California State Wiretap Law and Landmark Cases

" 'In general, California law prohibits wiretapping.' " (People v. Leon (2007) 40 Cal.4th 376, 383, quoting People v. Zepeda (2001) 87 Cal.App.4th 1183, 1195; see Cal. Const., art. I, 1.) "California's wiretap law subjects the authorization of electronic surveillance to a much higher degree of scrutiny than a conventional search warrant." (People v. Jackson (2005) 129 Cal. App. 4th 129, 144.) The purpose of wiretap laws is twofold: " ' "(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." ' " (Jackson, at p. 147, quoting Halpin v. Superior Court (1972) 6 Cal.3d 885, 898) "Wire communication" includes electronic communications. ( 629.51; see 18 U.S.C. 2511(1)(a).) In interpreting a state wiretap scheme, the reviewing court may look for guidance to cases under title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 United States Code sections 2510 to 2520 (federal wiretap act), "which 'provides a "comprehensive scheme for the regulation of wiretapping and electronic surveillance." ' " (Leon, supra, 40 Cal.4th at p. 384, quoting People v. Otto (1992) 2 Cal.4th 1088, 1097; see People v. Superior Court (Westbrook) (1993) 15 Cal.App.4th 41, 48.) The federal wiretap act establishes minimum standards for the admissibility of evidence procured through electronic surveillance. State law cannot be less protective of privacy than the federal wiretap act. (Leon, supra, at p. 384; Otto, supra, 2 Cal.4th at p. 1098.) A designated judge may authorize a wiretap when the judge finds there is probable cause to believe that an individual is, was, or will be committing one of the crimes specified in the statute ( 629.52, subd. (a)), particular communications about the offense will be intercepted ( 629.52, subd. (b)) and the device is used or leased by the person targeted by the wiretap ( 629.52, subd. (c)). The judge must also determine that normal investigative procedures have been tried and failed, or appear reasonably unlikely to succeed, or would be too dangerous if tried. ( 629.52, subd. (d).) The wiretap must be conducted to minimize the interception of communications not otherwise subject to interception. ( 629.58.) A wiretap cannot be authorized longer than necessary to achieve its objective or 30 days, whichever occurs first. On new application, the court may authorize an extension of the existing wiretap. (Ibid.) The wiretap authorization order requires reports in writing or otherwise to be made to the judge who issued the order. The reports must be filed with the court at intervals the judge may require, but not less than one for each six-day period. They must contain a statement about the progress that has been made toward the authorized objective, or a satisfactory explanation for the lack of progress, and the need for continued interception. If the judge finds that progress has not been made, the explanation for the lack of progress is not satisfactory, or there is no need for continued interception, the judge must order the wiretap to stop immediately. ( 629.60.) If, during the course of the wiretap, a law enforcement officer intercepts communications relating to certain crimes enumerated in section 629.82 (statutorily authorized communications) other than those specified in the authorization order (nontargeted communications), the contents of the statutorily authorized, nontargeted communication and any evidence derived from that communication may be used in any grand jury or criminal proceeding when a judge finds, upon subsequent application, that the contents of these communications were otherwise intercepted in accordance with the Act. The application is to be made as soon as practicable. ( 629.82, subd. (a), 629.78.) A defendant may move to suppress some or all of the contents of any intercepted communication or evidence derived from it, "only on the basis that the contents or evidence were obtained in violation of the Fourth Amendment of the United States Constitution or of this chapter." ( 629.72.) "The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in Section 1538.5." ( 629.72.) The truth-in-evidence clause (Cal. Const., art. I, 13) does not apply to section 629.72. (Jackson, supra, 129 Cal.App.4th at pp. 152-153.)