MIGUEL GUERRERO, Plaintiff and Appellant, v. MICHAEL HESTRIN, as District Attorney, etc., Defendant and Respondent.
E072470 (Super.Ct.No. MCW1800102)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
October 21, 2020
RAPHAEL, J.; MILLER, Acting P. J.; SLOUGH, J.
CERTIFIED FOR PUBLICATION
Filed 10/21/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MIGUEL GUERRERO, Plaintiff and Appellant,
v.
MICHAEL HESTRIN, as District Attorney, etc., Defendant and Respondent.
E072470
(Super.Ct.No. MCW1800102)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Remanded with directions.
Reporters Committee for Freedom of the Press, Katielynn B. Townsend, Bruce D. Brown, Gabriel Rottman, and Lin Weeks as Amici Curiae for Plaintiff and Appellant.
Michael A. Hestrin, District Attorney, Emily R. Hanks and Jesse Male, Deputy District Attorneys for Defendant and Respondent.
In 2014, a single Riverside County Superior Court judge signed 602 orders authorizing wiretaps. To put that in perspective, all other judges in the state authorized 345 wiretaps that year. And the 602 wiretaps that year comprised approximately 17 percent of all the wiretaps authorized by all the state and federal courts in the nation.1 The next year, that same judge and one other authorized 640 wiretaps, the rest of the state authorized 505, and the 640 wiretaps comprised roughly 15 percent of all wiretaps in the country.2
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 First Amendment right of access to the wiretap materials.
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 distinguishes wiretaps from search warrants and other investigative techniques by precluding the routine use of wiretaps.3
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. (
In October 2018, Guerrero filed a motion in the trial court, requesting that the court “unseal[] the wiretap application and supporting affidavits in Wiretap [Order] No. 15-409 and permit[] inspection of the intercepted communications, applications, and orders pertaining to” the wiretap.4 He contended, as he does on appeal, that he should be given access to the wiretap materials pursuant to the “interest of justice” standard for inspection of them found in
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—something different than routine . . . . Otherwise, why put the words good cause. It has to mean something other than routine.” “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
A. Sections 629.68 and 629.66
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
“(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.
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
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
[t]he term ‘good cause’ is not susceptible of precise definition.“]; Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 651 [“An interests of justice standard is incompatible with the necessity for a clear standard as to precisely which pretrial orders are appealable.“].) But here a marked difference in substance may be inferred from context. The wiretap statutes emphasize the protection of privacy of those targeted or recorded, but there is a reduced need for such protection when the person seeking access to wiretap materials is the target of the wiretap. This leads us to conclude that the “interest of justice” standard under
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.
communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice.” (Pub.L. No. 90-351, § 801(c) (June 19, 1968) 82 Stat. 197, 211.)
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
serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions“].)
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
investigation into a former governor. (In re New York Times Co. to Unseal Wiretap (2d Cir. 2009) 577 F.3d 401 (New York Times).) That same court has held that a television network lacked good cause to access wiretap materials surrounding an investigation it had reported on. (Natl. Broadcasting Co. v. U.S. Dept. of Justice (2d Cir. 1984) 735 F.2d 51 (NBC).) In both these cases, the court relied on the federal analog of
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.
(See
There is significantly less need to safeguard a person‘s privacy when the person seeking wiretap materials was the target of that wiretap. The
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
622 F.3d 159, 173 [holding, in Title III case, that “[s]ince Congress has specifically laid out different requirements for the disclosure of wiretap applications and orders than for the disclosure of wiretapped communications, we decline to read the requirements for the former to apply to the latter“].) “Good cause” in the context of
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;
it simply means that the materials do not start
Additionally, under the District Attorney‘s interpretation, the motion to inspect made available by
finding of good cause, there would be nothing gained in also considering whether inspection would be in the interest of justice. “[C]ourts must strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous.” (Klein v. United States of America (2010) 50 Cal.4th 68, 80.) Because the District Attorney‘s reading would render the interests of justice standard superfluous as to certain types of requests, as well as the other reasons stated above, we do not agree with his construction of
To summarize,
particular case. While we understand that the trial court in this situation lacked clear appellate guidance, we conclude that the trial court‘s decision constituted an abuse of discretion because it applied the wrong standard. (See In re Charlisse C. (2008) 45 Cal.4th 145, 159 [“a disposition that rests on an error of law constitutes an abuse of discretion“].)
“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.4th 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
B. Balancing Interests under Section 629.68
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
specifically anticipated that the analogous federal civil cause of action would serve such a purpose. (See Senate Report, supra, at p. 2196 [“Injunctive relief, with its attendant discovery proceedings, is not intended to be available [citation]. It is expected that civil suits, if any, will instead grow out of the filing of inventories under [
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
authorized in Riverside County in 2014 and 2015 were indeed unlawful, the government should not be able to more easily keep the records of those wiretaps sealed simply because there are so many of them.10 The significance of a movant‘s interest should be independent of the possibility that similar motions to inspect may follow.11
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
1230, 1234 [“the right of conversational privacy, founded on the Fourth Amendment,” “yields among other things to imperative needs of law enforcement“].)
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
application for inspection was “premature” because “disclosure at this time could jeopardize the continuing investigation“].)
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
nonmovants whose conversations were intercepted or for whom wiretap orders were sought. Thus, for instance, when a wiretap application involves multiple targets, some of whom do not seek to inspect 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
provide defendant “a copy of all recorded interceptions from which evidence against the defendant was derived,” “[a] court may issue an order limiting [such] disclosures . . . upon a showing of good cause“].)13 As is the case when considering the government‘s interest, protection of these third party interests may require in camera review, redactions, or both.
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
approved by judges in Riverside County in 2014 and 2015 has elicited scrutiny from judges and journalists. (See United States v. Mattingly, supra, 2016 U.S. Dist. LEXIS 86489, at p. *27; Heath and Kelman, Justice officials fear nation‘s biggest wiretap operation may not be legal, USA Today (Nov. 11, 2015) <https://www.usatodaycom/story/news/2015/11/11/dea-wiretap-operation-riverside-california/75484076/>.)
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
had the ability to infer, at an initial stage, a likelihood of harm given the numbers, such as when determining whether a juror was impermissibly excused on a racial basis. (See Flowers v. Mississippi (2019) 588 U.S. ___ [139 S.Ct. 2228, 2235, 2245] [Batson v. Kentucky (1986) 476 U.S. 79 violation found in part because “[t]he numbers speak loudly“: “the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck“].) To say a trial court may consider statistics in these situations is simply to say a court can consider circumstantial evidence or the totality of the circumstances.14
Guerrero, as well as amicus, contend that the public has a qualified right of access to the wiretap materials under the First Amendment. It is a “well-established principle” however, that courts should “‘not decide constitutional questions where other grounds are available and dispositive of the issues of the case.‘” (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230; see also Lyng v. Northwest Indian Cemetery Protective Ass ‘n (1988) 485 U.S. 439, 445 [“A fundamental and long-standing principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.“].) Because our resolution of the statutory issue is dispositive of the matter before us at this point, we decline to address the constitutional claim.
III. DISPOSITION
The order denying Guerrero‘s motion for inspection pursuant to
CERTIFIED FOR PUBLICATION
RAPHAEL J.
We concur:
MILLER Acting P. J.
SLOUGH J.