Who Gets to Tap Your Phone: Just the DA Himself or His Assistants Too? Maybe Even His Secretary? How About the Janitor?

May 29, 2012
By Hanging Out with Carl Gunn

An interesting issue about wiretaps presented itself recently in one of my cases. I thought I’d share it because it was something I honestly hadn’t thought of until I looked more carefully at the statute. I litigated the issue in the district court and now have the issue on appeal, with the opening brief just filed (and linked below). It looks like it’s an issue of almost first impression, with just a couple of court of appeals cases (from the First and Second Circuits) touching on the issue in some relatively brief dictum.

The issue involves state wiretap applications. As most federal practitioners know from the federal wiretap applications they see, wiretap applications require much more than search warrant applications. In addition to adding the requirement of necessity to the traditional requirement of probable cause, the federal wiretap statute places some stringent limitations on who can even apply for a wiretap. A law enforcement officer can’t apply on his or her own, and even an assistant united states attorney (I’m deliberately using lower case letters there) can apply for a wiretap only when it’s been specifically authorized by certain high-up central Department of Justice officials in Washington, D.C. That’s why we always see that memo attached as an exhibit to the wiretap applications documenting that there’s been approval by one of those high-up officials. The specific provision is in 18 U.S.C. § 2516(1), which says that the application has to be authorized by “[t]he Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially designated by the Attorney General.”

But before you get too excited and start thinking state prosecutors can never apply for wiretaps, I need to add that § 2516(1) is accompanied by another subsection — § 2516(2) — which does allow state officials to apply for wiretaps. But that subsection also limits the application authority to high prosecutorial officials, by requiring that the application be by “[t]he principal prosecuting attorney of [the] State, or the principal prosecuting attorney of any political subdivision thereof.”

So here comes the issue in my case. My state wiretap got applied for by an assistant district attorney, albeit one one who was “designate[d] . . . to act in [the District Attorney’s] absence” by an internal District Attorney office memo. This does appear to be consistent with the state wiretap statute — California Penal Code § 629.50(a) — which allows applications by “a district attorney, or the person designated to act as district attorney in the district attorney’s absence.” But is it consistent with the federal statute? Can an assistant be the principal prosecuting attorney? It seems to me that “principal prosecuting attorney” can’t be construed to include an assistant for a host of reasons.

First, it’s inconsistent with the plain meaning of the statutory language, because “principal” is almost the exact opposite of “assistant.” And the Senate Report on the bill made clear that “principal prosecuting attorney” meant exactly what one would assume it means, by stating that “[i]n most States,” “the principal prosecuting attorney of the State would be the attorney general” and “the principal prosecuting attorney at the next political level of a State, usually the county, would be the district attorney, State’s attorney, or county solicitor.” S. Rep. No. 90-1097, at 70 (1968),reprinted in 1968 U.S.C.C.A.N. 2112, 2187.

Second, there’s that principle of statutory construction that “when ‘Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress act[ed] intentionally and purposely’ in so doing.” In the Matter of Consolidated Freightways Corp. of Delaware, 564 F.3d 1161, 1165 (9th Cir. 2009) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002)). The parallel provision for federal wiretap applications expressly includes other prosecutorial officials in addition to the federal Attorney General, by listing “any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially designated by the Attorney General.” 18 U.S.C. § 2516(1). The state official provision is completely silent as to delegation to assistants, however. So under this principle of statutory construction, it should be presumed that Congress acted intentionally and purposely in excluding delegation language from the provision for state officials and meant to not allow delegation by state attorney generals and district attorneys.

There’s some other arguments to make as well, and of course the government disagrees with my reading of the statute (don’t they always?), but going into all of that would make this discussion far too long for a blog post. Just be aware there’s an issue out there if your wiretap was applied for by a state assistant rather than the Attorney General or District Attorney herself or himself. For those who are interested in reading the argument in more depth, I’ve linked the brief I just filed here. I’ve got to say that I think it’s a really interesting issue and one we ought to be raising whenever it’s a state assistant prosecutor rather than the head prosecutor that applied for the wiretap.