Guerrero v. HestrinGuerrero v. Hestrin
Appellant Miguel Guerrero was targeted by a wiretap that a Riverside County judge authorized in 2015. Guerrero, who was never arrested or charged with a crime in connection with the wiretap, wants to know why he was targeted, and he believes that the sheer number of Riverside County wiretaps in those years raises significant doubts about whether the wiretaps complied with constitutional requirements. To that end, relying on California‘s wiretap statutes as well as the
We hold that the trial court applied the wrong standard in considering Guerrero‘s application under California‘s wiretap statutes, which closely parallel statutes under federal law. We remand so that the trial court can properly exercise its discretion, and we provide guidance on the appropriate standard. Given our holding on the statutory issue, we decline to address the contention, advanced by Guerrero as well as an amicus brief, that the public has a
I. FACTUAL AND PROCEDURAL HISTORY
In 2014 and 2015, two Riverside County judges authorized over twelve hundred wiretaps that have since been the subject of public scrutiny and consternation. One federal judge has stated that “the sheer volume of wiretaps applied for and approved in Riverside County suggests that constitutional requirements cannot have been met” (United States v. Mattingly (W.D. Ky. 2016) 2016 U.S. Dist. LEXIS 86489, at p. *27), and journalists have reported that the wiretaps “allowed investigators . . . to intercept more than 2 million conversations involving 44,000 people” (Heath and Kelman, Justice officials fear nation‘s biggest wiretap operation may not be legal, USA Today (Nov. 11, 2015) <https://www.usatoday.com/story/news/2015/11/11/dea-wiretap-operation-riverside-california/75484076/>; see also ibid. [reporting that federal prosecutors “have mostly refused to use the results in federal court because they have concluded the state court‘s eavesdropping orders are unlikely to withstand a legal challenge“]). The law
Wiretap Order No. 15-409 targeted three phones, including Guerrero‘s, from June to July 2015. Guerrero describes himself as a retired California Highway Patrol officer with no criminal record. Guerrero asserts that he never received a notice informing him his calls had been intercepted, although
A separate statute allows a civil cause of action against any person who intercepts wire or electronic communications in violation of California‘s wiretap statutes. (
The trial court denied the motion, in an order issued by a judge who was not the one who authorized the wiretap. The trial court applied
“And when I look at good cause, good cause—the most plain, basic meaning of that has to mean that there‘s something different than normal. Because good cause—
“And this affidavit—I understand that you‘re concerned about the great number in Riverside County, but there has never been any finding, that I am aware of, that something nefarious was happening. So all you‘re asking me to do is consider the statistics. This is nothing more than routine.
“Every person who—against whom charges are not filed would be similarly situated with Mr. Guerrero, which would mean that‘s not good cause. I mean, that‘s nothing new. That‘s nothing unique. I do not find good cause. I find that the affidavit lacks good cause.”
II. ANALYSIS
The trial court erred when it construed
In full,
“Within a reasonable time, but no later than 90 days, after the termination of the period of an order or extensions thereof, or after the filing of an application for an order of approval under Section 629.56 which has been denied, the issuing judge shall issue an order that shall require the requesting agency to serve upon persons named in the order or the application, and other known parties to intercepted communications, an inventory which shall include notice of all of the following:
“(a) The fact of the entry of the order.
“(b) The date of the entry and the period of authorized interception.
“(c) The fact that during the period wire or electronic communications were or were not intercepted.
“The judge, upon filing of a motion, 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.”
Four sentences make up
“Applications made and orders granted pursuant to this chapter [i.e., the wiretap statutes] shall be sealed by the judge. Custody of the applications and orders shall be where the judge orders. The applications and orders shall be disclosed only upon a showing of good cause before a judge or for compliance with the provisions of subdivisions (b) and (c) of Section 629.70 and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.”
The third sentence of
We conclude that Guerrero needed to demonstrate only that disclosure would be in the interest of justice. The disclosure procedure described in
In the abstract, saying that one must meet an “interest of justice” standard rather than one for “good cause” is not clarifying, as both standards are broad and difficult to define. (See, e.g., In re Lucas (2012) 53 Cal.4th 849 [“It has long been recognized that
Because “[t]he Legislature enacted [the wiretap statutes] in order ‘to expand California wiretap law to conform to the federal law‘” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1196), we may seek guidance from the federal wiretap law, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III;
In passing Title III in 1968, Congress was driven by two competing interests. The first was the need to combat organized crime: as a senate report noted, “[t]he major purpose of [T]itle III is to combat organized crime.” (Sen. Rep. No. 90-1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News, p. 2157 (Senate Report).) Congress found that “[o]rganized criminals make extensive use of wire and oral communications in their criminal activities,” and that “[t]he interception of such
The second was the need to protect personal privacy. The Senate Report noted that “tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques.” (Senate Report, supra, at p. 2154.) As a result, “privacy of communication” had become “seriously jeopardized,” and “[n]ew protections for privacy” were necessary. (Id. at pp. 2154, 2156.)6
Title III thus has “as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.” (Senate Report, supra, at p. 2153.) It “prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officials engaged in the investigation of specified types of major crimes after obtaining a court order,” with exceptions not implicated here. (Id. at p. 2113; see also Gelbard v. United States (1972) 408 U.S. 41, 46 [“Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified
As enforcement mechanisms, Title III provides criminal penalties of fines and up to five years of imprisonment (
Given the extent to which Congress and the Legislature sought to protect “the privacy of wire and oral communications” (Senate Report, supra, at p. 2153), it is not surprising that Title III and California‘s wiretap statutes limit when a member of the general public may access wiretap materials. The statutes do so by requiring a movant to demonstrate “good cause.” Thus, the federal Second Circuit has held that a newspaper lacked good cause to obtain the wiretap applications surrounding the government‘s
Legislative concerns over privacy also explain why, as to the intercepted conversations themselves, a member of the general public has no statutory right of access at all, under either California or federal law.
There is significantly less need to safeguard a person‘s privacy when the person seeking wiretap materials was the target of that wiretap. The target, in seeking to inspect the wiretap materials, obviously consents to the disclosure being made (to himself or herself), and the inspection does not necessarily disclose private information to a third party. The intercepted conversations typically involve the target as a participant. It is possible that the application and orders could contain private information about others (such as, for example, information obtained from another wiretap needed to show necessity for the target‘s wiretap). But this is neither invariably the case nor is it likely that other individuals’ private information would pervade a target‘s wiretap documents. Consequently, the privacy concerns underlying Title III and the California wiretap statutes are diminished when the person seeking access is one whose conversations were being recorded.
We therefore hold that while there is a presumption against disclosure when a member of the general public seeks wiretap applications and orders pursuant to
The District Attorney contends that “it is clear that a superior court judge must first find good cause to unseal the wiretap application and order before the court can consider a motion to inspect under
Neither of these reasons is convincing. The fact that wiretap materials “shall be sealed” in and of itself has no bearing on what standard one must satisfy to access them;
Additionally, under the District Attorney‘s interpretation, the motion to inspect made available by
To summarize,
“Because the standard we announce is new, the proper course is to remand to the trial court for application of the . . . test formulated above to the facts of this case.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 824.) Moreover, the record here indicates that Guerrero would likely have testified and been cross-examined had the judge not found that Guerrero‘s affidavit failed to demonstrate good cause: Guerrero was at the hearing and expressed a willingness to testify, and the District Attorney similarly expressed an intent to cross-examine Guerrero in support of its argument in the alternative. Accordingly, “‘[w]e cannot foreclose the possibility that further information was available, but not presented, at the time the . . . court ruled upon the motion.‘” (In re Charlisse C., supra, 45 Cal.5th at p. 167.) “[T]he prudent course is [therefore] to remand the matter . . . rather than to decide the matter on the existing state of the evidentiary record.” (Ibid.)
To aid the trial court, we outline some guidance for evaluating Guerrero‘s motion under the “interests of justice” standard in
In considering a motion to inspect wiretap materials under
1. The Movant‘s Interest
A target of a wiretap who is criminally charged often receives copies of the wiretap materials because of his interest in whether the wiretap was properly authorized, which he can raise in a motion to suppress evidence. (See
Here, the trial court appeared to require something more than a desire to pursue a lawsuit under
Furthermore, the fact that others may be in the same position as a movant should not lessen the significance of a movant‘s interest. At the hearing on the motion to inspect here, the trial court ruled against disclosure partially because “[e]very person . . . against whom charges are not filed would be similarly situated with” Guerrero. This reasoning does not do justice to the privacy interests of a wiretap target. Many people may want to vindicate their privacy rights. It does not follow that those rights should therefore be harder to enforce. Assuming, purely for the sake of argument, that many of the wiretaps
2. The Government‘s Interest
The government, of course, often has a profound interest in maintaining the confidentiality of its investigations. The government‘s interest in this respect may therefore take precedence over any other competing interests when considering a motion to inspect under
The government‘s interest in this regard is more pronounced when an investigation is ongoing, and in the few published cases where the recipient of an inventory notice has sought wiretap materials outside the context of a filed criminal case, courts have routinely cited an ongoing investigation as a primary reason against disclosure. (See Stoddard v. United States (2d Cir. 1983) 710 F.2d 21, 23 [affirming denial of motion to inspect where district court considered “both [defendant‘s] arguments as to the need for disclosure and the harm that such disclosure might work in the context of a continuing homicide investigation“]; Matter of Steven (D. Kan. 2017) 243 F.Supp.3d 1209, 1215 [“The Movants are not wrong for wanting to know more, they are just too early. If charges are ever brought, the Movants will have more access to information surrounding this investigation. Alternatively, if charges are not brought after what seems to be an unreasonable amount of time, the Movants may have a stronger argument for the disclosure in a renewed motion.“]; Application of United States Authorizing Interception of Wire Communications (E.D. Pa. 1976) 413 F.Supp. 1321, 1325, 1335 [concluding that, “at this juncture, the interest of the Government in maintaining secrecy in the grand jury proceedings outweighs movant‘s interest in discovery of the requested materials,” and noting that “it is principally a question of timing” in light of availability of civil cause of action]; In re Persico (E.D.N.Y. 1973) 362 F.Supp. 713, 714 [holding that movants’
The existence and weight of the government‘s interest, however, should not be presumed, but affirmatively articulated and substantiated. Here, we observe that the District Attorney has not relied on the existence of an ongoing investigation or grand jury proceeding before the trial court or on appeal. To the contrary, the District Attorney has conceded that there are “no criminal charges pending” against Guerrero. Similarly, the District Attorney has not claimed that there is any sensitive information in the wiretap materials, such as the identity of an informant, or information related to another open investigation, such that disclosure could jeopardize current or future investigations.
Additionally, in light of the government‘s interest when considering a motion to inspect, where appropriate, a court may require redactions, in camera review, or both, if doing so would promote the balance between law enforcement and privacy our elected officials had in mind when passing Title III and California‘s wiretap statutes. (See Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 837 [noting that in camera review “is routinely used when a judicial decision concerns information claimed to be covered by some rule of confidentiality or privilege“]; Stoddard v. United States, supra, 710 F.2d at pp. 23-24.)
3. Other Intercepted Persons’ Interests
Given the federal and California statutes’ concern for privacy, a trial court evaluating a motion under
That same consideration for intercepted nonmovants, however, should take into account the fact that disclosure is being sought not by a general member of the public, but by someone who was often on the other end of the line. Although we have not discovered cases suggesting that intercepted nonmovants regularly raise privacy concerns when a criminal defendant receives a copy of intercepted communications, such persons may nevertheless have, and raise, legitimate privacy concerns, whether or not the wiretap target eventually becomes a criminal defendant. For now, we believe that the procedures currently in place for protecting third party privacy in criminal cases provide adequate protection here. (See
4. The Public‘s Interest
Finally, the trial court should consider the public‘s interest in allowing a movant to inspect wiretap materials concerning him. Crucially, this interest does not emanate from any desire on behalf of the public to make such materials broadly available. Rather, the nature of the interest here stems from the importance of public confidence in the criminal justice system. (See People v. Rhodes (1974) 12 Cal.3d 180, 185 [“It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice.“]; cf. Batson v. Kentucky (1986) 476 U.S. 79, 87 [“Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.“]; Press-Enterprise Co. v. Superior Court of California, Riverside County (1984) 464 U.S. 501, 508 [public access to trials “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system“].) As noted above, the anomalous number of wiretaps
In addition, public confidence in the criminal justice system and the appearance of fairness can be damaged not only by actual impropriety, but the possibility of impropriety as well. (See People v. Rhodes, supra, 12 Cal.3d at p. 186 [“Even the appearance of . . . impropriety could operate to weaken the public‘s confidence in the system of criminal justice.“].) Courts considering motions to inspect pursuant to
C. Guerrero‘s First Amendment Claim
Guerrero, as well as amicus, contend that the public has a qualified right of access to the wiretap materials under the
The order denying Guerrero‘s motion for inspection pursuant to
CERTIFIED FOR PUBLICATION
RAPHAEL
J.
We concur:
MILLER
Acting P. J.
SLOUGH
J.