Use of a Search Warrant:

Rule

Rule:  The use of a search warrant as a prerequisite to a lawful search is a constitutional requirement, pursuant to the Fourth Amendment. 

The Fourth Amendment prohibits all unreasonable searches and seizures, and it is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions."  (Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2^nd 576, 585].)

"Evidence which is obtained as a direct result of an illegal search and seizure may not be used to establish probable cause for a subsequent search."  (United States v. Wanless (9^th Cir. 1989) 882 F.2^nd 1259, 1465.)

This includes "verbal evidence," (i.e., a suspect's admissions or confession), as well as physical evidence, when obtained as a direct product of an illegal detention, arrest or search.  (See United States v. Crews (9^th Cir. 2007) 502 F.3^rd 1130, 1135.)

Exceptions

Exceptions:  There are a limited number of such "well-delineated exceptions" to the general rule, however.  For instance:

Exigent Circumstances

"Exigent Circumstances" excuse the absence of a search warrant, at least up until when the "exigency" no longer exists. (People v. Bacigalupo (1991) 1 Cal.4^th 103, 122-123.)

"Exigent Circumstances:"  Any instance where the officers have no opportunity to obtain a warrant without risking the loss or destruction of evidence, the fleeing of suspects, or the arming of a suspect.  (See People v. Seaton (2001) 26 Cal.4^th 598.)

See "Exigent Circumstances," above.

Consent

"Consent:" A "consent" to search excuses the absence of a search warrant, or even probable cause. (Florida v. Bostick (1991) 501 U.S. 429 [115 L.Ed.2^nd 389].)

Such consent, however, must be freely and voluntarily obtained.  (Bumper v. North Carolina (1968) 391 U.S. 543, 548 [20 L.Ed.2^nd 797, 802].)

See "Consent," below.

Inevitable Discovery

"Inevitable Discovery:"

The effects of an otherwise illegal warrantless search (i.e., suppression of the resulting evidence) may be offset in those instances where the evidence would have "inevitably" been found anyway through some source independent of the illegal search.  (Nix v. Williams (1984) 467 U.S. 431, 443 [81 L.Ed.2^nd 377, 387]; People v. Boyer (2006) 38 Cal.4^th 412, 447-454.)

However, the "inevitable discovery" doctrine does not apply just because a search warrant could have been obtained had the searching officers asked for one.  This argument would negate the need to ever seek a warrant, effectively repealing the Fourth Amendment.  (People v. Robles (1998) 64 Cal.App.4^th 1286.)

Searches of Vehicles

"Searches of Vehicles:"

Probable cause to believe that a lawfully stopped vehicle contains contraband justifies a warrantless search of the vehicle, including the trunk, despite the absence of additional exigent circumstances.  (People v. Chavers (1983) 33 Cal.3^rd 462; People v. Superior Court [Valdez] (1983) 35 Cal.3^rd 11; People v. Varela (1985) 172 Cal.App.3^rd 757.)

The search may be as broad as could have been authorized by a search warrant, including any closed containers within the vehicle.  (United States v. Ross (1982) 456 U.S. 798 [72 L.Ed.2^nd 572]; California v. Acevedo (1991) 500 U.S. 565 [114 L.Ed.2^nd 619]; People v. Chavers, supra.)

See "Searches of Vehicles," below.

Searches of Persons with Probable Cause

"Searches of Persons with Probable Cause:" A person may be searched without a warrant any time the officer has "probable cause" to believe the person may have contraband or other seizable property on him. (People v. Coleman (1991) 229 Cal.App.3^rd 321.)

See "Searches of Persons," below.

Searches Incident to Arrest

"Searches Incident to Arrest:"

An arrestee, and the area within his immediate reach when arrested (i.e., the "lunging area"), is subject to a warrantless search, so long as done contemporaneously in time and place with the arrest.  (Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2^nd 685]; United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2^nd 427]; People v. Sanchez (1985) 174 Cal.App.3^rd 343; People v. Dennis (1985) 172 Cal.App.3^rd 287; People v. Summers (1999) 73 Cal.App.4^th 288.)

When arrested in or at a vehicle (New York v. Belton (1981) 453 U.S. 454 [69 L.Ed.2^nd 768]; People v. Stoffle (1992) 1 Cal.App.4^th 1671.), or as a "recent occupant" of a vehicle (Thornton v. United States (2004) 541 U.S. 615 [158 L.Ed.2^nd 905]; United States v. Osife (9^th Cir. 2005) 398 F.3^rd 1143), the entire passenger area of the vehicle may normally be searched without a warrant. 

See "Searches Incident to Arrest," below.

Administrative/Regulatory Searches

"Administrative/Regulatory Searches:"

"Pervasively" or "Closely Regulated Businesses:"  The courts have indicated that a warrant is not necessary in those cases where the place to be searched is commercial property, and the industry involved is one that is so "pervasively regulated" or "closely regulated" that warrantless inspections are necessary to insure proper, or legal, business practices.  (Donovan v. Dewey (1981) 452 US. 594, 598-599 [69 L.Ed.2^nd 262, 268-169]; New York v. Burger (1987) 482 U.S. 691, 700 [96 L.Ed.2^nd 601, 612-613]; People v. Paulson (1990) 216 Cal.App.3^rd 1480, 1483-1484.)

See "Administrative/Regulatory Searches," below.

Crime Scene Searches

Crime Scene Searches:  Generally, once any exigencies no longer justify an immediate entry, entering a building to investigate a criminal offense, or even to continue a search already begun due to exigent circumstances that existed upon the initial entry, requires a search warrant.  For example:

Murder Scene:  Mincey v. Arizona (1978) 437 U.S. 385 [57 L.Ed.2^nd 290]; Flippo v. West Virginia (1999) 528 U.S. 11 [145 L.Ed.2^nd 16].)

Arson Scene:  Michigan v. Tyler (1978) 436 U.S. 499 [56 L.Ed.2^nd 486].)

Bank Records

Bank Records:  Pursuant to California's Right to Privacy Act (Gov't. Code §§ 7460-7493), there are six (6) lawful methods of obtaining a criminal suspect's bank records:

Customer Authorization

Customer Authorization: (Gov't. Code § 7473):

The authorization must be in writing.

Records sought must be very specifically identified.

Must include a phrase informing the customer that he/she has a right to withdraw consent.

Administrative Subpoena or Summons

Administrative Subpoena or Summons (Gov't. Code § 7474):

Requires notice to the customer and the bank.

Customer has ten days to move to quash the subpoena.

Search Warrant

Search Warrant (Gov't. Code § 7475):

The customer will be notified by the bank unless the search warrant contains an order that notice be delayed.

The request to defer notice to the customer must be justified in the affidavit on the grounds that notification would impede the investigation, and the court finds this to be "good cause."

The normal ten-day period for service and return of the warrant may be extended if the bank cannot reasonably make the records available within ten days.

A search warrant for bank records was held to be valid in People v. Meyer (1986) 183 Cal.App.3^rd 1150.)

Judicial Subpoena or Subpoena Duces Tecum

Judicial Subpoena or Subpoena Duces Tecum (Gov't. Code § 7476):

Notice must be given to the customer in most situations.

May be used in NSF (i.e., "non-sufficient funds" cases). (See Gov't. Code § 7476(c))

Police Request

Police Request (Gov't. Code § 7480):

May obtain certain types of financial information (e.g., dishonored checks and overdrafts) upon certification to the financial institution, in writing, that the checks were used fraudulently.  (Gov't. Code § 7480(b):  The section provides for a statement of account and other records for 30 days before and after the alleged illegal act.)

May also receive, upon request, information as to whether a person has an account and the account number.  (Gov't. Code § 7480(c))

Victimized Financial Institution

Victimized Financial Institution turns over Records (Gov't. Code § 7470(d)):

When the bank is the victim of a crime committed by a customer, it may lawfully turn over the customer's bank records without the need of a court order.  (People v. Nosler (1984) 151 Cal.App.3^rd 125; People v. Nece (1984) 160 Cal.App.3^rd 285.)

Note:  The above listed requirements and provisions are not exclusive.  The referenced Government Code sections must be consulted.  (See also Burrows v. Superior Court (1974) 13 Cal.3^rd 238; and People v. Blair (1979) 25 Cal.3^rd 640, regarding constitutional limitations upon the seizure of financial records.)

Credit Card Information

Credit Card Information:  Charges made by a credit card holder cannot be obtained except by search warrant or other judicial order.  (People v. Blair (1979) 25 Cal.3^rd 640, 652.)

Exception:  When the credit card company is the victim.  (People v. Nosler (1984) 151 Cal.App.3^rd 125; People v. Nece (1984) 160 Cal.App.3^rd 285.)

Telephone Records:

Unlisted Numbers

Unlisted Numbers:  A search warrant is necessary in order to obtain the name and address of the holder of an unlisted telephone number from the telephone company.  (People v. Chapman (1984) 36 Cal.3^rd 98.)

Note:  Under federal constitutional standards, obtaining phone records without a warrant is not illegal.  (Smith v. Maryland (1979) 442 U.S. 735 [61 L.Ed.2^nd 220].)  Therefore, although seizing such records without a warrant is in violation of California law, doing so will not result in the suppression of the records.  (People v. Bencomo (1985) 171 Cal.App.3^rd 1005, 1015; People v. Martino (1985) 166 Cal.App.3^rd 777, 786, fn. 3.)

Telephone Calls Made

Telephone Calls Made:  Telephone company records relating to telephone calls made are also protected and require a warrant.  (People v. McKunes (1975) 51 Cal.App.3^rd 487.)

Note:  Telephone toll records are maintained in "billing rounds," covering approximately 30 days, but not necessarily corresponding with a calendar month.

An affidavit should contain facts, information, and opinion justifying the time period for which toll call records are sought.

Certification for Non-Disclosure

Certification for Non-Disclosure:  Pursuant to California Public Utilities Commission decision number 93361, dated July 21, 1981, the telephone company must notify the customer of a search warrant issued for his telephone records unless there is a "certification for non-disclosure" contained on the face of the search warrant.

Provides for a 90-day delay in notice, which can be extended another 90 days.

The "certification of non-disclosure" is a statement that notification will impede the investigation of the offense being investigated.

Justification for the delayed notice must be included in the warrant affidavit.

Pen Registers and Trap and Trace

Pen Registers and Trap and Trace:  Installation of a "pen register" and/or a "trap and trace device" may be accomplished by use of a search warrant, at least under state rules.  (People v. Larkin (1987) 194 Cal.App.3^rd 650, 654.)

A "pen register" is a device that records or decodes electronic or other impulses that identify the numbers dialed or transmitted on the telephone line to which such device is attached.

A "trap and trace" device is a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.

18 U.S.C. § 3121 was amended as a part of the "Patriot Act," Pub. L. No. 107-56, to expand these definitions to include processes that capture routing, addressing, or signaling information transmitted by an electronic communication facility, thus permitting the interception of information from computers and cells phones, as well as from land-line telephones.

Federally, use of a pen register is not considered to be a search, and therefore does not require a search warrant.  (Smith v. Maryland (1979) 442 U.S. 735, 745-746 [61 L.Ed.2^nd 220, 229-230].)

The same rule is applicable a "mirror port," which is similar to a pen register, but which allows the government to collect the "to" and "from" addresses of a person's e-mail messages, the IP addresses of the websites the person visits, and notes the total volume of information sent to or from the person's account.  (United States v. Forrester (9^th Cir. 2007) 495 F.3^rd 1041.)

The Federal Electronic Communication Privacy Act (18 U.S.C. §§ 3121-3127) expressly authorizes a state investigative or law enforcement officer to apply for "an order," as opposed to a search warrant, or an extension of an order, authorizing the installation and use of either a pen register or a "trap-and-trace" device, when a request is made in writing, under oath, to a court of "competent jurisdiction" of the state, and is otherwise not prohibited by state law.

18 U.S.C. § 2123 requires the applicant to state that the information likely to be obtained is relevant to an ongoing criminal investigation (as opposed to the probable cause required for a warrant). 

An order is good for no more than 60 days.  Extensions, for up to 60 days, may be obtained upon making a separate application.

The order shall direct that it be sealed pending further order of the court.

Even if the procedures described in these statutes are violated, suppression of evidence is not an appropriate remedy.  (United States v. Forrester (9^th Cir. 2007) 495 F.3^rd 1041, 1051.)

However, citing pre-Proposition 8 authority (People v. Blair (1979) 25 Cal.3^rd 640.), which rejected the rationale of Smith v. Maryland, supra, the California Attorney General is of the opinion that despite the lack of legal authority to suppress the resulting evidence (due to passage of Proposition 8 in June, 1982), obtaining pen register or trap and trace information based upon an ex parte court order (as opposed to a search warrant), being in violation of the California Constitution (Art. I, § 13, as well as Art. I, § 1), is "prohibited by state law." The federal authorizing statutes, therefore, which allow for a court order obtained by state law enforcement officers "(u)nless prohibited by State law" (18 U.S.C. § 3122(a)(2)), do not apply to California because such a procedure is prohibited by state law.  (86 Opinion of Attorney General Bill Lockyer 198 (2003).)

The California Attorney General, in this same opinion, also noted that Gov't.  Code § 11180 similarly does not allow for an "Administrative Subpoena" due to the lack of a prior judicial review as required by the California Constitution.

See also, 69 Ops. Cal. Atty. Gen. 55 (1986): A California magistrate may authorize the installation of a pen register by the issuance of a search warrant.

Because a search warrant, if used, is only good for 10 days (P.C. § 1534), a new warrant must be obtained for each succeeding 10-day period.

A search warrant, or an order for the installation of a pen register or trap and track device, must be obtained from a court of "general jurisdiction;" i.e., from a Superior Court judge.

P.C. § 1524.2: Out-of-State Electronic Communications Information

P.C. § 1524.2:  Out-of-State Electronic Communications Information:   This section authorizes the service of a search warrant for information related to the identity of customers, data stored by, or on behalf of, the customer, the customer's usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications, upon a "foreign corporation" which provides "electronic communications services or remote computing services to the general public."

"Electronic communications services" and "remote computing services" is to be construed in accordance with the federal Electronic Communications Privacy Act, 18 U.S.C. §§ 2701 et seq. 

18 U.S.C. § 2701 refers to 18 U.S.C. 2501, subd. (15) of which defines "electronic communication service" as a "service which provides to users thereof the ability to send or receive wire or electronic communications." 

18 U.S.C. § 2501(1), (18):  "Wire communication" includes "any aural transfer (i.e., one containing the human voice) made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) . . . ."

This includes telephone conversations.  (Briggs v. American Air Filter Co., Inc. (5^th Cir. 1980) 630 F.2^nd 414; United States v. Harpel (10^th Cir. 1974) 493 F.2^nd 346.)

A "foreign corporation" is one that is qualified to do business in California pursuant to Corp. Code § 2105, even though based in another state.

"Properly served," as required by the statute, necessitates "(d)elivery by hand of a copy of any process against a foreign corporation;

(a) to any officer of the corporation or its general manager in this state, or if the corporation is a bank to a cashier or an assistant cashier,

(b) to any natural person designated by it as agent for the service of process, or

(c), if the corporation has designated a corporate agent, to any person named in the latest certificate of the corporate agent filed pursuant to Section 1505 . . ."  (P.C. § 1524.2(a)(6), referencing Corp. Code § 2110)

Per Corp. Code § 2105, foreign corporations must consent to service of process as a condition of doing business in California.

The foreign corporation is required to provide the information requested within five (5) business days, which may be shortened or extended upon a showing of good cause, and to authenticate such records, thus making them admissible in court per Evid. Code §§ 1561, 1562.  (P.C. § 1524.2(b))

The section further requires California corporations to honor out-of-state search warrants as if issued within this state.  (P.C. § 1524.2(c))

P.C. § 1524.3: Out-of-State Electronic Communications Information in Misdemeanor Cases

P.C. § 1524.3(a):  Records of Foreign Corporations Providing Electronic Communications or Remote Computing Services:  Foreign corporations providing electronic communications or remote computing services must disclose to a governmental prosecuting or investigating agency, when served with a search warrant issued by a California court pursuant to P.C. § 1524(a)(7) (i.e., in misdemeanor cases), records revealing the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer utilized.

P.C. § 1524.3(b):  The governmental entity receiving subscriber records or information under this section is not required to provide notice to a subscriber or customer.

P.C. § 1524.3(d):  Upon a request of a peace officer, the provider shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to serve the provider with a search warrant.  Records shall be retained for 90 days upon such request, and may be extended for an additional 90 days upon a renewed request by the peace officer.

Wiretaps and Eavesdropping

Wiretaps and Eavesdropping:  Both the federal Congress and California's Legislature, expressing concern over the potential for violating privacy rights, have enacted statutes controlling the use of wiretaps by law enforcement.

Federal Omnibus Crime Control and Safe Streets Act of 1968 vs. P.C. §§ 629.50 et seq.

Federal rules are contained in the Omnibus Crime Control and Safe Streets Act of 1968 (Title III, 18 U.S.C. §§ 2510 et seq.).  However, in that California's state statutes are more restrictive (see People v. Jones (1973) 30 Cal.App.3^rd 852), it is generally accepted that if a police officer acts in compliance with P.C. §§ 629.50 et seq., he or she will also be in compliance with the federal requirements.

The Omnibus Crime Control and Safe Streets Act of 1968 authorizes the states to enact their own wiretap laws only if the provisions of those laws are at least as restrictive as the federal requirements for a wiretap se tout in Title III.  (People v. Jackson (2005) 129 Cal.App.4^th 129, 146-147; People v. Otto (1992) 2 Cal.4^th 1088, 1098.)

Statement of Legislative Purpose

P.C. § 630:  Statement of Legislative Purpose:  Recognizing the advances in science and technology that have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and the resulting invasion of privacy involved, the Legislature enacted the following statutes for the purpose of protecting the right of privacy of the people of this state.

It is not the intent of the Legislature, however, to place greater restraints on the use of listening devices and techniques by law enforcement agencies than existed prior to the effective date (i.e., January 2, 1968) of this Chapter.

This section pertaining to wiretapping and other electronic devices is a general provision declaring a broad legislative purpose; section 633 is the specific section dealing with the classes exempted from the two preceding sections prohibiting wiretapping and it is only the officers named in the latter section who are exempt from the sanctions imposed by §§ 631 and 632. (55 Op.Cal.Atty.Gen. 151 (1972))

Both the California Invasion of Privacy Act and the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510 et seq.)  proscribe only intentional, as opposed to inadvertent, overhearing or intercepting of communications.  (People v. Buchanan (1972) 26 Cal.App.3^rd 274.) 

The restrictions on eavesdropping apply for the benefit of a person outside the state as well, so long as one party to a telephone conversation is in California.  (Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4^th 95.)

Prisoner Telephone Conversations

The Recording of prisoner telephone conversations, even to the outside world, would fall within the restrictions of both the federal and state wiretap statutes unless the inmate is put on notice that his conversations may be monitored and/or recorded.

Under Title III; "(I)t shall not be unlawful . . . for a person acting under color of law to intercept a wire, oral, or electronic communication where . . . one of the parties to the communication has given prior consent to such interception."  (Italics added; 18 U.S.C. § 2511(2)(c))

Based upon this, it has been held that where a sign has been posted indicating that "telephone calls may be monitored and recorded," inmates are on notice, and his or her "decision to engage in conversations over those phones constitutes implied consent to that monitoring and takes any wiretap outside the prohibitions of Title III."  (People v. Kelly 103 Cal.App.4^th 853, 858; warrantless recording of defendant's telephone conversations to parties on the outside approved.)

Such warning signs also take such telephone calls outside the search warrant provisions of California's wiretap statutes (P.C. §§ 629.50 et seq.) as well.  (Id., at pp. 859-860.)

Wiretapping

P.C. § 631:  Wiretapping:

Prohibitions

The prohibitions on wiretaps make illegal the following: 

The use of any machine, instrument, or contrivance, or in any other manner, to intentionally tap, or make an unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or

Without the consent of all the parties to a communication, or in any unauthorized manner, to read, attempt to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or

The use or attempt to use in any manner or for any purpose, or to communicate in any way, any information so obtained; or

To aid, agree with, employ, or conspire with anyone to do any of the above.

Punishment

Punishment:  Violation is punishable by a fine of $2,500, and/or one year in county jail or 16 months, two or three years in prison, or by both such fine and imprisonment.  The fine increases to $10,000 with a prior conviction for any of the offenses listed in this Chapter. 

Violation of wiretapping statutes may also be a Fourth Amendment violation if the illegal wiretap also violates a person's legitimate expectation of privacy.  (United States v. Shrylock (9^th Cir. 2003) 342 F.3^rd 948, 978.)

Exceptions

Subd. (b):   Exceptions:  The section does not apply to:

Any public utility engaged in the business of providing communications services and facilities, when for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility; or

The use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility; or

Any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility. 

Prisoner Visitors

Prisoner Visitors:  A phone used during a physical visitation by a prisoner and his or her visitor does not meet the requirements of a "wire communication," not using a line in interstate or foreign commerce.  It is therefore not subject to the wiretap restrictions of P.C. § 631.  (People v. Santos (1972) 26 Cal.App.3^rd 397, 402.)

Non-Admissibility

Subd. (c):  Non-Admissibility:   The section also provides for the non-admissibility of any evidence derived through a violation of this section, except as proof of such violation.

Similar Restrictions

Similar restrictions are contained in:

P.C. § 632:  Electronic eavesdropping, in general.

P.C. § 632.5:  Cellular radio telephone communications.

P.C. § 632.6:  Cordless telephone communications.

P.C. § 632.7:  Recording communications between cellular radio telephones and cordless telephones, or between these and a landline telephone.

A “Controlled Phone Call”

Note:  A "controlled telephone call" made by a victim or witness to a suspect for the purpose of obtaining incriminating statements from the suspect, at law enforcement's request (See P.C. §§ 632, 633), is not a privacy violation or an illegal Fourth Amendment search.  (United States v. White (1971) 401 U.S. 745 [28 L.Ed.2^nd 453].) 

P.C. §§ 629.50 et seq., Wiretaps

P.C. §§ 629.50 through 629.98 regulate the implementation of "wiretaps" and the use of information obtained thereby, including derivative evidence, and are listed in detail below.  (See People v. Jackson (2005) 129 Cal.App.4^th 129, 144-159.)

Requirements/Application for a Wiretap Order

P.C. § 629.50:  Requirements for a Wiretap Order:

An application for a wiretap order authorizing the interception of a wire, electronic pager, or electronic cellular telephone communication shall:

Be made in writing upon the personal oath or affirmation of:

The Attorney General,

Chief Deputy Attorney General,

Chief Assistant Attorney General, Criminal Law Division, or

A District Attorney, or the person designated to act as District Attorney in the District Attorney's absence.

Be made to:

The presiding judge of the Superior Court, or

Another judge designated by the presiding judge, or

The highest judge listed on an "ordered list" of additional judges, upon a determination that none of the above judges are available.

Include all of the following information:

The identity of the investigative or law enforcement officer making the application,

The identity of the investigative or law enforcement officer authorizing the application,

Failure to identify the authorizing official should not invalidate the subsequent wiretap order.  (See United States v. Callum (9^th Cir. 2005) 410 F.3^rd 571; discussing the corresponding federal statute (18 U.S.C. § 2518(4)(d)).

But where the failure to include information identifying the Department of Justice as authorizing a wiretap application makes it impossible for a judge to conclude from the face of the application that it had been in fact so authorized. will invalidate the warrant.   (United States v. Staffeldt (9^th Cir. 2006) 451 F.3^rd 578; an attached memorandum purportedly identifying the Department of Justice as authorizing the wiretap application was, due to human error, the wrong memorandum.)

The identity of the law enforcement agency that is to execute the order,

A statement attesting to a review of the application and the circumstances in support thereof by the chief executive officer or his or her designee (who must be identified by name) of the law enforcement agency making the application,

A full and complete statement of the facts and circumstances relied upon by the applicant to justify his or her belief that an order should be issued, including:

Details as to the particular offense that has been, is being, or is about to be committed,

The fact that conventional investigative techniques have been tried and were unsuccessful, or why they reasonably appear to be unlikely to succeed or to be too dangerous,

A particular description of the nature and location of the facilities from which, or the place where the communication is to be intercepted,

A particular description of the type of communication sought to be intercepted, and

The identity, if known, of the person committing the offense and whose communications are to be intercepted, or if that person's identity is not known, then the information relating to the person's identity that is known to the applicant,

A statement of the period of time for which the interception is required to be maintained:

And if the nature of the interception is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of the facts establishing probable cause to believe that additional communications of the same type will occur thereafter, and

A full and complete statement of the facts concerning all previous applications known to the individual authorizing and to the individual making the application, to have been made to any judge of a state or federal court for authorization to intercept wire, electronic pager, or electronic cellular telephone communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each of those applications.

This requirement may be satisfied by making inquiry of the California Attorney General and the United States Department of Justice and reporting the results of these inquiries in the application.

Note:  Use of a wiretap to combat a large conspiracy, given the greater threat to society, allows for the use of greater discretion by the courts to allow the government to use wiretaps. (United States v. McGuire (9^th Cir. 2002) 307 F.3^rd 1192, 1198.)

Failure to show that all traditional investigative methods have been tried and determined to be inadequate will result in a suppression of any evidence obtained from the resulting wiretaps.  (United States v. Gonzalez, Inc. (9^th Cir. 2006) 437 F.3^rd 854.)

However, law enforcement officials need not exhaust every conceivable investigative technique before seeking a wiretap order.  (United States v. Lococo (9^th Cir. 2008) 514 F.3^rd 860.)

The fact that a pen register could have been used, with its limited value in collecting necessary information, does not mean that the necessity for a wiretap had not been established.  "The necessity for the wiretap is evaluated in light of the government's need not merely to collect some evidence, but to ‘develop an effective case against those involved in the conspiracy."  (United States v. Decoud (9^th Cir. 2006) 456 F.3^rd 996, 1006-1007; the fact that the informant had been sent to prison, and that a surveillance had been detected, helped to establish the need for a wiretap.)

If the application is for the extension of an order, a statement setting forth the number of communications intercepted pursuant to the original order, and the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain results.

An application for a modification of the original order may be made when there is "probable cause" to believe that the target of a wiretap is using a facility or device that is not subject to the original order.

The modified order is only good for that period that applied to the original order.  The application must provide all the information required of the original order and a statement of the results thus far obtained from the interception, or a reasonable explanation for the failure to obtain results.

The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

The fact that the application was made to a "successor judge" designated by the presiding judge to hear applications if the first-named judge is unavailable did not violate the requirements under this section.  (People v. Munoz (2001) 87 Cal.App.4^th 239, 242.)

A judge must accept a facsimile copy of the signature that is required on an application for a wiretap order.

The original signed document is to be sealed and kept with the application.

Definitions

P.C. § 629.51:  Definitions:

Wire Communication

"Wire Communication:" "(A)ny aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a like connection in a switching station), furnished or operated by any person engaged in providing or operating these facilities for the transmission of communications."

See also People v. Von Villas (1992) 11 Cal.App.4^th 175, at p. 224, defining "wire communication" as "any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign commerce . . . ."

A phone used during a physical visitation by a prisoner and his or her visitor does not meet the requirements of a "wire communication," not using a line in interstate or foreign commerce.  It is therefore not subject to the wiretap restrictions of P.C. § 631.  (People v. Santos (1972) 26 Cal.App.3^rd 397, 402.)

But cloned cell phones are included.  (United States v. Staves (2004) 383 F.3^rd 977.)

Electronic Pager Communication

"Electronic pager communication:" "(A)ny tone or digital display or tone and voice pager communication.

Electronic Cellular Telephone Communication

"Electronic cellular telephone communication:" "(A)ny cellular or cordless radio telephone communication.

Aural Transfer

"Aural Transfer:" "(A) transfer containing the human voice at any point between and including the point of origin and the point of reception."

The audio portion of a videotape would seem to fall within this definition.  (United States v. Shrylock (9^th Cir. 2003) 342 F.3^rd 948, 977; "The videotapes contained both video and audio portions.  The audio portions are governed by the federal wiretap statute, 18 U.S.C. §§ 2510 et seq.")

Authority to Issue a Wiretap Order

P.C. § 629.52:  Authority to Issue a Wiretap Order:

Upon application made per P.C. § 629.50 (see above), a judge may enter an ex parte order, as requested or modified, authorizing the interception of;

Wire,

Electronic pager, or

Electronic cellular telephone communications;

When such communication is initially intercepted within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines, on the basis of the facts submitted by the applicant, all of the following:

There is probable cause to believe that an individual is committing, has committed, or is about to commit, one of the following offenses:

1.  Importation, possession for sale, transportation, manufacture, or sale of controlled substances in violation of H&S §§ 11351, 11351.5, 11352, 11370.6, 11378, 11378.5, 11379, 11379.5, or 11379.6, when:

The substance contains heroin cocaine, PCP, methamphetamine, or their analogs; and

The substance exceeds ten (10) gallons by liquid volume or three (3) pounds of solid substance by weight,

2.  Murder,

3.  Solicitation to commit murder,

4.  A felony involving a destructive device, per P.C. §§ 12303, 12303.1, 12303.2, 12303.3, 12303.6, 12308, 12309, 12310 or 12312,

5.  Aggravated kidnapping, as specified in P.C. § 209,

6.  Any felony violation of P.C. § 186.22 (gang crimes),

7.  A felony violation of the offenses involving weapons of mass destruction as described in P.C. §§ 11418, relating to weapons of mass destruction, 11418.5, relating to threats to use weapons of mass destruction, or 11419, relating to restricted biological agents, or

8.  An attempt or conspiracy to commit any of the above-mentioned crimes;

There is probable cause to believe that particular communications concerning the illegal activities will be obtained through that interception, including, but not limited to, communications that may be utilized for locating or rescuing a kidnap victim;

There is probable cause to believe that the facilities from which, or the place where the wire, electronic pager, or electronic cellular telephone communications are to be intercepted:

Are being used, or are about to be used, in connection with the commission of the offense, or

Are leased to, listed in the name of, or commonly used by the person whose communications are to be intercepted; and

Normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or reasonably appear to be too dangerous.

"The requirement of necessity is designed to ensure that wiretapping is neither ‘routinely employed as the initial step in criminal investigation' (United States v. Giordano (1974) 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341) nor ‘resorted to in situations where traditional investigative techniques would suffice to expose the crime.' (United States v. Kahn (1974) 415 U.S. 143, 153, fn. 12.)"  (People v. Leon (2007) 40  Cal.4^th 376, 385.)

"(I)t is not necessary that law enforcement officials exhaust every conceivable alternative before seeking a wiretap."  (Ibid.)

The necessity requirement of subdivision (d) of this section (and the similar federal requirement under 18 U.S.C. § 2518(1)(c) & (3)(c)) was met based upon the trial court's finding that the evidence against the defendant was purely circumstantial, witnesses against the defendant wished to remain anonymous, questioning of the defendant was not likely to produce any additional evidence, and that the defendant was likely to call friends from his jail cell and have them destroy evidence if he discovered that he was the focus of the new murder investigation.  (People v. Zepeda (2001) 87 Cal.App.4^th 1183, 1205.)

Similarly, where a dangerous conspiracy is being investigated (e.g., the "Montana Freemen"), where infiltration would be dangerous and difficult, and informants were generally uncooperative, this requirement is met.  (United States v. McGuire (9^th Cir. 2002) 307 F.3^rd 1192, 1197.)

But see United States v. Blackmon (9^th Cir 2001) 273 F.3^rd 1204, citing United States v. Carneiro (1988) 861 F.2^nd 1171, 1181, for the proposition that a conspiracy does not loosen the standard of proof on this issue.

And even when informants are used, a finding that such informants "could not possibly reveal the full nature and extent of the enterprise and it's countless, and at times disjointed, criminal tentacles," satisfied this requirement.  (United States v. Shrylock (9^th Cir. 2003) 342 F.3^rd 948, 975-976; see also United States v. Gomez (9^th Cir. 2004) 358 F.3^rd 1221.)

It is not necessary that the government prove that it pursued "to the bitter end . . . every non-electronic device."  (Citation).  "(T)he adequacy of the showing concerning other investigative techniques is ‘to be tested in a practical and common sense fashion [citation] that does not ‘hamper unduly the investigative powers of law enforcement agencts.'"  (People v. Leon (2007) 40  Cal.4^th 376, 392.)

It was not necessary that investigators have attempted to provide cloned cell phones for defendant's use as a prerequisite to applying for a wiretap warrant in that monitoring cloned cell phones itself would require a wiretap order to be lawful.  (United States v. Staves (2004) 383 F.3^rd 977.)

It is where the intercepted communications were first heard by federal government agents that determines which federal court has jurisdiction for purposes of filing the resulting criminal prosecution, at least under the federal rules; i.e., 18 U.S.C. § 2518(3).   (United States v. Luong (9^th Cir. 2006) 471 F.3^rd 1107.)

Judicial Guidelines

P.C. § 629.53:  Judicial Guidelines:  The Judicial Council may establish guidelines for judges to follow in granting an order authorizing the interception of any wire, electronic pager, or electronic cellular telephone communications.

Contents of the Wiretap Order

P.C. § 629.54:  Contents of the Wiretap Order:

An order authorizing the interception of any wire, electronic digital pager, or electronic cellular telephone communication shall specify all of the following:

The identity, if known, of the person whose communications are to be intercepted, or if the identity is not known, then that information relating to the person's identity known to the applicant,

The nature and location of the communication facilities as to which, or the place where, authority to intercept is granted,

A particular description of the type of communication sought to be intercepted, and a statement of the illegal activities to which it relates,

The identity of the agency authorized to intercept the communications and of the persons making the application, and

The period of time during which the interception is authorized including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

Oral Approval in Lieu of Court Order

P.C. § 629.56:  Oral Approval in Lieu of Court Order:

Upon the informal application by the Attorney General, Chief Deputy Attorney General, Chief Assistant Attorney General, Criminal Division, or a District Attorney, or a person to act as District Attorney in the District Attorney's absence, the presiding judge of the Superior Court, or the first available judge designated as provided in P.C. § 629.50, may grant oral approval for an interception, without a court order, if he or she determines all of the following:

There are grounds upon which an order could be issued under this chapter, and

There is probable cause to believe that an emergency situation exists with respect to the investigation of an offense enumerated in P.C. § 629.52, and

There is probable cause to believe that a substantial danger to life or limb exists justifying the authorization for immediate interception of a private wire, electronic digital pager, or electronic cellular telephone communication before an application for an order could with due diligence be submitted and acted upon.

Approval for an interception under this section shall be conditioned upon filing with the judge, within 48 hours of the oral approval, a written application for an order which, if granted consistent with this chapter, shall also recite the oral approval under this subdivision and be retroactive to the time of the oral approval.

Duration of a Wiretap Order

P.C. § 629.58:  Duration of a Wiretap Order:

No order entered under this chapter shall authorize the interception of any wire, electronic pager, or electronic cellular telephone, or electronic communication for a period longer than:

Necessary to achieve the objective of the authorization, nor in any event,

Thirty (30) days.

Extensions of an order may be granted in accordance with P.C. § 629.50 and upon the court making the findings required by P.C. § 629.52.

The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event longer than thirty (30) days.

Every order and extension thereof shall contain a provision that the authorization to intercept shall:

Be executed as soon as practicable,

Be conducted so as to minimize the interception of communications not otherwise subject to interception under this chapter, and

Terminate upon attainment of the authorized objective, or in any event at the time expiration of the term designated in the order or any extensions.

In the event the intercepted communication is in a foreign language, an interpreter of that foreign language may assist peace officers in executing the authorization provided in this chapter, provided that:

The interpreter has had the same training as any other interceptor authorized under this chapter, and

The interception shall be conducted so as to minimize the interception of communications not otherwise subject to interception under this chapter.

Progress Report

P.C. § 629.60: Progress Reports:

Whenever an order authorizing an interception is entered, the order shall require reports in writing or otherwise to be made to the judge who issued the order:

• Showing the number of communications intercepted pursuant to the original order; and
• A statement setting forth what progress has been made towards achievement of the authorized objective, or
• A satisfactory explanation for its lack of progress, and the need for continued interception.

The judge shall order that the interception immediately terminate if he or she finds that:

• Progress has not been made, and
• The explanation for its lack of progress is not satisfactory, or
• No need exists for continued interception.

The reports shall:

• Be filed with the court at the intervals that the judge may require, but not less than one for each period of six (6) days, and
• Be made by any reasonable and reliable means, as determined by the judge.

Report to Attorney General

P.C. § 629.61:              Report to Attorney General:

A court order authorizing an interception shall require a report in writing or otherwise to be made to the Attorney General, showing:

• What persons, facilities, places or any combination of these, are to be intercepted; and
• The action taken by the judge on each application.

The report shall be made at the interval that the order may require, but not less than ten (10) days after the order was issued.

The report shall be made by any reasonable and reliable means, as determined by the Attorney General.

The Attorney General may issue regulations prescribing the collection and dissemination of information collected.

The Attorney General shall, upon the request of an individual making an application for an interception order, provide any information known as a result of these reporting requirements, as required by P.C. § 629.50(a)(6).

Annual Report to the Legislature

P.C. § 629.62:  Annual Report to the Legislature, etc.:

The Attorney General shall prepare and submit an annual report to the Legislature, the Judicial Council, and the Director of the Administrative Office of the United States Court on interceptions conducted under the authority of this chapter during the preceding year. 

Information for this report shall be provided to the Attorney General by any prosecutorial agency seeking an order pursuant to this chapter.

The report shall include all of the following data:

• The number of orders or extensions applied for,
• The kinds of orders or extension applied for,
• The fact that the order or extension was granted as applied for, was modified, or was denied,
• The number of wire, electronic pager, and electronic cellular telephone devices that are the subject of each order granted,
• The period of interceptions authorized by the order, and the number and duration of any extensions of the order,
• The offense specified in the order or application, or extension of any order,
• The identity of the applying law enforcement officer and agency making the application and the person authorizing the application,
• The nature of the facilities from which, or the place where communications were to be intercepted,
• A general description of the interceptions made under the order or extension, including:
  • The approximate nature and frequency of incriminating communications intercepted,
  • The approximate nature and frequency of other communications intercepted,
  • The approximate number of persons whose communications were intercepted, and
  • The approximate nature, amount, and costs of the manpower and other resources used in the interceptions,
• The number of arrests resulting from interceptions made under the order or extension, and the offenses for which arrests were made,
• The number of trials resulting from the interceptions,
• The number of motions to suppress made with respect to the interceptions, and the number granted or denied,
• The number of convictions resulting from the interceptions and the offenses for which the convictions were obtained, and a general assessment of the importance of the interceptions,
• Except with regard to the initial report required by this section, the information required by the preceding five (5) paragraphs (excluding the immediately preceding paragraph about the number of convictions) with respect to orders or extensions obtained in a preceding calendar year,
• The date of the order for service of inventory made pursuant to P.C. § 629.68, confirmation of compliance with the order, and the number of notices sent.
• Other data that the Legislature, the Judicial Council, or the Director of the Administrative Office shall require.

The annual report shall include a summary analysis of the above.  The Attorney General may issue regulations prescribing the content and form of the reports required to be filed by a prosecutorial agency.

The Attorney General's annual report shall be filed no later than April of each year.

The Attorney General shall, upon the request of an individual making an application for an interception order, provide any information known as a result of these reporting requirements that would enable the individual making an application to comply with the requirements of P.C. § 629.50(a)(6).

Recording, Sealing and Retaining Intercepted Communications

P.C. § 629.64:  Recording, Sealing and Retaining Intercepted Communications:

The contents of any wire or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on any recording media.

The recording of the contents of any wire or electronic cellular telephone communication shall be done in a way that:

• Will protect the recording from editing or other alterations, and
• Will ensure that the audiotape recording can be immediately verified as to its authenticity and originality, and
• Any alteration can be immediately detected.

The monitoring or recording device used shall be of a type, and shall be installed, to preclude any interruption or monitoring of the interception by any unauthorized means.

Immediately upon the expiration of the period of the order, or extensions thereof, the recordings shall be made available to the judge issuing the order.

The recording shall be sealed under the direction of the judge.   The presence of the seal, or a satisfactory explanation for the absence of the seal, shall be a prerequisite for the use or disclosure of the contents of any wire or electronic cellular telephone communication or evidence derived therefrom under P.C. § 629.78, below.

See United States v. McGuire (9^th Cir. 2002) 307 F.3^rd 1192, 1201-1205, where the FBI in a federal wiretap provided a satisfactory reasons for delaying the sealing where they had the court's permission, the judge was in another district, and they took steps to protect the recordings pending the sealing.

Custody of the recordings shall be where the judge orders.

Recordings shall be retained for a minimum of ten (10) years, and shall be destroyed thereafter only upon an order of the issuing or denying judge.

Duplicate recordings may be made for use or disclosure pursuant to P.C. §§ 629.74 and 629.76 (below) for investigations.

The sealing order may be oral or written, and the physical sealing of the tapes need not be done in the judge's presence.   (People v. Superior Court [Westbrook] (1993) 15 Cal.App.4^th 41, 47-51; discussing former P.C. § 629.14, now § 629.64.)

Application and Orders to be Sealed

P.C. § 629.66:  Application and Orders to be Sealed:

The application and orders made pursuant to this chapter shall be:

• Sealed by the judge.
• Kept where the judge orders.
• Disclosed only upon a showing of good cause before a judge.
• Retained for ten (10) years, and thereafter destroyed only upon order of the issuing or denying judge.

Notice to Parities to Intercepted Communications

P.C. § 629.68:  Notice to Parties to Intercepted Communications:

Within a reasonable time, but no later than ninety (90) days:

• After termination of the period of an order or extensions thereof; or
• After filing of an application for an order of approval under P.C. § 629.56 which has been denied;

The issuing judge shall issue an order that shall require the requesting agency to serve:

• Persons named in the order or application, and
• Other known parties to intercepted communications;

An inventory which shall include notice of all of the following:

• The fact of the entry of the order, and
• The date of the entry and the period of authorized interception, and
• The fact that during the period wire, electronic digital pager, or electronic cellular telephone communications were or were not intercepted.

Upon the filing of a motion, the judge may, in his or her discretion, make available to the person or his or her counsel for inspection the portions of the intercepted communications, applications and orders that the judge determines to be in the interest of justice.

On an ex parte showing of good cause to a judge, the serving of the inventory required by this section may be postponed. 

The period of postponement shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted.

Discovery Prerequisites to Use in Evidence

P.C. § 629.70:  Discovery Prerequisite to Use in Evidence:

A criminal defendant shall be notified that he or she was identified as the result of an interception, such notice being before a plea of guilty or at least ten (10) days before trial, hearing or proceeding in the case other than an arraignment or grand jury proceeding.  

The defendant is also entitled to a copy of all recorded interceptions, a copy of the court order, and accompanying application and monitoring logs, at least ten (10) days before trial, hearing or proceeding in the case other than a grand jury proceeding.

As a prerequisite to admissibility into evidence or other disclosure in any trial, hearing, or other proceeding, except a grand jury proceeding, of the contents of any intercepted wire, electronic pager, or electronic cellular telephone communication, or any evidence derived there from, each party shall be furnished not less than ten (10) days before such trial, hearing, or proceeding, with:

• A transcript of the contents of the interception, and
• A copy of all recorded interceptions, and
• A copy of the court order, accompanying application, and monitoring logs.

The ten (10) day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information ten days before trial, hearing or proceeding, and that the party will not be prejudiced by the delay in receiving that information.

The court may issue an order limiting disclosure to the parties upon a showing of good cause.

Motions to Suppress

P.C. § 629.72:  Motions to Suppress:

Any person in any trial, hearing or proceeding may move to suppress:

• Some or all of the contents of any intercepted wire, electronic pager, or electronic cellular telephone communications, or
• Any evidence derived there from;

Only on the basis that the contents or evidence were obtained in violation of:

• The Fourth Amendment, or
• The terms of this Chapter.

This Chapter having been enacted subsequent (1995-1996) to the passage of Proposition 8 (1982), and by a two/thirds vote of the Legislature, makes effective this statutory exclusionary rule.  (People v. Leon (2005) 131 Cal.App.4^th 966, 977-978.)

A suppression motion shall be made, determined, and subject to review in accordance with the procedures set forth in P.C. § 1538.5.

As such, in order to warrant an evidentiary hearing and the cross-examining of the affiant to a wiretap search warrant, the defendant must first meet the requirements of Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2^nd 667].  I.e., defendant must first make a substantial preliminary showing that a false statement was deliberately or recklessly included in the affidavit submitted in support of the wiretap application, and that such false statement was material to the court's finding of necessity.  (United States v. Shrylock (9^th Cir. 2003) 342 F.3^rd 948, 976-977.)

"Evidence obtained from an unlawful wiretap may only be suppressed if the wiretap violated the United States Constitution or a procedure intended to play a central role in the legislative scheme and the purpose of that procedure was not achieved in some other manner."  (People v. Jackson (2005) 129 Cal.App.4^th 129, 148-153; finding also that California's Truth in Evidence provisions (i.e., Proposition 8) do not prevent the suppression of evidence obtained in violation of the wiretap statutes.  pp. 152-153.)

An officer's "good faith" is not grounds for denying a defendant's motion to suppress based on a violation of the wiretap statutes.  (People v. Jackson, supra, at pp. 153-160.)

Disclosure to Other Law Enforcement Agencies

P.C. § 629.74:  Disclosure to Other Law Enforcement Agencies:

The Attorney General, any Deputy Attorney General, District Attorney, Deputy District Attorney, or any peace officer, who by any means authorized by this Chapter has obtained knowledge of the contents of any wire, electronic digital pager, or electronic cellular telephone communication, or evidence derived therefrom, may disclose the contents to:

• Anyone referred to in this section (above), or
• Any investigative or law enforcement officer defined in 18 U.S.C. § 2510(7);

To the extent disclosure is:

• Permitted per P.C. § 629.82, and
• Appropriate to the proper performance of the official duties of the individual making or receiving the disclosure.

No other disclosure, except to a grand jury, of intercepted information is permitted prior to a public court hearing by any person regardless of how the person may have come into possession thereof.

Use of Intercepted Information

P.C. § 619.76:  Use of Intercepted Information:

The Attorney General, any Deputy Attorney General, District Attorney, Deputy District Attorney, or any peace officer or federal law enforcement officer;

Who, by means authorized by this Chapter, has obtained knowledge of the contents of any wire, electronic pager, or electronic cellular communication, or evidence derived there from;

May use the contents or evidence to the extent the use:

• Is appropriate to the proper performance of his or her official duties; and
• Is permitted by P.C. § 629.82.

Disclosure of Intercepted Information in Testimony

P.C. § 629.78:  Disclosure of Intercepted Information in Testimony:

Any person who has received by any means authorized by this Chapter any information concerning a wire, electronic pager, or electronic cellular telephone communication, or evidence derived therefrom, intercepted in accordance with the provisions of this Chapter;

May, per P.C. § 629.82, disclose the contents of that communication or derivative evidence;

While giving testimony under oath or affirmation in any criminal court proceeding or in any grand jury proceeding.

Privileged Communications

P.C. § 629.80:  Privileged Communications:

No otherwise privileged communication intercepted in accordance with this Chapter shall lose its privileged character.

Note:  See Evid. Code, §§ 900 et seq. for the statutory privileges.

When a peace officer or federal law enforcement officer, while engaged in the intercepting of wire, electronic pager, or electronic cellular telephone communications pursuant to this Chapter, intercepts a privileged communication;

• He or she shall immediately cease the interception for at least two (2) minutes.
• After two (2) minutes, interception may be resumed for up to thirty (30) seconds during which time the officer shall determine if the nature of the communication is still privileged.
• If still privileged, the officer shall again cease interception for at least two (2) minutes.
• After two (2) minutes, the officer may again resume interception for up to thirty (30) seconds to redetermine the nature of the communication.
• The officer shall continue to go online and offline in this manner until the time that the communication is no longer privileged or the communication ends. 

The recording device shall be metered so as to authenticate upon review that interruptions occurred as set for in this section.

See United States v. McGuire (9^th Cir. 2002) 307 F.3^rd 1192, 1199-1203, discussing the "minimization" of intercepted fax communications under the federal statutes.

Interception of Communications Relating to Crimes Other Than Those Specified in the Authorization Order

P.C. § 629.82:  Interception of Communications Relating to Crimes Other Than Those Specified in the Authorization Order:

Violent Felonies

For crimes listed in P.C. § 629.52(a), or listed in P.C. § 667.5(c) as a "violent felony":

If a peace officer or federal law enforcement officer, while engaged in the intercepting of wire, electronic digital pager, or electronic cellular telephone communications pursuant to this Chapter;

Intercepts wire, electronic pager, or electronic cellular telephone communications relating to crimes other than those specified in the order of authorization, but which are listed in P.C. § 629.52(a), or listed in P.C. § 667.5(c) as a "violent felony":

• The contents thereof, and evidence derived therefrom, may be disclosed or used as provided in P.C. § 629.74 and 629.76; and
• The contents thereof, and evidence derived therefrom, may be used under P.C. § 629.78 when authorized by a judge if the judge finds, upon subsequent application, that the contents were otherwise intercepted in accordance with the provisions of this Chapter.

The "subsequent application" shall be made as soon as practicable.

Other Than Violent Felonies

For other than P.C. § 629.52(a) crimes or P.C. § 667.5(c) violent felonies:

If a peace officer or federal law enforcement officer, while engaged in the intercepting of wire, electronic pager, or electronic cellular telephone communications pursuant to this Chapter;

Intercepts wire, electronic pager, or electronic cellular telephone communications relating to crimes other than those specified in the order of authorization and which are not listed in P.C. § 629.52(a) or P.C. § 667.5(c):

• The contents thereof, and evidence derived therefrom, may not be disclosed or used as provided in P.C. § 629.74 and 629.76,
• Except to prevent the commission of a public offense.
• The contents thereof, and evidence derived therefrom, may not be used under P.C. § 629.78, except where:

The evidence was obtained through an independent source, or

The evidence would have been inevitably discovered anyway, and

The use is authorized by a judge who finds that the contents were intercepted in accordance with the provisions of this Chapter.

Right to Notice and Copy

Right to Notice and Copy:  The use of the contents of an intercepted wire, electronic pager, or electronic cellular telephone communication relating to crimes other than those specified in the order of authorization to obtain a search or arrest warrant entitles the person(s) named in the warrant to:

• Notice of the intercepted wire, electronic digital pager, or electronic cellular telephone communication; and
• A copy of the contents thereof that were used to obtain the warrant.

The “Plain View” Doctrine

Section 629.82(a) extends the "plain view" doctrine to information communicated by someone other than the person identified in the wiretap order about a crime other than the one which justified the tap.  (People v. Jackson (2005) 129 Cal.App.4^th 129, 145.)

Criminal Punishment for Violations

P.C. § 629.84:  Criminal Punishment for Violations:

Any violation of this Chapter is punishable by:

• A fine not exceeding two thousand five hundred dollars ($2,500.00), or
• Imprisonment in the county jail not exceeding one year, or
• Imprisonment in the state prison for 16 months, 2 or 3 years (see P.C. § 18), or
• Both the above fine and the county jail or state prison imprisonment.

Civil Remedies for Unauthorized Interceptions

P.C. § 629.86:  Civil Remedies for Unauthorized Interceptions:

Any person whose wire, electronic pager, or electronic cellular telephone communication is intercepted, disclosed, or used in violation of this Chapter shall have the following civil remedies:

• A civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications.
• Be entitled to recover, in that action, all of the following:
  • Actual damages, but not less than liquidated damages computed at the rate of one hundred dollars ($100.00) a day for each day of violation, or one thousand ($1,000.00), whichever is greater; and
  • Punitive damages; and
  • Reasonable attorney's fees and other litigation costs reasonably incurred.

A good faith reliance on a court order is a complete defense to any civil or criminal action brought under this Chapter, or under Chapter 1.5 (P.C. §§ 630 et seq.; Eavesdropping), or any other law.

Effects of Other Statutes

P.C. § 629.88:  Effects of Other Statutes:

Nothing in P.C. §§ 631 (Wiretapping), 632.5 (Intercepting or Receiving Cellular Radio Telephone Communications), 632.6 (Intercepting or receiving Cordless Telephone Communications), or 632.7 (Recording Communications Via Cellular Radio, Cordless, or Landline Telephone Without Consent of All Parties) shall be construed as:

• Prohibiting any peace officer or federal law enforcement officer from intercepting of any wire, electronic digital pager, or electronic cellular telephone communication pursuant to an order issued in accordance with the provisions of this Chapter, or
• Rendering inadmissible in any criminal proceeding in any court or before any grand jury any evidence obtained by means of an order issued in accordance with the provisions of this Chapter.

Nothing in P.C. § 637 (Wrongful disclosure of Telegraphic or Telephonic Communication) shall be construed as prohibiting the disclosure of the contents of any wire, electronic pager, or electronic cellular telephone communication obtained by any means authorized by this Chapter.

Nothing in this Chapter shall apply to any conduct authorized by P.C. § 633 (Exceptions for Law Enforcement; Eavesdropping).

Covert Residential Entries

P.C. § 629.89:  Covert Residential Entries Prohibited:

No order issued pursuant to this Chapter shall either directly or indirectly authorize entry into or upon the premises of a residential dwelling, hotel room, or motel room, for installation or removal of any interception device or for any other purpose.

Notwithstanding that this entry is otherwise prohibited by any other section or code, this Chapter expressly prohibits covert entry of a residential dwelling, hotel room, or motel room to facilitate an order to intercept a wire, electronic digital pager, or electronic cellular telephone communications.

Order for Cooperation of Public Utilities, Landlords, Custodians and Others

P.C. § 629.90:  Order for Cooperation of Public Utilities, Landlords, Custodians and Others:

An order authorizing the interception of wire, electronic pager, or electronic cellular telephone communication shall direct, upon request of the applicant, that:

• A public utility engaged in the business of providing communications services and facilities, or
• A landlord, or
• A custodian, or
• Any other person;

Furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services the person or entity is providing the person whose communications are to be intercepted.

Any such person or entity furnishing facilities or technical assistance shall be fully compensated by the applicant for the reasonable costs of furnishing the facilities and technical assistance.

Civil or Criminal Liability; Reliance Upon Court Order

P.C. § 629.91:  Civil or Criminal Liability; Reliance Upon Court Order:

A good faith reliance on a court order issued in accordance with this Chapter by any public utility, landlord, custodian, or any other person furnishing information, facilities, and technical assistance as directed by the order;

Is a complete defense to any civil or criminal action brought under this Chapter, or Chapter 1.5 (P.C. §§ 630 et seq.), or any other law.

Authority to Conform Proceedings and Order to Constitutional Requirements

P.C. § 629.92:  Authority to Conform Proceedings and Order to Constitutional Requirements:

Notwithstanding any other provision of law, any court to which an application is made in accordance with this Chapter may take any evidence, make any finding, or issue any order required to conform the proceedings or the issuance of any order of authorization or approval to the provisions of:

• The Constitution of the United States, or
• Any law of the United States, or
• This Chapter.

Training and Certification of Law Enforcement Officers

P.C. § 629.94:  Training and Certification of Law Enforcement Officers:

The Commission on Peace Officer Standards and Training ("POST"), in consultation with the Attorney General, shall establish a course of training in the legal, practical, and technical aspects of the interception of private wire, electronic digital pager, or electronic cellular telephone communications and related investigative techniques.

The Attorney General shall set minimum standards for certification and periodic recertification* of the following persons as eligible to apply for orders authorizing the interception of private wire, electronic digital pagers, or electronic cellular telephone communications, to conduct the interceptions, and to use the communications or evidence derived from them in official proceedings:

• Investigative or law enforcement officers; and
• Other persons, when necessary, to provide linguistic interpretation who are designated by the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or the District Attorney, and are supervised by an investigative or law enforcement officer.

POST may charge a reasonable enrollment fee for those students who are employed by an agency not eligible for reimbursement by the Commission to offset the costs of the training.

The Attorney General may charge a reasonable fee to offset the costs of certification.

*Note:  Recertification has been set for every five (5) years.

Severability

P.C. § 629.96:  Severability:

If any provision of this Chapter, or the application thereof to any person or circumstances, is held invalid, the remainder of the Chapter, and the application of its provisions to other persons or circumstances, shall not be affected thereby.

Automatic Repeal

P.C. § 629.98:  Automatic Repeal:

This Chapter shall remain in effect only until January 1, 2012, and as of that date is repealed.

Eavesdropping, Compared

P.C. § 632:  Eavesdropping, Compared:

Separate from, and in addition to, the restrictions on wiretapping, is the issue of "eavesdropping' on the "confidential communications" of others (effective 11/8/67).

See People v. Ratekin (1989) 212 Cal.App.3^rd 1165:  Although P.C. §§ 631 and 632, which prohibit wiretapping and eavesdropping, respectively, envision and describe the use of same or similar equipment to intercept communications, the manner in which such equipment is used is clearly distinguished and mutually exclusive:  "Wiretapping" is intercepting communications by an unauthorized connection to the transmission line whereas "eavesdropping" is interception of communications by the use of equipment which is not connected to any transmission line.