Wiretap Law

Question 1

Under California law can law enforcement eavesdrop on or record a call with the consent of one party?

Answer 1

No.

In California: a person may not intentionally and without the consent of all parties eavesdrop or record confidential communications in real time. (Pen. Code, § 632[wobbler].)

Question 2

Can one party consent to eavesdropping or recording under Federal law?

Answer 2

Yes.

Under Federal law, only one person needs to consent. This is different from California law.

Question 3

Can a cop or a DA record a conversation that they are a party to?

Answer 3

Yes. A peace officer, or a deputy district attorney, can secretly record conversations to which they are a party while acting in the scope of their duties. (Pen. Code, § 633;18 U.S.C. § 2511(2)(c).)

Question 4

Can a peace officer direct someone to make a call and then record that call?

Answer 4

Yes. For example, the police may do a controlled call with the victim or using a confidential informant.

Question 5

Can law enforcement record jailhouse visits?

Answer 5

Yes.

This is allowed without a court order as long as the inmate and the other person are given meaningful notice that they are being recorded. (People v. Kelley (2002) 103 Cal.App.4th853.)

Question 6

Is a wiretap available to investigate any California crime?

Answer 6

No. Law enforcement can only use a wiretap to investigate the most serious crimes. (See Pen. Code, § 629.52 [list of crimes that qualify for a wiretap].)

Question 7

Can law enforcement use a wiretap to investigate domestic violence crimes?

Answer 7

No. Domestic violence is not a qualifying crime under the wiretap statute.

Question 8

Can law enforcement use a wiretap to investigate theft of large amounts of money?

Answer 8

No. Theft, even of large amounts of money, is not a qualifying crime under the wiretap statute.

However, money laundering of over $100,000 for cocaine, heroin or PCP dealing does qualify.

Question 9

Are room bugs authorized under California law?

Answer 9

No. There is an exception for hostage taking or barricaded suspects. (Pen.Code, § 633.8.)

Question 10

What is a “roving wire”?

Answer 10

If a suspect changes phones, a roving wire allows law enforcement to listen in on the new phone.

Question 11

Where are roving wires legal?

Answer 11

Roving wires, which allow law enforcement to simply listen in on a new phone when the suspect changes phones, are allowed under federal law but not California law. In California, the wiretap order attaches to the phone.

Question 12

What is a pen register?

Answer 12

A pen register allows law enforcement to get real time data about what numbers are being used to call a phone. It does not provide audio or text messages. Law enforcement can only see what number is calling the target number. This is useful for seeing current call patterns.

Question 13

What is a ping order?

Answer 13

Ping orders allow you to locate a phone. They are governed by Penal Code sections 1524(a)(12) and 1534(b). These fall under tracker rules and last only up to 30 days. The notice requirements are the same as Cal.ECPA. An emergency ping requires notice. (Pen. Code, § 1546.2.)

Question 14

What is deconfliction?

Answer 14

Law enforcement must identify if there are previous wiretap applications on the same targets or phones, whether or not granted. This applies to both state and federal calls. You can satisfy this requirement with an inquiry to the Cal. Attorney General or the U.S. Dept. of Justice.

Do your deconfliction check by looking at the Electronic Intercept Court Order System [EICOS]. This is the first time you will check EICOS. The second time is when you notify EICOS after you successfully get the court order to do the wiretap.

Question 15

Which county’s court has jurisdiction to order a wiretap?

Answer 15

Jurisdiction resides in the county where the communication is initially intercepted or where the device is located. The County where the communication is initially intercepted is the county where your wiretap room is located.

Question 16

Can any law enforcement officers monitor a wiretap?

Answer 16

No.

Law enforcement involved in using a wiretap must have special training. The California Department of Justice must train and then certify wiretap personnel. (Pen. Code, § 629.94.) This section requires successful completion of an eight-hour course before seeking authorization for, or participating in, wiretap operations. (Id.)

Question 17

Who must be certified in a wiretap investigation?

Answer 17

All of these people must be wiretap certified:

1. Affiant (including Federal agent affiants);
2. Any investigator working in the wire room; and
3. Civilian foreign language monitors.

Surveillance units do not need to be POST wiretapcertified.

Question 18

What are the four documents needed to obtain a wiretap?

Answer 18

1. Affidavit
2. Application
3. CEO Review
4. Court Order

These documents are placed together in a notebook, referred to as the “wiretap book” or “wire book.”

Question 19

What must a wiretap affidavit include?

Answer 19

1. A preamble;
2. A statement of probable cause; and
3. A showing of necessity.

Question 20

What is the purpose of a preamble in a wiretap affidavit?

Answer 20

It should include
1. The name of the affiant, who must be a peace officer or federal law enforcement. It can’t be a prosecutor or a civilian overseer.
2. It must include law enforcement’s training and experience. If it is a gang wire, law enforcement must establish foundation as an expert.
3. Name all involved LE agencies.
4. Designate a primary (attaches to the CEO).

Question 21

What four things must a law enforcement officer show in a wiretap affidavit?

Answer 21

1. The target has, is, or is about to commit a targeted crime;
2. Particular communications concerning crime will be obtained through the interception;
3. Facilities (phones) are being used or are about to be used to talk about targeted crime; and
4. Normal investigative techniques have been tried and failed, are unlikely to succeed, or are too dangerous.

Question 22

Can a wiretap intercept people not directly involved in criminal activity?

Answer 22

Yes. The wiretap can intercept persons not directly involved as a suspect in a targeted offense if law enforcement can show they have knowledge of the criminal activity. For example, a parent in common’s communications can be intercepted if there is probable cause showing pertinent communication about the crime.

Question 23

What four types of people can apply for a wire order?

Answer 23

1. The Attorney General;
2. The Chief Deputy Attorney General;
3. The Chief Assistant Attorney General; and
4. The elected District Attorney of any county.

Question 24

Can an elected district attorney designate someone to apply to a court for a wire order on their behalf?

Answer 24

Yes. (See U.S. v. Perez-Valencia (9th Cir.2014) 744 F.3d 600.) This person must have the authority to do everything the DA does when they are around. This includes hiring and firing.

Question 25

Does a police chief have to review a wiretap application?

Answer 25

Yes. Chief Executive Officer (or designee) of the law enforcement agency requesting the application must review it. (Pen. Code, § 629.50(c).)

Question 26

What is a Hobbs attachment?

Answer 26

The court may include a non-disclosure requirement for parts of the wiretap application. This protects information that may reveal a confidential informant’s identify. This information can be sealed. (People v. Hobbs (1994) 7 Cal.4th 948.) This protects official information. But you can’t use a Hobbs warrant in a federal wiretap. The Hobbs portion is ordered sealed by the court with original kept with law enforcement, the DA, and the court. Copies must be retained for 10 years.

Question 27

Who must law enforcement notify after a wiretap goes up?

Answer 27

Notify EICOS: Electronic Intercept Court Order System [EICOS]. After you get the wire up you must do a “Post-Order Report” to EICOS. Within 10 days of an order being signed or rejected law enforcement must notify the California Department of Justice and report the people, facilities (phones) and places being intercepted.

Question 28

How long can wiretaps last?

Answer 28

As long as necessary to obtain the desired results, but no longer than 30 days.

Question 29

Are wiretap extensions allowed?

Answer 29

Yes.

Question 30

When does a wiretap order start?

Answer 30

Wiretaps can only last 30 days. This period starts running upon the first interception, or 10 days after the order is issued, whichever comes first.

Question 31

Can law enforcement record conversations and review them after the fact?

Answer 31

No. All communications must be simultaneously monitored and recorded while a designated and P.O.S.T. certified monitor listens in real time.

Question 32

What does it mean to say a conversation is “pertinent” or “non-pertinent”?

Answer 32

Only pertinent communications – communications related to the crimes specified in the court order – can be monitored and recorded. When a call is with an unnamed or unknown person it is permissible to listen briefly to hear who is talking and what they are talking about.

Question 33

What is “minimization?”

Answer 33

Minimization is the process by which monitors stop and start the recording of conversations. If a call is not pertinent, law enforcement must minimize the call, meaning, not record it. They can “spotcheck” or resume to see if it becomes pertinent. Use the same on/off guideline: law enforcement must immediately minimize the call, then 2 minutes off and up to 30 seconds on.

Question 34

What is a 10 day report?

Answer 34

Law enforcement must report to the judge every 10 days. These reports must include verbatim quotes of pertinent parts of conversations and the agent’s interpretation.

Question 35

What happens after a wiretap order expires?

Answer 35

Once the wiretap has ended, law enforcement must

1. Use equipment that protects the recordings from being altered or edited.
2. The original recordings must be sealed immediately;
3. The targets must be notified within 90 days of the expiration of the order.

Question 36

Can law enforcement arrest someone on a wire and release them while the wire is still going?

Answer 36

Yes. (Pen.Code, § 849.) But a criminal defendant must be told about the wire once they are charged on it.

Question 37

Where are the discovery requirements for a state wiretap?

Answer 37

They are in Penal Code section 629.70.

The prosecution must disclose wiretap evidence early. Disclosure must be made at least 10 days before the intended use of the intercepts or 10 days before the use of evidence derived from the wire. (Pen. Code, §629.70.) Filing of criminal charges is the triggering event for the disclosure requirement.

Question 38

When must the prosecution disclose wiretap evidence?

Answer 38

Disclosure must be made at least 10 days before the intended use of the intercepts or 10 days before the use of the evidence derived from the wire. (Pen. Code, § 629.70.)

Question 39

What is the triggering event for the requirement that wiretap evidence must be disclosed at least 10 days before the intended use of the intercepts?

Answer 39

Filing of criminal charges is the triggering event.

Question 40

What are three things you should make sure you have when a wiretap is referred to you by law enforcement?

Answer 40

Make sure that you have:

1. A copy of the wiretap book,
2. The monitoring logs (linesheets); and
3. The calls/texts.

Most wiretap detectives will scan the wiretap book and place it on a disk along withthe audio and monitoring logs.

Question 41

What discovery should you provide to the defense when you get a wiretap?

Answer 41

Discoveryconsists of

1. The wiretap book;
2. Monitoring logs;
3. The audio/texts; and
4. Transcripts of any calls you intend to use.

Ideally, discovery should be provided at the time the defendant is arraigned on the complaint.

Question 42

What should you watch out for when providing a wiretap affidavit to the defense?

Answer 42

Some affidavits include a confidential Hobbs attachment. As with search warrants, People v. Hobbs is used in wiretap affidavits to seal off information from an informant or other official information. Do not turn over the Hobbs attachment to the defense absent a court order.

Question 43

Who provides wiretap transcripts?

Answer 43

Law enforcement is instructed to prepare transcripts of pertinent, relevant calls at the time the call was intercepted while the wire is active. Waiting until after the case has been filed and the defendants have been arraigned is too late. These transcripts are typically included in the monitoring logs. Transcripts are required before wiretap evidence is admissible per Penal Code section 629.70 and California Rule of Court 2.1040.

Question 44

Will anyone help you with wiretap litigation?

Answer 44

The Major Narcotics Division will handle and/or assist with any litigation that stems from the wiretap. This includes motions to suppress. You must notify the Major Narcotics Division as soon as you receive any motions from the defense which challenge the admissibility of wiretap evidence.

Question 45

What is a Wall Stop?

Answer 45

In a wall stop, a patrol officer is asked to find his own lawful reason to stop and search the vehicle and is not advised of the information known by investigators in order to protect the secrecy of the ongoing investigation.

Wall Stops protect the source of the information (the confidential informant or the wire) from criminal discovery. The officer should not write in a report that they were asked to stop a car.

Question 46

Are there sanctions for violating the wiretap statute?

Answer 46

Yes.

There are potential civil and criminal sanctions for intentionally violating the wiretap statute or illegally intercepting communications. (Pen. Code, §§ 629.84, 629.86.) Civil and criminal sanctions may also be applied for illegally disclosing intercepted communications: no pillow talk. Good faith reliance on a court order is a complete defense to any civil or criminal action. (Pen. Code, § 629.86.)