BLOG BULLETS:

• The wiretap statute allows state wiretaps only when the state official applying for the wiretap is the “principal prosecuting attorney” of the state or a “political subdivision thereof.”
• Recent Ninth Circuit opinions recognize this requirement and hold it prohibits applications by an assistant district attorney unless the district attorney is absent and has delegated all authority over the office to the assistant, not just the authority to apply for wiretaps.
• Two recent USA Today articles and data they point to suggest that Southern California district attorneys are still not complying with this requirement, which creates the possibility of suppressing all evidence obtained as a result of state wiretaps, including fruits of the poisonous tree.

 

NOW THE BLOG:

At the end of last year, I put up a post about two Ninth Circuit opinions placing some restrictions on state wiretaps that, though not as strong as argued for, were still significant.  See “A Half Step in Our Favor on State Wiretaps” in the December 2014 link at the right, discussing the Ninth Circuit opinions in United States v. Perez-Valencia, 727 F.3d 852 (9th Cir. 2013) (“Perez-Valencia I”) and United States v. Perez-Valencia, 744 F.3d 600 (9th Cir. 2014) (“Perez-Valencia II”).

These opinions recognized that the wiretap statute limits the state officials who can apply for wiretaps – to the “principal prosecuting attorney” of either the entire state or a “political subdivision thereof.”  18 U.S.C. § 2516(2), quoted in Perez-Valencia I, 727 F.3d at 854.  The court rejected the argument that this prevented a district attorney from ever delegating wiretap authority to an assistant, but held it did strictly limit delegation.  In particular, the district attorney can delegate wiretap authority only when (1) the district attorney himself or herself is absent and (2) he or she has delegated not just wiretap authority, but all authority.  The first opinion described this requirement as requiring the assistant in question to “be acting in the district attorney’s absence not just as an assistant district attorney designated with the limited authority to apply for a wiretap order, but as an assistant district attorney duly designated to act for all purposes as the district attorney of the political subdivision in question.”  Perez-Valencia I, 727 F.3d at 855 (emphasis in original).  The second opinion limited the breadth of the required delegation a little, but held there still had to be a delegation of much more than just the authority to apply for wiretaps.  As articulated in the second opinion, after a remand for further findings:

Now that we have the benefit of a complete record, we find it appropriate to qualify our use in our first opinion of the word “all.”  We now use that word to refer to the routine standard daily functions of a prosecutor’s office, which does not include administrative matters involving budgets, personnel, or even the unique penalty decision in a capital case.

Perez-Valencia II, 744 F.3d at 604.  In other words, the assistant acting in the district attorney’s absence has to have “acting” authority over the office as a whole, albeit just the “routine, standard daily functions,” not just wiretaps.

Two recent articles published in USA Today – and data pointed out to me by one of the reporters who wrote the articles – suggest that district attorneys here in Southern California not only were failing to comply with this requirement before the Perez-Valencia opinions but are still failing to do so.  In the first article, linked here, the reporters expose the fact that Riverside County had become, at least until a new district attorney took over earlier this year, a virtual wiretap factory, used by federal agents as well as state officers.  The article reports, first, that the Riverside County judge assigned to review wiretap applications signed off on five times as many applications as any other judge in the country, and, second, that federal prosecutors “were particularly concerned that the DEA was seeking state-court wiretap orders without adequately showing that it had first tried other, less intrusive, investigative techniques,” i.e., what we call the “necessity” requirement.

The second article, linked here, then shows there’s been consistent failure to comply with the requirement recognized in the Perez-Valencia opinions discussed above – that the wiretap authority be exercised by the “principal prosecuting attorney,” which would be the district attorney himself or herself when he or she is in the office.  The article notes that the district attorney in the Riverside County wiretap factory – which the article indicates accounted for almost one out of every five wiretaps in the country last year – turned the job of reviewing applications over to lower-level lawyers even when he was in the office.  The second article also quotes the San Bernardino County District Attorney whose office applied for the wiretap challenged in the Perez-Valencia case as saying he had warned the Riverside County District Attorney about the problem and the Riverside County District Attorney “said that he had so many that it would be impossible for him to sign them all.”

The second article also points to federal records which show non-compliance with what the Perez-Valencia opinions require.  It describes those records as showing Riverside prosecutors obtained at least 738 wiretaps after the Perez-Valencia decision and nearly all of them were authorized by an assistant.  The article also notes that “Los Angeles prosecutors reported that hundreds of wiretaps had been approved by the head of the office’s drug crimes unit, not the district attorney,” though “[a] spokesman said the information in those reports was incorrect.”

When he contacted me, the reporter who wrote the article provided me with additional data for the year of the Perez-Valencia wiretap, which was 2010, and he subsequently directed me to the website where the data for last year and other years can be found.  If you want to look for yourself, the website is http://www.uscourts.gov/statistics-reports/analysis-reports/wiretap-reports, but I’ve also attached the 2010 data here and later data for 2013 and 2014, which were the years of the Perez-Valencia opinions, here and here.

These data suggest non-compliance with the statutory requirement discussed and clarified in the Perez-Valencia opinions in all three years.  In the Riverside County wiretap factory, the records show every 2010 wiretap was authorized by an attorney named Keenan, which my Google research shows was not the name of the district attorney in 2010, and every 2013 and 2014 wiretap was authorized by an attorney named Van Wageman or an attorney named Datig, neither of which was the name of the district attorney in those years.  In San Bernardino County, which the Perez-Valencia wiretap came out of, the records show only 12 of 43 wiretaps in 2013 as being authorized by the district attorney, whose name is Ramos; the remaining 29 wiretaps in that year, all of 30 wiretaps in 2014, and all of 116 wiretaps in 2010 are reflected as being authorized by other attorneys.  In Los Angeles County, the records reflect all but 3 of 198 wiretaps in 2010 were authorized by the district attorney at that time, Steve Cooley, but none of the 148 wiretaps in 2013 or the 128 wiretaps in 2014 were authorized by the district attorney in those years, Jackie Lacey.  The second of the two USA Today articles does reflect, as noted above, a claim by a “spokesperson” that the records for Los Angeles County are “incorrect.”  Still, the official federal records would seem at least to raise doubt, especially when the district attorney was correctly listed in the 2010 records.

This suggests a strong basis for a motion to suppress in any case where the government is relying on a state wiretap, at least from these time periods.  This very possibly could include your present cases, since wiretap investigations sometimes go on for quite some time before people are indicted and the resulting cases can drag on in court for a long time after that.  And remember it’s not just the recorded conversations that would be subject to suppression.  As pointed out by a defense attorney who was quoted in the second article, “anything derived from that material is also subject to suppression.”  See 18 U.S.C. § 2515 (providing that “no part of the contents of such communication and no evidence derived therefrom may be received in any trial, hearing, or other proceeding . . . if the disclosure of that information would be in violation of this chapter” (emphasis added)); United States v. Spagnuolo, 549 F.2d 705, 711 (9th Cir. 1977) (holding that § 2515 “codifies the ‘fruits of the poisonous tree’ doctrine”).

So when you have a state wiretap, remember this authorization issue in addition to the usual wiretap issues.  State authorities were obviously slow to adapt; indeed, they may still not have done so.  It’ll be interesting to see what the federal report for 2015 wiretaps shows when it comes out.