California Penal Code Section 629.52 - Interpretation

Penal Code section 629.52, states, in relevant part: "Upon application made under Section 629.50, the judge may enter an ex parte order, as requested or modified, authorizing interception of . . . electronic cellular telephone communications . . . if the judge determines, on the basis of the facts submitted by the applicant, all of the following." Subdivisions (a) through (c) set forth the requisite court determinations of probable cause. Subdivision (d) contains the necessity requirement. In People v. Leon (2007) 40 Cal.4th 376, the California Supreme Court stated, in relevant part, "'In general, California law prohibits wiretapping.' the Presley-Felando-Eaves Wiretap Act of 1988 authorized specified law enforcement officials to apply for a court order to intercept wire communications, but only where there was probable cause to believe the target was involved in the importation, possession for sale, transportation, manufacture, or sale of heroin, cocaine, PCP, or methamphetamine in specified quantities, or in a conspiracy to commit those offenses. In 1995, the Legislature enacted Penal Code section 629.50 et seq. in order 'to expand California wiretap law to conform to the federal law.' Thus, the district attorney or other specified individual could apply to the presiding judge of the superior court (or a designee) for an order to intercept not only wire communications but also . . . 'electronic cellular telephone' communications. "Under current Penal Code section 629.52, the designated judge may authorize a wiretap if there is requisite probable cause and 'normal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous' Penal Code, 629.52, subd. (d)." (Leon, supra, 40 Cal.4th at pp. 383-384.) the italicized language is the necessity requirement.