Chapter 40: Wiretaps and Bugs

[1] USSC: Lopez v. US (1963) 373
US 427, 439 ["Stripped to its essentials, petitioner's argument
amounts to saying that he has a constitutional right to rely on
possible flaws in the agent's memory, or to challenge the agent's
credibility without being beset by corroborating evidence that is
not susceptible of impeachment. For no other argument can justify
excluding an accurate version of a conversation that the agent
could testify to from memory."]; US v. White (1971) 401 US
745, 751 ["If the conduct and revelations of an agent operating
without electronic equipment do not invade the defendant's
constitutionally justifiable expectations of privacy, neither does
a simultaneous recording of the same conversations"]. CAL:
P v. Loyd (2002) 27 C4 997, 1013, fn.2 (conc. opn. Moreno,
J.) ["Where authorities have the right to monitor, they also have
the right to record."]; P v. Jackson (1971) 19 CA3 95, 101
["Admissions and confessions secretly recorded are admissible."];
P v. Hines (1997) 15 C4 997, 1043.

[2] CAL: Pen. Code§§ 629.50, 631.
9th CIR: Joffe v. Google, Inc. (9C 2013) 729 F3 1262
[Wi-Fi]; Price v. Turner (9C 2001) 260 F3
1144 [re intercepting cordless phone conversations]; US
v. Staves (9C 2004) 383 F3 977, 980 [cloned
and burnout phones]. NOTE:
What are "cloned" and "burnout" cellphones? See
Staves, supra, at p. 980, fn.3 ["Cloned cellphones
are programmed to use the telephone number of an existing account,
operating much like an extension of a traditional telephone line.
Burnout cellphones are stolen cellphones, which are used until the
existing user closes her account. Both are difficult to trace
because calls are recorded to the original account."].
ALSO SEE: Bartnicki v.
Vopper (2001) 532 US 514, 522, fn.6 ["calls placed on
cellular and cordless telephones can be intercepted more easily
than those placed on traditional phones"].

[3] OTHER: 18 USC§ 2510(2); 18
USC§ 2510(4).

[4] OTHER: US v.
Fraser (3C 2004) 352 F3 107, 113 ["Every circuit court to
have considered the matter has held that an 'intercept' under the
ECPA must occur contemporaneously with transmission."].

[5] NOTE:
California non-emergency wiretap authorization: The
presiding judge in each county or his designees may issue a
wiretap order if (1) there is probable cause to believe that an
individual is, was, or will be committing one of the crimes
specified below; (2) particular communications about the offense
will be intercepted; and (3) the device was used or leased by the
person targeted. See P v. Leon (2007) 40 C4 376, 384;
P v. Roberts (2010) 184 CA4 1149, 1167;
P v. Zepeda (2001) 87 CA4 1183, 1195. NOTE:
California wiretap law conforms to federal law.
US v. Barajas (8C 2013) 710 F3 1102, 1107.

Who may apply: Only the following people may apply for
wiretap authorization: the District Attorney in any county or
person designated to act as district attorney in the DA's absence,
the Attorney General of California, the Chief Deputy Attorney
General, and the Chief Assistant Attorney General (Criminal Law
Division). See Pen. Code§ 629.50(a);
US v. Perez-Valencia (9C 2013) 727 F3 852 ["We hold also,
however, that the attorney designated to act in the district
attorney's absence—as§ 629.50 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."].

Certification: The Penal Code states that people eligible
to apply must be POST certified in wiretapping.

Application: The application must be made under oath, (see
Pen. Code§ 629.50(a)) and must contain the following:

Name of applicant and agency: The name of the officer who
is applying for the order and the name of the officer's agency.
See Pen. Code§ 629.50(a)(1).

Name of executing agency: The name of the law enforcement
agency that is to execute the order. See Pen. Code§
629.50(a)(2).

Name of suspect: The name of the suspect whose
communications are to be intercepted; or, if the suspect's
identity is unknown, whatever information about his identity that
is known. See Pen. Code§ 629.50(a)(4).

Device to be tapped or location of device: The phone number
or computer IP address, the name and address of the subscriber,
the location of the phone or computer (if stationary), and any
other information that is needed to identify the device to be
tapped. See Pen. Code§ 629.50(a)(4). The wiretap order may be
modified to add or delete phones and computers upon an application
setting forth probable cause to believe that the suspect is now
utilizing different devices. See Pen. Code§ 629.50(a)(8).

Communications to be intercepted: A description of the
subject matter of the communications that will be intercepted. See
Pen. Code§ 629.50(a)(4).

Normal investigative measures failed: The application must
contain facts demonstrating the "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." Pen.
Code§ 629.52(d). See US v. Castro (6C 2020) 960 F3
857, 863 ["the purpose of the necessity requirement is not to
foreclose electronic surveillance until every other imaginable
method of investigation has been unsuccessfully attempted, but
simply to inform the issuing judge of the difficulties involved in
the use of conventional techniques.'"]; P v. Sedillo (2015)
235 CA4 1037, 1056 ["Detective Carr's affidavit sets forth that
detectives had interviewed witnesses and victims, conducted
photographic lineups, analyzed crime scene evidence, conducted
surveillance, and interviewed a confidential informant. On the
other hand, witnesses were uncooperative, and initiating search
warrants, parole searches, and police feared investigative tools
other than a wiretap might tip of those involved to the
investigation. Thus, of necessity, the investigation into the ESL
gang's activities required covert operations. Police had done all
the nonwiretap investigation possible. As Detective Carr's
affidavit detailed, other nonwiretap avenues were not and did not
seem likely to become productive, and that alternative techniques
would not expose any crimes."].

Probable cause: The probable cause standard that is
required for a wiretap order is the same standard as used in
search warrants. See US v. Eiland (DCC 2013) 738 F3 338,
347 ["The probable cause standard for the wiretap statute is the
same as the standard for a search warrant."].

Establishing probable cause: The application must establish
probable cause as follows: Link between crime and wiretapped
phone: There is probable cause to believe that (1) communications
pertaining to one or more of the crimes listed below will be made
via the tapped phone, pager, or computer; or (2) the tapped phone,
pager, or computer is being utilized by the suspect(s). See Pen.
Code§ 629.52(c). Likelihood of success: There is probable
cause to believe that particular communications pertaining to one
or more of the designated crimes will be intercepted by means of a
wiretap. See Pen. Code§ 629.52(b); P v. Leon (2007) 40
C4 376, 385 ["it is not necessary that law enforcement officials
exhaust every conceivable alternative before seeking a wiretap.
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."];
P v. Roberts (2010) 184 CA4 1149, 1172 ["The necessity
requirement ensures that wiretapping is not routinely used as an
initial step in a criminal investigation or when traditional
investigative techniques would expose the crime."].
NOTE: "Roving wiretaps": See US v. Oliva (9C 2012)
686 F3 1106. Normal investigative methods inadequate: That normal
investigative methods (1) have been tried and have failed, (2)
reasonably appear to be unlikely to succeed if tried, or (3) are
too dangerous. See Pen. Code§§ 629.50(a)(4), 629.52(d);
P v. Leon (2007) 40 C4 376, 392 ["the adequacy of the
showing concerning other investigative techniques is to be tested
in a practical and commonsense fashion that does not hamper unduly
the investigative powers of law enforcement agents"];
P v. Zepeda (2001) 87 CA4 1183, 1205.

Designated crimes The purpose of the wiretapping is to
obtain evidence pertaining to one or more of the following crimes.
See Pen. Code§§ 629.50(a)(4), 629.52(a). Homicide:
Information pertaining to murder or solicitation to commit murder.
See Pen. Code§ 629.52(a)(2). Bombs: Information
pertaining to one of the enumerated felonies involving bombs and
destructive devices. See Pen. Code§ 629.52(a)(2).
Kidnapping: Information to help locate a kidnap victim. See
Pen. Code§ 629.52(b). Drugs: Information pertaining to
the importation, possession for sale, transportation, manufacture,
or sale of controlled substances in violation of certain
enumerated Health and Safety Code. See Pen. Code§
629.52(a)(1). Street gangs: Information pertaining to one
or more of the crimes enumerated in Pen. Code§ 186.22
pertaining to street gangs. See Pen. Code§ 629.52(a)(3).
Weapons of mass destruction: Information pertaining to the
use of weapons of mass destruction. See Pen. Code§
629.52(a)(4). Attempt or conspiracy: Information pertaining
to an attempt or conspiracy to commit one or more of the above
crimes. See Pen. Code§ 629.52(a)(5).

Length of wiretap: See "Issuance of wiretap order" (Length
of wiretap), below.

Previous applications: If a previous federal or state
application for wiretapping had been filed pertaining to the crime
or suspect under investigation, or the facilities or places under
investigation, the application must include a complete statement
of the facts concerning those applications. This requirement may
be satisfied by means of inquiry to the California Attorney
General and the US Department of Justice and reporting the results
of those inquiries in the application. See Pen. Code§
629.50(a)(6).

Chief's approval: The application must include a statement
by the chief of police or chief executive officer of the applicant
agency or his designee that he reviewed and approved the
application. This statement must also include a listing of the
circumstances in support of the order. See Pen. Code§
629.50(a)(3).

Issuance of wiretap order

Issuance by designated judges: Wiretap orders must be
issued by the presiding judge or a judge designated by the
presiding judge. See Pen. Code§ 629.50(a);
P v. Roberts (2010) 184 CA4 1149, 1172.

Contents of order: The order must contain the following:
Name of applicant and agency: The name of the applicant and
the agency authorized to intercept the communications. See Pen.
Code§ 629.54(d). Name of suspect: The name of the
suspect whose communications are to be intercepted; or, if the
suspect's identity is unknown, all identifying information that is
known. See Pen. Code§ 629.54(a). Crime committed: A
finding that there is probable cause to believe that an individual
has committed, is committing, or is about to commit one of the
crimes enumerated above. See Pen. Code§ 629.52(a).
Suspect communications: A finding that there is probable
cause to believe that particular communications pertaining to one
or more of the listed crimes will be intercepted. See Pen.
Code§ 629.52(b). Suspect facilities: A finding that
there is probable cause to believe that the phone, pager, or
computer to be tapped is being used in connection with one or more
of the listed crimes. See Pen. Code§ 629.52(c).
Device to be tapped or location of device: The phone or
computer IP address, number, the name and address of the
subscriber, the location of the phone or computer (if stationary),
and any other information that is needed to identify the device to
be tapped. See Pen. Code§ 629.54(b).
Normal investigative methods inadequate: A finding that
normal investigative methods (1) have been tried and have failed,
(2) reasonably appear to be unlikely to succeed if tried, or (3)
are too dangerous. Pen. Code§ 629.52(d).
Length of wiretap: The order may authorize a wiretap for no
longer than 30 days. See Pen. Code§ 629.58.
Exception: Automatic termination: The warrant will
terminate before it expires if its objective was to intercept only
a certain communications or obtain only certain information, and
its objective was achieved. See Pen. Code§§ 629.50(a)(5),
629.58. Extensions: The applicant may request an extension
of the wiretap for an additional 30-day period. The request must
contain (1) a new application; (2) a statement setting forth the
number of communications intercepted as the result of the first
order, and the results thus far obtained from the interception; or
a reasonable explanation of the failure to obtain results. See
Pen. Code§§ 629.50(a)(7), 629.58. Minimization: The
order must contain a requirement that officers minimize the
interception of communications that are not subject to the wiretap
order. See Pen. Code§ 629.58; P v. Roberts (2010) 184
CA4 1149, 1174 ["To determine whether the authorities acted
reasonably to minimize the interception of nontargeted
communications, the court generally reviews a variety of factors
relevant to the facts of the case. These factors may include
whether a large number of the calls were very short, one time
only, or in guarded or coded language; the breadth of the
investigation underlying the need for the wiretap; whether the
nonminimized calls occurred early in the surveillance; and the
extent to which the authorizing judge supervised the ongoing
wiretap."]; P v. Sedillo (2015) 235 CA4 1037, 1057.
Sealing: The order and the application must be ordered
sealed and kept in the custody of the issuing judge. See Pen.
Code§§ 629,50(c), 629.64, 629.66. No covert entry: The
order may not authorize a covert entry into a residence, or a room
in a hotel or motel, for the purpose of installing wiretap
equipment. See Pen. Code§ 629.89.

Progress reports

Progress reports to judge: The order must require that the
applicant issue progress reports to the issuing judge at intervals
no longer than ten days. The progress reports must include (1) the
number of communications intercepted, and (2) what progress has
been made toward achieving the objective of the wiretap or a
satisfactory explanation for the lack of progress and the need for
continued interception. See Pen. Code§ 629.60;
P v. Roberts (2010) 184 CA4 1149, 1186 ["The purpose of the
reporting statute is to allow the supervising judge to promptly
and effectively exercise his or her oversight responsibilities
after the judge has authorized a wiretap, and to immediately
terminate the interception when progress has not been made, the
explanation for the lack of progress is not satisfactory or no
need exists for continued interception."].

Reports to Attorney General: A report to the California
Attorney General must be filed no longer than ten days after the
order was issued. The report must include the identities of the
persons, facilities, and places that are subject to the wiretap
order. See Pen. Code§ 629.61.

Privileged communications: If officers become aware that an
intercepted communication may be privileged, they must terminate
the wiretap for at least two minutes, after which they may listen
for no longer than 30 seconds to determine if the nature of the
communication continues to be privileged; this procedure may be
repeated until officers determine that the communication is no
longer privileged. See Pen. Code§ 629.80.

Notification to suspect: No later than 90 days after the
wiretap was terminated, the issuing judge must order the
requesting agency to notify the suspect of the wiretap order, the
date of the order, and whether any communications were
intercepted. See Pen. Code§ 629.68.

Pre-plea notification: The suspect must be notified as
follows that he was identified as the result of the wiretap (1)
before he pleads guilty or no contest, or (2) at least ten days
before any trial, hearing, or other proceeding (except
arraignment). See Pen. Code§ 629.70. Notification is not
mandatory if the information would reveal or tend to reveal the
identity of a confidential informant or official information as
covered in Evid. Code§§ 1040, 1041. See
P v. Acevedo (2012) 209 CA4 1040, 1052-53.

Consequences of violations

Criminal and civil penalties: Officers who engage in
unlawful wiretapping are subject to severe criminal and civil
penalties. See Pen. Code§§ 629.34, 629.36, 631, 632(a),
632.5, 632.6, 632.7, 627.2; 18 USC§ 2511(4)-(5); 18 USC§
2520.

Suppression of evidence

Prosecution's case-in-chief: Proposition 8:
Communications that were illegally intercepted may be suppressed
pursuant to Proposition 8 because the California wiretap statute
was enacted by a two-thirds vote of the legislature. See
P v. Jackson (2005) 129 CA4 129, 152.

De minimis violations: Evidence will not be suppressed
based on a failure to comply with a provision that did not play "a
central role in the statutory scheme." P v. Jackson (2005)
129 CA4 129, 149.

Good faith rule does not apply: The good faith exception to
the suppression requirement does not apply to illegal wiretaps.
See P v. Jackson (2005) 129 CA4 129, 154 ["Although there
is disagreement among the federal courts about whether
Leon applies to wiretap orders under Title III we believe
the better reasoned view is that Leon should not be
extended to apply to statutory violations even if those statutory
violations would also be violations of the Fourth Amendment."].

Impeachment: Evidence obtained by means of an illegal
wiretap may be used for impeachment purposes. See
US v. Echavarria-Olarte (9C 1990) 904 F2 1391, 1397.

[6] CAL: Pen. Code§§ 633; 633.5.
ALSO SEE: US v. White (1971) 401 US 745, 752 ["If
the law gives no protection to the wrongdoer whose trusted
accomplice is or becomes a police agent, neither should it protect
him when that same agent has recorded or transmitted the
conversations which are later offered in evidence"];
Lopez v. US (1963) 373 US 427, 439 ["Indeed this case
involves no 'eavesdropping' whatever in any proper sense of that
term; the device was used only to obtain the most reliable
evidence possible of a conversation in which the Government's own
agent was a participant and which that agent was fully entitled to
disclose," edited.]; Hoffa v. US (1966) 385 US 292, 302
["Neither this Court nor any member of it has ever expressed the
view that the Fourth Amendment protects a wrongdoer's misplaced
belief that a person to whom he voluntarily confides his
wrongdoing will not reveal it."]; P v. Siripongs (1988) 45
C3 548, 564 [the audio recorder "merely memorialized what [the
officer] heard."]; P v. Phillips (1985) 41 C3 29, 52 ["a
defendant has no constitutionally protected expectation that his
confidant will not reveal a conversation to the police, and the
recording merely corroborates or assures the accuracy of the
confidant's later testimony"]; P v. Algire (2013) 222 CA4
216, 227-28.

[7] 9th CIR: US v.
Nerber (9C 2000) 222 F3 597, 604 ["once the informants left
the room, defendants' expectation to be free from hidden video
surveillance was objectively reasonable"]. OTHER:
US v. Lee (3C 2004) 359 F3 194, 202 ["the
cases involving consensual monitoring do not apply if recordings
are made when the cooperating individual is not present"];
US v. Laetividal-Gonzalez (11C 1991)
939 F2 1455, 1462 ["Any conversations recorded when [the
informant] was absent from the office would not have been
admissible evidence"].

[8] OTHER: US v.
McLeod (7C 1974) 493 F2 1186, 1188 ["As the agent was
located in a public place and overheard the conversation by McLeod
without the use of any amplification device, the court properly
overruled the motion to suppress."]; US v.
Llanes (2C 1968) 398 F2 880, 884 ["conversations carried on
in a tone of voice quite audible to a person standing outside the
home are conversations knowingly exposed to the public"].

[9] CAL: P v.
Kaaienapua (1977) 70 CA3 283, 288 ["The officers were in a
room open to anyone who might care to rent. They were under no
duty to warn appellants to speak softly."]; P v.
Loyd (2002) 27 C4 997, 1008, fn.13; P v.
Guerra (1971) 21 CA3 534, 538 ["if an individual desires
that his speech remains private, he can easily assure himself of
privacy by whispering"]. 9th CIR: US v.
Fisch (9C 1973) 474 F2 1071, 1077 ["Here the conversations
complained of were audible by the naked ear in the next room."];
Ponce v. Craven (9C 1969) 409 F2 621,
625. OTHER: US v. Hearn (5C 2009) 563
F3 95, 104 ["The eavesdropping, engaged in from a lawful position
in the room next door, was not an unreasonable search"];
US v. Llanes (2C 1968) 398 F2 880, 884
["conversations carried on in a tone of voice quite audible to a
person standing outside the home are conversations knowingly
exposed to the public"].

[10] CAL: Pen. Code§§ 629.34,
629.36, 631, 632(a), 632.5, 632.6, 632.7, 627.2. OTHER: 18
USC§ 2511(4)-(5); 18 USC§ 2520.

[11] CAL: P v. Camel (2017) 8
CA5 989, 1004; P v. Jackson (2005) 129 CA4
129, 152-53.

[12] QUOTE FROM: P v.
Jackson (2005) 129 CA4 129, 149.

[13] CAL: P v.
Jackson (2005) 129 CA4 129, 154 ["Although there is
disagreement among the federal courts about whether
Leon applies to wiretap orders under Title III we believe
the better reasoned view is that Leon should not be
extended to apply to statutory violations even if those statutory
violations would also be violations of the Fourth Amendment."].