A State Court’s Mistaken Take on the Effect of the Federal Wiretap Statute on State Wiretap Authority.

April 11, 2017
By Hanging Out with Carl Gunn


  • Some state courts are allowing designated assistant district attorneys to apply for state wiretaps even when the district attorney himself is not absent.
  • This is inconsistent with the federal wiretap statute as interpreted in United States v. Perez-Valencia, 727 F.3d 852 (9th Cir. 2013), and United States v. Perez-Valencia, 744 F.3d 600 (9th Cir. 2014).
  • This makes it important to continue keeping your eye out for state wiretap applications signed by assistant district attorneys rather than the district attorney himself or herself.



You may recall several past posts on state wiretap application practices that either do violate or come close to violating the federal wiretap statute.  (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, “A Half Step in Our Favor on State Wiretaps” in the December 2014 link, and “State Authorities Are Still Violating the Wiretap Law” in the December 2015 link.)  You may recall (or may not) that the federal wiretap statute governs not only who can apply for wiretaps in federal court, but also who can apply for wiretaps in state court, limiting the state officials who can apply to “the principal prosecuting attorney of [the] State, or the principal prosecuting attorney of any political subdivision thereof.”  18 U.S.C. § 2518(2).  The second of the posts noted above discussed two opinions in United States v. Perez-Valencia, one published at 727 F.3d 852, and the other published at 744 F.3d 600, which held that the “principal prosecuting attorney” can be an assistant, but it has to be an assistant who (1) is “acting in the district attorney’s absence” and (2) is “designated to act for all purposes as the district attorney.”  Perez-Valencia I, 727 F.3d at 855 (emphasis in original).  See also Perez-Valencia II, 744 F.3d at 604 (qualifying “all” to mean “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”).

A comment on one of these posts a couple of months ago brought to my attention that some state court judges – or at least one state court judge – aren’t recognizing the full impact of Perez-Valencia, as reflected in the transcript of one state judge’s oral ruling on a wiretap motion attached here.  The judge there read “absence” in the California wiretap statute provision allowing applications by “the person designated to act as district attorney in a district attorney’s absence” as not requiring actual absence of the district attorney but simply identifying the “second in command” who takes charge if the district attorney is absent.  (See pages 121-23 of the attached transcript.)  It seems to me this conflicts with Perez-Valencia, which pretty clearly requires not only that the person acting be the person in charge when the district attorney is absent, but also that the district attorney in fact be absent.  This also seems to be the only reading consistent with the language in 18 U.S.C. § 2518(2), which requires the applicant to be “the principal prosecuting attorney” (emphasis added).  To the extent an assistant could ever be “the principal prosecuting attorney,” which was disputed by the defense in Perez-Valencia, it would seem to be only when he’s in fact in charge, which would be when the district attorney is actually gone.  The problem with the reasoning of the state judge in the attached transcript is that he interprets only the California statute and entirely ignores the limits created by the federal statute, which would have to control under the Supremacy Clause.

What a state judge thinks is obviously not going to control over Perez-Valencia in our circuit.  Still, it’s worth knowing because it means state authorities – judges and, presumably, prosecutors – are allowing wiretap applications that would be found to unlawful under Perez-Valencia.  So it’s still worth watching for this issue when you see a state wiretap.