A Half Step in Our Favor on State Wiretaps

December 16, 2014
By Hanging Out with Carl Gunn


  • A wiretap application may be made only by certain high prosecutorial officials, not a mere law enforcement officer or even an ordinary line prosecutor.
  • Two Ninth Circuit opinions in the last two years have established that the only state officials who can apply for a wiretap are the state attorney general, an actual county district attorney, or an acting district attorney who has authority over not just some office functions but all of the “routine standard daily functions” of the office.
  • This limitation opens the door to challenges to some state wiretaps, as illustrated by cases from several state courts.


Two and a half years ago I put up a post on an issue I then had pending in the Ninth Circuit on who could apply for a wiretap in state court. (See “Who Gets to Tap Your Phone: Just the DA Himself or His Assistants Too? Maybe Even His Secretary? How About the Janitor?” in the May 2012 link at the right.) I noted that the federal wiretap statute limits both the federal officials and the state officials who can apply for a wiretap. Neither law enforcement officials nor ordinary prosecutors can apply – at least without authorization from a higher official. In the case of federal wiretaps, the application has to be authorized by one of certain specified Department of Justice officials in Washington, D.C. See 18 U.S.C. § 2516(1). In the case of state wiretaps, the application has to be by “the principal prosecuting attorney of [the] State, or the principal prosecuting attorney of any political subdivision thereof.” 18 U.S.C. § 2516(2). The argument I was making in the appeal I described in my prior post and the brief which I linked to that post was that the “principal prosecuting attorney” requirement meant the District Attorney himself and didn’t include an assistant district attorney, even a supervisory assistant designated as the “acting” district attorney when the actual District Attorney was absent.

My litigation of the issue finally ended with the denial of a cert petition last October, and I’m afraid I didn’t prevail on my argument. Still, there were two Ninth Circuit opinions published – one ordering a remand for further findings and one after the further findings were made – that place significant limitations on the state officials who can apply. The first opinion, while rejecting the argument that the applicant always has to be the state attorney general or an actual district attorney, did hold that the state attorney general or district attorney can’t just generally designate any old assistant to apply for wiretaps. Instead:

We hold . . . that “the” attorney designated to act in the district attorney’s absence – as [the California statute] specifies – must 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.

United States v. Perez-Valencia, 727 F.3d 852, 855 (9th Cir. 2013) (emphasis in original). The court then remanded for further findings about whether this was true in the case at bar, noting that a memorandum introduced as evidence in the lower court listed three different assistants and was ambiguous about their relative authority. See id.

The same panel then clarified (read backed around), after the further findings it requested were made on remand, that this didn’t create quite as strong of a limitation as it sounds like. It nonetheless leaves a pretty strong limitation. What the panel said in this second opinion was:

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. As explained by the [district attorney, in testimony on remand], such a decision is made by a committee over a prolonged period of time. Such committee meetings are simply not scheduled in [the district attorney’s] absence.

United States v. Perez-Valencia, 744 F.3d 600, 604 (9th Cir. 2014).

Even in this modified form, the opinion creates a significant limitation. The only time an assistant can file an application is when (1) he or she is the acting district attorney while the district attorney is out for some reason; (2) he or she is the only acting district attorney, not one of several acting in different areas or with equal authority; and (3) he or she not only has authority beyond just applying for wiretaps but has authority over all the “routine standard daily functions” of the office. This would invalidate delegations of wiretap authority to more ordinary assistants like some state courts have considered, see, e.g., State v. Farha, 544 P.2d 341, 349 (Kan. 1975); State v. McGhee, 447 A.2d 888, 891 (Md. App. 1982); State v. Frink, 206 N.W.2d 664, 672-73 (Minn. 1973), and in one instance even approved, see State v. Verdugo, 883 P.2d 417, 420 (Ariz. App. 1993). It would also invalidate delegations to even assistants who are “acting” district attorneys in the district attorney’s absence if the “acting” status was not sufficiently complete.

Our friends in Arizona in particular may have an issue here. The Arizona Court of Appeals opinion cited in the preceding paragraph approves delegation of wiretap authority that would seem to go well beyond what’s allowed by the opinions in thePerez-Valencia case. Arizona prosecutors relying on the Arizona Court of Appeals opinion and ignoring the Perez-Valenciaopinions may create a wiretap – and fruits – that are subject to suppression if subsequently used in a federal prosecution.

Finally, one last thought, in the spirit of never giving up. The cert petition in the Perez-Valencia case was denied. But if you look at the state court opinions out there in addition to the federal court opinions, there’s a decent argument that there’s a rather significant split of authority in the lower courts. For anyone who has the issue come up and is interested in giving it another shot, I’ve attached the cert petition – linked here – that lays out that split of authority. You could also use the case law in the petition – and the arguments in the brief linked to my original post – to make the argument in another circuit that hasn’t addressed this issue.

As suggested here, “never give up.”