By Christian G. Urbina
Usually when the subject of wiretaps arises
in law enforcement many questions are
asked. For example, what does a wiretap
consist of, what judge can authorize a
wiretap, what if the target travels out of
the county who has jurisdiction, can a
wiretap be granted for any crime and once
you get the order for a wiretap what
procedures are required to maintain and
close the investigation? These are
questions asked when it comes to the
establishment and running of a wiretap on
any particular target. Wiretaps are a
powerful investigative tool. By having a
wiretap it allows the eavesdropper to
overhear conversations between a variety of
particular targets or potential targets.
Electronic surveillance is a tool that can
detect criminal conspiracies and provide
prosecutors with the strong evidence to
prosecute a particular defendant(s). By using
electronic surveillance it also allows a law
enforcement officer with the ability to gather
incriminating statements and information for
prosecution without having to put themselves
and others in any additional danger (Schirn and
Turner, 2008). Although extremely useful and a
great tool to use, there are many procedures
and requirements which need to be fulfilled
before a wiretap is issued. For the remainder
of this text I will review and discuss what the
procedures and requirements are for a wiretap,
but first we must be clear and understand what
a wiretap exactly is.
What is a wiretap? Wiretap is defined as, “An
order authorizing the interception of a wire,
electronic pager, or electronic cellular
telephone communication” (Schirn and Turner,
2008). For a precise and definite definition
of wire communication, electronic pager
communication and electronic cellular telephone
communication one must read and review section
629.51 PC of the California penal code.
Section 629.51 PC states the following:
(a) “Wire communication” means 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 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.
(b) "Electronic pager communication" means any
tone or digital display or tone and voice pager
communication.
(c) "Electronic cellular telephone
communication" means any cellular or cordless
radio telephone communication.
(d) "Aural transfer" means a transfer
containing the human voice at any point between
and including the point of origin and the point
of reception (California Penal Code, 2007).
Now that we have established what a wiretap is
and defined the different types of devices
which it can intercept we must now determine
what the requirements and the process that is
needed for submitting an application. These
requirements can be reviewed under section
629.50 PC of the California penal code. The
section states that an application must be
completed and submitted in writing. The
application must then be submitted to the
district attorney’s office for review. Once
the district attorney’s office has reviewed the
application, it is signed and a memorandum and
copy of the application is provided to the
assigned judge for review. Once the judge
reviews the application and no changes are
required arrangements are made through the
judge’s clerk for signing of the application (Schirn
and Turner, 2008; California Penal Code,
2007).
When submitting an application for a wiretap it
cannot contain a request for the interception
of e-mail, fax, bugs or any roving wires.
Although permitted federally those
interceptions are restricted when requesting
for a state wiretap (Schirn and Turner, 2008).
Your application should also be extremely
specific as to the crime in which you are
investigating and require a wiretap to assist
in your investigation. For a state wiretap
investigation you are limited to the crimes
allowed for receiving a wiretap. The crimes
are limited to the following: A narcotics
investigation involving cocaine, heroin,
methamphetamine, PCP, or their precursors or
analogs, the amount of narcotics involved in
your investigation must also be over ten
gallons or three pounds, narcotics money
laundering and must be over $100,000, murder,
solicitation to commit murder, destructive
device, and aggravated kidnapping, felony
violation of penal code 186.22, weapons of mass
destruction and an attempt or conspiracy to
commit any of the above (Schirn and Turner,
2008).
Another subject that needs to be addressed in
the application, if needed, is the request to
Hobbs any information you would like to remain
confidential and sealed (Schirn and Turner,
2008). In some cases the investigating officer
or the affiant can request a court order from a
judge in sealing all or part of a search
warrant or application affidavit. This is
normally done in order to protect the identity
of an informant. That type of warrant is
commonly referred to as a Hobbs Search
Warrant. When the investigating officer or the
affiant request sealing of the affidavit it is
prevent disclosure of the informant. If the
informant’s information was disclosed and made
public it would endanger the life of that
informant and prevent the success of any future
investigations (People v. Hobbs, 1994 7 Cal.4th
948; LAPD Informant Manual, 2008; Shirn and
Turner, 2008). Hobbs is not allowed
for a federal wiretap, but is allowed at the
state level. In many instances local
departments are constantly working in
conjunction with federal entities. In doing
so, be sure to review and determine the various
guidelines required for submitting a federal
and state wiretap application. Although
somewhat similar, there is a variety of
differences. Many things that are allowed at
the federal level are not allowed at the state
level and vise versus (Schirn and Turner,
2008).
Officers are constantly placed in situations
where assistance or resources are needed
immediately. If placed in a situation of an
extreme emergency and substantial threat to
life or limb an oral approval of a wiretap can
be received. This requirement is stated under
section 629.56 PC of the California penal
code. The section states that an informal
application must be submitted by the district
attorney. Same grounds apply as the formal
wiretap application as far as the process of
submitting. Probable cause that an emergency
situation exists must be established and that
there is a substantial danger to life or limb.
Upon the formal process being completed and
oral approval received for a wiretap, a written
application must be filed with the designated
judge within 48 hours of the oral approval
being given (Schirn and Turner, 2008;
California Penal Code, 2007).
Once the application is granted the
investigating officer or affiant is now
responsible for making the necessary
notifications and contacting the necessary
individuals to set up the wire. One of the
responsibilities is to contact the phone
company which your target is currently using to
establish the wire. Ideally the investigating
officer knowing that an order for a wiretap was
going to be issued would contact the phone
company ahead of time so the necessary
arrangements could be made. Due to the CALEA
communication providers are required to provide
the necessary equipment, facilities and
services to allow law enforcement the ability
to conduct electronic surveillance. CALEA also
requires service communications to be
responsible for the interception and routing of
calls to law enforcement monitoring stations.
The communications provider is also responsible
for making sure that the call content and the
call-identifying information is accurate and
not altered prior to forwarding to the law
enforcement agency. The service provider must
also decode, decrypt and decompress the
information before forwarding to law
enforcement agency. In providing all these
services the communications provider must also
provide and forward all this information using
the least amount of avenues prior to reaching
the law enforcement agency (Foster, 2005;
Schirn and Turner, 2008).
Once the interception is established and calls
are being routed by the communication provider
the investigating officer or the affiant must
be aware of who is monitoring the interception
of calls. The monitors are restricted to the
individuals who have been POST certified on
wiretaps and have been listed on the original
application. Individuals who can monitor the
wiretap are limited to investigative or law
enforcement officers and civilian monitors. In
situations where the investigating officer is
aware that during the interception of
communication a language barrier may be
encountered, civilian interpreters can serve as
a viable resource. When using civilian
monitors they must also be included in the
original application and be POST certified on
wiretaps. During civilian interception of
wiretap communications they must be supervised
by an officer at all times. Civilian
interpreters must also be only used in
circumstances where translation is required.
Once the language barrier fails to exist a law
enforcement officer is to take over the
interception. When using a civilian
interpreter during wiretap operations they must
also be designated by the district attorney (Schirn
and Turner, 2008).
During the monitoring of wiretap communication
officers and civilians can face a number of
various obstacles, especially when it comes to
privileged communication. Privileged
communication is considered to be
attorney/client, doctor/patient,
clergyman/parishioner, psychotherapist/patient
and husband/wife communication. When
privileged communication is encountered one can
still continue to monitor, but restrictions and
how you monitor is extremely important. When
privileged communication is encountered
interception must immediately cease for at
least two minutes. Once communication has
ceased for at least a complete two minutes the
individual monitoring can return on-line for up
to 30 seconds to determine if the nature of the
communication is still privileged. The cycle
of going on line and off line must continue
until the individual monitoring can establish
that the communication being monitored is no
longer privileged (Schirn and Turner, 2008;
California Penal Code, 2007).
During the monitoring and interception of
communication, the investigating officer and
unit assisting in the monitoring must maintain
clear and copious notes on conversations
intercepted and recorded. During monitoring,
the investigating officer must take the
information received from all interceptions of
communication and provide a report of the
investigation every six days to the judge who
signed the order for the wiretap. Failure to
do so can result in the immediate shut down of
all wiretap operation (Section 629.60 PC). It
is extremely important that the judge is
constantly kept aware of the progress in the
investigation or any problems faced.
Wiretaps orders are normally issued for a time
period of 30 days. If for whatever reason an
extension is required and needed to complete
the investigation the investigating officer
must complete and forward another application.
The process for an extension is the same as for
the original application. The only difference
is that the investigating officer must include
in their application the number of
communications intercepted during the original
application and results thus far obtained or
reasonable explanation for failure to obtain
necessary result for investigation (Schirn and
Turner, 2008; California Penal Code, 2007).
Once your investigation is completed, all means
have been exhausted and the order for wiretap
has expired, all recordings shall be sealed.
The application and orders granted shall be
sealed by the judge (section 629.64 PC).
Failure to comply with the above can result in
the suppression of intercepted communication
and any evidence resulting from the
interception of the communication. Upon
sealing of the application, orders and
recordings it will remain in the custody of the
judge or designated personnel for a retention
period of ten years. After sealing of all
documents and recordings the investigating
officer must now, no later than 90 days, notify
all persons in the order, application and
intercepted communications of the intercept of
their communication (section 629.68 PC; Schirn
and Turner, 2008; California Penal Code, 2007).
As you can see conducting a wiretap operation
is not an easy task and throughout the past
century stricter rules and regulations have
been implemented when it comes to the
interception of someone’s communication.
Regardless, electronic surveillance still
serves as a viable tool that can detect
criminal conspiracies and provide prosecutors
with the strong evidence to prosecute a
particular defendant(s). Although extremely
useful and a great tool to use, there are first
many procedures and requirements which need to
be fulfilled to accomplish the task and goal of
acquiring a wiretap in the first place.
About the Author
Officer Christian G. Urbina is a six-year
veteran with the Los Angeles police
Department. He is currently assigned to Harbor
Division, where he serves as an investigator
assigned to the Narcotic Enforcement Detail.
Previously, Officer Urbina served at Newton
Division, where he served and was assigned to
the Newton Narcotic Enforcement Detail,
Burglary Detective Section, Newton Strategic
Operation Center and as a Patrol Officer.
Prior to the above assignments Officer Urbina
also served at 77th Street Division
assigned to as a Patrol Officer.
Officer Urbina is also an eight-year veteran
and currently an active reserve member with the
United States Army. He is currently assigned
to a Combat Military Police unit. While
assigned to a Combat Military Police unit
officer Urbina served overseas in Kuwait and
Iraq during Operation Iraqi Freedom and
Operation Enduring Freedom.
References
1. Foster, R.E.
(2005). Police Technology. Upper Saddle
River, New Jersey: Pearson Education
Inc.
2. California
Penal Code. (2007). Chicago, IL: Thomas
West Corporation.
3. Schirn, R. &
Turner, B. (2008, January). Introduction to
Wiretaps. Manual presented at the
LA Clear training and certification for
wiretaps.
4. The Los
Angeles Police Department Informant Manual
(2008, March). Manual presented at
the Los Angeles Police Department Narcotics
School.
