we are required to send
an "inventory" (basically a notice of the wiretap) to: (1) persons named in the order or
the application; (2) known parties to intercepted communications; (3) persons for whom
telephone subscriber and/or e-mail address information has been obtained as the result of
the telephone and/ or email being used in an intercepted conversation; (4) persons identified
as a result of surveillance based on intercepted conversations; (5) persons arrested as a
result of intercepted conversations; and (6) unknown callers, texters, and e-mailers whose
identities become known. Please note that this list has been expanded as a result of a
Court Order by Judge Fidler. You shall maintain a running list of these persons
during the monitoring period. This will avoid it becoming an overwhelming task in
the end.
Part III – Page 21
WALL STOPS
62. It may occur that you need to have another agency to respond to
situations in the field. It is the responsibility of the wiretap supervisor to follow up on
any such investigations. The supervisor is to be notified of all arrests resulting from this
wiretap. Before a case is presented for filing by any agency for any crime to any
prosecutor (state, federal or local), the assigned Deputy District Attorney shall be
notified and consulted. Furthermore, all cases presented for filing in Los Angeles
County must be presented first to the Los Angeles County District Attorney's
Major Narcotics Division.
HANDOFFS
63. Information obtained from an interception which is handed off to law
enforcement officers who are told to obtain independent reasonable suspicion or
probable cause without disclosing that the information was from a wiretap, with the goal
of preventing a charged defendant from ever learning about the existence of the wiretap
is PROHIBITED.
64. If anything appears to be "breaking" suddenly, or if a critical question
arises, call the wiretap supervisor.
[Name]
Deputy District Attorney Contact Numbers: DDA [Name]: Main: [Number] Desk: [Number] Cell: [Number] Fax: [Number] Email: [Address] Investigating Officer [Name]: [Contacts and Numbers] Wire room Supervisor [Name]: [Contacts and Numbers]
Part III – Page 22
INSTRUCTIONS LOG SHEET
I CERTIFY THAT I HAVE READ THESE INSTRUCTIONS, THE APPLICATION, AFFIDAVIT AND ORDER. NAME DATE
Part III – Page 23
2. TEN-DAY REPORTS
TEN-DAY REPORTS
Effective January 1, 2011, Penal Code section 629.60 was amended to provide that
reports to the issuing judge on the progress of the wiretap shall be made at the intervals
that the judge may require, but not less than one for each ten-day period. Previously, the
reporting period had been six (6) days.
Ten-Day reports should be prepared in the format described below:
1. The summary or interpretation of the call should be in bold type.
2. Following the summary of each call should be the transcription of the actual call.
3. It is especially important to submit interpretations of pertinent calls when coded
language is used.
4. It is not necessary to submit summaries and transcriptions to every pertinent call,
provided that you summarize enough calls to justify the continuance of the
monitoring, and that you keep the court apprised of what is being accomplished
by the wiretap.
Also, be sure to check the submitted reports for mistakes, including typographical errors
and wrong dates. By notifying the respective detectives of this preferred format, one
should not be required to make many corrections.
If you are submitting a ten-day report in which a telephone shows little or no activity,
have the report indicate the reasons for the lack of activity. Reasons may include the
following:
A. The telephone service has been terminated by the telephone company
B. The user of the telephone is not in town
C. The user of the telephone has other telephones that he is currently using
D. The telephone is a prepaid cellular telephone and the time is depleted
E. A recent seizure or other law enforcement action has caused the user to
suspend the usage of the telephone
F. There has been a malfunction in the monitoring equipment
If the lack of activity persists as to a particular telephone, tell the investigator to suspend
active interception of the telephone and to monitor the telephone only by means of a pen
register or a track and trace device. This change of monitoring should also be reflected in
the Ten-Day report.
Part III – Page 25
Penal Code section 629.60 requires only that the Ten-Day reports include the “number of
communications intercepted.” The forms for the ten-day reports in this Manual comply with
this requirement by listing both the total number of calls on the pen register and “monitored
communication,” as follows:
A. Total number of calls on pen register [ ]
B. Total number of monitored communications [ ]
1. Total number of evidentiary calls [ ]
2. Total number of privileged calls [ ]
3. Total number of minimized calls [ ]
“Monitored communication” includes every call that a monitor listens to, including messages
left on voice mail, operator-assisted calls, and calls where there was no conversation. The total
number of these calls will be less than those that appear on the pen register.
Part III – Page 26
TEN-DAY REPORT SCHEDULE
WIRETAP NO.
ORDER SIGNED ON [DATE] at [TIME]
ORDER TERMINATES [DATE] at [TIME]
REPORT
NUMBER
PERIOD COURT FILING DATE
1 [Enter Ten-Day period] [Enter first court date after end of Ten-Day
period]
2
“ “
3
“ “
Wire expires [day of
week] [date] at [time] Ten-Day Reports due by noon on the
date listed*
Disks to be sealed
immediately upon
termination of wire on
[day of week, date]
DA’s FAX: (213) 626-5125
DDA XXXXXXXXX
Head Deputy District Attorney XXXXXXXXXXXXXX (213) 974-5907
Asst. Head XXXXXXXXXXXX: (213) 974-5903
Los Angeles County Superior Court Judge Larry Fidler: (213) 974-6781
Affiant and phone number:
SEALING DATE _________________ INVENTORY DATE: _______________
Part III – Page 27
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JACKIE LACEY District Attorney for the County of Los Angeles By Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (213) IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) WIRETAP NO. OF THE DISTRICT ATTORNEY OF THE ) COUNTY OF LOS ANGELES FOR AN ORDER ) TEN-DAY REPORT AUTHORIZING THE INTERCEPTION OF ) REPORT NO. [ ] WIRE AND ELECTRONIC COMMUNICATIONS ) )
1. On [DATE OF ISSUANCE], authorization to intercept the
communications to and from two telephones (the “Target Lines”) was granted by the
court pursuant to Penal Code section 629.50 et seq. This report is submitted pursuant to
that authorization.
2. This report covers the period from [HOUR AND DATE THE TEN-DAY
PERIOD BEGAN] through [HOUR AND DATE THE TEN-DAY PERIOD ENDED].
During this period, the following activity occurred with respect to the target telephones:
Target Telephone #1 [ ]
A. Total number of calls on pen register: [ ]
B. Total number of monitored calls: [ ]
1. Total number of evidentiary calls: [ ]
2. Total number of privileged calls: [ ]
3. Total number of minimized calls: [ ]
Part III – Page 28
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Target Telephone #2 [ ]
A. Total number of calls on pen register: [ ]
B. Total number of monitored calls: [ ]
1. Total number of evidentiary calls: [ ]
2. Total number of privileged calls: [ ]
3. Total number of minimized calls: [ ]
3. Attachment A ( pages) is a summary of some intercepted calls and
serves as an update on the investigation regarding what progress has been made, or an
explanation for its lack thereof, and the need for continued interception.
4. IF APPLICABLE: Penal Code section 629.82(a) requires that
application be made to the court “as soon as practicable” if you want to use evidence
derived from intercepted “communications relating to crimes other than those
specified in the order of authorization, but which are enumerated in subdivision (a)
of Section 629.52, or any violent felony as defined in subdivision (c) of Section
667.5.” To comply with 629.82(a), it is suggested that the following language be
included in the Ten-Day Report that discusses these intercepted communications
relating to other crimes, or if evidence has been seized that was derived from these
intercepted communications relating to other crimes.
Part III – Page 29
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REQUEST FOR AUTHORIZATION TO USE INTERCEPTIONS INVOLVING
OTHER CRIMES, PURSUANT TO PENAL CODE SECTION 629.82(a)
Due to interceptions described above, the People hereby apply to this court to
authorize the use of these interceptions and evidence derived therefrom, relating to
other crimes not specified in the original order of authorization for Wiretap No.
XX-XX pursuant to Penal Code section 629.82(a). This application for
authorization to use the contents and evidence derived from Wiretap No. XX-XX
for other crimes committed by Target Subjects [UM (unidentified male) and
XXXXXX, not enumerated in the order, is sought in good faith and the original
application and order were not sought as a subterfuge for the offenses these subjects
may ultimately be arrested and/or prosecuted for in the future.
I further assert that the communications I seek authorization to use relating
to other crimes were intercepted incidentally during the course of the lawfully
executed order, in Wiretap No. XX-XX.
DATED: Respectfully submitted,
JACKIE LACEY, District Attorney
County of Los Angeles
State of California
By:
Deputy District Attorney
Major Narcotics Division
DATED: _________________
Los Angeles Superior Court
Part III – Page 30
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[IF APPLICABLE: Good cause having been shown, pursuant to Penal Code section
629.82(a), the People are hereby authorized to use the content of intercepted
communications and evidence derived therefrom, from Wiretap No. XX-XXX. The calls
and evidence derived therefrom may be used in criminal proceedings.
APPLICATION APPROVED].
DATED: ____________ ________________________________
Los Angeles Superior Court
Part III – Page 31
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ATTACHMENT A
Target Telephone #1
[DATE] and [TIME] Call #824.
Evaluation: Based on his experience, Detective XXXX believes that XXXX
asked XXXX to help XXXX get two kilograms of narcotics. XXXX and XXXX
discussed XXXX possibly being arrested in Miami.
Summary: On [DATE], at approximately [TIME], Target Telephone #1 called
number [XXX]. During the conversation, XXXX greeted XXXX and asked what
happened with “that” (possibly a narcotics deal). XXXX said that his friend had arrived
and sold “there” (XXXX and XXXX discussed XXXX possibly being arrested in
Miami, possibly California). XXXX asked how much had XXXX’s friend sold here.
XXXX said at three and a half ($13,500).
XXXX said that he (XXXX) wanted to get a loan putting his house as collateral.
XXXX said that he (XXXX) would get (possibly narcotics) there. XXXX said that he
(XXXX) wanted to buy two (kilograms of narcotics) and move (sell) them quickly.
XXXX asked about WALTER (XXXX). XXXX said that XXXX was around. XXXX
said that XXXX had given him (XXXX) $5,000 eight days ago. XXXX said that out of
those $5,000, he (XXXX) had paid close to $3,000 to a guy (XXXX) that helped him
(XXXX) do an errand, and the rest had gone in expenditures.
XXXX asked XXXX for help with only two “pesos” (two kilograms of
narcotics). XXXX said that he would see about “that” (getting two kilograms) but
XXXX would not let him (XXXX) down with the money. XXXX got upset and said that
he (XXXX) had never failed XXXX or anyone else.
Part III – Page 32
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XXXX told XXXX that XXXX had been taken away at the beach (possibly
Florida). XXXX said that he had been told the rumor, but he (XXXX) did not know
anything else. XXXX said that he (XXXX) would find out. XXXX asked if XXXX had
ways of confirming the rumor. XXXX said that he (XXXX) would talk to XXXX’s
mother and then would call XXXX again.
Target Telephone #2
[DATE] and [TIME] Call #1255.
Evaluation: Based on his experience, Detective XXXX believes that XXXX and
XXXX discussed the availability of 4,000 ecstasy pills XXXX could get for XXXX.
Additionally, XXXX told XXXX that XXXX had spoken with UM that had units of
narcotics in Guatemala that XXXX wanted to purchase and transport to Los Angeles.
Summary: On [DATE], at approximately [TIME], Target Telephone #9 called
XXXX. During the conversation, XXXX asked XXXX for his (XXXX) whereabouts.
XXXX responded that he (XXXX) was meeting with “XXXX”. XXXX asked what for.
XXXX responded about the "happy face" (narcotics/possibly ecstasy pills). XXXX said
that he (XXXX) asked if he (XXXX) wanted to get them (narcotics/ecstasy pills).
XXXX asked XXXX at what price. XXXX said that he (XXXX) had them at “nine.”
XXXX asked where. XXXX responded over there (possibly New York). XXXX added
that he (XXXX) had 4,000 (ecstasy pills). XXXX advised XXXX to get “them”
(ecstasy pills) so he (XXXX) could get some money.
Part III – Page 33
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XXXX and XXXX talked about a guy selling to a dealer. XXXX told XXXX to
tell that guy that he (XXXX) needed to cancel (pay) “that” (load of narcotics) because
the "XXXXs" were in a hurry.
XXXX said that he (XXXX) talked to a man from where they (XXXX and
XXXX) were from and that he (the man) told XXXX that he (the man) had some
“pesos” (units of narcotics) in Guate (Guatemala) and that they are at "four lucas"
($4,000). XXXX said that he (XXXX) would like to get them (the units of narcotics) but
that they (XXXX and associates) needed cash to pay for “them” (the narcotics). XXXX
said that he (XXXX) would have the trip arranged. XXXX explained that it was going to
be easy. XXXX told XXXX that it was not going to be more than seven “lucas” ($7,000)
to get them (units of narcotics) here (Los Angeles). XXXX said they (XXXX and co.)
could pay XXXX with the same thing and could pay the debt that XXXX has with
COCO. XXXX said that the only thing they (XXXX and co.) needed was cash. XXXX
said he XXXX) would call the guy and see if the number works (price). XXXX told
XXXX that he would call once he (XXXX) finds out.
Part III – Page 34
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JACKIE LACEY District Attorney for the County of Los Angeles By Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) WIRETAP NO. OF THE DISTRICT ATTORNEY OF THE ) COUNTY OF LOS ANGELES FOR AN ORDER ) TEN-DAY REPORT AUTHORIZING THE INTERCEPTION OF ) REPORT NO. [ ] WIRE AND ELECTRONIC COMMUNICATIONS ) ) FINAL REPORT
)
1. On [DATE OF ISSUANCE], authorization to intercept the
communications to and from two telephones (the “Target Lines”) was granted by the
court pursuant to Penal Code section 629.50 et seq. This report is submitted pursuant to
that authorization.
2. This report covers from [HOUR AND DATE THE TEN-DAY PERIOD
BEGAN] through [HOUR AND DATE THE TEN-DAY PERIOD ENDED]. During
this period, the following activity occurred with respect to the target telephones:
Target Telephone #1 [ ]
A. Total number of calls on pen register: [ ]
B. Total number of monitored calls: [ ]
1. Total number of evidentiary calls: [ ]
2. Total number of privileged calls: [ ]
3. Total number of minimized calls: [ ]
Part III – Page 35
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Target Telephone #2 [ ]
A. Total number of calls on pen register: [ ]
B. Total number of monitored calls: [ ]
1. Total number of evidentiary calls: [ ]
2. Total number of privileged calls: [ ]
3. Total number of minimized calls: [ ]
3. Attachment A ( pages) serves as the final update on the
investigation conducted pursuant to this order.
DATED: Respectfully submitted,
JACKIE LACEY, District Attorney
County of Los Angeles
State of California
By:
[NAME]
Deputy District Attorney
Major Narcotics Division
Reviewed by:
Honorable [NAME]
Los Angeles County Superior Court
Part III – Page 36
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ATTACHMENT A
Part III – Page 36A
3.
SEALING ORDER PROTOCOL;
SEALING ORDER
SEALING ORDER PROTOCOL
PC 629.64 states that “[I]mmediately upon the expiration of the period of the order, or
extensions thereof, the recordings shall be made available to the judge issuing the order
and sealed under his or her directions.”
PC 629.58 provides that an order for interception shall terminate upon attainment of the
authorized objective, or in any event, no longer than 30 days from the date of the order,
unless an extension is granted. This conforms with the language placed in the orders
submitted to the designated wiretap judge.
It is the policy of this office that the sealing of disks shall occur the first court day
following the termination of monitoring. This includes situations where the monitoring
terminates before the 30-day period has expired. In other words, if the order is valid until
March 30th, but monitoring stops March 12th, the sealing should occur on March 13th.
Sealing should also occur, when practicable, at the conclusion of the period of the initial
order, even though an extension is being sought, or has been granted.
PC 629.66 states that “[A]pplications made and orders granted pursuant to this chapter,
shall be sealed by the judge. Custody of the applications and orders shall be where the
judge orders. The applications and orders shall be disclosed only upon a showing of
good cause before a judge and shall not be destroyed except on order of the issuing or
denying judge, and in any event shall be kept for 10 years.”
It is recommended that the original application and order be sealed at the time of the
sealing of the disks. A separate envelope should be used for this purpose, and the sealing
order should reflect whether the application and order are also being sealed. The sample
that follows provides for the sealing of the recording disks as well as the application and
order.
In order to seal the recordings, the deputy district attorney must present to the issuing
judge an original sealing order plus three original copies. The original order, and each
copy, must be signed by the issuing judge. These four copies are then distributed as
follows:
(1) The original order shall be placed inside the box, or envelope, with the recordings
and sealed.
(2) One signed copy shall be placed on the outside of the sealed box or envelope.
Part III – Page 37
(3) One signed copy shall be placed in the DA file for eventual discovery.
(4) One signed copy shall be given to the issuing judge for his/her records.
United States v. Ojeda Rios (1990) 495 U.S. 257 discusses the importance of immediate
sealings. In that case, the United States Supreme Court analyzed the federal statute that is
almost identical to California’s PC 629.64.
The Ojeda Rios case makes several critical points:
1. Section 2518(8)(a) applies to a delay in sealing, as well as a complete failure to seal
recordings (at page 264).
2. The seal required by Section 2518(8)(a) is not just any seal, but a seal that has been
obtained immediately upon expiration of the underlying surveillance order (at page
263).
3. The “satisfactory explanation” language in Section 2518(8)(a) requires the
government to explain not only why a delay occurred, but also why it is excusable (at
page 265).
4. Failure to comply with Section 2518(8)(a) will result in suppression of the intercepted
communications and any evidence derived therefrom.
Law enforcement officers obtaining a state wiretap order should be made aware of the
importance of the immediate sealing requirement of section 629.64. Even the most successful
and productive state wiretap will result in the suppression of all the evidence in the absence
of compliance with section 629.64.
Although PC 629.64 provides for immediate sealing upon the expiration of the period of the
order “or extensions thereof,” the most prudent course may be to obtain a sealing order after
each 30-day period.
The sealing of telephone wiretap interceptions is one of the most sensitive areas in the
wiretap process. Following these guidelines should minimize the risk of evidence being
suppressed, or the wiretap being determined to be illegal.
Part III – Page 38
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JACKIE LACEY District Attorney for the County of Los Angeles By Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION OF THE DISTRICT ATTORNEY OF THE COUNTY OF LOS ANGELES FOR AN ORDER AUTHORIZING THE INTERCEPTION OF WIRE AND ELECTRONIC COMMUNICATIONS
) ) ) ) ) ) )
WIRETAP NO.
SEALING ORDER
On [DATE] pursuant to Penal Code section 629.50 et seq., this court authorized the
interception of communications to and from XXX telephones: Target Telephone Nos. #1
(XXXXXXXXXX); #2 (XXXXXXXXX);
The monitoring of the Target Telephones began on the following dates: Target
Telephone #1 - XXXXX; Target Telephone #2 - XXXXXX. The monitoring of all the Target
Telephones terminated on [DATE].
[THIS SECTION IS ONLY TO BE USED IF THIS PROCEDURE WAS
FOLLOWED….On [DATE], the original application and order were sealed in an evidence
envelope and placed in the [evidence locker] of the [AGENCY]. On [DATE] the sealed
application and order were removed from the evidence locker by Detective XXXXXXX. On
[DATE], the same sealed application and order were presented to this court.]
Part III – Page 39
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On [DATE], the magneto optical disks were removed from the computer in which they
were contained and given to Detective XXXXXXX. The same magneto optical disks, which
contain the recordings to the above listed target telephones, were presented to this court on
[DATE].
IT IS HEREBY ORDERED THAT:
1. Detective XXXXXX shall place the original application and order, along with the
magneto optical disks containing the recordings in evidence envelopes;
2. The envelopes shall be sealed in the presence of Judge Fidler;
3. Detective XXXXXXX shall book the envelopes into evidence at the [AGENCY]
evidence locker, and;
4. The envelopes shall be maintained in a sealed condition for a period of ten (10) years
pursuant to Penal Code sections 629.64 and 629.66.
Number of optical disks: _______
Number of envelopes containing disks: ________
envelope containing the original application
and order
DATED: _____________________________
Honorable [JUDGE]
Los Angeles County Superior Court
Part III – Page 40
4.
INVENTORY
A. Inventory Protocol
B. Postponement of Inventory
C. Inventory
A. INVENTORY PROTOCOL
PC 629.68 states that an inventory shall be served upon
“…Persons named in the order or application, and other known parties to
intercepted communications …”1
PC 629.68 also states that an inventory must be served within 90 days of the termination of the
period of an order or extensions thereof, or after the denial of an application for oral approval
under PC 629.56. The inventory is to be served upon persons named in the order or application,
as well as identified persons who have been intercepted. It should be noted that PC 629.68
requires that the inventory be sent to named target subjects even when no interception or
monitoring has taken place (e.g., an order is obtained, but the target telephone is discarded before
any monitoring begins).
L.A. County is also operating under Judge Fidler’s order that specifies
“Such an inventory shall be sent to the following classes of individuals:
a. Persons named in the order or the application (Target subjects);
b. Known parties to intercepted communications;
c. Person for whom telephone subscriber information has been obtained as
the result of the telephone being used in an intercepted conversation;
d. Persons identified as the result of surveillance based on intercepted
conversations; and
e. Persons arrested as a result of intercepted conversations.”
f. Unknown callers who later become identified.
If a jail telephone was the subject of a wiretap order, notice should be sent to every inmate who
was housed in the cell(s) where the intercepted pay-type telephone was located, during the time
period of monitoring of that phone.2
The notice of inventory must include notice of the following:
a. The fact of the entry of the order;
b. The date of the entry of the order;
c. The period of authorized interception;
d. The fact that during the period wire, electronic or electronic telephone
communications were or were not intercepted.
You can make an ex parte motion to delay serving the inventory upon a showing of good cause.
This occurs most often when the investigation is ongoing after the wire interception has been
terminated.
1An inventory is based on the telephone numbers to intercepted conversations, and not based on the telephone
numbers that appear on the pen register.
2 This does not apply to jail telephone interceptions authorized pursuant to People v. Kelley.
Part III – Page 41
The following information needs to be provided in the notice of inventory (PC 629.68):
1. The fact of the entry of the order;
2. The date of the entry of the order;
3. The period of authorized interception;
4. The fact that during the period, wire, electronic or electronic cellular
telephone communications were or were not intercepted.
The following information should be provided to the court in the application for order directing
inventory.3
1. Names and addresses of the individuals who are listed above;
2. Complete list of captured telephone numbers, for whom subscriber information
was obtained.
A partial inventory can also be submitted provided the inventory includes a request for an
extension of time on the remaining names entitled to inventory notice. This is useful in the event
that sending the inventory to certain persons may jeopardize the ongoing investigation. Be sure
that you calendar the extended date, and follow through with sending the inventory to the
remaining persons at the later date. When an order is obtained but no monitoring takes place, a
court might grant a request relieving you of the inventory requirements upon a showing of good
cause.
As indicated in the following sample forms, an order authorizing the service of the inventory
must be obtained prior to sending the notices.
A helpful procedure is to have your investigator prepare his/her list of intercepted persons and
addresses in label format. Depending upon the investigation, the number of intercepted persons
entitled to notice can run into the hundreds.
_______________________
3Items 1 and 2 can be provided on the same document, in label format, to be submitted to the court.
The telephone numbers will need to be deleted from the addresses before mailing.
Part III – Page 42
4.
INVENTORY
B. POSTPONEMENT OF INVENTORY
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JACKIE LACEY District Attorney for the County of Los Angeles By Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) WIRETAP NO. OF THE DISTRICT ATTORNEY OF THE ) COUNTY OF LOS ANGELES FOR AN ORDER ) APPLICATION FOR ORDER AUTHORIZING THE INTERCEPTION OF ) POSTPONING SERVICE OF WIRE AND ELECTRONIC ) INVENTORY PURSUANT TO COMMUNICATIONS ) PENAL CODE SECTION
) 629.68; DECLARATION;
__________________________________________) ORDER
As provided by Penal Code section 629.68, the People hereby apply for a 90-day
postponement of the service of inventory regarding the interception of communications upon
intercepted persons. This application is based on the files and records of this case and the
attached Declaration of XXXXXXXXXXX .
DATED: Respectfully submitted,
JACKIE LACEY
District Attorney
By:
Deputy District Attorney
Major Narcotics Division
Part III – Page 43
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DECLARATION
I, ______________________ declare as follows:
1. I am a Deputy District Attorney for the Los Angeles County District Attorney's
Office;
2. I assisted in the wiretap investigation of Los Angeles County Wiretap No.______;
3. The investigating officer was _______________ ;
4. On ________ this court issued Los Angeles County Wiretap No. _____, a 30-day
interception order, for __________________;
5. The District Attorney's Office reported to this court that monitoring under this order
was terminated on _______________;
6. On ______________ this court ordered the original recordings, application and order
to be sealed pursuant to Penal Code sections 629.64 and 629.66;
7. Penal Code section 629.68 requires that the issuing judge cause to be served upon
“persons named in the order or the application, and other known parties to intercepted
communications” an inventory;
8. On July 26, 2000, Judge Larry P. Fidler issued an order at the conclusion of a class
action habeas corpus proceeding in Case No. BA001118. That order stated that the agency
executing a wiretap order shall maintain records so that an inventory pursuant to Penal Code
section 629.68 can be prepared. The order further stated that inventory shall be sent to the
following classes of individuals:
(1) Persons named in the order or the application;
(2) Known parties to intercepted communications;
(3) Persons for whom telephone subscriber information has been obtained as the
result of the telephone being used in an intercepted conversation;
Part III – Page 44
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(4) Persons identified as the result of surveillance based on intercepted
conversations;
(5) Persons arrested as a result of intercepted conversations;
(6) Unknown callers whose identities become known.
9. [STATE REASONS FOR POSTPONEMENT OF SERVING NOTICE OF
INVENTORY];
10. Wherefore, the People respectfully request a postponement of the service of inventory
as to Wiretap No. _________for a period of ninety days from the date of this order, or the
conclusion of the ongoing investigation, whichever comes first;
11. The People request that this application and order for postponement of inventory be
sealed and remain sealed until conclusion of the ongoing investigation, or further order of this
court.
I declare under penalty of perjury that the foregoing is true and correct to the best of my
ability.
DATED: __________
[NAME]
Deputy District Attorney
Major Narcotics Division
Part III – Page 45
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JACKIE LACEY District Attorney for the County of Los Angeles By: Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) WIRETAP NO. OF THE DISTRICT ATTORNEY OF THE ) COUNTY OF LOS ANGELES FOR AN ORDER ) AUTHORIZING THE INTERCEPTION OF ) WIRE AND ELECTRONIC COMMUNICATIONS ) ORDER )
The People have made application to this court for an order pursuant to Penal Code
section 629.68. This court has read and considered said application.
IT IS HEREBY ORDERED that the service of notice of inventory with regard to Los
Angeles County Wiretap No. __________ be postponed for a period of ninety days from the date
of this order, or until the conclusion of the ongoing investigation, whichever comes first.
IT IS FURTHER ORDERED that the application accompanying this order, and this
ORDER shall be sealed until further order by this court.
DATED:
Honorable [NAME]
Los Angeles County Superior Court
Part III – Page 46
4.
INVENTORY
C. SERVICE OF INVENTORY
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JACKIE LACEY
District Attorney for the County of Los Angeles By Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION ) WIRETAP NO. OF THE DISTRICT ATTORNEY OF THE ) COUNTY OF LOS ANGELES FOR AN ORDER ) APPLICATION FOR ORDER AUTHORIZING THE INTERCEPTION OF ) DIRECTING SERVICE OF WIRE AND ELECTRONIC COMMUNICATIONS ) INVENTORY PURSUANT TO ) PENAL CODE SECTION
) 629.68; DECLARATION;
__________________________________________) ORDER
The People hereby apply for an order directing the District Attorney to serve an inventory
regarding the interception of communications upon various persons as provided by Penal Code
section 629.68. This application is based on the files and records of this case and the attached
Declaration of ____________, including the exhibits attached herewith.
DATED: Respectfully submitted,
JACKIE LACEY, District Attorney
By:
Deputy District Attorney Major Narcotics Division
Part III – Page 47
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DECLARATION
I, ______________________, declare as follows:
1. I am a Deputy District Attorney for the Los Angeles County District Attorney's
Office;
2. I assisted in wiretap investigation involving Los Angeles County Wiretap No. ____;
3. The investigating officer was ________________;
4. This court issued a 30-day interception order on ____________, for telephone number
____________;
5. Monitoring of the Target Telephone was terminated on _______________;
6. On _____________, this court issued a sealing order pursuant to Penal Code sections
629.64 and 629.66 for the interception order;
7. On ____________ this court issued a postponement with regard to the service of
inventory as to the original order until ___________, or the completion of the ongoing
investigation;
8. On ____________, the undersigned Deputy District Attorney was advised by
Investigating Officer _____________ that the ongoing investigation has been terminated as to
the target of this wiretap investigation. Wherefore, the People now seek an order authorizing the
service of inventory pursuant to Penal Code section 629.68;
9. Penal Code section 629.68 requires that the issuing judge cause to be served upon
“persons named in the order or the application, and other known parties to intercepted
communications” an inventory;
10. On July 26, 2000, Judge Larry P. Fidler issued an order at the conclusion of a Habeas
Corpus proceeding in Case No. BA001118. That order stated that the agency executing a
Part III – Page 48
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wiretap order shall maintain records so that an inventory pursuant to Penal Code section 629.68
can be prepared. The order further stated that inventory shall be sent to the following classes of
individuals:
(1) Persons named in the order or the application;
(2) Known parties to intercepted communications;
(3) Persons for whom telephone subscriber information has been obtained as the
result of the telephone being used in an intercepted conversation;
(4) Persons identified as the result of surveillance based on intercepted
conversations;
(5) Persons arrested as a result of intercepted conversations;
(6) Unknown callers whose identities become known.
11. Attached to this Declaration as Exhibit A is a copy of the proposed inventory;
12. Attached to this Declaration as Exhibit B are the names and addresses of the
individuals whom the People intend to serve with the inventory. These individuals are the
classes of individuals described above;
13. Attached to this Declaration as Exhibit C is a complete list of captured telephone
numbers, where subscriber information was obtained;
14. During the wiretap investigation, additional persons were captured who were not
identified by name and address. Since the police have no current plans to seek to fully identify
those individuals and prosecute them, the People request that they not be required to conduct
further investigation to fully identify and locate those individuals.
I declare under penalty of perjury that the foregoing is true and correct to the best of my
ability and that this declaration was executed in Los Angeles County.
DATED:
Deputy District Attorney
Major Narcotics Division
Part III – Page 49
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EXHIBIT A JACKIE LACEY District Attorney for the Los Angeles County By: Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX Attorneys for Applicant The People of the State of California
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) WIRETAP NO. OF THE DISTRICT ATTORNEY OF THE ) COUNTY OF LOS ANGELES FOR AN ORDER ) INVENTORY AUTHORIZING THE INTERCEPTION OF ) PURSUANT TO PENAL WIRE AND ELECTRONIC ) CODE SECTION 629.68 COMMUNICATIONS )
Pursuant to Penal Code section 629.68, you are hereby notified:
On _____________, this court issued Los Angeles County Wiretap No. _____
authorizing the interception of wire and electronic communications for a period of 30 days
commencing on that date. Monitoring of communications under the original order was
terminated on __________. During the periods covered by the order and extension,
communications were intercepted.
Part III – Page 50
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EXHIBIT B
MAILING LIST
Part III – Page 51
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EXHIBIT C
SUBSCRIBER LIST, FROM PEN REGISTER INFO
Part III – Page 52
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JACKIE LACEY District Attorney for the County of Los Angeles By: Deputy District Attorney Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) WIRETAP NO. OF THE DISTRICT ATTORNEY OF THE ) ORDER COUNTY OF LOS ANGELES FOR AN ORDER ) AUTHORIZING THE INTERCEPTION OF ) WIRE AND ELECTRONIC COMMUNICATIONS ) ) )
The People have made application to this court for an order pursuant to Penal Code
section 629.68. This court has read and considered said application.
IT IS HEREBY ORDERED that the Los Angeles County District Attorney’s Office send
via U.S. mail the “Inventory,” attached to said application as Exhibit A, to the persons listed in
Exhibit B of said application.
IT IS FURTHER ORDERED that further investigation is not required to fully identify
other persons who may have been intercepted during the wiretap, subject to the court’s order of
July 26, 2000, in the Habeas Corpus proceeding in Case No. BA001118.
DATED:
Honorable [NAME]
Los Angeles County Superior Court
(TO PAGE #50 FOR SAMPLE COVER LETTER)
Part III – Page 53
SAMPLE INVENTORY LETTER
(Name)
Deputy District Attorney
Los Angeles County District Attorney's Office
Major Narcotics Division
320 West Temple Street, Suite 345
Los Angeles, California 90012
(Date)
Dear Sir or Madam:
Enclosed please find a copy of a notice regarding Los Angeles County Wiretap Number
__________. This notice is required to be sent to you pursuant to Penal Code section 629.68.
You are not required to take any action as a result of this notice.
Beginning on _________________, a Los Angeles County Superior Court Judge issued Wiretap
Number _______________, authorizing a 30-day interception of wire and electronic
communications. The wiretap terminated on _______________, and resulted in the arrest of
persons for drug trafficking. The parties arrested are currently facing drug trafficking charges in
Los Angeles, California.
This notice is being sent to you, as required by law, because during the duration of the wiretap
one or more communications were intercepted during monitoring. This notice does not mean
that your telephone was being intercepted; rather, it only indicates that you may have had a
conversation with -or received a call from- an individual who was the subject of the above
wiretap. The law requires us to notify each person who was intercepted during the existence of
the wiretap. Again, you do not have to take any action as a result of this notice.
Sincerely yours,
____________________________________
Deputy District Attorney
Los Angeles County District Attorney's Office
Major Narcotics Division
(213)974-6831
This letter is intended for the vast majority of interceptees who are not targets, suspects, or defendants.
Part III – Page 54
5. PEOPLE’S MOTION TO USE EVIDENCE OF
CRIMES NOT SPECIFIED IN WIRETAP
INTERCEPTION ORDER
(PENAL CODE SECTION 629.82)
USE OF INTERCEPTIONS RELATING TO CRIMES
NOT SPECIFIED IN ORDER OF AUTHORIZATION
PC 629.82 discusses interceptions relating to crimes not specified in the order of authorization.
PC 629.82(a) applies when the unspecified crime is listed in PC 629.52(a) or is a violent crime as
defined in PC 667.5(c). Under these circumstances, law enforcement officers may use the
interceptions and evidence derived therefrom to investigate the crime as appropriate to the proper
performance of their duties. However, to use the interceptions or evidence derived therefrom in
court proceedings, judicial authorization must be obtained upon a finding that the contents were
otherwise intercepted pursuant to a valid wiretap order. PC 629.82(a) reads as follows:
(a) If a peace officer or federal law enforcement officer, while engaged in
intercepting wire or electronic communications in the manner authorized
by this chapter, intercepts wire or electronic communications relating to
crimes other than those specified in the order of authorization, but which
are enumerated in subdivision (a) of section 629.52, or any violent felony
as defined in subdivision (c) of section 667.5, (1) the contents thereof, and
evidence derived therefrom, may be disclosed or used as provided in
sections 629.74 and 629.78 and (2) the contents and any evidence derived
therefrom may be used under section 629.78 when authorized by a judge if
the judge finds, upon subsequent application, that the contents were
otherwise intercepted in accordance with the provisions of this chapter.
The application shall be made as soon as practicable.
Note that PC 629.82(a) provides for the use in court proceedings of certain “other crimes”
evidence when authorized by a judge who finds that the contents were intercepted in accordance
with the provisions of this chapter (emphasis added). The use of the term “a judge” appears to
allow for any judge of competent jurisdiction to issue such an order, not just the judge who
initially issued the wiretap. This suggests that the statute contemplates that a trial judge who
eventually presides over a criminal trial derived from the wiretap can issue the order.
However, Penal Code section 629.82(a) also states that “The application shall be made as soon
as practicable.” This suggests that waiting for a trial judge to issue the order may not be timely
Page III – Page 55
under the statute. In the absence of any case law interpreting this section, the authors of this
Manual have taken a conservative approach and recommend that the court order be obtained
during the pendency of the wiretap.
The following pages contain a sample ex parte court order for the use of evidence of other
crimes, pursuant to Penal Code section 629.82(a).
Penal Code section 629.82(b) and (c) apply to interceptions relating to crimes other than those
specified in section 629.82(a). The contents of the interceptions and evidence therefrom, may not
be used or disclosed except to prevent the commission of a public offense (subdivision (b)). If a
search or arrest warrant is obtained, the person named in the warrant is entitled to notice of the
wiretap (subdivision (c)).
Part III – Part 56
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JACKIE LACEY District Attorney of Los Angeles County By Deputy District Attorney Major Narcotics Division 320 W. Temple Street, Ste. 345 Los Angeles, California 90012 Telephone: (XXX XXX-XXXX
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION OF THE
DISTRICT ATTORNEY OF THE COUNTY OF LOS
ANGELES FOR AN ORDER AUTHORIZING THE
INTERCEPTION OF WIRE AND ELECTRONIC
COMMUNICATIONS
) ) ) )
WIRETAP NO. ____________ PEOPLE’S APPLICATION FOR ORDER TO USE EVIDENCE OF CRIMES NOT SPECIFIED IN WIRETAP INTERCEPTION ORDER; PENAL CODE SECTION 629.82
)
The People are applying to the above entitled court to allow the use of evidence of
crimes not specified in a wiretap interception order pursuant to Penal Code section 629.82. This
application will be based on the attached declaration of _______________ and any documentary
evidence submitted.
Dated: ______________________ _________________________
[NAME]
Deputy District Attorney
Major Narcotics Division
Part III – Page 57
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DECLARATION
I, _________________, declare as follows:
1. I am a Deputy District Attorney for the Los Angeles County District
Attorney’s Office currently assigned to prosecute the instant case.
2. On _____________, Judge _______________ issued Los Angeles County
Wiretap No. _______________, authorizing the interception of two cellular telephones in the
Los Angeles County area. This wiretap order specified the crimes of Health and Safety Code
sections 11351 and 11352 involving the transportation, sale, and possession for sale of cocaine.
Target Subject __________was identified in Wiretap No. ______.
3. On ________________, during the pendency of Wiretap No. ________.
Target Subject ______________ was intercepted using one of the Target telephones to discuss
the murder of a rival narcotics dealer. The Target Subject has not been charged with that murder
in the instant case.
4a. The wiretap investigation is ongoing and a wiretap order involving the
Target Subject is currently in effect [USE IF APPLICABLE].
4b. On ____________, Judge ___________ ordered the original recordings,
application, and wiretap order be sealed pursuant to Penal Code sections 629.64 and 629.66.
5. Penal Code section 629.82(a) reads as follows:
If a peace officer or federal law enforcement officer, while engaged in
intercepting wire, or electronic communications in the manner authorized
by this chapter, intercepts wire or electronic communications relating to
crimes other than those specified in the order of authorization, but which
are enumerated in subdivision (a) of section 629.52, or any violent felony
as defined in subdivision (c) of section 667.5, (1) the contents
Part III – Page 58
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thereof, and evidence derived therefrom, may be disclosed or used as
provided in sections 629.74 and 629.76 and (2) the contents and any
evidence derived therefrom may be used under section 629.78 when
authorized by a judge if the judge finds, upon subsequent application, that
the contents were otherwise intercepted in accordance with the provisions
of this chapter. The application shall be made as soon as practicable.
6. The People hereby make application, pursuant to Penal Code section
629.82 (a) for authorization to use intercepted calls of Target Subject _______________ and
evidence derived therefrom in criminal proceedings, subject to relevancy to those proceedings.
I declare under penalty of perjury that the foregoing is true and correct to the best
of my ability.
DATED: ________________ _______________________
[NAME]
Deputy District Attorney
Major Narcotics Division
Part III – Page 59
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JACKIE LACEY District Attorney of Los Angeles County By Deputy District Attorney Major Narcotics Division 320 W. Temple Street, Ste. 345 Los Angeles, California 90012 Telephone: (XXX) XXX-XXXX
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION OF THE
DISTRICT ATTORNEY OF THE COUNTY OF LOS
ANGELES FOR AN ORDER AUTHORIZING THE
INTERCEPTION OF WIRE AND ELECTRONIC
COMMUNICATION
) ) ) ) ) ) )
WIRETAP NO. ORDER AUTHORIZING USE OF EVIDENCE OF CRIMES NOT SPECIFIED IN WIRETAP INTERCEPTION ORDER (PENAL CODE SECTION 629.82)
The People of the State of California have submitted an application requesting
authorization to use evidence of crimes not specified in the wiretap interception order. This
court has read and considered the application. This court finds that it has jurisdiction to grant
such an order, finds that the communications intercepted relating to crimes other than those
specified in the order of authorization involve a violent felony as defined in subdivision (c) of
Penal Code section 667.5, and finds that the communications were intercepted in accordance
with the provisions of Chapter 1.4 (Penal Code sections 629.50, et seq.).
Good cause having been shown, pursuant to Penal Code section 629.82(a), the
People are hereby authorized to use the contents of intercepted communications, and
Part III – Page 60
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evidence derived therefrom, from Wiretap No.______. The calls and evidence derived therefrom
may be used in criminal proceedings, subject to relevancy to those proceedings.
DATED: __________________ __________________________
Honorable [NAME]
Los Angeles County Superior Court
Part III – Page 61
PART IV
ISSUES AND PROCEDURES RELATED TO STATE WIRETAPS
TABLE OF CONTENTS PAGE
1. Pen Registers
A. Overview .................................................................................................... 1
B. Application For Pen Register ..................................................................... 3
C. Court Order Under Seal .............................................................................. 9
2. Los Angeles County Court Orders
A. Ruling on Petition for Habeas Corpus ...................................................... 12
B. Clarification of Ruling ............................................................................... 14
C. Conclusion of Hearing re: Alleged Violation of Court Order .................... 16
3. Protocol For Reports Regarding Wiretap Activity .................................................. 18
A. California (EICOS) 10-Day Report
1. EICOS Instructions ........................................................................................ 19
A. Blank Reporting Form .............................................................................. 20
B. Blank Reporting Form – Continuation Sheet ............................................ 21
B. Annual Federal and State Reporting
1. Instructions ..................................................................................................... 22
A. Blank Form WT1 ...................................................................................... 31
B. Blank Form WT2 (Part 1) ......................................................................... 32
C. Blank Form WT2 (Part 2) ........................................................................ 33
D. Blank Form WT3………………………………………………………...34
E. Sample Completed Form WT2 (Part 1) ..................................................... 35
F. Sample Completed Form WT2 (Part 2) ..................................................... 36
G. Memorandum to Judge .............................................................................. 37
4. Designation of Civilian Monitors ............................................................................ 38
5. Interceptions of Conversations of Persons in Custody ............................................ 40
A. Court Order for “Kelley Wire” ................................................................. 42
6. Privileged Communications and Wiretaps ............................................................... 48
1.
PEN REGISTERS
A. Overview .......................................................................................................................... Page 1
B. Application for Pen Register ............................................................................................ Page 3
C. Court Order Under Seal .................................................................................................... Page 9
COURT ORDERS FOR PEN REGISTERS AND TRAP-AND-TRACE
DEVICES (DNR)
As defined in Section 3127 of the Federal Electronic Communications Privacy Act, the term “pen
register” means a device which records or decodes electronic or other impulses which identify the
numbers dialed or transmitted on the telephone line to which such device is attached. The term
“trap-and-trace device” means a device which captures the incoming electronic or other impulses
which identify the originating number of an instrument or device from which a wire or electronic
communication was transmitted. Thus, the installation of both a pen register and a trap-and-trace
device allows law enforcement officers to determine telephone numbers being called from and to a
particular telephone number.
The Federal Electronic Communications Privacy Act regulates the use of pen registers and trap-and-
trace devices (18 U.S.C. Sections 3121-3126). Section 3122 expressly authorizes a state
investigative or law enforcement officer to apply for an order, or an extension of an order,
authorizing the installation and use of a pen register or a trap-and-trace device, in writing under oath,
to a court of competent jurisdiction of the state. Section 3123 requires the applicant to justify that the
information likely to be obtained is relevant to an ongoing criminal investigation (as opposed to
probable cause required for a warrant). The order shall not exceed 60 days. Extensions may be
granted, but only upon application, and may not exceed 60 days. The order shall direct that the order
be sealed until otherwise directed by the court, and it shall direct the person owning the line or
assisting in the installation not to disclose until further order of the court.
Attached is a sample court order for the installation and use of a pen register and trap-and-trace
device. Such an order must be supported by an application of the law enforcement officer that the
information likely to be obtained is relevant to an ongoing criminal investigation.
Before the order is physically sealed, the applicant should make a copy of the signed court order to
use during the investigation.
NOTE: A pen register and /or a trap-and-trace device may also be installed if a search warrant has
been obtained. People v. Larkin (1987) 194 Cal.App.3rd 650, 654. However, the use of the warrant
procedure is clearly inferior to the procedure described above, since the warrant is valid for only ten
days pursuant to Penal Code section 1534. Further, the warrant must establish probable cause,
whereas the procedure described above requires only that the information likely to be obtained is
relevant to an ongoing criminal investigation.
Part IV – Page 1
NOTE FURTHER: No California case has discussed the propriety of obtaining such an order
pursuant to the Federal Electronic Communications Privacy Act. However, a California Attorney
General Opinion, No. 03-406, filed December 18, 2003, has concluded that the federal statutes
governing the installation of pen registers and trap-and-trace devices do not provide authority for the
issuance of a state court order permitting a state law enforcement officer to install or use pen
registers or trap-and-trace devices. The rationale of this Attorney General Opinion is that
information obtained from pen registers and trap-and-trace devices is within the zone of privacy
protected by the California Constitution and thus requires a judicial ruling authorizing law
enforcement to install a pen register or trap-and-trace device. According to this Attorney General
Opinion, a judicial ruling may be required for the placement of pen registers and trap-and-trace
devices; since the federal statutory scheme is inadequate to protect the privacy interests involved.
One method of overcoming the concerns addressed in this Attorney General Opinion would be to
establish probable cause that the “Target Subjects” are violating the law; and the court order could
contain an additional finding that probable cause exists. The attached court order contains such an
optional finding.
Part IV – Page 2
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XXXXXXXXXXXX Investigating Officer XXXXXXXXX XXXXXXXXX XXXXXXXXX (213) XXX-XXXX Applicant and Affiant
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
IN THE MATTER OF THE APPLICATION
FOR AN ORDER AUTHORIZING THE
INSTALLATION AND USE OF
A PEN REGISTER AND A TRAP AND
TRACE DEVICE ON TELEPHONE LINE
(310) XXX-XXXX
) ) ) ) ) ) )
APPLICATION FOR PEN REGISTER AND TRAP AND TRACE; ORDER UNDER SEAL
INTRODUCTION
Your affiant, XXXXXXXXXXXX, a Detective for the XXXXXXXXXXX, hereby
applies to the court for an order; (1) authorizing the use of a pen register on the telephone line
currently designated by number (310) XXX-XXXX (hereinafter: "Line 1"); (2) authorizing the
use of a trap and trace device on Line 1; and (3) requiring the disclosure of subscriber name and
addresses, whether listed or unlisted, for numbers called by Line 1, or numbers calling Line 1,
upon oral or written demand of agents and officers of XXXXXXXXXXXXX. In support of this
application, he states the following under penalty of perjury:
1. This application is submitted pursuant to 18 U.S.C. sections 3121 to 3126, which
regulate the use of pen registers and trap-and-trace devices under the Federal Electronic
Communications Privacy Act. Section 3122 expressly authorizes a state investigative or law
enforcement officer to apply for an order, or an extension of an order, authorizing the installation
and use of a pen register or a trap-and-trace device, in writing under oath, to a court of competent
jurisdiction of the state. Section 3123 states that the court shall enter an ex parte order
Part IV – Page 3
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authorizing the installation and use of a pen register or a trap-and-trace device if the court finds
that the state law enforcement or investigating officer has certified to the court that the
information likely to be obtained by such investigation and use is relevant to an ongoing criminal
investigation. Such an order shall not exceed 60 days. The order shall direct that the order be
sealed until otherwise directed by the court.
2. Your affiant certifies that the XXXXXXXXXXX is conducting a criminal
investigation of XXXXXXXX a.k.a. XXXXXXXX, XXXXXXXXX XXXXXX a.k.a.
XXXXXX a.k.a. XXXXXX, XXXXXXXXXXXXXX a.k.a., XXXXXX XXXXXX, a.k.a.
XXXXX XXXXXXXXX, and other co-conspirators (hereinafter collectively referred to as the
“Target Subjects”) in connection with possible violations of Penal Code section 182 and Health
and Safety Code sections 11351 and 11352. It is believed that the Target Subjects are using Line
1 in furtherance of the subject offenses and that the information likely to be obtained from the
pen register and trap and trace device is relevant to the ongoing investigation being conducted by
the above named agency.
3. According to telephone company records, Line 1, (310) XXX-XXXX, is
subscribed to by XXXXXXXXXX XXXXXXXX, at XXXXXXXXXXXXXXXXXX, XXXXX,
California.
4. Your affiant requests that the XXXXXXXXXXXXXXX to execute the order.
5. The following statement of expertise and summary of this current investigation
detail the particular offense(s) that have been, are being, or are about to be committed. Those
offenses are possession of a controlled substance (cocaine) for sale, sales/transportation of a
controlled substance (cocaine) and conspiracy to commit those offenses, in violation of Health
and Safety Code sections 11351 and 11352 and Penal Code section 182.
///
///
///
Part IV – Page 4
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II.
EXPERTISE OF DETECTIVE XXXXXXXXXX
6. Your affiant has been a police officer with XXXXXXXX for over 15 years and
has participated in numerous narcotics investigations as a case agent and in a subsidiary role.
Almost all of those investigations focused on large-scale drug trafficking organizations. Your
affiant has debriefed more than 100 defendants, informants, and witnesses who had personal
knowledge regarding major narcotics trafficking organizations. Additionally, your affiant has
participated in all aspects of drug investigations including, surveillance, use of confidential
informants, and conducting court-authorized wiretaps. Your affiant has authored several
affidavits in support of wiretap applications in narcotics cases. Your affiant is familiar with
narcotics traffickers' methods of operation including the distribution, storage, and transportation
of narcotics, the collection of money that represents the proceeds of narcotics trafficking, and
money laundering. Your affiant is aware drug traffickers often communicate with their drug
trafficking associates through cellular telephones and digital display paging devices. Your
affiant is also aware that drug traffickers often change cellular telephones and digital display
paging devices to avoid detection by law enforcement. In your affiant’s experience, drug
traffickers also use cellular telephones and residential telephones that are not subscribed to their
own names to avoid detection by law enforcement.
7. Your affiant has interviewed in excess of one hundred criminals regarding the
transportation and sales of narcotics. During many of these investigations the criminals have
admitted to their modus operandi and their utilization of telephones.
Your affiant knows from his training and experience in the field of narcotics that
individuals involved in the crimes of possession for sales and transportation of controlled
substances (cocaine), often utilize telephones to arrange their crimes or coordinate with co-
conspirators.
Part IV – Page 5
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III.
SUMMARY OF CURRENT INVESTIGATION
[STATE THE FACTS WHICH ESTABLISH THAT THE INFORMATION LIKELY
TO BE OBTAINED BY THE PEN REGISTER OR TRAP-AND-TRACE DEVICE IS
RELEVANT TO AN ONGOING CRIMINAL INVESTIGATION.]
8. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
IV.
CONCLUSION
9. Based on the above related investigation, your affiant believes that the Target
Subjects are using Line 1 and will continue to use Line 1 in furtherance of narcotics trafficking.
Therefore, your affiant respectfully believes that the information sought pursuant to this
application is relevant to an ongoing criminal investigation.
10. The intended purpose of a Dialed Number Recorder (DNR), also known as a pen
register, is to identify the origin and destination of telephone calls from or to a specific telephone
number. This is accomplished by monitoring the impulses generated when a telephone number
is dialed. Additionally, the functions commonly called "trap and trace" or "caller ID" can be
utilized with a DNR to register the source telephone numbers of calls made to the monitored
telephone. This information, when combined with telephone subscriber information, will assist
in identifying co-conspirators and the locations utilized by these co-conspirators when planning
the movement of multi-kilogram quantities of cocaine.
11. Your affiant requests the court to issue an order authorizing the installation and
use of a Dialed Number Recorder in conjunction with a trap and trace device in order to identify
the telephone numbers of all incoming and outgoing telephone calls on Line 1. It is further
Part IV – Page 6
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requested that law enforcement be allowed to record the length of time the telephone number in
question is off hook. The gathering of this information will continue for sixty days.
12. Your affiant is aware that narcotics traffickers commonly change telephone
numbers in order to defeat surveillance by law enforcement. Your affiant understands that a
DNR is defined as a device which records or decodes electronic or other impulses which identify
the numbers dialed or otherwise transmitted on the telephone lines to which such devices
attached. Therefore, as DNR's are defined with respect to telephone lines, not with respect to
numbers or subscribers, and as the government has information showing that the locations from
which DNR's are requested, are being used for criminal purposes, the applicant requests that this
court order the DNR's to remain in force in the event that the numbers or subscribers to the
telephone lines are changed.
13. Your affiant further requests that Pacific Bell Telephone Company, General
Telephone Company, Pacific Bell Wireless, AT&T, AT&T Wireless Services, Verizon Wireless,
Nextel Cellular and any other affected telecommunications company (hereinafter, the
Telecommunications Companies) be ordered to supply information concerning any and all
additional call services such as call forwarding, speed dialing and other services which might be
added to the basic call service now in place.
14. Your affiant further requests that the order direct the furnishing of information,
such as raw data, including but not limited to location of the cell site sector (physical address) of
call termination, call initiation, and call progress locations (Automated Message Accounting
Data), telephone subscriber information, and require that the phone company provide the
necessary facilities and technical assistance to unobtrusively accomplish the installation of the
Dialed Number Recorders and trap and trace devices, with reasonable compensation paid by the
investigating agency, the XXXXXXXXXXXXXXX, for the expenses incurred.
Part IV – Page 7
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15. Your affiant further requests that the Telecommunications Companies be ordered
to supply subscriber names and addresses for persons or businesses called from the monitored
phone. Your affiant request subscriber names and addresses for the telephones that originate
telephone calls to the monitored telephone. Your affiant further requests that the
Telecommunications Companies, be ordered to supply any and all information in their files with
respect to persons called by the telephone line and persons calling the telephone line (excepting
for the contents of communications), whether published or non-published, including but not
limited to driver's license numbers, social security numbers, application information and billing
information, upon oral or written demand of officers and agents of XXXXXXXXXXXXX.
16. Your affiant further requests that the Telecommunications Companies be ordered
not to disclose to the subscribers of the telephone services described herein the existence of this
warrant and order since to do so would alert the subjects of this investigation.
Your affiant declares under penalty of perjury that the foregoing is true and correct.
DATED :________________
DETECTIVE XXXXXXXXX
AGENCY XXXXXXXX
Part IV – Page 8
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES IN THE MATTER OF THE APPLICATION ) OF DETECTIVE XXXXXX ) FOR AN ORDER AUTHORIZING ) COURT ORDER THE INSTALLATION AND USE ) OF A PEN REGISTER AND TRAP ) UNDER SEAL
AND TRACE DEVICE ON ONE )
TELEPHONE NUMBER WITHIN )
THE COUNTY OF LOS ANGELES )
)
Detective XXXXXX of the XXXXXXXXXXXXXXXXXXXX, has made
application to this Court pursuant to 18 U.S.C. sections 3121 to 3126 for an order authorizing the
installation and use of a pen register and trap and trace device on telephone number (310) XXX-
XXXX, a residential telephone subscribed to XXXXXXXXXX , at XXXXXXXXXXX, (the
“Target Telephone").
This court finds that the information likely to be gained by such installation and
use is relevant and material to an going criminal investigation regarding violations of Health &
Safety Code sections 11351 and 11352, and a conspiracy to commit said offenses in violation of
Penal Code section 182. [This court further finds that probable cause exists that the target
subjects are committing the crimes under investigation and that a fair probability exists that
evidence that tends to show a felony has been committed or tends to show a particular person has
committed a felony, will be obtained as a result of the issuance of this order.]1
IT IS HEREBY ORDERED that Detective XXXXX and other law enforcement
officials working with him may install and use a pen register to register numbers dialed or pulsed
from the Target Telephone, to record the date and time of such dialing or pulsings, and to record
the length of the time the telephone receiver is off the hook for incoming or outgoing calls, for a
period of 60 days from date of this order.
Part IV – Page 9
1 This is optional language in response to Attorney General Opinion #03-406 discussed on Page 1A of this section
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IT IS HEREBY ORDERED that Detective XXXXXX and other law enforcement
officials working with him may install and use a trap and trace device on the Target Telephone to
record the telephone numbers calling the Target Telephone, for a period of 60 days from date of
this order.
IT IS HEREBY ORDERED that Pacific Bell Company, Pacific Bell Wireless,
General Telephone Company, AT&T, Verizon Wireless, AT& T Wireless, Mobilecomm, Sprint
PCS, Airtouch Paging, Nextel Cellular and any other affected telecommunications company,
subsidiary, or entity, whether mentioned herein or not, (hereinafter referred to as the
Telecommunications Companies), shall furnish information, facilities and technical assistance
necessary to accomplish the installation and operation of the devices unobtrusively and with a
minimum of disruption to normal telephone service.
IT IS HEREBY ORDERED that the pen register and trap and trace devices on the
Target Telephone are authorized to continue in spite of the fact that the particular telephone
number or subscriber information may change, as long as either the number or the subscriber
information on the account remains the same, and law enforcement believes that the person(s)
using the Target Telephone continues to be the same; further, it is ordered that the affected
telephone company notify Detective XXXXXX regarding any changes to the Target Telephone,
including number or subscriber changes.
IT IS HEREBY ORDERED that the Telecommunications Companies shall be
compensated by the XXXXXXXXXXXXX for reasonable expenses incurred while complying
with the court's order.
IT IS HEREBY ORDERED that the Telecommunications Companies shall supply
any and all information in their files with respect to persons called by the Target Telephone and
for persons calling the Target Telephone (except the contents of communications), whether
published or non-published, including but not limited to the location of cell site/sector (physical
address) of call termination without geographical limits, call initiation and call progress locations
Part IV – Page 10
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(Automated Message Accounting Data), raw data information, and subscriber names and
addresses, driver's license numbers, social security numbers, application information, billing
information and unbilled records, upon oral or written demand of Detective XXXXX.
IT IS HEREBY ORDERED that this order and the application be sealed and
remain in the custody of Detective XXXXXXXX until otherwise ordered by the court and that
the Telecommunications Companies shall not disclose the existence of the pen register, the trap
and trace device or the existence of the investigation to the listed subscriber or to any other
person, unless or until otherwise ordered by the court.
DATED: _________________
Los Angeles County Superior Court
Part IV - Page 11
2.
LOS ANGELES COUNTY COURT ORDERS
A.
RULING ON PETITION FOR HABEAS CORPUS (NOVEMBER 18, 1998)
B.
CLARIFICATON OF RULING (NOVEMBER 10, 1999)
C.
CONCLUSION OF HEARING RE: ALLEGED
VIOLATION OF COURT ORDER (JULY 26, 2000)
A.
RULING ON PETITION FOR HABEAS CORPUS (NOVEMBER 18, 1998)
Insert
November 18, 1998 Order
Page 1 of 2
Part IV – Page 12
Insert
November 18, 1998 Order
Page 2 of 2
Part IV – Page 13
B.
CLARIFICATON OF RULING (NOVEMBER 10, 1999)
Insert
November 10, 1999 Order
Page 1 of 2
Part IV – Page 14
Insert
November 10, 1999 Order
Page 2 of 2
Part IV – Page 15
C.
CONCLUSION OF HEARING RE: ALLEGED
VIOLATION OF COURT ORDER
(JULY 26, 2000)
Insert
July 26, 2000 Order
Page 1 of 2
Part IV – Page 16
Insert
July 26, 2000 Order
Page 2 of 2
Part IV – Page 17
3.
REPORTS REGARDING
WIRETAP ACTIVITY
Page
Protocol For Reports Regarding Wiretap Activity................................................................ 18
A. California (EICOS) 10-Day Report
1. EICOS Instructions ........................................................................................ 19
A. Blank Reporting Form ............................................................................. 20
B. Blank Reporting Form – Continuation Sheet ........................................... 21
B. Annual Federal and State Reporting
1. Instructions ..................................................................................................... 22
A. Blank Form WT1 ..................................................................................... 31
B. Blank Form WT2 (Part 1) ........................................................................ 32
C. Blank Form WT2 (Part 2)………..……………………………… ……..33
D. Blank Form WT3 ..................................................................................... 34
E. Sample Completed Form WT2 (Part 1) .................................................... 35
F. Sample Completed Form WT2 (Part 2) .................................................... 36
G. Memorandum to Judge ............................................................................. 37
PROTOCOL FOR REPORTS REGARDING WIRETAP ACTIVITY
A. California (EICOS) 10-day Report
PC 629.61 requires that, within 10 days of the issuance of a wiretap order, a report
shall be submitted to the California Attorney General that identifies the persons,
facilities/telecommunication devices and places/locations that are the subject of the
wiretap order. The purpose of this 10-day report is to develop and maintain a
comprehensive data base of wiretap orders issued by the California courts.
B. Annual Federal and State Reporting
PC 629.62 requires that the prosecuting agency seeking a wiretap order provide
certain information to the State Attorney General. Title 18, United States Code,
section 2519 requires a report to the Administrative Office of the United States
Courts. The federal forms permit compliance with both the state and the federal
requirements.
Form WT2 is used to report a wiretap for the first time. This form is divided into two
parts. Part I is the judge’s report and is to be completed by the prosecutor and signed
by the judge authorizing or denying the application. A photocopy of form WT2 (with
Part I completed) is submitted to the Administrative Office of the United States
Courts (AO) with the original form retained by the prosecutor until the application is
terminated. Part II is the prosecuting official’s report and is to be completed and
signed by the prosecutor upon termination of the interception. The original WT2 form
(with both Parts completed) is forwarded to the AO in January of each year for all
authorized interceptions which expired during the previous calendar year. A
photocopy is retained for the prosecutor’s files. A copy of each WT2 report, as well
as the WT1 and WT3 forms, should also be sent to the Office of the California
Attorney General to provide information for its Annual Report as required by PC
629.62.
Form WT1 is the Annual Prosecutor Summary of Wiretap Reports. This summary (as
well as the individual WT2 reports for a calendar year and WT3 supplemental reports
for prior years) must be received by the AO no later than January 31.
Following is a copy of the official instructions for completing the forms prepared by
the Administrative Office of the United States Courts. Blank forms for Form WT1,
Form WT2, and Form WT3, recommendations for completing the form WT2, along
with two samples of the completed forms are also provided.
SUBMITTING COMPLETE AND ACCURATE FORMS IS CRITICAL. The state and
federal legislatures use the data compiled from the submitted forms to evaluate the cost and
effectiveness of wiretaps. This data is also used to evaluate the necessity of future legislation
regarding wiretaps.
Part IV – Page 18
Electronic Intercept Court Order System (EICOS)
Instructions to complete the EICOS form
For All Requests
1. Date the request at the top of the form
2. Provide contact information for the Law Enforcement Agency preparing the
application along with the Agency’s case number.
Database Search Request
1. Check the box marked “Database Search Request.”
2. Identify the most serious offense under investigation by statute.
3. In Section I, provide the full name and date of birth of each target to be search.
4. In Section II, provide the ten-digit telephone number(s) and the type of device(s)
[pager, cellular, business, residential, etc.] to be searched.
5. In Section III, provide the complete physical address of each location to be search.
6. If more than five targets (telephone numbers or addresses) are to be searched,
attach the continuation sheet.
Court Action Report
1. Provide contact information for the Prosecutorial Agency making the report. If
known, include the Law Enforcement Agency case number.
2. Check the box marked “Court Action Report.”
3. Provide the date [month, day, year] that the court took action on the application.
4. In Section I, provide the full name and date of birth of each target named in the
application.
5. In Section II, provide the ten-digit telephone number(s) and the type of device(s)
[pager, cellular, business, residential, etc] requested in the application.
6. In section III, provide the complete physical address of each location requested in
the application.
7. In Sections I, II and III, indicate whether the court approved or denied the
application as to each specific target, telephone number and location.
8. If more than five targets (telephone numbers or addresses) are to be reported,
attach the continuation sheet.
Part IV – Page 19
Insert
Blank EICOS form
Part IV – Page 20
Insert
Blank EICOS form
Continuation Sheet
Part IV – Page 21
REPORTING REGULATIONS ON INTERCEPTED WIRE, ORAL, OR
ELECTRONIC COMMUNICATIONS
Completing Form WT2 (Part I) – Reference Number and Items 1 through 8
When the period of interception (including all extensions) permitted by the court has expired, the
prosecuting official should complete items 1 through 8.
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. In
the case of an extension of an intercept, report all information concerning the original order and
each extension of that order on a single reporting form. Applications that are denied by a
judge must also be reported.
Reference Number – A space has been provided at the top of the form for the prosecutor to
record a locally assigned “Reference Number.” Any numbering format may be used; however, if
your office does not utilize some other format, it is suggested you utilize one that incorporates
the year (such as 2000-1, 2000-2, etc.).
The first eight items of information required are as follows:
1. Judge Authorizing or Denying the Intercept – Provide the name of the judge(s)
authorizing or denying the interception and the name of their jurisdiction.
2. Source – Official Making Application – Provide the name of the investigative or law
enforcement officer making application and the name of their county, district or agency.
3. Source – Prosecution Official Authorizing Application – Provide the name, title,
telephone number and county/agency name for the prosecution official who authorized
the application.
4. Offense – Provide the most serious offense specified in the order or application for an
extension of the order. A general description such as gambling, narcotics, racketeering,
etc. will suffice. DO NOT cite the offense by title and section. The following controls
should be used to determine the most serious offense:
a. When two or more offenses are specified in the application, the offense with the
maximum statutory sentence is to be classified as the most serious.
b. When two of the offenses have the same maximum sentence, a crime against a
person takes priority over a crime against property.
5. Type of Order – Check the appropriate box to indicate whether the order authorizing the
intercept was an ordinary specification order which requires a particular description of
the type and location of the intercept device, or whether the order was roving – relaxed
specificity order (as defined in 18 U.S.C. 2518(11) which allowed a less explicit
description. If the order was a roving – relaxed specificity order, the category “No
Location Specified” should be checked in Item 8 on the form.
Part IV – Page 22
6. Duration of Intercept:
a. Original Request – Provide the number of days requested and the date of the
application. Check the appropriate box to show whether the application was
denied or granted and the date order denied or granted. If the application was
granted with modifications or was amended, check the box provided and indicate
the date.
b. Extensions – For each extension (if any) provide all information as required for
Original Request above.
c. Total Number of Extensions – Insert the total number of extensions authorized to
the original request.
d. Total Days Authorized – Insert the total number of days authorized by adding the
number of days authorized in the original request to the number of days
authorized in any extension(s).
7. Type of Intercept – Check the appropriate box to indicate whether the application was for
(1) a wire intercept of a telephone communication, (2) an intercept of an oral
communication or (3) an intercept of an electronic communication. Within the general
category, also check the appropriate box to indicate the specific type of intercept
requested.
8. Location Shown in Intercept Order – Check the appropriate box to indicate the facilities
where the communications were to be intercepted. The following definitions are to be
used in making this determination:
a. Personal Residence – includes single family dwelling (detached home, semi-
detached, townhouse, row house, and duplex), apartment (garden style, low rise,
high rise, self-contained private room or apartment within a house or
condominium), mobile home/trailer, multiple dwelling (boarding house with
common telephones, dormitory, fraternity/sorority house, nursing home), etc.
b. Business – includes store, office, restaurant, gym, hospital, school, government
agency, etc.
c. Public Area – includes pay telephone, park, station, airport, library, street,
cemetery, etc.
d. Portable Device – Carried By/On Individual – includes cell phone, pager, etc.
e. Other Location – includes motel, prison, jail, vehicle, etc. or other specified
location not covered by any other category.
f. No Location Specified In Order – Check this box only if a Relaxed Specification
Order was authorized pursuant to Title 18 U.S.C. Section 2518(11). This box is
checked only if “Relaxed” is checked under item 5, “Type of Order.”
Part IV – Page 23
Reports should not disclose the name, address or phone number of any individual whose
communication may have been intercepted, the specific address where the intercept was
installed, nor the telephone number, which was tapped. The Administrative Office is not
authorized to collect this information.
When Part I the form has been completed by the prosecutor, it is to be forwarded to the judge
who authorized or denied the intercept for signature.
Note: The authorizing or denying judge is required to file a report with the Administrative Office
of the U.S. Courts within 30 days of the expiration of the order (including all extensions).
Therefore, the report must be submitted to the judge within this timeframe.
Completing Form WT2 (Part II) – Items 9 through 13
Items 9 through 13 must be completed by the prosecuting official in January of each year for
all authorized interceptions which expired during the previous calendar year. These
reports must be submitted to the Administrative Office by January 31. If the application
was denied (as reflected in Item 6 of Part I), Items 9 through 13 should be left blank. The
prosecutor should sign the From WT2 (which should have been previously signed by the judge)
and forward it to the Administrative Office along with the reports of authorized interceptions.
The information required in Part II of the report is as follows:
9. Installation: Check the statement that applies to this interception.
Never Installed – If the intercept was never installed, check this box. No further
information is required. Skip items 10 through 12.
Installed, But Not Used – If the intercept was installed but never used, check this box.
You must complete item 11 relating to the cost of the installation as required below.
Installed and Used – If the intercept was installed and used (monitored for any period of
time), check this and complete items 10 through 13 as required below. Fill in all the
blanks. Insert a dash or zero, if there is nothing to report.
10. Description of Intercepts: Provide information for each item below in the appropriate
blocks. (DO NOT provide names, addresses, or phone numbers.)
10A. Termination Date of Interception – Provide month, day and year.
10B. Number of Days in Actual Use – This number should not exceed the total number of days
authorized.
10C. Number of Communications Intercepted – Count each communication and uninterrupted
conversation separately.
Part IV – Page 24
10D. Number of Persons Whose Communications Were Intercepted – Provide the TOTAL
NUMBER OR DIFFERENT INDIVIDUALS whose communications were intercepted
during the time the wiretap was in operation. This includes the person(s) initiating the
communications, the person(s) receiving them, and any additional persons participating
in the communications. Do not include any names. (NOTE: These instructions have
been revised starting with reporting for CY 2000, and you are no longer asked to count
each person in conversation EACH time that an intercept is made.)
10E. Number of Incriminating Communications Intercepted – Count each communication
which may be used as evidence in the investigation.
11. Cost – Costs should be rounded to the nearest dollar. Check the appropriate box to
indicate the statement which applies to this intercept.
11A. Costs shown here are for THIS wiretap only.
11B. Costs shown here are for this wiretap plus other wiretaps. Provide the reference numbers
of the related wiretaps.
11C. Costs for this wiretap are not reported here, but are included in the total on another
related wiretap. Provide the reference number of the related wiretap which includes these
costs.
11D. Nature and Quantity of Personnel Used to Install and Monitor – Provide the number and
type of officers or employees used both in installing and monitoring the equipment. Also
include time spent in preparing transcripts.
Personnel Cost – Provide the estimated salary cost for the time spent by the personnel
noted above who were used to install and monitor the equipment or prepare transcripts.
Resource Cost – Provide the estimated cost of installation if the installation is done on a
contractual basis; rental, lease, or amortization of equipment; and the cost of supplies,
including magnetic tapes and disks.
12. Results – Check Here if Case is Pending and No Results to Report – Check the box if
there have been no arrests, motions, or convictions as a result of the intercept, but the
investigation continues. Report any future arrests, motions or convictions on
Supplementary Form WT3 next year.
12A. Number of Persons Arrested – Provide the total number of persons arrested. If two or
more wiretaps are related, show arrests on one form only. Count each person only once,
regardless of the number of offenses charged. (Do not provide names.)
Part IV – Page 25
12B. Specify Numbers of Motions to Suppress – Provide the number of motions to
suppress (quash evidence) made with respect to the interception that were granted,
denied, and are still pending. If two or more wiretaps are related, show motions on one
form only.
12C. Number of Persons Convicted – Provide the total number of persons convicted as a result
of the interception. Persons who pled guilty would be counted in this category. Each
convicted person is counted only once. If two or more wiretaps are related, show
convictions on one form only.
12D. Number of Trials Completed – Provide the number of trials resulting from this
interception that have been completed. Do not count as a trial any instance where a plea
was taken during the trial. Also, do not count any grand jury information, such as
dismissal of indictment. If two or more trials are related, show trials on one form only.
12E. Conviction Offense – Provide the offense for which the convictions were obtained. If
more than one offense was involved, indicate only the one deemed most significant.
13. Comments and Assessment – Assess the importance of the interceptions in obtaining
convictions. If two or more wiretaps are related, you can provide comments for all
related wiretaps on one form and, on all other related forms, insert the statement “See
No___.”
Questions or Other Information
If you have questions regarding the submission of wiretap reports or require other information,
please call Irene Richardson or David Gentry at (202) 502-1470. If you prefer, you may also fax
a request to (202) 502-1422 or write to: Administrative Office of the U.S. Courts, Attention:
Statistics Division (WT), Thurgood Marshall Federal Judiciary Building, One Columbus Circle
N.E., Washington, D.C. 20002.
Part IV – Page 26
RECOMMENDATIONS FOR COMPLETING THE WT2 FORM
Both the United States Congress and the California legislature require that certain data be
maintained and reported with respect to every wiretap order issued. Accurate reporting has
proven to be critical when the legislature is evaluating the effectiveness of wiretaps as
investigative and prosecutorial tools. It should be noted that the wiretap reporting forms (WT1,
WT2 and WT3) submitted to the California Attorney General are simply duplicates of the forms
prepared by and submitted to the Administrative Office of the United States Courts, Statistics
Division to satisfy federal reporting requirements. The completed forms are to be sent to both
offices at the conclusion of every wiretap order.
However, due to the fact that the form is designed for federal wiretaps, it is necessary to be
aware of some of the distinctions when reporting. Also, within California there is no uniformity
in the information provided by the reporting agencies and counties. Discrepancies occur not
only in the methods used for identifying costs, but also in determining whether a prosecution is a
“result” of, or “derived” from a wiretap.
The complete instructions, provided by the Administrative Office of the United States Courts,
are included in this State Wiretap Manual (See Part IV, pages 13-19). However, due to frequent
errors and omissions in the completion of the WT2 form, the following items are highlighted:
The item numbers refer to the numbers on the WT2 form.
Item #2: This is the name of the investigator, affiant or CEO of the law
enforcement agency seeking the application.
Item #3: List the name of the person (usually the District Attorney) who signed the
Application.
Item #4: Use the general description (e.g. narcotics, murder); NOT the code section
number.
Item #6: Enter TOTAL number of extensions and TOTAL number of days the wire
(bottom line) was authorized.
Item #9: Check one of the boxes indicating whether the wiretap was installed
and/or used.
Item #10D: This number should reflect the total number of DIFFERENT PERSONS
intercepted. Do not count any single person (i.e. target subject) more than
once. If you do not maintain this data, enter “Not Determined.” (This
number should not be double the number indicated in 10C).
Part IV – Page 27
*Item #11A, B, C: Be sure to check one of these boxes indicating whether the COSTS
reported on this report include the costs from other wiretaps. Accurate
reporting of wiretap-related costs is critical.
A: Check this box if the costs on this report are for this wiretap only.
B: Check this box if this report reflects costs for this wiretap plus
other related wiretaps. If so,
A. List the reference numbers (as listed in the top right
corner of the form) of all other wiretaps whose costs are
included in this report.
B. Check Box C on each of the WT2 forms submitted for the
related wiretaps.
C: Check this box when the costs are included on a separate WT2
form (Box B, above). DO NOT LIST ANY COSTS (i.e. dollar
amount) ON THE WT2 FORM IF BOX “C” IS CHECKED.
Item #11 D: Some of the problems with the reporting of costs for wiretaps are due to
the different reporting methods of different law enforcement agencies.
Nature and Quantity of
Personnel Used to Install.
Monitor and Prepare
Transcripts
[List number and
positions of
personnel.]
Personnel Cost
[List salaries of civilians (monitors, installers, etc.) and
officers, including overtime that is dedicated to
monitoring the wire. Do not include surveillance crews
and investigative officers who are not involved in
operating the wiretap.]
Resource Cost Installation fees,
supplies,
equipment, etc.
[Do not
include
depreciation of
equipment.]
Total Cost
Part IV – Page 28
12. Results
Check here if case is pending and there are no results to report.
Be sure to check this box if the case is pending. This would include the
following situations:
1. The wire is still ongoing;
2. A case has not yet been filed; and/or
3. A case has been filed but is not yet concluded.
(A case is concluded either by a conviction or dismissal).
If the “pending” box is checked, do not complete 12 A through
12 E.
It is important that a WT3 be completed for each wiretap that has been reported as
“pending.” The WT3 should be completed in the reporting year that the wiretap is
concluded.
Item #12: Change this box to reflect the number of persons actually charged.
Number of persons charged
If two or more wiretaps are related, report these numbers on one form only. (On
each of the forms for the related wiretaps, identify the form that contains the
reported numbers (e.g. See 02-21)).
Item #12A: Enter the number of persons charged and/or prosecuted.
DO NOT include persons who have been arrested or
detained and then released (pursuant to PC 849(b)).
Item #12C: The number of persons convicted as a result of the intercept
includes those who plead guilty.
Item #12D: List the number of trials that have been completed. Do not
include guilty pleas or grand jury indictments.
Item #12E: Use the general description (e.g. narcotics, murder); NOT
the code section number. (See Item #4)
The above suggestions reflect practices that the Los Angeles County District Attorney's Office
began to implement for the reporting year 2001. They are being included in this Manual as part
of an attempt to implement uniform reporting practices within the State of California.
Part IV – Page 29
MOST COMMON ERRORS ON FORM WT2 REPORT OF APPLICATION AND/OR
ORDER
Completed reports should be carefully reviewed before submission to ensure they are complete
and accurate. For your information, we are providing the following list of the errors most
frequently encountered on reports of application and/or order received from prosecuting officials
to help ensure the accuracy of the reports:
__ The County Name for the Prosecution Official (Item 3) is provided, but the state in
which the county resides is not; a complete designation like “Washington County IL” is
needed to avoid confusion.
__ The Offense (Item 4) is either left blank or a state or local citation is entered when only
a general description like gambling, narcotics, racketeering, etc. is needed.
__ A roving order is noted under Type of Order (Item 5), but the category No Location
Specified in Order is not also marked under Location (Item 8) as required.
__ Total Days Authorized under Duration of Intercept (Item 6) does not equal the sum of
the days from the original request plus the days from all extensions.
__ An “Other” item is marked in Type of Intercept (Item 7) or Location (Item 8), but the
description is not specified.
__ Installed But Not Used is marked in Installation (Item 9), but no costs are reflected in
Cost (Item 11).
__ Number of Days in Actual Use (Item 10B) reflects a total that is greater than Total
Days Authorized (Item 6).
__ Number of Incriminating Communications (Item 10E) is greater than Number of
Communications (Item 10C).
__ Related wiretaps are noted under Cost (Items 11B or 11C), but the reference numbers
of related wiretaps are not specified.
__ Separate totals for Personnel and Resources are not reported under Cost (Item11).
__ For groups of related wiretaps, Results (Item 12) are repeated on each wiretap in the
group instead of being reflected only on the “lead” wiretap resulting in duplicate
counting.
__ Under Number of Motions to Suppress (Item 12B), the presence of motions are
reported as “X” instead of using the numeric total to reflect exactly how many.
__ Number of Persons Convicted under Results (Item 12C) is greater than the Number of
Persons Arrested (Item 12A).
Part IV – Page 30
DATE:
Jurisdiction and State:
(district/county/state)
Contact Name:
Title:
Telephone:
WT-1 (Rev. 08/10)
ANNUAL PROSECUTOR SUMMARY OF WIRETAP REPORTS Submitted Pursuant to 18 U.S.C. 2519
THIS SUMMARY (AS WELL AS THE INDIVIDUAL WIRETAP REPORTS FOR CALENDAR YEAR 2014 AND SUPPLEMENTAL
REPORTS FOR PRIOR YEARS) MUST BE RECEIVED BY THE ADMINISTRATIVE OFFICE NO LATER THAN JANUARY 31, 2015. If
you have any questions concerning this form, please call the Data Management Branch at (202) 502-1440. The mailing address is: Administrative
Office of the United States Courts, Attn.: Statistics Division (WT), One Columbus Circle N.E., Washington, D.C. 20544. Completed copies of the
forms may also be sent via e-mail to [email protected] or via FAX to 202-502-1411 or 202-502-1422.
Number of Reports Submitted for Wiretaps Terminated in Calendar
Year XXXX Number of Wiretap Applications Denied
Number of Wiretap Applications Granted
Of Those Granted, Number Where Encryption Was Encountered
Of Those with Encryption, Number Where Encryption Prevented Law
Enforcement from Obtaining the Plain Text of Communications Intercepted
Number of Reports Submitted for Wiretaps Terminated in Calendar Year 2014 or
Earlier Number of Wiretap Applications Denied
Number of Wiretap Applications Granted
Of Those Granted, Number Where Encryption Was Encountered
Of Those with Encryption, Number Where Encryption Prevented Law
Enforcement from Obtaining the Plain Text of Communications Intercepted
Part IV – Page 31
Insert
Blank Form WT2
Part 1
Part IV – Page 32
Insert
Blank Form WT2
Part 2
Part IV – Page 33
Insert
Blank Form WT3
Part IV – Page 34
Insert
Completed WT2 form
Part 1
Psrt IV – Page 35
Insert
Completed WT2 form
Part 2
Part IV – Page 36
MEMORANDUM
TO: JUDGE LARRY FIDLER
Los Angeles Superior Court
FROM: ______________________________
Major Narcotics Division
DATE:
RE: Wiretap No. _____________
Pursuant to the requirements of Title 18 United States Code Section 2519(2), the information
requested in Form WT2 is to be provided to the Administrative Office of the United States
Courts.
1. Please sign one copy and mail it in the envelope provided to:
Administrative Office of the U.S. Courts
Attn: Statistics Division (WT)
One Columbus Circle N.E.
Washington, D.C. 20544
2. Keep one copy for your own records.
3. Sign and return the original to the assigned DDA.
Thank you.
A copy of the WT2 form, with the judge’s signature, should be filled out through Part I and forwarded by the
judge after the denial of an application, if denied. If an order is granted, the signed form, completed through
Part I, should be forwarded to the U. S. Courts’ Administrative Office in January of each year for all authorized
interceptions which expired during the previous calendar year.
The original form, with the court’s original signature, is to be retained by the prosecuting official until January
of the year following the denial or expiration of the complete period of interception, then completed through
Part II and forwarded to the Administrative Office.
A copy of the completed WT2 should also be forwarded to the California Attorney General.
Part IV – Page 37
4.
DESIGNATION OF
CIVILIAN MONITORS
DESIGNATION OF CIVILIAN MONITORS
PC 629.94 sets forth the persons (“monitors”) who may conduct the interception of private wire
of electronic communications, as follows:
(1) Investigative or law enforcement officers;
(2) Other persons, when necessary, to provide linguistic interpretation who
are designated by . . . the district attorney and are supervised by an
investigative or law enforcement officer.
Any monitor must have taken a P.O.S.T. course and must be certified to conduct the
interceptions.
If civilian monitors are being used, they must be supervised by an investigative or law
enforcement officer.
If civilian monitors are being used, the District Attorney should designate these monitors by
name. Attached is a format for such a designation by the District Attorney.
Part IV – Page 38
LETTERHEAD
DESIGNATED PERSONS TO PROVIDE LINGUISTIC INTERPRETATION
FOR INTERCEPTION OF WIRE AND
ELECTRONIC COMMUNICATIONS
PURSUANT TO PENAL CODE SECTION 629.94
The following individuals are hereby designated as persons to provide linguistic interpretation
for interception of wire and electronic communications pursuant to Penal Code section 629.94:
Date JACKIE LACEY, District Attorney
County of Los Angeles
1. (List names here)
2. “
3. “
4. “
5. “
6. “
Part IV – Page 39
5.
INTERCEPTION OF
CONVERSATIONS OF
PERSONS IN CUSTODY
INTERCEPTION OF CONVERSATIONS
OF PERSONS IN CUSTODY
A wiretap investigation is manpower intensive, time-consuming, and expensive. Proceedings in
court arising from a wiretap investigation can be difficult and protracted. For these reasons, if
conversations can be intercepted, monitored, and recorded without obtaining a court order
pursuant to the state wiretap statute, then these alternative means should be pursued.
Two cases decided by the California appellate courts in 2002 have greatly facilitated the ability
of law enforcement officers to monitor and record the conversations of persons in-custody.
In People v. Loyd (2002) 27 Cal.4th 997, the California Supreme Court held that California law
now permits law enforcement officers, without a court order, to monitor and record unprivileged
communications between inmates and their visitors to gather evidence of crime. Thus,
conversations between jail inmates and visitors occurring through the jail intercom, visitor
telephone system, or in person can be monitored and recorded.
In his concurring opinion, Justice Moreno pointed out that outgoing calls made by inmates over a
public telephone system are subject to the Omnibus Crime Control and Safe Streets Act of 1968.
The interception of these calls would require a wiretap order unless the inmate is given
meaningful notice, such as a signed acknowledgement form, a monitoring notice posted by the
outbound telephone, or a recorded warning that is heard by the inmate through the telephone
receiver, prior to his or her making the outbound telephone calls.
In People v. Kelley (2002) 103 Cal.App.4th 853, the defendant’s jailhouse conversations were
recorded without a court order and introduced in his murder trial. The defendant’s housing unit
had a warning sign above its telephones stating that telephone calls may be monitored and
recorded. In addition, the jail phone system contained a warning (brand) at the beginning of each
call stating that all calls were subject to monitoring or recording. The Court of Appeal held that
the defendant/prisoner was given meaningful notice that his telephone calls were subject to
monitoring, and his decision to engage in conversations over those phones constituted implied
consent to that monitoring without the necessity of a court order.
The monitoring and recording of an inmate’s telephone conversations pursuant to the Kelley case
have several advantages over interceptions made pursuant to the California wiretap statute, as
follows:
1. A court order is not required.
2. Minimization is unnecessary.
3. A “live” person to listen to the calls as they are taking place is not necessary. The
calls can be recorded and then reviewed at a later time.
Part IV – Page 40
Although the Kelley case does not require a court order to intercept an inmate’s outgoing
telephone calls when meaningful notice is given, some Sheriff’s departments have insisted on a
court order before they will allow the monitoring and recording of such calls. Attached is a
sample court order that should satisfy the custodial agency.
The holding of the Kelley case was reaffirmed in People v. Windham (2006) 145 Cal.App.4th881.
Part IV – Page 41
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JACKIE LACEY
District Attorney for the County of Los Angeles By: Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (XXX) XXX-XXXX IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF CALIFORNIA, ) CASE NO. ) Plaintiff, ) REQUEST FOR ) ORDER TO RECORD v. ) INMATE PHONE CALLS; ) POINTS & AUTHORITIES; JOHN DOE, ) DECLARATION;
) ORDER
Defendant. )
)
TO THE HONORABLE , Judge of the Los Angeles County
Superior Court:
The People respectfully submit the following Memorandum of Points and Authorities and
Declaration in support of the requested Order to record the telephone calls of defendant
JOHN DOE; booking number XXXXXXXXXX; at Los Angeles County Men’s Central Jail,
located at 441 Bauchet Street, Los Angeles, California 90012.
JACKIE LACEY, District Attorney
DATED: By
Deputy District Attorney
Major Narcotics Division
Part IV – Page 42
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INMATE TELEPHONE CONVERSATIONS MAY BE
RECORDED WITHOUT A WIRETAP ORDER,
AS LONG AS MEANINGFUL NOTICE IS PROVIDED.
Jailhouse conversations over telephones may be recorded without a wiretap order
provided that the inmate is provided with “meaningful notice” that the conversations may be
recorded. People v. Kelley (2002) 103 Cal. App. 4th 853. The Court of Appeal in Kelley held,
in pertinent part that:
”Under Title III, "[i]t shall not be unlawful ... for a person acting under color of law to intercept a wire, oral, or electronic communication, where ... one of the parties to the communication has given prior consent to such interception." (18 U.S.C. § 2511, (2)(c).) "The legislative history of [Title III] shows that Congress intended the consent requirement to be construed broadly." (U.S. v. Amen, supra, 831 F.2d at p. 378; see Sen.Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News, pp. 2112, 2182.) Consistent with this intent, every federal circuit court to address the question has concluded that a prisoner who, while on notice that his telephone conversation is subject to taping, proceeds with the conversation, has given implied consent to that taping (U.S. v. Footman (1st Cir. 2000) 215 F.3d 145, 155; U. S. v. Workman (2d Cir. 1996) 80 F.3d 688, 693-694; U.S. v. Horr (8th Cir. 1992) 963 F.2d 1124, 1125-1126; U.S. v. Van Poyck, supra, 77 F.3d at p. 292; but see U. S. v. Daniels (7th Cir. 1990) 902 F.2d 1238, 1244-1245 [criticizing other courts' broad views of consent but deciding case on another ground].)” At page 858. “So long as a prisoner is given meaningful notice that his telephone calls over prison phones are subject to monitoring, his decision to engage in conversations over those phones constitutes implied consent to that monitoring and takes any wiretap outside the prohibitions of Title III.” At page 858.
In People v. Loyd (2002) 27 Cal.App.4th 997, Justice Moreno in his concurring
opinion stated that:
“It thus appears that the warrantless monitoring of an inmate’s telephone calls is
prohibited by the Act [i.e., Title III of the Federal Omnibus Crime Control and
Safe Street Act of 1968 (18 U.S.C. ” §§ 2510-2520)], unless the inmate is given
meaningful notice, such as by a signed acknowledgement form, a monitoring
notice placed by the outbound telephone, or a recorded warning that is heard by
the inmate through the telephone receiver, prior to his or her making the outbound
telephone call.” At page 1015.
Part IV – Page 43
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The notice provided in this case is [a recorded warning the inmate hears through the
telephone receiver prior to the outbound call being made] [a sign that all calls from these
telephones are subject to monitor and recording] thus meeting the requirements of the
Kelley case. It also conforms to the views expressed in the concurring opinion in the
Loyd case. Accordingly, the People respectfully request the Court to order recording of
the defendant’s jail telephone calls.
JACKIE LACEY, District Attorney
DATED: By
[NAME]
Deputy District Attorney
Major Narcotics Division
THIS REQUEST WAS APPROVED BY:
DATED:
[NAME]
Head Deputy or Asst. Head Deputy
Major Narcotics Division
[ONCE THIS IS SIGNED, DETECTIVE XXXXXXX, LASD HOMICIDE, MUST BE
NOTIFIED. OFFICE: (XXX) XXX-XXXX]
Part IV – Page 44
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APPLICATION AND AFFIDAVIT OF
DETECTIVE
PART ONE
I. Statement of applicant/affiant’s background, training, and expertise.
PART TWO
I. Summary of crime under investigation
II. Summary of evidence connecting inmate to the crime
III. Case number and charges filed and pending against inmate
IV. Custodial facility where inmate is being housed and inmate’s booking number
V. Where in custodial facility inmate is being housed and to which telephones inmate
has access (Optional; do not include if inmate is in Los Angeles County Jail)
VI. That a sign in both English and Spanish that all calls from these telephones are
subject to monitoring and recording is located above each telephone; and/or these jail
telephones contain a warning in both Spanish and English at the beginning of each
call stating that all calls are subject to monitoring and recording.
PART THREE
I. Why inmate’s outgoing telephone calls should be recorded
Ex. Inmate may contact associates to intimidate witnesses
Ex. Inmate may discuss the crime with family members or associates
II. Information thus obtained will assist in the prosecution of the inmate.
Part IV – Page 45
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PART FOUR
I. Why the inmate’s telephone conversations may be recorded pursuant to People v.
Kelley (2002) 103 Cal.App.4th 853.
Ex: As indicated above [the jail telephone(s) to which the inmate has access has a
warning sign above each telephone in both Spanish and English that telephone
calls may be monitored and recorded]; and/or [these jail telephones contain a
warning in both Spanish and English at the beginning of each call stating that all
calls are subject to monitoring and recording]. I believe that this constitutes
“meaningful notice” to the inmate that his calls are subject to monitoring pursuant
to People v. Kelley (2002) 103 Cal.App.4th 853.
PART FIVE
I. State nature of court order
Ex. Therefore, I am seeking a court order to direct the Sheriff of Los Angeles
County and his deputies to electronically record, or allow the electronic recording,
of all outgoing telephone conversations made by inmate within
the jail telephone system.
I declare under penalty of perjury, under the laws of the State of California, that the
above-statements are true and correct.
DATED:
[NAME] Affiant and Applicant
Part IV – Page 46
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JACKIE LACEY District Attorney for the County of Los Angeles By: Major Narcotics Division 320 West Temple Street, Suite 345 Los Angeles, CA 90012 Telephone: (xxx) xxx-xxxx
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
PEOPLE OF THE STATE OF CALIFORNIA, ) CASE NO. ) Plaintiff, ) ) ORDER FOR v. ) RECORDING OF ) INMATE’S TELEPHONE JOHN DOE, ) CONVERSATIONS
Booking Number , )
)
Defendant. )
)
TO: Jim McDonnell, Sheriff of Los Angeles County, and his deputies and
representatives:
Good cause having been shown, you are hereby ordered to record, or allow the recording,
of all outgoing telephone conversations by inmate JOHN DOE (Booking No. xxxxxxxx). These
telephone calls shall be recorded and do not require simultaneous monitoring.
This recording shall begin on (DATE) [and terminate on (DATE)]. This order is subject
to the availability of recording equipment in the inmate’s housing location. The (POLICE
AGENCY) shall be responsible for conducting the recording.
DATE: JUDGE:
Part IV – Page 47
6.
PRIVILEGED COMMUNICATIONS
AND WIRETAPS
Privileged Communications and Wiretaps
The two most commonly encountered privileged communications during a wiretap investigation
are the confidential marital communication privilege and the confidential communication
privilege between a lawyer and a client. Prior to the start of interceptions, it is advisable that the
wire room monitors be alerted to the existence of any potential privileged communications that
might be intercepted.
Penal Code section 629.80 provides the mechanism by which privileged communications are to
be minimized.
The Marital Privilege
The confidential marital privilege is contained in California Evidence Code section 980. It states
that a spouse, whether or a not a party, has a privilege during the martial relationship and
afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or
she claims the privilege and the communication was made in confidence between the spouses
while they were husband and wife.
The marital privilege is often an issue during the course of a murder wiretap. A Target Subject
may call his or her spouse as a matter of course during the wiretap, or may call following
stimulation.
Each spouse is the holder of the privilege. Even though one spouse may desire to testify as to a
communication, the non-testifying spouse may invoke the privilege and prevent the testimony.
The privilege also continues after termination of the marriage, be it by divorce or death.
Privileged communications are presumed to have been made in confidence, and the opponent of
the claim, typically the prosecution, has the burden of proof to establish that the communication
was not privileged.
A communication made over an electronic communication device does not lose its otherwise
privileged nature. (Evidence Code section 917.) However, the presence of a third party
ordinarily defeats confidentiality. Also, if a communication is made under circumstances where
others can easily overhear – i.e., where there is no expectation of privacy – then that is a “strong
indication” that the communication was not intended to be confidential. However, if the spouses
have no reason to believe others can overhear a conversation intended to be confidential, then the
privilege is not defeated by the fact that it was wrongfully intercepted.
The Evidence Code only protects “confidential communications” between spouses. The acts
observed by one spouse, the fact that a conversation occurred, or questions regarding asset
discovery are not protected.
Part IV – Page 48
The crime or fraud exception is contained in Evidence Code section 981. There is no
confidential marital communication privilege if the communication was made, in whole or in
part, to enable or aid anyone to commit or plan to commit a crime or a fraud. The crime or fraud
exception is quite limited. It does not permit the disclosure of communications that merely
reveal a plan to commit a crime or fraud; the exception permits disclosure only of
communications made to enable or aid anyone to commit or plan to commit a crime or fraud.
Unless the communication is for the purpose of obtaining assistance in the commission of the
crime or fraud, or in furtherance thereof, it will not fall within the crime or fraud exception.
A communication between spouses regarding a crime will usually fall within one of three
categories: (1) a statement admitting that a crime has been committed; (2) a statement of
intention to commit a crime in the future; or (3) a statement that elicits help or aid in the intended
commission of a crime. The first two categories fall within the confidential marital privilege, but
the third falls within the crime or fraud exception.
The crime-fraud exception does not defeat a married person’s privilege not to testify against his
or her spouse.
The privilege is waived with respect to a communication when any holder of the privilege,
without coercion, has disclosed a significant part of the communication or has consented to the
disclosure.
An intercepted call between a husband and a wife should be minimized as required by Penal
Code section 629.80. However, the call may be monitored without minimization if the
communication was made to enable or aid anyone to commit or plan to commit a crime or fraud.
Relevant Case Law Decisions
A. People v. Santos (1972) 26 Cal.App.3d 397
After being arrested for murder, the defendant had a conversation with his wife in the visiting
room of the Los Angeles City Police Department central jail. They conversed over a telephone
intercom system. The conversation was monitored by a police officer. After telling his wife that
he’d been arrested for murder and that “they’ve got these phones bugged,” the defendant said,
“Get rid of it.” His wife said, “Okay, I’ll sell it.” Defendant said, “Be quiet.” His wife
responded, “No, no I meant the TV.”
The defendant was unable to invoke the confidential marital communication privilege because
the defendant was aware that the conversation was being monitored and therefore could not be
intended to be a confidential communication. Additionally, the court held that the crime or fraud
exception applied because the communication was made to enable or aid the defendant’s wife to
commit a crime, destruction or concealment of evidence in violation of Penal Code Section 135.
Part IV – Page 49
B. North v. Superior Court (1972) 8 Cal.3d 301.
After being arrested for kidnapping, the defendant was taken to the police station. The next day,
the defendant’s wife visited the defendant. The visit took place in the lead detective’s office.
The conversation was secretly tape recorded. The California Supreme Court held that the
statements were protected by the confidential marital privilege because they were made under
circumstances that would indicate that the defendant intended his communications to be
confidential.
C. People v. Dorsey (1975) 46 Cal.App.3d 706
The defendant was charged with multiple counts of burglary and arson. The evening before one
of the burglaries, the defendant told his wife that he was going to “rob” the victim. The
defendant also admitted his plan to commit arson the day before the fire.
Nothing in the statements made by the defendant to his wife indicated that the statements were
made in whole or in part to enable or aid the defendant to commit or plan to commit a crime.
The crime or fraud exception did not apply, and the statements should have been excluded as
confidential marital communications.
The marital privilege encompasses only communications between husband and wife during
marriage. It does not extend to physical facts which are observed, which do not constitute
communications.
D. People v. Baker (1978) 88 Cal.App.3d 115
The crime or fraud exception would apply to conversations to enable or aid anyone to commit or
plan to commit the crimes of suppression of evidence (PC 135) and subornation of perjury (PC
127).
E. People v. Gomez (1982) 134 Cal.App.3d 874
A communication between a husband and wife is presumed to be privileged unless the facts
show that the communication was not intended to be kept in confidence. Statements repeated to
third parties or made in the presence of third parties are not confidential marital communications.
F. United States v. Marashi (1990) 913 F.2d 724
The defendant and his ex-spouse both provided the government with information as to
defendant’s tax evasion. The defendant had asked his wife to help him underreport his income to
evade paying taxes. The court held that the marital communications privilege did not extend to
the ex-spouse's testimony regarding communications made in presence of a third person, and the
Part IV – Page 50
crime-fraud exception permitted the admission of the ex-spouse's testimony concerning
defendant's instructions to her to underreport income on their joint return, regardless of whether
or not the government chose to prosecute the wife.
Confidential Communication between Lawyer and Client
Lawyer-client communications in the course of the professional relationship are presumed
confidential. Unless the privilege has been waived, a client – whether or not a party – has a
privilege to refuse to disclose and to prevent another from disclosing a confidential
communication between the client and his or her lawyer. Preserving the confidentiality of
communications between attorney and client is fundamental to our legal system because it allows
clients to make full disclosures to their attorneys without fear of revelation to others. The
privilege may be raised in any proceeding and, unless it falls within a statutory exception or is
not made in the course of a professional lawyer-client relationship, is absolute. The privilege
attaches upon the initial client consultation and continues beyond the end of the lawyer-client
relationship. A lawyer need not be fully retained in order for the privilege to attach.
Evidence Code section 950 defines “lawyer” as a person authorized or reasonably believed by
the client to be authorized to practice law in any state or nation. “Client” is defined as a person
who, directly or through authorized representation, consults a lawyer for the purpose of retaining
the lawyer or securing legal service or advice from him in his professional capacity. A
“confidential communication between client and lawyer” is information transmitted between a
client and his or her lawyer in the course of that relationship and in confidence by a means which
discloses the information to no third persons other than those who are present to further the
interest of the client in the consultation or those to whom disclosure is reasonably necessary for
the transmission of the information or the accomplishment of the purpose for which the lawyer is
consulted, and includes a legal opinion formed and advice given by that lawyer in the course of
that relationship.
The lawyer-client privilege encompasses not only oral and written statements, but also actions,
signs, and other means of communicating information. The nature of what is communicated
between a lawyer and client is irrelevant; both legal and factual information is protected.
The client is the holder of the privilege and is entitled to prevent any other person, including the
lawyer, from disclosing a confidential communication between him and the lawyer. Evidence
Code section 955 imposes on the lawyer who has received a communication subject to the
privilege an obligation to claim the privilege whenever he is in court and a confidential
communication is sought to be disclosed.
The lawyer-client privilege may be waived. Waiver takes place only if the client, as the holder of
the privilege, discloses a significant part of the communication or consents to such disclosure by
another. (Evidence Code section 912.) No waiver occurs when a communication made in
confidence is unknowingly overheard or intercepted by an eavesdropper.
Part IV – Page 51
Information conveyed by a third person (non-client) to the client’s lawyer is not protected
communication unless the third person is acting as the client’s agent. A lawyer-client
communication is protected only if transmitted “in confidence.”
Confidential communications also include those made to third parties – such as the lawyer’s
secretary, a physician or similar expert – for the purpose of transmitting such information to the
lawyer. A communication to a lawyer is confidential even though it was made in the presence of
another person – such as a spouse, parent, or joint client – who is present to further the interest of
the client in the consultation. Involvement of an unnecessary third party destroys confidentiality.
However, a communication intended to be confidential does not lose its confidential character
even though made in the presence of a third party, if that party is present to further the client’s
interests or if it regards a matter of joint concern. As indicated above, confidential
communications include those made to third persons “reasonably necessary” for the purpose of
“transmitting” the information between attorney and client, such as secretaries or physicians or
expert consultants.
There is no lawyer-client privilege if the lawyer’s services were sought or obtained to enable or
aid anyone in the commission of a fraud or crime. The crime-fraud exception is vitiated only as
to communications that have a “reasonable relation” to the contemplated crime or fraud. The
party seeking disclosure needs to make a prima facie showing the lawyer’s services were sought
or obtained to aid in the commission of a crime or fraud. Communications with counsel that
simply reveal a client’s plan to commit a crime or fraud, without seeking any advice on how to
commit the crime or fraud, are privileged. The crime-fraud exception applies only where the
client seeks legal assistance to plan or perpetrate a crime or fraud. The crime-fraud exception is
also satisfied if the lawyer-client relationship is embarked upon in furtherance of criminal
activity and the client takes an active part in the crime or fraud. Consummation of the crime or
fraud is not required. Communications between a lawyer and a client having to do with the
client's contemplated criminal acts, or in aid or furtherance thereof, are not covered by the
lawyer-client privilege. (Abbott v. Superior Court (1947) 78 Cal.App.2d 19.)
A mere allegation of fraud is insufficient to make applicable the crime-fraud exception as to
situations where the services of the lawyer were sought or obtained to enable or aid anyone to
commit or plan to commit a crime or fraud. In order to establish the crime-fraud exception, the
party opposing the privilege must present evidence to make a prima facie showing that such was
the client's purpose. The party must also establish a reasonable relationship between the crime or
fraud and the attorney-client communication.
The thirty seconds on/two minutes off procedure of Penal Code Section 629.80 is inapplicable to
Los Angeles County wiretaps involving lawyer-client calls. By judicial order, attorney-client
calls are not monitored at all. Monitoring of such a call is to be shut down immediately and steps
must be taken to ensure that future calls between the attorney and the client will not be
monitored. Attorney-client calls may be monitored if it is absolutely clear that the crime-fraud
exception applies.
Part IV – Page 52
The circumstances surrounding the interception of any privileged communications, as well as the
possible applicability of the crime-fraud exception, should be explained in the ten day reports.
Relevant Case Law Decisions
A. Abbott v. Superior Court (1947) 78 Cal.App.2d 19
The court found that the evidence was sufficient to establish that an attorney was an active
member of a conspiracy to violate the law and was counseling a fellow member of the
conspiracy in an attempt to further its illegal purposes. The court found that the client's privilege
did not exist and the attorney was unable to assert the privilege on his own behalf because the
communications between attorney and client having to do with the client's contemplated criminal
acts, or in aid or furtherance thereof, were not covered by the cloak of the attorney-client
privilege and because the privilege was the client's, not the attorney's.
B. San Francisco v. Superior Court (1951) 37 Cal.2d 227
A civil suit was filed to compel the Superior Court to order a doctor to answer certain questions
in a personal injury suit. The claimant had undergone several examinations for his injuries by
the doctor, which the doctor refused to reveal in his deposition. The court held that the claimant
could invoke attorney-client privilege since the doctor acted as an immediate agent for
communication between the claimant and his attorneys.
C. De Los Santos v. Superior Court (1980) 27 Cal.3d 677
A minor was injured in a collision between his bicycle and a car. The minor’s mother sued the
car’s driver and the manufacturer and seller of the bicycle. The defendants deposed the mother
regarding the circumstances of the accident and condition of the bicycle. The minor’s statements
to the mother regarding these matters were made in response to questions she had asked him at
the request of his attorney. The mother refused to answer on the ground that the questions
sought to elicit information that was a confidential communication between attorney and client.
The California Supreme Court of held that the information was privileged as a matter of law
because it was a confidential communication between lawyer and client, despite the fact that the
minor disclosed the information to his mother in her capacity as his guardian ad litem. Since a
client’s statements to an attorney for the purpose of answering interrogatories are privileged, the
minor’s statements to his mother were also privileged.
D. Morrow v. Superior Court (1994) 30 Cal.App.4th 1252
The defendant was charged with residential burglary. While in the courtroom, he conferred with
his attorney in a room off of the courtroom after the prosecutor asked for a continuance. The
prosecutor sent an investigator over to the area where the defendant and his attorney were
Part IV – Page 53
conferring to eavesdrop. The bailiff reported the prosecutor’s actions to the court. The Court
held that the defendant was entitled to a dismissal because the prosecutor orchestrated the
courtroom eavesdropping on the defendant’s privileged communications with his attorney.
E. United States v. Johnston (10th Cir. 1998) 146 F.3d 785
The defendant was a defense attorney in Oklahoma City. Jarvis, his former client and a drug
dealer, was being investigated by the DEA. Oklahoma state wiretaps were authorized on Jarvis’
home and business phones. Alex and Ramone had fronted Jarvis 200 pounds of marijuana for
$110,000. Jarvis made some poor business decisions with the marijuana and was unable to pay
off Alex and Ramone. Alex threatened to kill Jarvis if Jarvis did not pay off the debt.
Jarvis asked the defendant to lie on Jarvis’ behalf by telling Alex and Ramone that Jarvis had
been arrested. Johnston complied with Jarvis’ request, and Alex and Ramone never contacted
Jarvis again. The DEA learned about Jarvis’ scheme via the wiretaps. Johnston was eventually
arrested and convicted of conspiracy.
The defendant moved to suppress the intercepted conversations between himself and Jarvis
because the government did not properly minimize due to attorney-client privilege. The mere
fact that an attorney was involved in a communication does not automatically render the
communication subject to the attorney-client privilege. The court found no attorney-client
privilege existed between Johnston and Jarvis because the communication did not relate to legal
advice or strategy sought by the client. Also, the attorney-client privilege does not apply where
the client consults an attorney to further a crime or a fraud.
F. United States v. Renzi (2010) 722 F.Supp.2d 1100
A federal (Title III) wiretap was obtained to investigate election law violations. The defendant,
Renzi, was represented by a private law firm. The wiretap minimization order specified that all
attorney-client calls would be minimized. However, several attorney-client calls were
intercepted and not minimized.
By recording attorney-client privileged conversations, the government seized evidence beyond
the wiretap authorization, which required such evidence to be minimized. By that conduct, the
government acted unreasonably in executing the wiretap. The government concealed from the
supervising court that it was recording and not minimizing attorney-client privileged
conversations. The government also failed to disclose other inadvertently intercepted privileged
communications and to seal attorney-client calls, which violated the Department of Justice's
Electronic Surveillance Manual requirement for prompt notification to the supervising court
whenever a privileged communication was intercepted and violated Title III by breaching its
duty of candor to the court.
Part IV – Page 54
The government's conduct, in its totality, warranted a more significant sanction than just
suppressing the privileged evidence, so the court suppressed the wiretap.
Waiver of Privilege
According to Evidence Code section 912, the right of any person to claim a privilege may be
waived with respect to communication protected by the privilege in two ways. First, the holder
of the privilege may waive his privilege if he has disclosed a significant part of the
communication. This waiver may not be coerced in any way.
Second, the holder of the privilege may waive a privilege if the privilege holder consents to the
disclosure made by anyone.
Furthermore, when there are two or more persons that jointly hold a privilege, a waiver of the
right by one joint privilege holder does not affect the right of the other joint privilege holder to
claim the privilege. One party cannot alone decide for the communication to no longer be
privileged. One spouse wishing to waive his right does not affect the right of the other spouse to
still claim a privilege.
In addition, a disclosure that is itself privileged is not a waiver of any privilege.
Part IV – Page 55
PART V
PROSECUTING A WIRETAP CASE
TABLE OF CONTENTS PAGE
1. How to Prosecute a Case Involving a Wiretap .............................................1
HOW TO PROSECUTE A CASE INVOLVING A WIRETAP
I.
INTRODUCTION
Penal Code section 629.50 et seq. comprises California’s wiretap law. The federal wiretap
statute is contained in 18 U.S.C. § 2510 et seq. Federal wiretaps are often referred to as “Title III
wires.”
Section 1.07.02 of the Legal Policies Manual states that the Major Narcotics Division is
responsible for coordinating the approval, preparation, and execution of all wiretaps issued by
the District Attorney’s Office. According to GOM 11-045, a deputy district attorney shall
immediately notify the Major Narcotics Division when he or she learns that a wiretap was used
or is currently being used in a case he or she is prosecuting.
Most cases that involve a wiretap will be prosecuted by the Major Narcotics Division. However,
as of August 2012 there were approximately thirty open non-narcotic criminal cases in Los
Angeles County which involved a wiretap. These cases are being handled by the Major Crimes
Division, the Hardcore Gang Division, the Organized Crime Division, CAPOS, the Elder Abuse
Section, and various Branch and Area offices.
The following is a guide on how to prosecute a case which involved a wiretap. Since murder and
gang crimes are frequently filed only because of the information that was intercepted pursuant to
a wiretap, it is vitally important that the trial deputy ensures that the wiretap evidence will be
admitted by the trial court.
II.
CRASH COURSE IN WIRETAPS
The application for a wiretap is an ex parte request by law enforcement to monitor wire and
electronic communications. Landline and cellular phone conversations may be monitored, as
well as text and MMS messages, voice mails, pager communications, emails, and faxes.
A wiretap may be authorized only if there is probable cause to believe that an individual is
committing, has committed, or is about to commit one of the crimes enumerated in Penal Code
section 629.52. These offenses include certain narcotics offenses involving more than three
pounds of solid substance or ten gallons of liquid substance, murder, solicitation to commit
murder, any felony violation of Penal Code section 186.22, or an attempt or conspiracy to
commit a crime listed in Penal Code section 629.52.
Four documents are required to obtain a wiretap: the application (signed by the District
Attorney), the CEO review (signed by the Chief Executive Officer of the law enforcement
Part V – Page 1
agency seeking the wiretap), the affidavit (provides the probable cause and necessity for the
wiretap), and the order. These documents are placed together in a notebook, referred to as the
wiretap book or wire book.
The order, which is signed by the judge, specifies the type of crime that is subject to interception.
The order also directs the telephone company or email service provider to provide technical
assistance to law enforcement with the interception.
The technical assistance and monitoring of most murder/gang wiretaps is typically handled by
the Los Angeles Regional Criminal Information Clearinghouse (LA CLEAR) in Commerce. LA
CLEAR has the facilities and computer equipment to monitor and record wire and electronic
communications.
All communications must be simultaneously monitored and recorded while a designated and
P.O.S.T. certified monitor listens in real time. Law enforcement cannot record conversations and
then review them after the fact. Only pertinent communications – communications related to the
crimes specified in the court order – can be monitored and recorded. Minimization is the process
by which the monitors stop and start the recording of conversations. Privileged communications
and non-pertinent conversations must be minimized.
LA CLEAR uses software published by JSI Telecom called VoiceBox to listen to and minimize
wiretaps. The VoiceBox system creates a monitoring log (also referred to as a linesheet) of
every monitored conversation. The monitoring logs contain information including the date, time,
and duration of a call, a synopsis of the conversations, the number of times a call was minimized,
and the duration of any minimization.
After the court order is signed, the author of the affidavit (affiant) sends a copy of the court order
to LA CLEAR. LA CLEAR then transmits the order to the respective phone companies.
Audio/data is delivered from the phone companies to LA CLEAR in one of two ways:
1. The phone company sends audio to a dedicated audio delivery phone number
exclusively used by LA CLEAR. This set-up is similar to a three-way call, but
with one-way audio to the audio delivery number. LA CLEAR can “listen” to the
incoming call but cannot “talk” to the parties.
2. For data, an encrypted Internet-based virtual private network (VPN) is created
between the phone company and LA CLEAR. The data is sent via the VPN from
the phone company.
Part V – Page 2
III.
WHAT TO DO IF YOUR CASE INVOLVED A WIRETAP
Contact the Major Narcotics Division as soon as possible. The discovery obligations for
wiretaps are very specific and failure to comply may result in the exclusion of wiretap evidence
at preliminary hearing or trial. Wiretap discovery must be provided ten days prior to
preliminary hearing.
The discovery requirements of the wiretap statute are contained in Penal Code section 629.70.
Neither the contents of any intercepted wiretap communication, nor evidence derived from those
contents, shall be received in evidence or otherwise disclosed in any trial, hearing, or other
proceeding, except a grand jury proceeding, unless each party, not less than ten days before the
trial, hearing, or other proceeding, has been furnished with a transcript of the contents of the
interception and a copy of the court order, affidavit, and monitoring logs.
Here’s what to do:
1. Make sure that a copy of the wiretap book, the monitoring logs (linesheets), and the
calls/texts were provided by law enforcement at the time of filing. Most wiretap
detectives will scan the wiretap book and place it on a disk along with the audio and
monitoring logs.
2. Provide discovery to the defense. Discovery consists of the audio/texts, monitoring logs,
transcripts of any calls you intend to use, and the wiretap book. Ideally, discovery should
be provided at the time the defendant is arraigned on the complaint.
CAUTION: Some affidavits include a confidential Hobbs Attachment. As with search
warrants, People v. Hobbs is used in wiretap affidavits to seal off information from an informant
or other official information. DO NOT turn over the Hobbs Attachment to the defense absent a
court order.
About transcripts: Law enforcement is instructed to prepare transcripts of pertinent, relevant
calls at the time the call was intercepted while the wire is active. Waiting until after the case has
been filed and the defendants have been arraigned is too late. These transcripts are typically
included in the monitoring logs. Transcripts are required before wiretap evidence is admissible
per Penal Code section 629.70(c) and California Rule of Court 2.1040.
IV.
WIRETAP LITIGATION
The Major Narcotics Division will handle and/or assist with any litigation that stems from the
wiretap. This includes motions to suppress.
Part V – Page 3
You must notify the Major Narcotics Division as soon as you receive any motions from the
defense which challenge the admissibility of the wiretap evidence.
V.
PENAL CODE SECTION 629.82
Penal Code section 629.82 sets forth the procedure that must be followed in the event that
communications relating to crimes other than those specified in the order of authorization are
intercepted. For example, during a lawful narcotics wiretap, communications related to a murder
may be intercepted. This information can be used to prosecute the murder, but only after a judge
finds that the communications related to the murder were otherwise lawfully intercepted. This
determination must be made as soon as practicable.
The majority of murder/gang wiretaps are obtained to investigate a particular murder and/or a
particular gang. Penal Code section 629.82 does not apply if your case involves the same murder
and/or gang specified in the affidavit and the order.
Law enforcement will alert the Major Narcotics Division if communications related to a crime
not specified in the order are intercepted. The Major Narcotics Division will prepare an order for
Judge Fidler requesting permission to disclose and use these communications.
Depending on the circumstances, Penal Code section 629.82 may also apply if your case is based
on a non-Los Angeles County wiretap or a federal wiretap.
If Penal Code section 629.82 does apply, you should have received a signed copy of Judge
Fidler’s 629.82 order. Provide a copy of this order to the defense and alert the court at
arraignment that 629.82 applies. The Major Narcotics Division has a motion and an order that
can be presented to the arraignment and/or preliminary hearing judge.
VI.
MORE ON HOBBS
The Hobbs Attachment typically contains information from a confidential source whose only
relevance is providing probable cause. Although the defense is not entitled to the Hobbs
Attachment absent a court order, the affidavit and the order contain language that indicates that a
Hobbs Attachment exists.
The trial DDA must review the Hobbs Attachment to determine whether or not it contains
information which needs to be disclosed as part of the prosecution’s discovery obligations
pursuant to Penal Code section 1054.1 and Brady v. Maryland. The suggested procedure is to
meet with the judge in camera and ex parte pursuant to Penal Code section 1054.7. The judge
can then issue an order as to what, if anything, from the Hobbs Attachment should be disclosed
to the defense.
Part V – Page 4
VII.
WHO TO CALL AT PRELIM/TRIAL
The presentation of wiretap evidence at a preliminary hearing or trial is no different than the
presentation of any other type of evidence which requires a foundation.
The affiant of the wiretap, the monitor(s) who heard the call(s) that you want to introduce, and an
expert witness from JSI Telecom are needed to lay the proper foundation for the wiretap and the
intercepted communications. Depending on your case, you may also need a representative from
the phone company.
The affiant can explain that he/she is certified to conduct wiretap investigations; that he/she
prepared the affidavit, that it was to investigate a certain crime, and that the order was signed by
Judge Fidler. The affiant can also testify that the wiretap was sealed at the conclusion of the
investigation. Proof that the wiretap was sealed is a prerequisite before wiretap evidence can be
presented at preliminary hearing or trial. (PC 629.64.)
The monitor can explain that he/she was certified to monitor wiretap investigations, how the wire
room works, how the calls are monitored, the content of the particular call, etc.
The phone company representative can explain what was done after the phone company received
the wiretap order, as well as other testimony that you may need.
The computer system that is used by LA CLEAR was designed by JSI Telecom, a Canadian
company. LA CLEAR does not provide any courtroom testimony regarding wiretaps. Any
technical testimony needs to come from a witness from JSI Telecom. Barry Stewart is the
Regional Sales Manager for JSI Telecom. He is available to testify. His testimony is free;
however, our office is responsible for paying his travel costs. Mr. Stewart’s email address is
[email protected], 613-591-5910 (office), 613-795-2174 (mobile). Mr. Stewart testifies
all over the U.S., so get him scheduled as soon as possible.
Mr. Stewart can explain how the data from the phone company is sent to LA CLEAR, how the
system works, how the calls are monitored, how the calls are recorded, how the calls are
protected from tampering, etc. He is an excellent witness and a very pleasant person.
Obviously, hearsay evidence admissible pursuant to Penal Code section 872(b) can be used at
preliminary hearing. Also, some affiants have enough experience and knowledge about wiretaps
to qualify as experts, at least for the preliminary hearing.
Remember that you need to be able to link the voice on the intercepted phone call with your
defendant. You may have to obtain a voice exemplar from the defendant. Hopefully the
investigating officer interviewed the defendant and can testify that the voice on the call belongs
to the defendant. Or, other techniques were used during the investigation that can be used to link
Part V – Page 5
the defendant’s voice to the voice on the wiretap. Sometimes GPS can be used to link a phone to
a person, or a Target Telephone was seized from the defendant’s possession upon arrest.
The identification of someone’s voice is no different from the identity of a person’s appearance.
Evidence Code Section 800 comes into play. The use of voice spectography or “voiceprint
analysis” would likely be ruled inadmissible. (People v. Law (1974) 40 Cal.App.3d 69; People
v. Kelly (1976) 17 Cal.3d 24.)
See the following for discussions of the admissibility of voice identification: U.S. v. Thomas (9th
Cir. 1978) 586 F.2d 123; U.S. v. Turner (9th Cir. 1975) 528 F.2d 143, 163-164; U.S. v. Lo Bue
(S.D.N.Y. 1960) 180 F.Supp. 955; Arizona v. Gotarez (1984) 141 Ariz. 254; Connell v. Clark
(1948) 88 Cal.App.2d 941, 947; People v. Lorraine (1938) 28 Cal.App.2d 50, 54; People v.
Lindsay (1964) 227 Cal.App.2d 482, 494; People v. Osuna (1969) 70 Cal.2d 759, 764.
The following list of questions can be modified for use at preliminary hearing/trial.
1. Did your training include certification by the Attorney General in the technical,
practical, and legal aspects of wiretaps?
2. What is a wiretap?
3. In how many wiretap investigations have you been involved?
4. Were all of those wiretap investigations pursuant to permission from a judge?
5. What was your role in this wiretap investigation?
6. When did you become involved in this investigation?
7. During the course of this wiretap investigation did you investigate (Defendant)?
8. During this wiretap investigation, did you seek wiretaps orders authorizing
interception of telephone conversations?
9. Did you also identify other suspects and co-conspirators as a result of surveillance
and interceptions in this case?
10. Did you draft Los Angeles County Wiretap No. XX-XX in order to intercept
cellular phones used by one or more of the subjects you believe are linked to your
investigation?
11. Was Target Telephone #X, used primarily by (defendant/Target Subject), one of
the phones intercepted in that wiretap?
12. How did you determine that Target Telephone #X was being used by the
defendant/Target Subject?
13. Was that wiretap authorized for a period of 30 days by Judge Larry P. Fidler of
the Los Angeles Superior Court on (date)?
14. Did the court extend Wiretap No. XX-XX on (date) for another 30 day period?
15. Did you obtain additional wiretaps based on interceptions from Wiretap XX-XX?
16. Were phone calls from Target Telephone #X intercepted during the initial 30
days/period of extension?
17. Was there a special location where the intercepted telephone conversations were
monitored?
18. At the start of this wiretap investigation were you trained in the use of the
equipment used to intercept telephone calls?
Part V – Page 6
19. Based on your experience, do you know what happened when a telephone call
came in on one of the telephones being intercepted? How do you know?
20. What happened?
21. Was the process the same when one of the telephones being intercepted made an
outgoing call?
22. How do you know?
23. When an incoming or outgoing call from an intercepted telephone was made,
when was it intercepted? [immediately]
24. Were the phone calls recorded?
25. Where were they recorded?
26. How were they recorded?
27. Were the calls recorded on disks?
28. What type? [Usually blu-ray disks)
29. Describe – different than normal CD?
30. Were individual disks used for each individual Target Telephone?
31. Were the disks of the “Write once/Read only” kind?
32. Can the disks be tampered with?
33. Was anything else recorded on the disks along with the intercepted conversations?
34. What else? [Time, Date, Outgoing/Incoming number, etc.]
35. What happened to the original optical disks containing the original recordings for
each Target Telephone in this case after the respective interception periods were
completed?
36. Were they each sealed in front of a judge?
37. Were copies of the original recordings from the optical disks provided to the
People and to the defense?
38. (Who copied the disks?)
39. When a phone call came in, was it monitored?
40. Who monitored the call?
41. Were those monitors certified?
42. Had you worked before with the monitors used in this case?
43. Was a law enforcement officer present in the wire room at all times?
44. What would happen when, for instance, a call came in? [Determine if
pertinent/what action, if any, to take]
45. Describe what a “pertinent call” is
46. Were you present when telephone calls came in during this investigation?
47. Did you observe what happened at those times?
48. Did the date of the telephone call appear?
49. Did the time of the telephone call appear?
50. Did the incoming or outgoing number appear?
51. Were there times when no one would be monitoring the telephones being
intercepted?
52. What happened if no one was there to listen to the telephones? [system shut off]
53. Did you actually monitor any of the telephone calls intercepted during this
investigation?
54. Why/why not?
Part V – Page 7
55. Were the monitors able to subsequently listen to any calls that came in while the
system was shut off? [No, no recording]
56. Could the monitors review any calls that came in while they were working a
particular shift?
57. Did the calls record in “real time”?
58. Could the monitors go back and listen to the calls as they were first recorded?
59. With respect to all of the intercepted telephones in this case, were the procedures
you discussed the same?
60. Were transcripts of the pertinent calls prepared?
61. Were some of the pertinent calls in this case in the Spanish language?
62. Were transcripts of the Spanish language calls translated into English?
63. Did you speak with Spanish speaking monitor XXXXXXXX prior to today?
64. Did XXXXXXX listen to the pertinent Spanish language calls?
65. Did he/she review the transcriptions and translations of the Spanish language
pertinent calls?
66. What is XXXXXXXX’s background, training, education, and experience
translating from the Spanish language into the English language?
67. (Is he/she a native speaker of Spanish?)
68. Is he/she certified? Was he/she designated by the District Attorney and
supervised by an investigative or law enforcement officer?
69. How long has he/she been doing this?
70. How many hours of telephone conversation has he/she monitored and translated
into English?
71. How many hours in this case?
72. Did he/she tell you whether the transcripts accurately reflect the transcription and
translation of what he heard on those recorded calls?
73. Did he/she also listen to the pertinent English language calls and review the
transcripts?
74. Did he/she tell you whether the transcripts are accurate as to the phone calls they
purport to represent?
75. Do you have copies of all of the transcripts with you in court today?
76. Did you review each of these transcripts?
77. During the course of this investigation did he/she tell you whether or not he/she
became familiar with the voices of the persons being intercepted?
78. Did XXXXXXX identify one of these persons being intercepted to be
“(Nickname)”?
79. Did XXXXXX also identify this same person from the calls to be “(Nickname)”?
80. During the investigation did you arrest (Defendant)?
81. Is he present in court?
82. Did you obtain a voice exemplar from (Defendant)?
83. Did XXXXXX listen to the voice exemplar in your presence?
84. Did he/she recognize the voice on the voice exemplar?
85. Did XXXXXX compare the voice exemplar to the recorded calls?
86. Did XXXXXX recognize (Defendant’s) voice as one of the voices he/she became
Part V – Page 8
87. familiar with during wire interception? [yes, as (Nickname), (Nickname)]
88. How many calls involving (Nickname) did he/she listen to?
89. Over what period of time?
90. Did he/she indicate on the transcripts the identities of the parties to the calls based
on his/her familiarity with their voices and their conversations?
91. During the course of this investigation did you become familiar with the voices of
the persons being intercepted?
92. Did you compare the voice exemplar to the recorded calls?
93. Did you recognize (Defendant’s) voice as one of the voices you became familiar
with during wire interception?
94. How many calls involving (Nickname) did you listen to?
95. Over what period of time?
96. Based on your background, training, and experience in wiretaps and gang
investigations, is it common for the co-conspirators to use coded language when
speaking to each other over the telephone?
97. What is coded language?
98. How are you familiar with it?
99. Are you trained in deciphering coded language?
100. Were the defendants and co-conspirators using coded language in this case?
101. During the course of this investigation did the interceptions of telephones assist
you in your investigation of (Defendant’s) gang activities?
102. How?
103. Did the calls help you determine his role in the criminal enterprise?
104. Did the calls assist you in determining the relationships between various persons
intercepted during the wire investigation?
105. Did listening to the intercepted calls cause you to do certain things?
[conduct/direct surveillance]
106. Did that surveillance ultimately result in arrests/seizures of in this case?
107. Did listening to the intercepted calls lead you to form an opinion as to what (the
evidence) was related to?
108. [MARK disk of calls]
109. [MARK Transcripts of calls]
CALLS
For each call:
1Q: Did you review People’s #X, which is the transcript for call #___ on Target
Telephone #X that occurred on ______at_______?
Spanish call: Did you speak with XXXXXXX and review People’s #X, which is
the transcript for call # ___ on TT#__ that occurred on _____ at
_____?
Part V – Page 9
OR
1Q: Did you listen to call # __ on Target Telephone #X that occurred on
______at_______?
2Q: Who was speaking in this call?
3Q: In this call, what did you deem pertinent/what opinions do you draw
from this particular intercepted phone call?
4Q: What does that mean?
5Q: On what did you base that opinion?
6Q: When you first learned of that telephone conversation, did it cause you to do
anything (direct surveillance, etc.)?
Surveillance
Q: Did you conduct/direct surveillance at XXXXXXXXXXXX?
Q: Did you observe anything?
Q: Were these activities significant to you?
Q: Why?
Part V – Page 10
PART VI
CALIFORNIA CASES ON THE STATE WIRETAP
LAW, ELECTRONIC SURVEILLANCE AND
EAVESDROPPING
TABLE OF CONTENTS PAGE
1. California Supreme Court Decisions on the State Wiretap Law ..................1
2. California Court of Appeals Decisions on the State Wiretap Law ................3
3. Selected California Supreme Court Decision on Electronic Surveillance
and Eavesdropping .........................................................................................8
4. Selected California Court of Appeals Decisions on Electronic
Surveillance and Eavesdropping ....................................................................10
5. Selected Federal Ninth Circuit Cases on Wiretaps (Post 2000) ....................14
CALIFORNIA CASES ON THE STATE WIRETAP LAW,
ELECTRONIC SURVEILLANCE, AND
EAVESDROPPING
1. CALIFORNIA SUPREME COURT DECISIONS ON THE STATE WIRETAP LAW.
A. People v. Leon, et al. (2007) 40 Cal.4th 376
This unanimous California Supreme Court decision found that the affidavits in support of the
wiretap applications in this case established necessity for the wiretaps. The opinion contains
language that is instructive in determining what constitutes a sufficient showing of necessity,
including the following:
Overview
1. “With respect to necessity, the sole issue presented here, state law and federal law
employ nearly identical language. Each requires the judge, before authorizing a wiretap,
to find that normal investigative techniques ‘have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous.’ (18U.S.C. §
2518(3)(c); see Penal Code § 629.52(d).)” At pages 384-385.
2. “The requirement of necessity is designed to ensure that wiretapping is neither ‘routinely
employed as the initial step in criminal investigation’ (cite) nor ‘resorted to in situations
where traditional investigative techniques would suffice to expose the crime.’ (cite)” At
page 385.
3. “As numerous courts have explained, though, it is not necessary that law enforcement
officials exhaust very conceivable alternative before seeking a wiretap. (cites) Instead,
the adequacy of the showing of necessity ‘is to be tested in a practical and commonsense
fashion . . . that does not hamper unduly the investigative powers of law enforcement
agents.’ (cites)” At page 385.
Part VI – Page 1
Boilerplate Allegations
1. “Although it is true that ‘generalities, or statements in the conclusory language of the
statute, are insufficient to support a wiretap application’ (cite), the affidavit here did not
simply reiterate conclusory language. It instead analyzed with particularity the
limitations of each alternative investigative technique in achieving the goals of this
investigation.” At pages 389-390.
2. “That many of those limitations are common to most drug conspiracy investigations does
not necessarily preclude a finding of necessity. (cite) In cases of this nature, the same
reasons for futility of certain investigative techniques will frequently recur.” At page
390.
3. “There is thus no requirement that the government establish that an individual narcotics
investigation differs in some particular way from an ordinary narcotics investigation.” At
page 390.
Relevance Of Conspiracy Allegations
1. “[The People] argue instead, correctly, that the fact of a conspiracy is a circumstance to
be considered, along with all the other facts and circumstances, in determining whether
conventional investigative techniques have failed, are unlikely to succeed if tried, or are
too dangerous to try.” At page 391.
2. “A solitary criminal, on the other hand, is unlikely to discuss the crime with others.
Concerted action, moreover, ‘increases the likelihood that the criminal object will be
successfully attained and decreases the probability that the individuals involved will
depart from their path of criminality.’ (cites) At page 391.
3. “Like the Hydra of Greek mythology, the conspiracy may survive the destruction of its
parts unless the conspiracy is completely destroyed.” At page 391.
4. “Thus, in many cases, the existence of a conspiracy will suggest not only that there will
be communications in order to plan the crime, but that such planning will occur almost
exclusively during such communications.” At page 391.
5. “Furthermore, the existence of the conspiracy may not only increase the likelihood any
given crime will succeed, but also the likelihood the criminal enterprise will survive the
arrest of less than all of its participants ….” At page 391.
6. “In sum, the existence of a conspiracy, while not determinative, is an important fact in
analyzing the necessity for a wiretap. (cite)” At page 392.
Part VI – Page 2
Defendant’s Proposed Alternatives
The affidavit in support of the wiretap application listed the following investigative techniques
(at pages 387 to 389) the task force had used or had considered using, with an explanation as to
why each was unlikely to succeed in identifying all members of the organization and establishing
beyond a reasonable doubt the full scope of the conspiracy:
Undercover agents and confidential informants
Physical surveillance
Pen registers, trap-and-trace devices, toll analysis, and subscriber information
Search warrants
Witness interviews, grand jury subpoenas, and immunity
Trash searches
Consensual recordings
1. “The fact that the government could have taken some different or additional steps in its
investigation [such as aerial surveillance or witness relocation] does not demonstrate that
the wiretap orders were issued in error ‘because the government need not exhaust or
explain its failure to exhaust every conceivable investigative procedure before resorting
to wiretapping.’ (cite) At page 395.
2. “As demonstrated above, the wiretap was not sought as the first step in this investigation,
nor did the government bypass viable alternative techniques in a rush to use this
extraordinary method of investigation.” At page 396.
3. “None of defendants’ proposed alternatives, taken singly or in combination, offered a
realistic prospect of exposing ‘the extent and structure of the conspiracy’ without the
assistance of wiretaps. (cite)” At page 396.
2. CALIFORNIA COURT OF APPEAL DECISIONS ON THE CALIFORNIA STATE
WIRETAP LAW.
A. People v. Acevedo (2012) 209 Cal.App.4th 1040
The defendants were charged in a four-count information with drug-trafficking offenses. Large
amounts of narcotics and illegal proceeds were seized as the result of seven court-ordered state
wiretaps. Following the filing of charges, the defendants’ attorneys were provided with copies of
the wiretaps’ supporting affidavits and investigative reports; however, these documents were
redacted, heavily in some places, in order to conceal portions that law enforcement believed
would reveal privileged information or compromise the identities of the confidential informants.
Part VI – Page 3
In pre-trial proceedings, the defendants moved in the trial court for discovery of the unredacted
wiretap documentation. The prosecution opposed the discovery motion, invoking the privileges
of Evidence Code sections 1040 and 1041, the exemptions from discovery set forth in Penal
Code sections 1054.6 and 1054.7, and the provisions of Evidence Code section 1042 and the
procedures approved in People v. Hobbs (1994) 7 Cal.4th 948 for in-camera determination of the
validity of the privilege claims.
The trial court conducted hearings pursuant to the Hobbs decision, including proceedings held in
camera. The trial court ordered partial disclosure of the redacted documentation, but it upheld
the redaction of large portions of the documents. After their motions to suppress were denied,
the defendants entered negotiated pleas to various charges.
On appeal, the appellate court upheld the trial court’s refusal to order full discovery of redacted
and sealed portions of the documentation supporting the wiretap authorization orders. The
appellate court held as follows:
1. The privileges and procedures of Evidence Code sections 1040 through 1042 apply to
wiretap authorization affidavits.
“Nothing in Evidence Code sections 1040 through 1042 precludes the application of
these privileges and procedures in proceedings to establish the sufficiency and
legality of wiretap authorization orders.”
2. The procedures outlined in Hobbs apply not only to search warrants, but also to
wiretap authorization orders.
3. The defendants’ claim of inaccuracies in the wiretap authorization affidavits did not
require either disclosure of the unredacted affidavits or suppression of the wiretap
evidence.
B. People v. Roberts et al (2010) 184 Cal.App.4th 1149.
Facts: In November 2004, a D.E.A. task force in San Diego obtained a state wiretap on cell
phones used by members of the Deep Valley Crips (Crips) street gang. The wiretap was for
alleged drug trafficking by the gang members. During the course of the narcotics investigation,
the defendants were intercepted discussing plans to murder members of a rival gang. The task
force then obtained wiretaps to intercept conversations pertaining to illegal gang activity
including murder. During the trial, the prosecutor introduced evidence of intercepted
conversations between the defendants and others in which they discussed a plan to shoot
members of the rival gang. The two defendants were convicted of conspiracy to commit murder
with the offense committed to benefit a criminal street gang.
Part VI – Page 4
The Court of Appeal unanimously affirmed the conviction and discussed several issues related to
the wiretaps, as follows:
A. Necessity: The defendants argued that the state did not exhaust normal investigating
methods before seeking the wiretaps. The Court’s opinion included the following language:
1. “The necessity requirement is met if the affiant ‘analyzes with particularity the
limitations of each alternative investigating technique in achieving the goals of the
investigation’ and shows that ordinary investigative procedures, employed in good faith,
are unlikely to be effective in the case. (Cite) The affidavit need not exhaust all possible
investigative techniques, but must simply explain the retroactive or prospective failure of
several techniques that reasonably suggest themselves. (Cites)” (at page 1173)
2. A finding of necessity by the judge approving the wiretap application is entitled to
substantial deference. (Cite).” (at page 1173)
3. “The issuing judge reasonably determined that ordinary investigative procedures,
employed in good faith, were unlikely to be effective in the case and authorized the
wiretaps. (Cite).” (at page 1174)
B. Minimization: The defendants contended that the limited scope of the initial wiretap
order authorized the task force to intercept conversations only about drug offenses, and the trial
court should have suppressed all evidence relating to any alleged conspiracy to commit murder.
Held: (1) “Law enforcement is not required to minimize interceptions of non-targeted
communications relating to criminal activity” (at page 1175).
C. Reporting Requirements: At the time of the investigation, Penal Code section 629.60
required the state to make reports to the judge at six-day intervals to indicate the progress of the
wiretap. Here, the prosecution did file reports to the judge, but on an irregular basis. The length
of time between the end of each six-day review period and the date the reports were signed by
the deputy district attorney varied from one to 17 days. The defense argued that the wiretap
evidence should have been suppressed because the state did not comply with reporting
requirements because they were generally late, one report was not signed by the court, and four
reports were signed by a judge that did not sign the wiretap. On this issue, the opinion stated the
following:
1. “We conclude the defendants established error . . .“ (at page 1184)
2. “. . . the lack of timeliness and prompt judicial review contravenes a central purpose of
the Act and, as such, the timely filing requirement under section 629.60 plays a central
role.” (at page 1185)
3. “We conclude that the purpose of the provision was achieved despite the errors.” (at
page 1186)
Part VI – Page 5
D. Use of statutorily authorized, non-targeted communications at defendants’ trial: Some of
the intercepted conversations in which the defendants discussed plans to murder rival gang
members took place in December, 2004, pursuant to a wiretap for narcotics trafficking. The
prosecution did not apply to the court for authorization to introduce these conversations at
defendants’ trial until August 1, 2005. The defense argued that these conversations should not
have been introduced since the delayed application violated Penal Code section 629.82 that “The
application shall be made as soon as practicable.”
1. “A trial court has substantial discretion to deny a late application under section 629.82,
subdivision (a)(1). It is not, however, required to do so.” (at page 1188)
2. The application to use statutorily-authorized, nontargeted communications in the
criminal court and grand jury proceedings was not made or reviewed as soon as
practicable; however, the error does not require reversal.” (at page 1186)
C. People v. Jackson (2005) 129 Cal.App.4th 129.
Facts: Defendant found guilty of first degree murder and three counts of attempted murder. At
trial, the trial court admitted statements made by defendant while he was in custody awaiting trial
that were intercepted over the “Millsap” wiretap. The Court of Appeal summarized its holdings
in head notes as follows:
Held: (1) “Evidence obtained as the result of an unlawful wiretap may only be suppressed if the
wiretap violated the United States Constitution or a procedure intended to play a central role in
the legislative scheme and the purpose of that procedure was not achieved in some other
manner.” At pages 146 and 148. (2) ‘Good Faith’, however, is not a ground for denying a
motion to suppress.” At pages 146 and 153. (3) “The wiretap evidence should have been
suppressed because the wiretap orders failed to identify any of the persons who were targets of
the wiretaps.” “An order which authorized the police to intercept the conversations of “the users”
of particular pay telephones is unlawful under California’s wiretap statute and violates the Fourth
Amendment.” At page 163. (4) “Failure to suppress the wiretap evidence was harmless beyond a
reasonable doubt.” At page 168. (5) “The prosecutor must disclose all statements of the
defendant intercepted on a wiretap.” At page 168. “The failure to do so in this case, however,
was harmless error.” At page 168. (6) The defendant’s convictions were affirmed.
D. People v. Zepeda (2001) 87 Cal.App.4th 1183.
Facts: Defendant found guilty of first degree murder. At trial, the trial court admitted statements
made by defendant that were obtained from a wiretap on the telephone in his jail cell. Defendant
claimed that the “necessity” requirement of PC 629.52, subsection (d) was not complied with.
Part VI – Page 6
Held: (1) “The trial court’s determination that the “necessity” requirement was met is
reviewed for abuse of discretion.” Cites, at page 1204. Under Penal Code section 629.52
subdivision (d), “the government may establish the need for a wiretap by showing either (i)
that normal investigative procedures have been tried and failed, or (ii) that normal
investigative procedures, though not yet tried, ‘reasonably appear’ to be either ‘unlikely to
succeed if tried’ or ‘too dangerous.’ In reality, this gives the government three alternative
says to establish the need for a wiretap. Cite.” At page 1204. (3) “Thus, we believe that the
trial court did not abuse its discretion by finding that the necessity requirement of PC 629.52
had been met.” At page 1207. Conviction affirmed.
E. People v. Munoz (2001) 87 Cal.App.4th 239.
Held: “. . . we conclude this sequential designation [of wiretap judges in Los Angeles
County] was permitted under the statute and uphold a wiretap authorized by the second
designated judge when the first designated judge was unavailable.” At page 261.
F. People v. Superior Court (Westbrook) (1993) 15 Cal.App.4th 41.
Facts: Case involved a prosecution sealing order under state wiretap statute. The trial court
granted a 1538.5 motion because the government purportedly failed to comply with Penal Code
section requirement for sealing tapes.
Held: “As discussed below, we conclude a sealing order may be oral, the tapes need not be
presented to the judge for sealing in his or her presence and the procedure used here met the
requirements and purposes of the section. Any delay in seeking a written order or deficiency in
that order is therefore irrelevant.” At page 47. Order granting 1538.5 reversed.
G. People v. Ratekin (1998) 212 Cal.App.3rd 1165.
Facts: Evidence from a federal wiretap is used in a state narcotics prosecution against defendant.
Held: (1) “We hold that the conduct of the federal agents in this matter constituted
“wiretapping” as described in Penal Code § 631 and did not constitute “eavesdropping” as
described in Penal Code § 632.” At page 1169. (2) Despite Penal Code § 631, sub (c)
prohibiting use of evidence in court, the evidence in the case was relevant and admissible under
the provisions of Proposition 8. At page 1169. Conviction affirmed.
H. Whitaker v. Garcetti,(2003) 291 F.Supp.2d 1132
Facts: Law enforcement had been receiving information concerning impending illegal activity
pursuant to wiretap interceptions and then handing off the information to another law
enforcement team to develop their own “independent” reasonable suspicion to detain (and
“independent” probable cause to search) resulting in the seizure of contraband. The wiretap
Part VI – Page 7
investigators would not tell the other investigative team about the wiretap, with the goal of
preventing a defendant from ever learning about the existence of the wiretap. Plaintiffs
(defendants in the underlying criminal matters) sued, in part, for a declaratory judgment ruling
“handoffs” to be unconstitutional.
Held: Request for declaratory judgment granted: “Handoffs” are unconstitutional. The
information learned by the non-wiretap members of law enforcement is not “independent,” but
rather derived from the wiretap and the failure to inform defendants about the existence of the
wiretap prevents defendants from challenging the legality of the wiretap.
While the declaratory judgment was vacated in 2007 (see Whitaker v. Garcetti (2007) 486 F.3d
572, 586), the rule against handoffs is part of Judge Larry Fidler’s Habeas Corpus Order in Case
No. BH001118. As such, handoffs are prohibited in Los Angeles County.
3. SELECTED CALIFORNIA SUPREME COURT CASES ON ELECTRONIC
SURVEILLANCE AND EAVESDROPPING
A. People v. Davis (2005) 36 Cal.4th 510
Facts: The defendant and two other suspects were arrested for the murder of two
U.C.L.A.students. The three arrestees were placed in separate but adjacent holding cells
at the West Los Angeles police station. The three suspects’ jailhouse conversations were
monitored and taped. Some of these conversations were introduced at the defendant’s
trial, in which he was convicted of two counts of first degree murder and received the
death penalty.
Held: The California Supreme Court held that pre-trial detainees have no legitimate
expectation of privacy that their conversation will not be recorded. “We have already
concluded that under Hudson v. Palmer (1984) 468 U.S. 517, pretrial detainees can have
no legitimate expectation that their jailhouse conversations will not be monitored or
recorded…In other words, if a pretrial detainee can reasonably expect that his cell may be
monitored or searched for security reasons, then he cannot reasonably expect any privacy.
It is the fact that an intrusion may occur, not the reason for the intrusion, that vitiates the
expectation of privacy. Accordingly, although under DeLancie defendant reasonably
could have expected that the police and prosecution would not violate state law by
monitoring his conversation for investigatory reasons, that expectation was basically
irrelevant to the Fourth Amendment question.”
B. People v. Loyd (2002) 27 Cal.4th 997.
California law now permits law enforcement officers to monitor and record unprivileged
communications between inmates and their visitors to gather evidence of crime.
Part VI – Page 8
Facts: In 1996 the defendant was in county jail awaiting trial for the murder of Virginia
Baily. The prosecutor requested jail officials to record the defendant’s conversations
with her non-attorney visitors. The purpose of the recordings was solely for the purpose
of gathering evidence against the defendant. The sheriff’s department provided the
prosecutor with tapes of conversations between the defendant and various visitors. The
defendant was ultimately charged with the murders of Virginia Baily and the defendant’s
mother. The trial court denied defendant’s suppression motion, and the defendant was
convicted by the jury of two counts of first degree murder. Defendant claimed on appeal
that the secret monitoring of her unprivileged jail conversations with her visitors
constituted prosecutorial misconduct justifying dismissal of the charges.
Held: In DeLancie v. Superior Court (1982) 31 Cal.3rd 865, the California Supreme
Court held that former Penal Code §§ 2600 and 2601 extended an inmate’s protection of
confidentiality to unprivileged communications, unless monitoring was necessary for the
security of the institution or the public. In 1994, the Legislature amended section 2600,
in effect repealing the more expansive protections given California inmates and replacing
them with the more limited protections in existence prior to DeLancie.
The Supreme Court concluded as follows: “We therefore conclude that DeLancie no
longer correctly states California law regarding inmate rights. Following the 1994
amendment to Penal Code § 2600, California law now permits law enforcement officers
to monitor and record unprivileged communications between inmates and their visitors to
gather evidence of a crime.” 27 Cal.4th at page 1010.
Editor’s Note: The Loyd opinion specifically did not address the monitoring of an
inmate’s outbound telephone calls. As Justice Moreno’s concurring opinion points out,
the monitoring of an inmate’s outbound telephone calls may have wiretap law
implications.
C. Flanagan v. Flanagan (2002) 27 Cal.4th 766.
Facts: In response to his stepmother’s complaint against him, a stepson cross-complained
against his stepmother for violations of Penal Code § 632 (non-consensual recording of
confidential communications) of the Invasion of Privacy Act, based on the stepmother
having secretly recorded telephone conversations between her husband and the stepson.
Issue is the definition of a “confidential communication.”
Held: Under Penal Code § 632 subdivision (a), a conversation is confidential if a party to
that conversation has an objectively reasonable expectation that the conviction is not
being overheard or recorded.
Part VI – Page 9
D. People v. Champion (1995) 9 Cal.4th 879.
Facts: Prosecutor obtained a court order that the two defendants’ conversation in the van
transporting them to and from court be tape-recorded. The conversation was played to
the jury. Defendants were found guilty of murder with special circumstances.
Held: (1) No Massiah violation since no direct police interrogation involved here (citing
Supreme Court cases) at page 911.
(2) No violation of defendant’s expectation of privacy. At page 912. Affirmed.
E. People v. Otto (1992) 2 Cal.4th 1088.
Facts: Husband secretly taped his wife’s conversations to her lover. The tapes indicate
they were plotting the husband’s murder. A few days later the husband was murdered.
Defendant and her lover found guilty of murder in the first degree.
Held: (1) The defendant’s conversations were unlawfully recorded and should not have
been received in evidence under the strict injunction of Title III. At page 1099.
(2) No exception exists for “inter-spousal” or “domestic” wiretapping. At pages 1099-
1107. (3) No exception exists for private wiretaps where government is merely the
innocent recipient of the illegally intercepted communication. At pages 1107-1115.
(4) Since prejudice existed, the convictions were reversed.
F. People v. Siripongs (1988) 45 Cal.3rd 548.
Facts: Defendant was arrested for murder and allowed two phone calls. A police officer
dialed the number for defendant, stood near defendant who talked in Thai on phone, and
then secretly recorded the conversation. The conversation was used in evidence against
defendant, who was found guilty of murder and received death sentence. Defendant
claimed illegal wiretap.
Held: Officer did not “intercept” the conversation “through the use of any electronic wire
or other device” as prohibited by 18 U.S.C. § 2510 (4). Rather, he heard the conversation
with his normal hearing and the tape recording merely memorialized what he heard.
Thus no interception of a wire communication occurred. At page 564.
Also, no interception of an oral communication since, on these facts, defendant had no r
reasonable expectation of privacy. At page 504. Judgment affirmed.
Part VI – Page 10
4. SELECTED CALIFORNIA COURT OF APPEALS CASES ON ELECTRONIC
SURVEILLANCE AND EAVESDROPPING
A. People v. Windham (2007) 145 Cal.App.4th 881
Facts: Defendant was arrested for domestic violence against his girlfriend. While he was in jail
awaiting trial, he placed several calls to her, which were recorded pursuant to an announced
blanket policy of recording all outgoing telephone calls by jail inmates. The trial court denied
the defendant’s motion to suppress the use of these statements in defendant’s criminal trial.
Held: (1) Three separate warnings are given to the caller using the jail pay telephones that are
made available to inmates. First, the rules and regulations provided to each inmate so specify.
Second, a posted sign by the telephones states a warning that calls may be recorded and
monitored. Third, both parties hear a telephone recording advising that the call is being
recorded. (2) “We affirm, holding that defendant impliedly consented to the recording of his
calls, and the recordings are admissible under federal and state law.” At page 855.
NOTE: Justice Gemello, who wrote the Kelley opinion discussed below, was also the author of
the opinion in Windham.
B. People v. Kelley (2002) 103 Cal. App.4th 853
Facts: Defendant found guilty of murder in the first degree. While defendant was in jail, the
prosecution recorded defendant’s jailhouse telephone conversations and introduced portions of
the transcripts, as well as evidence seized based on those conversations.
Held: (1) “So long as a prisoner is given meaningful notice that his telephone calls over prison
phones are subject to monitoring, his decision to engage in conversations over that phone
constitutes implied consent to that monitoring and takes any wiretap outside the prohibition of
Title III.” At page 858.
(2) “That consent exception applies here. Kelley’s housing unit had a warning sign above its
telephones, which stated “Telephone calls may be monitored and recorded.” In addition, the
prison phone system contained a warning at the beginning of each call stating that all calls were
subject to monitoring or recording.” At page 859.
(3) “California’s wiretapping statutes, like Title III, do not apply to the monitoring and recording
of conversations where one party consents.” Cites, at page 860. Conviction affirmed.
C. Sacramento County Deputy Sheriff’s Association v. County of Sacramento (1996) 51
Cal.App.4th 1468
Facts: Because of the thefts of inmates’ money, a surveillance video camera was placed in the
release office at the county jail. The county jail employees alleged that this warrantless video
surveillance was an invasion of privacy.
Part VI – Page 11
Held: “We will conclude plaintiffs had no objectively reasonable expectation of privacy against
being videotaped in the release office.” At page 1478.
D. Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811
Facts: A prison security officer placed a wiretap on a prison telephone (used by warden and
others) as part of a narcotics investigation. The trial court, in a case against the warden, found
that the warrantless wiretap fell within the federal statutory exception (in Omnibus Safe Streets
& Crime Control Act) for conduct in the ordinary course of law enforcement duties. Defendant
appealed.
Held: “We thus conclude that a law enforcement purpose is not in and of itself sufficient to meet
that law enforcement exception: at a minimum, the wiretap use must also be within the ordinary
course of the officer’s duties. In the context of this case, the law enforcement exemption applies
only if the wiretap activity was routine.” Evidence ordered suppressed.
E. People v. Phyler (1993)18 Cal.App.4th 535
Facts: Defendant was arrested for molestation of Cecilia on January 13, 1989. On January 17,
1989, defendant was arraigned and assigned a public defender. On January 18, 1989, the
detective attached a recorder to the telephone of a witness defendant has been calling. Defendant
called the witness on January 20, 1989 in response to a message to call witness and also called
on January 21, 1989, talking to witness’ daughter Tina on both occasions. Defendant was
convicted of molesting both Cecilia and Tina.
Held: (1) No Fourth Amendment violation, since defendant had no assurance that recipient of
calls would not monitor them. At page 542. (2) No DeLancie violation; since person recording
call was a party to the conversation. At page 543. (3) No Fifth Amendment Miranda violation,
since no custodial interrogation. At page 544-5. (4) No Sixth Amendment right to counsel
violation, since that right is “offense specific”; and here defendant had only been charge with
crimes against Cecilia and his recorded conversation admitted crimes against Tina. At pages
546-7. Conviction affirmed.
F. People v. Murtha (1993) 14 Cal.App.4th 1112.
Facts: A private party taped a telephone conversation between defendant and an accomplice.
This tape furnished part of the probable cause for a Search Warrant of defendant’s residence.
Defendant pled guilty to Penal Code 459 and appealed.
Held: The taped conversation was clearly in violation of 18 U.S.C. § 2515 on wiretaps which
prohibits the use of the contents of a wire or oral communication intercepted by “any person.”
At page 1117-1121. Conviction upheld since sufficient probable cause existed in redacted search
warrant.
Part VI – Page 12
G. People v. Hammons (1991) 235 Cal.App.3rd 1170.
Facts: While defendants were in jail, detectives placed them alone in an interview room so that
could have a conversation. The conversation was surreptitiously monitored and recorded and
introduced against defendants. Defendant was found guilty of burglary.
Held: Here the police indicated that the conversation would be private, thereby creating a
legitimate and reasonable expectation of privacy (even though it took place in a police station).
Tape should have been suppressed. Reversed.
H. People v. Bullock (1990) 226 Cal.App.3rd 380
Facts: After defendant was arrested, officer seized defendant’s pager and activated the pager’s
display revealing calling party’s telephone number. Officer returned calls and several persons
who answered requested delivery of cocaine.
Held: (1) Defendant established a reasonable expectation of privacy in the information housed in
his pager. At page 386. (2) However, exigent circumstances justified the interception of these
numbers without a search warrant. At pages 387-8. Conviction affirmed.
I. People v. Henderson (1990) 220 Cal.App.3rd 1632
Facts: Defendant contacted a DEA informant about using the informant’s condo to set up a meth
lab. With informant’s permission, DEA agents placed two cameras in the condo (one upstairs
and one downstairs) which they monitored from a nearby condo in the same complex. The
agents monitored the condo through the cameras even when the informant was not in the condo.
They subsequently entered the condo and seized a meth lab in progress. Defendants pleaded
guilty (to county lid) and appealed denial of 1538.5 motion.
Held: (1)”The plain and simple fact is clandestine observations into a private residence from a
vantage point inaccessible to the public or an uninvited guest is a search which, if conducted
without a warrant, is a type of activity the Fourth Amendment proscribes.” At page 1649. (2)
“The videotape equipment here was positioned to “see” that which the agents could not
otherwise see. Because Henderson had a subjective expectation of privacy within the condo, the
video surveillance constituted a search and seizure under the Fourth Amendment and was subject
to its protections.” At page 1649. (3) Although the informant’s consent allowed entry into the
condo to install the video cameras, the consent did not justify the monitoring. At pages 1652-3.
(4) Situation is similar to the beeper monitoring cases where the monitoring is legal unless it
reveals information that could not have been obtained through visual surveillance. At page 1653.
(5) Reversed and remanded to determine whether the illegal video monitoring tainted the
subsequent entry and seizure of the lab. At page 1654.
Part VI – Page 13
J. People v. Parra (1985) 165 Cal.App.3rd 874
Facts: A business colleague of victim called defendant on the phone, and without defendant’s
knowledge or consent, recorded the conversation in which defendant acknowledged receiving
money from the victim. Defendant was found guilty of grand theft.
Held: (1) The recorded telephone conversation was admissible pursuant to Penal Code 633.5,
since the colleague learned that defendant had threatened him and his family with physical
violence. (2) The recording was not rendered inadmissible by Penal Code 632 even though
prosecution was only for grand theft rather than any of the violent offenses enumerated in 633.5.
Affirmed.
5. SELECTED FEDERAL NINTH CIRCUIT CASES ON WIRETAPS (POST 2000)
A. United States v. Perez-Valencia, 2014 U.S. App. LEXIS 4047 (9th Cir. Cal., Mar. 3,
2014); United States v. Perez-Valencia, 2013 U.S. Dist. LEXIS 172365 (C.D. Cal., Dec.
6, 2013); United States v. Perez-Valencia, 727 F.3d 852 (9th Cir. July 2013).
Facts: Perez-Valencia was the target of a state wiretap investigation that led to the seizure of 76
kilograms of methamphetamine from Perez-Valencia and his co-conspirators. Dennis Christy,
Assistant District Attorney, acting as the designee of San Bernardino County District Attorney
Michael Ramos, was the applicant for the wiretap. The district court denied defendant’s motion
to suppress the state wiretap and Mr. Perez-Valencia entered a conditional guilty plea to
conspiracy to distribute methamphetamine.
Defendant appealed, arguing that the motion to suppress should have been granted because the
document that designated who could apply for a wiretap when the district attorney was absent,
was defective. The district attorney’s delegation list was somewhat ambiguous because the
designee may have been acting with only the limited authority to apply for a wiretap order and
because each of the three persons designated might each have simultaneously had the power to
apply for wiretaps in Ramos’ absence.
Held: Upon remand, the district court determined that the district attorney’s list of designees was
“successive” in that the three individuals were to assume the position of acting DA in successive
order, and the acting district attorney’s authority was not limited to only applying for wiretap
orders. The reference in the designation memo to Penal Code section 629.50(a) was merely
intended to establish a written record of compliance with California state wiretap law.
The court found that the acting DA assumed all the powers, duties, and responsibilities of the
District Attorney even though certain policy and procedural decisions, including whether to seek
the death penalty in a capital case, and personnel decisions in which an employee is to be
terminated, were not of an exigent nature and were personally made by District Attorney Ramos
upon his return to the office.
Part VI – Page 14
It was clear that in the district attorney’s absence, the Assistant District Attorney for Criminal
Operations, Dennis Christy, was “running the office,” and no one else was authorized to do so.
This finding satisfied the Court of Appeals' concern that the delegation might have been only for
wiretap applications and the court affirmed the district court’s denial of defendant’s motion to
suppress.
B. United States v. Luong 471 F.3rd 1107 (9th Cir. 2006)
Facts: The federal wiretap statute at 18 U.S.C. Section 2518(3) authorizes a federal judge, upon
proper showing, to authorize “interception of . . . electronic communications within the territorial
jurisdiction of the court in which the judge is sitting.” In this case, a federal judge in the
Northern District of California issued a wiretap order authorizing the interception of
communications to and from a mobile phone. The government’s listening post was located
within the Northern District. However, the phone and its area code were for the Eastern District
of California. The appellants argued on appeal that interception occurs only where the telephone
is based or located, and not where the government sets up a listening post where it is first able to
hear the intercepted conversations.
Held: The wiretap statute does not state where an interception occurs or whether more than one
interception point may exist for jurisdictional purposes. The most reasonable interpretation of
the statutory definition of interception is that an interception occurs where the tapped phone is
located and where law enforcement officers first overhear the call (Citing United States v.
Rodriguez 968 F.2nd 130 (2nd Cir. 1992). Accordingly, the calls were properly intercepted within
the jurisdiction of the judge of the Northern District of California, who authorized the wiretap.
C. United States v. Gonzalez, Inc., 412 F.3rd 1102 (9th Cir. 2005)
Facts: Beginning in 1996, Federal agents conducted an investigation into a conspiracy to
smuggle aliens into the United States using a public bus company, GST, with bus terminals in
nine western states. Initially, the investigation focused on GST’s Tuscon and Phoenix terminals
and included 25,000 hours of video surveillance, 2,000 hours of physical surveillance, two
undercover agents who became GST bus drivers and other undercover agents who posed as
undocumented aliens on GST buses and as smugglers at GST terminals. Confidential informants
were also recruited, including a dispatcher and a bus driver. In early April 2001, the government
obtained a wiretap order (with a subsequent extension) for the Tuscon and Phoenix terminals.
In late May, 2001, the government obtained a wiretap order for GST’s office in Los Angeles.
The necessity portion of the affidavit showed five days worth of pen register and trap and trace
analysis and limited physical surveillance. Other investigative techniques were discussed in the
affidavit but dismissed as having been tried and failed or reasonably appeared unlikely to
succeed. The government appealed the district court’s ruling that the affidavit in support of the
wiretap order for GST’s office in Los Angeles failed to satisfy the statutory necessity
requirements.
Part VI – Page 15
Held: “In our judgment, the fact attested to in the ….affidavit indicated that the government side-
stepped its responsibility to use promising traditional techniques when it began to investigate the
[Los Angeles] office, and instead conducted only the most cursory investigation before seeking a
wiretap. We hold that the necessity provisions require the government to do more.” 412 F.3rd at
pages 1113 – 1114. The opinion stated that such additional investigative procedures could have
included video surveillance (to see if known coyotes visited the location), confidential
informants, grand jury subpoenas, and search warrants. All statements and evidence resulting
from the Los Angeles wiretap were suppressed.
C. United States v. Lynch 367 F. 3d 1148 (9th Cir. 2004)
Facts: The defendant was convicted in federal court for a Hobbs Act violation arising out of a
robbery and murder in Montana. During the investigation, detectives obtained a Nevada state
order authorizing the interception of conversations between the defendant and his accomplice.
Conversations intercepted during this wiretap were introduced at the defendant’s trial. On
appeal, defendant attacked the wiretaps on the grounds of insufficient probable cause and
insufficient showing of necessity.
Held: “The court’s review of a finding of probable cause is deferential. Whether other
investigative procedures have been exhausted or why they appear reasonably unlikely to succeed
if attempted is reviewed de novo. However, the conclusion that the wiretap was necessary in
each situation is reviewed for abuse of discretion. Cite.” At page 1159. In this case the defense
motion to suppress the wiretap was properly denied.
D. United States v. Canales Gomez 358 F.3d 1221 (9th Cir. 2004)
Facts: In August, 2000, the FBI obtained a wiretap order against a major drug-trafficking
organization. The 38 page affidavit stated in great detail how the investigators had used, or
contemplated using, each of the following traditional techniques: confidential informants,
physical surveillance, pen registers, trap and trace devices, telephone toll analysis, search
warrants, interviews, grand jury subpoenas, trash searches, consensual recordings, police reports
and arrest records, financial investigations and mail cover requests. The affidavit detailed why
each of these techniques would be unsuccessful at identifying the full scale of the massive
conspiracy under investigation. A total of ten wiretap orders were issued by the court, resulting
in the indictment of 28 defendants. The government appealed the district court’s ruling that the
government’s application for the wiretap did not comply with the statutory necessity
requirement. Specifically, the district court found that the government did not sufficiently use
confidential informants or provide a full and complete statement explaining why they would not
suffice.
Part VI - Page 16
Held: The Ninth Circuit Court of Appeals, in a unanimous opinion authored by Circuit Judge
Stephen Trott, found that the supporting affidavit for the wiretap application established
necessity for the wiretaps. “The affidavit adequately explained that the interception of wire
communications was the only way to identify and investigate the whole of the networks,
including the entire hierarchy of suppliers, transporters, distributors, customers, and money
launderers.” At page 1225.
Further, “the issuing judge’s decision that the wiretap was necessary is to be reviewed under an
abuse of discretion standard.” At page 1225. With regard to informants, the opinion stated that
“We have stressed repeatedly that informants as a class, although indispensable to law
enforcement, are often untrustworthy…Here, the government is to be commended for its interest
in wiretap evidence, which, compared to the word of an informant either in the field or in court,
is the gold standard when it comes to trustworthy evidence.” At pages 1226-1227.
E. United States v. Mc Guire 307 F. 3rd 1192 (9th Cir. 2003)
Facts: In 1995 and 1996, the government obtained a series of wiretaps against a group called the
“Montana Freemen,” which was hostile to the United States government. The Freemen
attempted to establish their own government and financial system that resulted in millions of
dollars in losses to hundred of persons. The group was also capable of violence, having
threatened some government officials including threatening to kidnap, assault, and murder a
United States district judge. In a jury trial in which statements and evidence derived from the
wiretaps were introduced, the two defendants were convicted of bank fraud, mail fraud, robbery,
and firearms violations.
Held: (1) “Although we review de novo whether the application of wiretapping was submitted in
compliance with 18 U.S.C. § 2518 (1)(c), we review the issuing court’s decision that the
wiretaps were necessary for an abuse of discretion. Cite.” At page 1197. (2) “The principle we
announce here – that government has considerable latitude to wiretap suspected members of a
criminal conspiracy (particular when the conspirators are bent on the government’s destruction)
– reflects a larger principle of proportionality embodied in the wiretapping statute. The more
grave the threat posed to our society, the greater the government’s leeway in pursuing it. Cite.”
At page 1198. (3) “We held in Brone [United States v. Brone, 792 F. 2nd 1504 (9th Cir.1986)]
that a wiretap can be necessary if it gives the government the ability to ‘develop an effective
case.’ Cite. By ‘an effective case,’ we meant evidence of guilt beyond a reasonable doubt, not
merely evidence sufficient to secure an indictment.” At page 1198. (4) “The district court did not
abuse its discretion in finding that the electronic surveillance was necessary.” At page 1199.
F. United States v. Blackmon 273 F. 3rd 1204 (9th Cir. 2001)
Facts: In 1997 the FBI was investigating a narcotics trafficker named Miller and obtained a
wiretap order against him. Three subsequent wiretaps, which were spinoffs of the initial Miller
wiretap, were authorized involving telephones used primarily by the defendant Blackmon. The
necessity section of the FBI application was, with a few alterations, a duplicate of the Miller
wiretap application.
Part VI – Page 17
Held: (1) “We review de novo whether a full and complete statement of the facts was submitted
in compliance with 18 U.S.C. § 2518 (1) (c). Cite. If a full and complete statement was
submitted, we review the issuing judge’s decision that the wiretap was necessary for an abuse of
discretion.” At page 1207. (2) “The purpose of these requirements is to ensure that wiretapping is
not resorted to in situations when traditional investigative techniques would suffice to expose the
crime. Cite.” At page 1207. (3)”We conclude wiretap evidence against Blackmon derived from
the wiretap should be suppressed for two interrelated reasons. First, the application, which is
nearly a carbon copy of a previous application for a different suspect, contains material
misstatements and omissions regarding the necessity for the wiretap. Second, purged of the
material misstatements and omissions, the application contains only generalized statements that
would be true of any narcotics investigation. It is bereft of specific facts necessary to satisfy the
requirements of § 2518 (1) (c).” At page 1208. (4) The wiretap evidence against Blackman was
suppressed.
Dissent: The dissent argued that since the affidavit contained a full and complete statement, the
correct standard of review was abuse of discretion. Under that standard, the issuing court did not
abuse its discretion in finding necessity for the wiretap.
G. United States v. Reyna 218 F. 3d 1108 (9th Cir. 2000)
Facts: A federal judge signed a wiretap order before the application had been approved by the
Attorney General or one of her designated agents.
Held: Pursuant to 18 U.S.C. 2518, the Attorney General or her designated agent must authorize
the wiretap application of a subordinate federal law enforcement officer before a judge approves
it. Failure to secure such approval prior to making application for judicial authority to wiretap
renders the court authority invalid and the interception of communications pursuant to that
authority “unlawful” within the meaning of 18 U.S.C. 2518.
Part VI - Page 18
Page 1
APPENDIX
TABLE OF CONTENTS PAGE
Penal Code sections 629.50, et seq. .......................................................................... 1
Page 2
PENAL CODE
PART 1. Crimes and Punishments
TITLE 15. Miscellaneous Crimes
CHAPTER 1.4. Interception of Wire
or Electronic Communications
West's Annotated California Codes
Penal Code (Refs & Annos)
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Refs & Annos)
§ 629.50. Application for order authorizing interception; facsimile copies
(a) Each application for an order authorizing the interception of a wire or electronic communication shall be made in
writing upon the personal oath or affirmation of the Attorney General, Chief Deputy Attorney General, or Chief
Assistant Attorney General, Criminal Law Division, or of a district attorney, or the person designated to act as district
attorney in the district attorney's absence, to the presiding judge of the superior court or one other judge designated by
the presiding judge. An ordered list of additional judges may be authorized by the presiding judge to sign an order
authorizing an interception. One of these judges may hear an application and sign an order only if that judge makes a
determination that the presiding judge, the first designated judge, and those judges higher on the list are unavailable.
Each application shall include all of the following information:
(1) The identity of the investigative or law enforcement officer making the application, and the officer authorizing the
application.
(2) The identity of the law enforcement agency that is to execute the order.
(3) A statement attesting to a review of the application and the circumstances in support thereof by the chief executive
officer, or his or her designee, of the law enforcement agency making the application. This statement shall name the
chief executive officer or the designee who effected this review.
(4) A full and complete statement of the facts and circumstances relied upon by the applicant to justify his or her
belief that an order should be issued, including (A) details as to the particular offense that has been, is being, or is
about to be committed, (B) the fact that conventional investigative techniques had been tried and were unsuccessful,
or why they reasonably appear to be unlikely to succeed or to be too dangerous, (C) a particular description of the
nature and location of the facilities from which or the place where the communication is to be intercepted, (D) a
particular description of the type of communication sought to be intercepted, and (E) the identity, if known, of the
person committing the offense and whose communications are to be intercepted, or if that person's identity is not
known, then the information relating to the person's identity that is known to the applicant.
(5) A statement of the period of time for which the interception is required to be maintained, and if the nature of the
investigation is such that the authorization for interception should not automatically terminate when the described
Page 3
type of communication has been first obtained, a particular description of the facts establishing probable cause to
believe that additional communications of the same type will occur thereafter.
(6) A full and complete statement of the facts concerning all previous applications known, to the individual
authorizing and to the individual making the application, to have been made to any judge of a state or federal court for
authorization to intercept wire or electronic communications involving any of the same persons, facilities, or places
specified in the application, and the action taken by the judge on each of those applications. This requirement may be
satisfied by making inquiry of the California Attorney General and the United States Department of Justice and
reporting the results of these inquiries in the application.
(7) If the application is for the extension of an order, a statement setting forth the number of communications
intercepted pursuant to the original order, and the results thus far obtained from the interception, or a reasonable
explanation of the failure to obtain results.
(8) An application for modification of an order may be made when there is probable cause to believe that the person
or persons identified in the original order have commenced to use a facility or device that is not subject to the original
order. Any modification under this subdivision shall only be valid for the period authorized under the order being
modified. The application for modification shall meet all of the requirements in paragraphs (1) to (6), inclusive, and
shall include a statement of the results thus far obtained from the interception, or a reasonable explanation for the
failure to obtain results.
(b) The judge may require the applicant to furnish additional testimony or documentary evidence in support of an
application for an order under this section.
(c) The judge shall accept a facsimile copy of the signature of any person required to give a personal oath or
affirmation pursuant to subdivision (a) as an original signature to the application. The original signed document shall
be sealed and kept with the application pursuant to the provisions of Section 629.66 and custody of the original signed
document shall be in the same manner as the judge orders for the application.
§ 629.51. Definitions; application
(a) For the purposes of this chapter, the following terms have the following meanings:
(1) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the
point of reception (including the use of a like connection in a switching station), furnished or operated by any person
engaged in providing or operating these facilities for the transmission of communications.
(2) “Electronic communication” means any transfer of signs, signals, writings, images, sounds, data, or intelligence of
any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system, but does not
include any of the following:
(A) Any wire communication defined in paragraph (1).
Page 4
(B) Any communication made through a tone-only paging device.
(C) Any communication from a tracking device.
(D) Electronic funds transfer information stored by a financial institution in a communications system used for the
electronic storage and transfer of funds.
(3) “Tracking device” means an electronic or mechanical device that permits the tracking of the movement of a
person or object.
(4) “Aural transfer” means a transfer containing the human voice at any point between and including the point of
origin and the point of reception.
(b) This chapter applies to the interceptions of wire and electronic communications. It does not apply to stored
communications or stored content.
(c) The act that added this subdivision is not intended to change the law as to stored communications or stored
content.
§ 629.52. Order authorizing interception; required findings; specified offenses
Upon application made under Section 629.50, the judge may enter an ex parte order, as requested or modified,
authorizing interception of wire or electronic communications initially intercepted within the territorial jurisdiction of
the court in which the judge is sitting, if the judge determines, on the basis of the facts submitted by the applicant, all
of the following:
(a) There is probable cause to believe that an individual is committing, has committed, or is about to commit, one of
the following offenses:
(1) Importation, possession for sale, transportation, manufacture, or sale of controlled substances in violation of
Section 11351, 11351.5, 11352, 11370.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code
with respect to a substance containing heroin, cocaine, PCP, methamphetamine, or their precursors or analogs where
the substance exceeds 10 gallons by liquid volume or three pounds of solid substance by weight.
(2) Murder, solicitation to commit murder, a violation of Section 209, or the commission of a felony involving a
destructive device in violation of Section 18710, 18715, 18720, 18725, 18730, 18740, 18745, 18750, or 18755.
(3) Any felony violation of Section 186.22.
(4) Any felony violation of Section 11418, relating to weapons of mass destruction, Section 11418.5, relating to
threats to use weapons of mass destruction, or Section 11419, relating to restricted biological agents.
(5) An attempt or conspiracy to commit any of the above-mentioned crimes.
Page 5
(b) There is probable cause to believe that particular communications concerning the illegal activities will be obtained
through that interception, including, but not limited to, communications that may be utilized for locating or rescuing a
kidnap victim.
(c) There is probable cause to believe that the facilities from which, or the place where, the wire or electronic
communications are to be intercepted are being used, or are about to be used, in connection with the commission of
the offense, or are leased to, listed in the name of, or commonly used by the person whose communications are to be
intercepted.
(d) Normal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to
succeed if tried or to be too dangerous.
§ 629.53. Guidelines for judges; establishment
The Judicial Council may establish guidelines for judges to follow in granting an order authorizing the interception of
any wire or electronic communications.
§ 629.54. Contents of order authorizing interception
Each order authorizing the interception of any wire or electronic communication shall specify all of the following:
(a) The identity, if known, of the person whose communications are to be intercepted, or if the identity is not known,
then that information relating to the person's identity known to the applicant.
(b) The nature and location of the communication facilities as to which, or the place where, authority to intercept is
granted.
(c) A particular description of the type of communication sought to be intercepted, and a statement of the illegal
activities to which it relates.
(d) The identity of the agency authorized to intercept the communications and of the person making the application.
(e) The period of time during which the interception is authorized including a statement as to whether or not the
interception shall automatically terminate when the described communication has been first obtained.
§ 629.56. Oral approval without order; required findings
(a) Upon informal application by the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney
General, Criminal Law Division, or a district attorney, or the person designated to act as district attorney in the
district attorney's absence, the presiding judge of the superior court or the first available judge designated as provided
in Section 629.50 may grant oral approval for an interception, without an order, if he or she determines all of the
following:
Page 6
(1) There are grounds upon which an order could be issued under this chapter.
(2) There is probable cause to believe that an emergency situation exists with respect to the investigation of an
offense enumerated in this chapter.
(3) There is probable cause to believe that a substantial danger to life or limb exists justifying the authorization for
immediate interception of a private wire or electronic communication before an application for an order could with
due diligence be submitted and acted upon.
(b) Approval for an interception under this section shall be conditioned upon filing with the judge, by midnight of the
second full court day after the oral approval, a written application for an order which, if granted consistent with this
chapter, shall also recite the oral approval under this subdivision and be retroactive to the time of the oral approval.
§ 629.58. Period of authorization; extensions; termination; interpreters
No order entered under this chapter shall authorize the interception of any wire or electronic communication for any
period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days,
commencing on the day of the initial interception, or 10 days after the issuance of the order, whichever comes first.
Extensions of an order may be granted, but only upon application for an extension made in accordance with Section
629.50 and upon the court making findings required by Section 629.52. The period of extension shall be no longer
than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event any
longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept
shall be executed as soon as practicable, shall be conducted so as to minimize the interception of communications not
otherwise subject to interception under this chapter, and shall terminate upon attainment of the authorized objective,
or in any event at the time expiration of the term designated in the order or any extensions. In the event the
intercepted communication is in a foreign language, an interpreter of that foreign language may assist peace officers
in executing the authorization provided in this chapter, provided that the interpreter has the same training as any other
interpreter authorized under this chapter and provided that the interception shall be conducted so as to minimize the
interception of communications not otherwise subject to interception under this chapter.
§ 629.60. Reports to judge issuing order
Whenever an order authorizing an interception is entered, the order shall require reports in writing or otherwise to be
made to the judge who issued the order showing the number of communications intercepted pursuant to the original
order, and a statement setting forth what progress has been made toward achievement of the authorized objective, or a
satisfactory explanation for its lack, and the need for continued interception. If the judge finds that progress has not
been made, that the explanation for its lack is not satisfactory, or that no need exists for continued interception, he or
she shall order that the interception immediately terminate. The reports shall be filed with the court at the intervals
that the judge may require, but not less than one for each period of 10 days, commencing with the date of the signing
of the order, and shall be made by any reasonable and reliable means, as determined by the judge.
§ 629.61. Report to attorney general; regulations on collection and dissemination of information; disclosure of
information
Page 7
(a) Whenever an order authorizing an interception is entered, the order shall require a report in writing or otherwise to
be made to the Attorney General showing what persons, facilities, places, or any combination of these are to be
intercepted pursuant to the application, and the action taken by the judge on each of those applications. The report
shall be made at the interval that the order may require, but not more than 10 days after the order was issued, and
shall be made by any reasonable and reliable means, as determined by the Attorney General.
(b) The Attorney General may issue regulations prescribing the collection and dissemination of information collected
pursuant to this chapter.
(c) The Attorney General shall, upon the request of an individual making an application for an interception order
pursuant to this chapter, provide any information known as a result of these reporting requirements and in compliance
with paragraph (6) of subdivision (a) of Section 629.50.
§ 629.62. Report by Attorney General
(a) The Attorney General shall prepare and submit an annual report to the Legislature, the Judicial Council, and the
Director of the Administrative Office of the United States Courts on interceptions conducted under the authority of
this chapter during the preceding year. Information for this report shall be provided to the Attorney General by any
prosecutorial agency seeking an order pursuant to this chapter.
(b) The report shall include all of the following data:
(1) The number of orders or extensions applied for.
(2) The kinds of orders or extensions applied for.
(3) The fact that the order or extension was granted as applied for, was modified, or was denied.
(4) The number of wire or electronic communication devices that are the subject of each order granted.
(5) The period of interceptions authorized by the order, and the number and duration of any extensions of the order.
(6) The offense specified in the order or application, or extension of an order.
(7) The identity of the applying law enforcement officer and agency making the application and the person
authorizing the application.
(8) The nature of the facilities from which or the place where communications were to be intercepted.
(9) A general description of the interceptions made under the order or extension, including (A) the number of persons
whose communications were intercepted, (B) the number of communications intercepted, (C) the percentage of
incriminating communications intercepted and the percentage of other communications intercepted, and (D) the
Page 8
approximate nature, amount, and cost of the manpower and other resources used in the interceptions.
(10) The number of arrests resulting from interceptions made under the order or extension, and the offenses for which
arrests were made.
(11) The number of trials resulting from the interceptions.
(12) The number of motions to suppress made with respect to the interceptions, and the number granted or denied.
(13) The number of convictions resulting from the interceptions and the offenses for which the convictions were
obtained and a general assessment of the importance of the interceptions.
(14) Except with regard to the initial report required by this section, the information required by paragraphs (9) to
(13), inclusive, with respect to orders or extensions obtained in a preceding calendar year.
(15) The date of the order for service of inventory made pursuant to Section 629.68, confirmation of compliance with
the order, and the number of notices sent.
(16) Other data that the Legislature, the Judicial Council, or the Director of the Administrative Office of the United
States Courts shall require.
(c) The annual report shall be filed no later than April of each year, and shall also include a summary analysis of the
data reported pursuant to subdivision (b). The Attorney General may issue regulations prescribing the content and
form of the reports required to be filed pursuant to this section by any prosecutorial agency seeking an order to
intercept wire or electronic communications.
(d) The Attorney General shall, upon the request of an individual making an application, provide any information
known to him or her as a result of these reporting requirements that would enable the individual making an
application to comply with paragraph (6) of subdivision (a) of Section 629.50.
§ 629.64. Recording of intercepted communication; requirements; protection
The contents of any wire or electronic communication intercepted by any means authorized by this chapter shall, if
possible, be recorded on any recording media. The recording of the contents of any wire or electronic communication
pursuant to this chapter shall be done in a way that will protect the recording from editing or other alterations and
ensure that the recording can be immediately verified as to its authenticity and originality and that any alteration can
be immediately detected. In addition, the monitoring or recording device shall be of a type and shall be installed to
preclude any interruption or monitoring of the interception by any unauthorized means. Immediately upon the
expiration of the period of the order, or extensions thereof, the recordings shall be made available to the judge issuing
the order and sealed under his or her directions. Custody of the recordings shall be where the judge orders. They shall
not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for 10 years.
Duplicate recordings may be made for use or disclosure pursuant to the provisions of Sections 629.74 and 629.76 for
investigations. The presence of the seal provided for by this section, or a satisfactory explanation for the absence
thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or electronic communication or
Page 9
evidence derived therefrom under Section 629.78.
§ 629.66. Sealing applications and orders; retention period
Applications made and orders granted pursuant to this chapter shall be sealed by the judge. Custody of the
applications and orders shall be where the judge orders. The applications and orders shall be disclosed only upon a
showing of good cause before a judge or for compliance with the provisions of subdivisions (b) and (c) of Section
629.70 and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for
10 years.
§ 629.68. Inventory regarding intercepted communications; service on named parties
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 issue an order that shall require the requesting agency to serve 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:
(a) The fact of the entry of the order.
(b) The date of the entry and the period of authorized interception.
(c) The fact that during the period wire or electronic 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.
§ 629.70. Notification to defendant; providing defendant copy of recorded interceptions; evidentiary or other
use; transcript furnished to parties; order limiting disclosures
(a) A defendant shall be notified that he or she was identified as the result of an interception that was obtained
pursuant to this chapter. The notice shall be provided prior to the entry of a plea of guilty or nolo contendere, or at
least 10 days prior to any trial, hearing, or proceeding in the case other than an arraignment or grand jury proceeding.
(b) Within the time period specified in subdivision (c), the prosecution shall provide to the defendant a copy of all
recorded interceptions from which evidence against the defendant was derived, including a copy of the court order,
accompanying application, and monitoring logs.
(c) Neither the contents of any intercepted wire or electronic communication nor evidence derived from those
contents shall 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
Page 10
with a transcript of the contents of the interception and with the materials specified in subdivision (b). This 10-day
period may be waived by the judge with regard to the transcript if he or she finds that it was not possible to furnish
the party with the transcript 10 days before the trial, hearing, or proceeding, and that the party will not be prejudiced
by the delay in receiving that transcript.
(d) A court may issue an order limiting disclosures pursuant to subdivisions (a) and (b) upon a showing of good
cause.
§ 629.72. Motion to suppress
Any person in any trial, hearing, or proceeding, may move to suppress some or all of the contents of any intercepted
wire or electronic communications, or evidence derived therefrom, only on the basis that the contents or evidence
were obtained in violation of the Fourth Amendment of the United States Constitution or of this chapter. The motion
shall be made, determined, and be subject to review in accordance with the procedures set forth in Section 1538.5.
§ 629.74. Disclosures; investigative or law enforcement officers; grand juries
The Attorney General, any deputy attorney general, district attorney, or deputy district attorney, or any peace officer
who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or electronic
communication, or evidence derived therefrom, may disclose the contents to one of the individuals referred to in this
section, to any judge or magistrate in the state, and to any investigative or law enforcement officer as defined in
subdivision (7) of Section 2510 of Title 18 of the United States Code to the extent that the disclosure is permitted
pursuant to Section 629.82 and is appropriate to the proper performance of the official duties of the individual making
or receiving the disclosure. No other disclosure, except to a grand jury, of intercepted information is permitted prior
to a public court hearing by any person regardless of how the person may have come into possession thereof.
§ 629.76. Use of intercepted communications; law enforcement personnel
The Attorney General, any deputy attorney general, district attorney, or deputy district attorney, or any peace officer
or federal law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the
contents of any wire or electronic communication, or evidence derived therefrom, may use the contents or evidence to
the extent the use is appropriate to the proper performance of his or her official duties and is permitted pursuant to
Section 629.82.
§ 629.78. Evidence; testimony disclosing communication
Any person who has received, by any means authorized by this chapter, any information concerning a wire or
electronic communication, or evidence derived therefrom, intercepted in accordance with the provisions of this
chapter, may, pursuant to Section 629.82, disclose the contents of that communication or derivative evidence while
giving testimony under oath or affirmation in any criminal court proceeding or in any grand jury proceeding.
§ 629.80. Privileged communications; required interruption of interception
No otherwise privileged communication intercepted in accordance with, or in violation of, the provisions of this
Page 11
chapter shall lose its privileged character. When a peace officer or federal law enforcement officer, while engaged in
intercepting wire or electronic communications in the manner authorized by this chapter, intercepts wire or electronic
communications that are of a privileged nature he or she shall immediately cease the interception for at least two
minutes. After a period of at least two minutes, interception may be resumed for up to 30 seconds during which time
the officer shall determine if the nature of the communication is still privileged. If still of a privileged nature, the
officer shall again cease interception for at least two minutes, after which the officer may again resume interception
for up to 30 seconds to redetermine the nature of the communication. The officer shall continue to go online and
offline in this manner until the time that the communication is no longer privileged or the communication ends. The
recording device shall be metered so as to authenticate upon review that interruptions occurred as set forth in this
chapter.
§ 629.82. Interceptions relating to crimes not specified in order of authorization; use
(a) If a peace officer or federal law enforcement officer, while engaged in intercepting wire or electronic
communications in the manner authorized by this chapter, intercepts wire or electronic communications relating to
crimes other than those specified in the order of authorization, but which are enumerated in subdivision (a) of Section
629.52, or any violent felony as defined in subdivision (c) of Section 667.5, (1) the contents thereof, and evidence
derived therefrom, may be disclosed or used as provided in Sections 629.74 and 629.76 and (2) the contents and any
evidence derived therefrom may be used under Section 629.78 when authorized by a judge if the judge finds, upon
subsequent application, that the contents were otherwise intercepted in accordance with the provisions of this chapter.
The application shall be made as soon as practicable.
(b) If a peace officer or federal law enforcement officer, while engaged in intercepting wire or electronic
communications in the manner authorized by this chapter, intercepts wire or electronic communications relating to
crimes other than those specified in subdivision (a), the contents thereof, and evidence derived therefrom, may not be
disclosed or used as provided in Sections 629.74 and 629.76, except to prevent the commission of a public offense.
The contents and any evidence derived therefrom may not be used under Section 629.78, except where the evidence
was obtained through an independent source or inevitably would have been discovered, and the use is authorized by a
judge who finds that the contents were intercepted in accordance with this chapter.
(c) The use of the contents of an intercepted wire or electronic communication relating to crimes other than those
specified in the order of authorization to obtain a search or arrest warrant entitles the person named in the warrant to
notice of the intercepted wire or electronic communication and a copy of the contents thereof that were used to obtain
the warrant.
§ 629.84. Violations; punishment
Any violation of this chapter is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by
imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section
1170, or by both that fine and imprisonment.
§ 629.86. Remedies for violations; damages; attorney's fees and costs; reliance on court order as defense
Any person whose wire or electronic communication is intercepted, disclosed, or used in violation of this chapter
Page 12
shall have the following remedies:
(a) Have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to
intercept, disclose, or use, the communications.
(b) Be entitled to recover, in that action, all of the following:
(1) Actual damages but not less than liquidated damages computed at the rate of one hundred dollars ($100) a day for
each day of violation or one thousand dollars ($1,000), whichever is greater.
(2) Punitive damages.
(3) Reasonable attorney's fees and other litigation costs reasonably incurred.
A good faith reliance on a court order is a complete defense to any civil or criminal action brought under this chapter,
or under Chapter 1.5 (commencing with Section 630) or any other law.
§ 629.88. Construction and application of this chapter with other laws
Nothing in Section 631, 632.5, 632.6, or 632.7 shall be construed as prohibiting any peace officer or federal law
enforcement officer from intercepting any wire or electronic communication pursuant to an order issued in
accordance with the provisions of this chapter. Nothing in Section 631, 632.5, 632.6, or 632.7 shall be construed as
rendering inadmissible in any criminal proceeding in any court or before any grand jury any evidence obtained by
means of an order issued in accordance with the provisions of this chapter. Nothing in Section 637 shall be construed
as prohibiting the disclosure of the contents of any wire or electronic communication obtained by any means
authorized by this chapter, if the disclosure is authorized by this chapter. Nothing in this chapter shall apply to any
conduct authorized by Section 633.
§ 629.89. Covert entry into dwelling or room
No order issued pursuant to this chapter shall either directly or indirectly authorize covert entry into or upon the
premises of a residential dwelling, hotel room, or motel room for installation or removal of any interception device or
for any other purpose. Notwithstanding that this entry is otherwise prohibited by any other section or code, this
chapter expressly prohibits covert entry of a residential dwelling, hotel room, or motel room to facilitate an order to
intercept wire or electronic communications.
§ 629.90. Assistance with interception; utilities, landlords, and others; compensation
An order authorizing the interception of a wire or electronic communication shall direct, upon request of the
applicant, that a public utility engaged in the business of providing communications services and facilities, a landlord,
custodian, or any other person furnish the applicant forthwith all information, facilities, and technical assistance
necessary to accomplish the interception unobtrusively and with a minimum of interference with the services which
the public utility, landlord, custodian, or other person is providing the person whose communications are to be
intercepted. Any such public utility, landlord, custodian, or other person furnishing facilities or technical assistance
Page 13
shall be fully compensated by the applicant for the reasonable costs of furnishing the facilities and technical
assistance.
§ 629.91. Utilities, landlords and others; reliance on court order as defense
A good faith reliance on a court order issued in accordance with this chapter by any public utility, landlord, custodian,
or any other person furnishing information, facilities, and technical assistance as directed by the order is a complete
defense to any civil or criminal action brought under this chapter, Chapter 1.5 (commencing with Section 630), or any
other law.
§ 629.92. Court discretion to conform proceedings to constitutional or statutory requirements
Notwithstanding any other provision of law, any court to which an application is made in accordance with this
chapter may take any evidence, make any finding, or issue any order required to conform the proceedings or the
issuance of any order of authorization or approval to the provisions of the Constitution of the United States, any law
of the United States, or this chapter.
§ 629.94. Training course; certification and recertification standards; fees
(a) The Commission on Peace Officer Standards and Training, in consultation with the Attorney General, shall
establish a course of training in the legal, practical, and technical aspects of the interception of private wire or
electronic communications and related investigative techniques.
(b) The Attorney General shall set minimum standards for certification and periodic recertification of the following
persons as eligible to apply for orders authorizing the interception of private wire or electronic communications, to
conduct the interceptions, and to use the communications or evidence derived from them in official proceedings:
(1) Investigative or law enforcement officers.
(2) Other persons, when necessary, to provide linguistic interpretation who are designated by the Attorney General,
Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or the district attorney,
or the district attorney's designee and are supervised by an investigative or law enforcement officer.
(c) The Commission on Peace Officer Standards and Training may charge a reasonable enrollment fee for those
students who are employed by an agency not eligible for reimbursement by the commission to offset the costs of the
training. The Attorney General may charge a reasonable fee to offset the cost of certification.
§ 629.96. Severability
If any provision of this chapter, or the application thereof to any person or circumstances, is held invalid, the
remainder of the chapter, and the application of its provisions to other persons or circumstances, shall not be affected
thereby.
Page 14
§ 629.98. Duration of chapter
This chapter shall remain in effect only until January 1, 2015, and as of that date is repealed.
END OF DOCUMENT
1 of 31 DOCUMENTS
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Copyright (c) 2015 by Matthew Bender & Company, Inc.
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All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code Pt. 1, Tit. 15, Ch. 1.4 Note (2015)
Pt. 1, Tit. 15, Ch. 1.4 Note
2 of 31 DOCUMENTS
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Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.50 (2015)
Page 15
Cal Pen Code § 629.50
§ 629.50. (Repealed January 1, 2020) Application for order authorizing interception;
Additional evidence; Facsimile
(a) Each application for an order authorizing the interception of a wire or electronic
communication shall be made in writing upon the personal oath or affirmation of the Attorney
General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law
Division, or of a district attorney, or the person designated to act as district attorney in the district
attorney's absence, to the presiding judge of the superior court or one other judge designated by the
presiding judge. An ordered list of additional judges may be authorized by the presiding judge to
sign an order authorizing an interception. One of these judges may hear an application and sign an
order only if that judge makes a determination that the presiding judge, the first designated judge,
and those judges higher on the list are unavailable. Each application shall include all of the
following information:
(1) The identity of the investigative or law enforcement officer making the application, and the
officer authorizing the application.
(2) The identity of the law enforcement agency that is to execute the order.
(3) A statement attesting to a review of the application and the circumstances in support thereof
by the chief executive officer, or his or her designee, of the law enforcement agency making the
application. This statement shall name the chief executive officer or the designee who effected this
review.
(4) A full and complete statement of the facts and circumstances relied upon by the applicant to
justify his or her belief that an order should be issued, including (A) details as to the particular
offense that has been, is being, or is about to be committed, (B) the fact that conventional
investigative techniques had been tried and were unsuccessful, or why they reasonably appear to be
unlikely to succeed or to be too dangerous, (C) a particular description of the nature and location of
the facilities from which or the place where the communication is to be intercepted, (D) a particular
description of the type of communication sought to be intercepted, and (E) the identity, if known, of
the person committing the offense and whose communications are to be intercepted, or if that
person's identity is not known, then the information relating to the person's identity that is known to
the applicant.
(5) A statement of the period of time for which the interception is required to be maintained,
and if the nature of the investigation is such that the authorization for interception should not
automatically terminate when the described type of communication has been first obtained, a
particular description of the facts establishing probable cause to believe that additional
communications of the same type will occur thereafter.
(6) A full and complete statement of the facts concerning all previous applications known, to
the individual authorizing and to the individual making the application, to have been made to any
judge of a state or federal court for authorization to intercept wire or electronic communications
involving any of the same persons, facilities, or places specified in the application, and the action
taken by the judge on each of those applications. This requirement may be satisfied by making
inquiry of the California Attorney General and the United States Department of Justice and
reporting the results of these inquiries in the application.
Page 16
Cal Pen Code § 629.50
(7) If the application is for the extension of an order, a statement setting forth the number of
communications intercepted pursuant to the original order, and the results thus far obtained from the
interception, or a reasonable explanation of the failure to obtain results.
(8) An application for modification of an order may be made when there is probable cause to
believe that the person or persons identified in the original order have commenced to use a facility
or device that is not subject to the original order. Any modification under this subdivision shall only
be valid for the period authorized under the order being modified. The application for modification
shall meet all of the requirements in paragraphs (1) to (6), inclusive, and shall include a statement of
the results thus far obtained from the interception, or a reasonable explanation for the failure to
obtain results.
(b) The judge may require the applicant to furnish additional testimony or documentary
evidence in support of an application for an order under this section.
(c) The judge shall accept a facsimile copy of the signature of any person required to give a
personal oath or affirmation pursuant to subdivision (a) as an original signature to the application.
The original signed document shall be sealed and kept with the application pursuant to the
provisions of Section 629.66 and custody of the original signed document shall be in the same
manner as the judge orders for the application.
3 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.51 (2015)
§ 629.51. (Repealed January 1, 2020) Definitions
(a) For the purposes of this chapter, the following terms have the following meanings:
(1) "Wire communication" means any aural transfer made in whole or in part through the use of
facilities for the transmission of communications by the aid of wire, cable, or other like connection
between the point of origin and the point of reception (including the use of a like connection in a
Page 17
Cal Pen Code § 629.51
switching station), furnished or operated by any person engaged in providing or operating these
facilities for the transmission of communications.
(2) "Electronic communication" means any transfer of signs, signals, writings, images, sounds,
data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic,
photoelectric, or photo-optical system, but does not include any of the following:
(A) Any wire communication defined in paragraph (1).
(B) Any communication made through a tone-only paging device.
(C) Any communication from a tracking device.
(D) Electronic funds transfer information stored by a financial institution in a communications
system used for the electronic storage and transfer of funds.
(3) "Tracking device" means an electronic or mechanical device that permits the tracking of the
movement of a person or object.
(4) "Aural transfer" means a transfer containing the human voice at any point between and
including the point of origin and the point of reception.
(b) This chapter applies to the interceptions of wire and electronic communications. It does not
apply to stored communications or stored content.
(c) The act that added this subdivision is not intended to change the law as to stored
communications or stored content.
4 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
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All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.52 (2015)
§ 629.52. (Repealed January 1, 2020) Ex parte order for interception
Page 18
Cal Pen Code § 629.52
Upon application made under Section 629.50, the judge may enter an ex parte order, as
requested or modified, authorizing interception of wire or electronic communications initially
intercepted within the territorial jurisdiction of the court in which the judge is sitting, if the judge
determines, on the basis of the facts submitted by the applicant, all of the following:
(a) There is probable cause to believe that an individual is committing, has committed, or is
about to commit, one of the following offenses:
(1) Importation, possession for sale, transportation, manufacture, or sale of controlled
substances in violation of Section 11351, 11351.5, 11352, 11370.6, 11378, 11378.5, 11379,
11379.5, or 11379.6 of the Health and Safety Code with respect to a substance containing heroin,
cocaine, PCP, methamphetamine, or their precursors or analogs where the substance exceeds 10
gallons by liquid volume or three pounds of solid substance by weight.
(2) Murder, solicitation to commit murder, a violation of Section 209, or the commission of a
felony involving a destructive device in violation of Section 18710, 18715, 18720, 18725, 18730,
18740, 18745, 18750, or 18755.
(3) Any felony violation of Section 186.22.
(4) Any felony violation of Section 11418, relating to weapons of mass destruction, Section
11418.5, relating to threats to use weapons of mass destruction, or Section 11419, relating to
restricted biological agents.
(5) Any violation of Section 236.1.
(6) An attempt or conspiracy to commit any of the above-mentioned crimes.
(b) There is probable cause to believe that particular communications concerning the illegal
activities will be obtained through that interception, including, but not limited to, communications
that may be utilized for locating or rescuing a kidnap victim.
(c) There is probable cause to believe that the facilities from which, or the place where, the wire
or electronic communications are to be intercepted are being used, or are about to be used, in
connection with the commission of the offense, or are leased to, listed in the name of, or commonly
used by the person whose communications are to be intercepted.
(d) Normal investigative procedures have been tried and have failed or reasonably appear either
to be unlikely to succeed if tried or to be too dangerous.
5 of 31 DOCUMENTS
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*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Page 19
Cal Pen Code § 629.53
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.53 (2015)
§ 629.53. (Repealed January 1, 2020) Guidelines for judges concerning interception
The Judicial Council may establish guidelines for judges to follow in granting an order
authorizing the interception of any wire or electronic communications.
6 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.54 (2015)
§ 629.54. (Repealed January 1, 2020) Contents of order authorizing interception
Each order authorizing the interception of any wire or electronic communication shall specify
all of the following:
(a) The identity, if known, of the person whose communications are to be intercepted, or if the
identity is not known, then that information relating to the person's identity known to the applicant.
(b) The nature and location of the communication facilities as to which, or the place where,
authority to intercept is granted.
(c) A particular description of the type of communication sought to be intercepted, and a
statement of the illegal activities to which it relates.
Page 20
Cal Pen Code § 629.54
(d) The identity of the agency authorized to intercept the communications and of the person
making the application.
(e) The period of time during which the interception is authorized including a statement as to
whether or not the interception shall automatically terminate when the described communication
has been first obtained.
7 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.56 (2015)
§ 629.56. (Repealed January 1, 2020) Oral approval for interception
(a) Upon informal application by the Attorney General, Chief Deputy Attorney General, or
Chief Assistant Attorney General, Criminal Law Division, or a district attorney, or the person
designated to act as district attorney in the district attorney's absence, the presiding judge of the
superior court or the first available judge designated as provided in Section 629.50 may grant oral
approval for an interception, without an order, if he or she determines all of the following:
(1) There are grounds upon which an order could be issued under this chapter.
(2) There is probable cause to believe that an emergency situation exists with respect to the
investigation of an offense enumerated in this chapter.
(3) There is probable cause to believe that a substantial danger to life or limb exists justifying
the authorization for immediate interception of a private wire or electronic communication before
an application for an order could with due diligence be submitted and acted upon.
(b) Approval for an interception under this section shall be conditioned upon filing with the
judge, by midnight of the second full court day after the oral approval, a written application for an
order which, if granted consistent with this chapter, shall also recite the oral approval under this
subdivision and be retroactive to the time of the oral approval.
Page 21
8 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.58 (2015)
§ 629.58. (Repealed January 1, 2020) Duration of order
No order entered under this chapter shall authorize the interception of any wire or electronic
communication for any period longer than is necessary to achieve the objective of the authorization,
nor in any event longer than 30 days, commencing on the day of the initial interception, or 10 days
after the issuance of the order, whichever comes first. Extensions of an order may be granted, but
only upon application for an extension made in accordance with Section 629.50 and upon the court
making findings required by Section 629.52. The period of extension shall be no longer than the
authorizing judge deems necessary to achieve the purposes for which it was granted and in no event
any longer than 30 days. Every order and extension thereof shall contain a provision that the
authorization to intercept shall be executed as soon as practicable, shall be conducted so as to
minimize the interception of communications not otherwise subject to interception under this
chapter, and shall terminate upon attainment of the authorized objective, or in any event at the time
expiration of the term designated in the order or any extensions. In the event the intercepted
communication is in a foreign language, an interpreter of that foreign language may assist peace
officers in executing the authorization provided in this chapter, provided that the interpreter has the
same training as any other intercepter authorized under this chapter and provided that the
interception shall be conducted so as to minimize the interception of communications not otherwise
subject to interception under this chapter.
9 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
Page 22
Cal Pen Code § 629.60
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.60 (2015)
§ 629.60. (Repealed January 1, 2020) Required reports to issuing judge
Whenever an order authorizing an interception is entered, the order shall require reports in
writing or otherwise to be made to the judge who issued the order showing the number of
communications intercepted pursuant to the original order, and a statement setting forth what
progress has been made toward achievement of the authorized objective, or a satisfactory
explanation for its lack, and the need for continued interception. If the judge finds that progress has
not been made, that the explanation for its lack is not satisfactory, or that no need exists for
continued interception, he or she shall order that the interception immediately terminate. The reports
shall be filed with the court at the intervals that the judge may require, but not less than one for each
period of 10 days, commencing with the date of the signing of the order, and shall be made by any
reasonable and reliable means, as determined by the judge.
10 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Page 23
Cal Pen Code § 629.61
Cal Pen Code § 629.61 (2015)
§ 629.61. (Repealed January 1, 2020) Report to Attorney General
(a) Whenever an order authorizing an interception is entered, the order shall require a report in
writing or otherwise to be made to the Attorney General showing what persons, facilities, places, or
any combination of these are to be intercepted pursuant to the application, and the action taken by
the judge on each of those applications. The report shall be made at the interval that the order may
require, but not more than 10 days after the order was issued, and shall be made by any reasonable
and reliable means, as determined by the Attorney General.
(b) The Attorney General may issue regulations prescribing the collection and dissemination of
information collected pursuant to this chapter.
(c) The Attorney General shall, upon the request of an individual making an application for an
interception order pursuant to this chapter, provide any information known as a result of these
reporting requirements and in compliance with paragraph (6) of subdivision (a) of Section 629.50.
11 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.62 (2015)
§ 629.62. (Repealed January 1, 2020) Annual report on interceptions
(a) The Attorney General shall prepare and submit an annual report to the Legislature, the
Judicial Council, and the Director of the Administrative Office of the United States Courts on
interceptions conducted under the authority of this chapter during the preceding year. Information
for this report shall be provided to the Attorney General by any prosecutorial agency seeking an
order pursuant to this chapter.
(b) The report shall include all of the following data:
Page 24
Cal Pen Code § 629.62
(1) The number of orders or extensions applied for.
(2) The kinds of orders or extensions applied for.
(3) The fact that the order or extension was granted as applied for, was modified, or was denied.
(4) The number of wire or electronic communication devices that are the subject of each order
granted.
(5) The period of interceptions authorized by the order, and the number and duration of any
extensions of the order.
(6) The offense specified in the order or application, or extension of an order.
(7) The identity of the applying law enforcement officer and agency making the application and
the person authorizing the application.
(8) The nature of the facilities from which or the place where communications were to be
intercepted.
(9) A general description of the interceptions made under the order or extension, including (A)
the number of persons whose communications were intercepted, (B) the number of communications
intercepted, (C) the percentage of incriminating communications intercepted and the percentage of
other communications intercepted, and (D) the approximate nature, amount, and cost of the
manpower and other resources used in the interceptions.
(10) The number of arrests resulting from interceptions made under the order or extension, and
the offenses for which arrests were made.
(11) The number of trials resulting from the interceptions.
(12) The number of motions to suppress made with respect to the interceptions, and the number
granted or denied.
(13) The number of convictions resulting from the interceptions and the offenses for which the
convictions were obtained and a general assessment of the importance of the interceptions.
(14) Except with regard to the initial report required by this section, the information required by
paragraphs (9) to (13), inclusive, with respect to orders or extensions obtained in a preceding
calendar year.
(15) The date of the order for service of inventory made pursuant to Section 629.68,
confirmation of compliance with the order, and the number of notices sent.
(16) Other data that the Legislature, the Judicial Council, or the Director of the Administrative
Office of the United States Courts shall require.
(c) The annual report shall be filed no later than April of each year, and shall also include a
summary analysis of the data reported pursuant to subdivision (b). The Attorney General may issue
regulations prescribing the content and form of the reports required to be filed pursuant to this
section by any prosecutorial agency seeking an order to intercept wire or electronic
communications.
(d) The Attorney General shall, upon the request of an individual making an application,
provide any information known to him or her as a result of these reporting requirements that would
Page 25
Cal Pen Code § 629.62
enable the individual making an application to comply with paragraph (6) of subdivision (a) of
Section 629.50.
12 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.64 (2015)
§ 629.64. (Repealed January 1, 2020) Recordation of interception
The contents of any wire or electronic communication intercepted by any means authorized by
this chapter shall, if possible, be recorded on any recording media. The recording of the contents of
any wire or electronic communication pursuant to this chapter shall be done in a way that will
protect the recording from editing or other alterations and ensure that the recording can be
immediately verified as to its authenticity and originality and that any alteration can be immediately
detected. In addition, the monitoring or recording device shall be of a type and shall be installed to
preclude any interruption or monitoring of the interception by any unauthorized means.
Immediately upon the expiration of the period of the order, or extensions thereof, the recordings
shall be made available to the judge issuing the order and sealed under his or her directions.
Custody of the recordings shall be where the judge orders. They shall not be destroyed except upon
an order of the issuing or denying judge and in any event shall be kept for 10 years. Duplicate
recordings may be made for use or disclosure pursuant to the provisions of Sections 629.74 and
629.76 for investigations. The presence of the seal provided for by this section, or a satisfactory
explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents
of any wire or electronic communication or evidence derived therefrom under Section 629.78.
13 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
Page 26
Cal Pen Code § 629.66
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.66 (2015)
§ 629.66. (Repealed January 1, 2020) Applications and orders to be sealed
Applications made and orders granted pursuant to this chapter shall be sealed by the judge.
Custody of the applications and orders shall be where the judge orders. The applications and orders
shall be disclosed only upon a showing of good cause before a judge or for compliance with the
provisions of subdivisions (b) and (c) of Section 629.70 and shall not be destroyed except on order
of the issuing or denying judge, and in any event shall be kept for 10 years.
14 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.68 (2015)
§ 629.68. (Repealed January 1, 2020) Notice to persons named in order or application and
other parties to interception
Page 27
Cal Pen Code § 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 issue an order that shall require the
requesting agency to serve 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:
(a) The fact of the entry of the order.
(b) The date of the entry and the period of authorized interception.
(c) The fact that during the period wire or electronic 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.
15 of 31 DOCUMENTS
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Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.70 (2015)
§ 629.70. (Repealed January 1, 2020) Use of contents of intercepted communication as
evidence
(a) A defendant shall be notified that he or she was identified as the result of an interception that
was obtained pursuant to this chapter. The notice shall be provided prior to the entry of a plea of
guilty or nolo contendere, or at least 10 days prior to any trial, hearing, or proceeding in the case
other than an arraignment or grand jury proceeding.
Page 28
Cal Pen Code § 629.70
(b) Within the time period specified in subdivision (c), the prosecution shall provide to the
defendant a copy of all recorded interceptions from which evidence against the defendant was
derived, including a copy of the court order, accompanying application, and monitoring logs.
(c) Neither the contents of any intercepted wire or electronic communication nor evidence
derived from those contents shall 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 the materials specified in subdivision (b). This 10-day period may be
waived by the judge with regard to the transcript if he or she finds that it was not possible to furnish
the party with the transcript 10 days before the trial, hearing, or proceeding, and that the party will
not be prejudiced by the delay in receiving that transcript.
(d) A court may issue an order limiting disclosures pursuant to subdivisions (a) and (b) upon a
showing of good cause.
16 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.72 (2015)
§ 629.72. (Repealed January 1, 2020) Suppression of contents of intercepted communication
Any person in any trial, hearing, or proceeding, may move to suppress some or all of the
contents of any intercepted wire or electronic communications, or evidence derived therefrom, only
on the basis that the contents or evidence were obtained in violation of the Fourth Amendment of
the United States Constitution or of this chapter. The motion shall be made, determined, and be
subject to review in accordance with the procedures set forth in Section 1538.5.
17 of 31 DOCUMENTS
Page 29
Cal Pen Code § 629.74
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.74 (2015)
§ 629.74. (Repealed January 1, 2020) Disclosure of intercepted information to law
enforcement officers
The Attorney General, any deputy attorney general, district attorney, or deputy district attorney,
or any peace officer who, by any means authorized by this chapter, has obtained knowledge of the
contents of any wire or electronic communication, or evidence derived therefrom, may disclose the
contents to one of the individuals referred to in this section, to any judge or magistrate in the state,
and to any investigative or law enforcement officer as defined in subdivision (7) of Section 2510 of
Title 18 of the United States Code to the extent that the disclosure is permitted pursuant to Section
629.82 and is appropriate to the proper performance of the official duties of the individual making
or receiving the disclosure. No other disclosure, except to a grand jury, of intercepted information is
permitted prior to a public court hearing by any person regardless of how the person may have come
into possession thereof.
18 of 31 DOCUMENTS
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Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
Page 30
Cal Pen Code § 629.76
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.76 (2015)
§ 629.76. (Repealed January 1, 2020) Use of information or evidence by law enforcement
officers
The Attorney General, any deputy attorney general, district attorney, or deputy district attorney,
or any peace officer or federal law enforcement officer who, by any means authorized by this
chapter, has obtained knowledge of the contents of any wire or electronic communication, or
evidence derived therefrom, may use the contents or evidence to the extent the use is appropriate to
the proper performance of his or her official duties and is permitted pursuant to Section 629.82.
19 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.78 (2015)
§ 629.78. (Repealed January 1, 2020) Disclosure of contents of interception by witness
Any person who has received, by any means authorized by this chapter, any information
concerning a wire or electronic communication, or evidence derived therefrom, intercepted in
accordance with the provisions of this chapter, may, pursuant to Section 629.82, disclose the
contents of that communication or derivative evidence while giving testimony under oath or
affirmation in any criminal court proceeding or in any grand jury proceeding.
20 of 31 DOCUMENTS
Page 31
Cal Pen Code § 629.80
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.80 (2015)
§ 629.80. (Repealed January 1, 2020) Privileged information
No otherwise privileged communication intercepted in accordance with, or in violation of, the
provisions of this chapter shall lose its privileged character. When a peace officer or federal law
enforcement officer, while engaged in intercepting wire or electronic communications in the manner
authorized by this chapter, intercepts wire or electronic communications that are of a privileged
nature he or she shall immediately cease the interception for at least two minutes. After a period of
at least two minutes, interception may be resumed for up to 30 seconds during which time the
officer shall determine if the nature of the communication is still privileged. If still of a privileged
nature, the officer shall again cease interception for at least two minutes, after which the officer may
again resume interception for up to 30 seconds to redetermine the nature of the communication. The
officer shall continue to go online and offline in this manner until the time that the communication
is no longer privileged or the communication ends. The recording device shall be metered so as to
authenticate upon review that interruptions occurred as set forth in this chapter.
21 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Page 32
Cal Pen Code § 629.82
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.82 (2015)
§ 629.82. (Repealed January 1, 2020) Information on crimes not specified in authorization
(a) If a peace officer or federal law enforcement officer, while engaged in intercepting wire or
electronic communications in the manner authorized by this chapter, intercepts wire or electronic
communications relating to crimes other than those specified in the order of authorization, but
which are enumerated in subdivision (a) of Section 629.52, or any violent felony as defined in
subdivision (c) of Section 667.5, (1) the contents thereof, and evidence derived therefrom, may be
disclosed or used as provided in Sections 629.74 and 629.76 and (2) the contents and any evidence
derived therefrom may be used under Section 629.78 when authorized by a judge if the judge finds,
upon subsequent application, that the contents were otherwise intercepted in accordance with the
provisions of this chapter. The application shall be made as soon as practicable.
(b) If a peace officer or federal law enforcement officer, while engaged in intercepting wire or
electronic communications in the manner authorized by this chapter, intercepts wire or electronic
communications relating to crimes other than those specified in subdivision (a), the contents
thereof, and evidence derived therefrom, may not be disclosed or used as provided in Sections
629.74 and 629.76, except to prevent the commission of a public offense. The contents and any
evidence derived therefrom may not be used under Section 629.78, except where the evidence was
obtained through an independent source or inevitably would have been discovered, and the use is
authorized by a judge who finds that the contents were intercepted in accordance with this chapter.
(c) The use of the contents of an intercepted wire or electronic communication relating to crimes
other than those specified in the order of authorization to obtain a search or arrest warrant entitles
the person named in the warrant to notice of the intercepted wire or electronic communication and a
copy of the contents thereof that were used to obtain the warrant.
22 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Page 33
Cal Pen Code § 629.84
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.84 (2015)
§ 629.84. (Repealed January 1, 2020) Violation; Punishment
Any violation of this chapter is punishable by a fine not exceeding two thousand five hundred
dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment
pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.
23 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.86 (2015)
§ 629.86. (Repealed January 1, 2020) Remedies of person whose communication is
intercepted
Any person whose wire or electronic communication is intercepted, disclosed, or used in
violation of this chapter shall have the following remedies:
(a) Have a civil cause of action against any person who intercepts, discloses, or uses, or
procures any other person to intercept, disclose, or use, the communications.
(b) Be entitled to recover, in that action, all of the following:
(1) Actual damages but not less than liquidated damages computed at the rate of one hundred
dollars ($100) a day for each day of violation or one thousand dollars ($1,000), whichever is
greater.
Page 34
Cal Pen Code § 629.86
(2) Punitive damages.
(3) Reasonable attorney's fees and other litigation costs reasonably incurred.
A good faith reliance on a court order is a complete defense to any civil or criminal action
brought under this chapter, or under Chapter 1.5 (commencing with Section 630) or any other law.
24 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.88 (2015)
§ 629.88. (Repealed January 1, 2020) Applicability of other provisions
Nothing in Section 631, 632.5, 632.6, or 632.7 shall be construed as prohibiting any peace
officer or federal law enforcement officer from intercepting any wire or electronic communication
pursuant to an order issued in accordance with the provisions of this chapter. Nothing in Section
631, 632.5, 632.6, or 632.7 shall be construed as rendering inadmissible in any criminal proceeding
in any court or before any grand jury any evidence obtained by means of an order issued in
accordance with the provisions of this chapter. Nothing in Section 637 shall be construed as
prohibiting the disclosure of the contents of any wire or electronic communication obtained by any
means authorized by this chapter, if the disclosure is authorized by this chapter. Nothing in this
chapter shall apply to any conduct authorized by Section 633.
25 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
Page 35
Cal Pen Code § 629.89
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.89 (2015)
§ 629.89. (Repealed January 1, 2020) Prohibition of covert entry to install devices
No order issued pursuant to this chapter shall either directly or indirectly authorize covert entry
into or upon the premises of a residential dwelling, hotel room, or motel room for installation or
removal of any interception device or for any other purpose. Notwithstanding that this entry is
otherwise prohibited by any other section or code, this chapter expressly prohibits covert entry of a
residential dwelling, hotel room, or motel room to facilitate an order to intercept wire or electronic
communications.
26 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.90 (2015)
§ 629.90. (Repealed January 1, 2020) Facilities and technical assistance to be furnished by
public utility, landlord, custodian and others
Page 36
Cal Pen Code § 629.90
An order authorizing the interception of a wire or electronic communication shall direct, upon
request of the applicant, that a public utility engaged in the business of providing communications
services and facilities, a landlord, custodian, or any other person furnish the applicant forthwith all
information, facilities, and technical assistance necessary to accomplish the interception
unobtrusively and with a minimum of interference with the services which the public utility,
landlord, custodian, or other person is providing the person whose communications are to be
intercepted. Any such public utility, landlord, custodian, or other person furnishing facilities or
technical assistance shall be fully compensated by the applicant for the reasonable costs of
furnishing the facilities and technical assistance.
27 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.91 (2015)
§ 629.91. (Repealed January 1, 2020) Defense of good faith reliance on court order by public
utility, landlord, custodian or others
A good faith reliance on a court order issued in accordance with this chapter by any public
utility, landlord, custodian, or any other person furnishing information, facilities, and technical
assistance as directed by the order is a complete defense to any civil or criminal action brought
under this chapter, Chapter 1.5 (commencing with Section 630), or any other law.
28 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
Page 37
Cal Pen Code § 629.92
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.92 (2015)
§ 629.92. (Repealed January 1, 2020) Conformance with constitutional and statutory
requirements
Notwithstanding any other provision of law, any court to which an application is made in
accordance with this chapter may take any evidence, make any finding, or issue any order required
to conform the proceedings or the issuance of any order of authorization or approval to the
provisions of the Constitution of the United States, any law of the United States, or this chapter.
29 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.94 (2015)
§ 629.94. (Repealed January 1, 2020) Certification and training of law enforcement officers
(a) The Commission on Peace Officer Standards and Training, in consultation with the Attorney
General, shall establish a course of training in the legal, practical, and technical aspects of the
interception of private wire or electronic communications and related investigative techniques.
Page 38
Cal Pen Code § 629.94
(b) The Attorney General shall set minimum standards for certification and periodic
recertification of the following persons as eligible to apply for orders authorizing the interception of
private wire or electronic communications, to conduct the interceptions, and to use the
communications or evidence derived from them in official proceedings:
(1) Investigative or law enforcement officers.
(2) Other persons, when necessary, to provide linguistic interpretation who are designated by
the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General,
Criminal Law Division, or the district attorney, or the district attorney's designee and are supervised
by an investigative or law enforcement officer.
(c) The Commission on Peace Officer Standards and Training may charge a reasonable
enrollment fee for those students who are employed by an agency not eligible for reimbursement by
the commission to offset the costs of the training. The Attorney General may charge a reasonable
fee to offset the cost of certification.
30 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.96 (2015)
§ 629.96. (Repealed January 1, 2020) Severability of provisions
If any provision of this chapter, or the application thereof to any person or circumstances, is
held invalid, the remainder of the chapter, and the application of its provisions to other persons or
circumstances, shall not be affected thereby.
31 of 31 DOCUMENTS
DEERING'S CALIFORNIA CODES ANNOTATED
Page 39
Cal Pen Code § 629.98
Copyright (c) 2015 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current for urgency legislation through Chapter 2 of the 2015 Session. "
PENAL CODE
Part 1. Of Crimes and Punishments
Title 15. Miscellaneous Crimes
Chapter 1.4. Interception of Wire, Electronic Digital Pager, or Electronic Cellular Telephone
Communications (Repealed January 1, 2020)
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Pen Code § 629.98 (2015)
§ 629.98. (Repealed January 1, 2020) Repeal of chapter
This chapter shall only remain in effect until January 1, 2020, and as of that date is repealed.
