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An Introduction to California State Wiretaps

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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.

             

 

             

 

 

© 2006 - 2008 Raymond E. Foster, Leadership in Hi Tech Criminal Justice

 

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