Guerrero v. Hestrin

• Decision Date: 21 October 2020
• Docket Number: E072470
• Citation: 270 Cal.Rptr.3d 183,56 Cal.App.5th 172
• Court: California Court of Appeals Court of Appeals
• Parties: Miguel GUERRERO, Plaintiff and Appellant, v. Michael HESTRIN, as District Attorney, etc., Defendant and Respondent.

56 Cal.App.5th 172

270 Cal.Rptr.3d 183

Miguel GUERRERO, Plaintiff and Appellant,

v.Michael HESTRIN, as District Attorney, etc., Defendant and Respondent.

E072470

Court of Appeal, Fourth District, Division 2, California.

Filed October 21, 2020

Electronic Frontier Foundation, David A. Greene, and Naomi F. Gilens for Plaintiff and Appellant.

Reporters Committee for Freedom of the Press, Katielynn B. Townsend, Bruce D. Brown, Gabriel Rottman, and Lin Weeks as Amici Curiae for Plaintiff and Appellant.

Michael A. Hestrin, District Attorney, Emily R. Hanks and Jesse Male, Deputy District Attorneys for Defendant and Respondent.

OPINION

RAPHAEL J.

In 2014, a single Riverside County Superior Court judge signed 602 orders authorizing wiretaps. To put that in perspective, all other judges in the state authorized 345 wiretaps that year. And the 602 wiretaps that year comprised approximately 17 percent of all the wiretaps authorized by all the state and federal courts in the nation.¹ The next year, that same judge and one other authorized 640 wiretaps, the rest of the state authorized 505, and the 640 wiretaps comprised roughly 15 percent of all wiretaps in the country.²

Appellant Miguel Guerrero was targeted by a wiretap that a Riverside County judge authorized in 2015. Guerrero, who was never arrested or charged with a crime in connection with the wiretap, wants to know why he was targeted, and he believes that the sheer number of Riverside County wiretaps in those years raises significant doubts about whether the wiretaps complied with constitutional requirements. To that end, relying on California's wiretap statutes as well as the First Amendment, he asked the trial court to allow him to inspect the wiretap order, application, and intercepted communications. The trial court denied his request.

We hold that the trial court applied the wrong standard in considering Guerrero's application under California's wiretap statutes, which closely parallel statutes under federal law. We remand so that the trial court can properly exercise its discretion, and we provide guidance on the appropriate standard. Given our holding on the statutory issue, we decline to address the contention, advanced by Guerrero as well as an amicus brief, that the public has a First Amendment right of access to the wiretap materials.

I. FACTUAL AND PROCEDURAL HISTORY

In 2014 and 2015, two Riverside County judges authorized over twelve hundred wiretaps that have since been the subject of public scrutiny and consternation. One federal judge has stated that "the sheer volume of wiretaps applied for and approved in Riverside County suggests that constitutional requirements cannot have been met" ( United States v. Mattingly (W.D. Ky. 2016) 2016 WL 3670828, at p. *9, 2016 U.S. Dist. LEXIS 86489, at p. *27 ), and journalists have reported that the wiretaps "allowed investigators ... to intercept more than 2 million conversations involving 44,000 people" (Heath and Kelman, Justice officials fear nation's biggest wiretap operation may not be legal , USA Today (Nov. 11, 2015) 2015/11/11/dea-wiretap-operation-riverside-california/75484076/>; see also ibid. [reporting that federal prosecutors "have mostly refused to use the results in federal court because they have concluded the state court's eavesdropping orders are unlikely to withstand a legal challenge"] ). The law distinguishes wiretaps from search warrants and other investigative techniques by precluding the routine use of wiretaps.³

Wiretap Order No. 15-409 targeted three phones, including Guerrero's, from June to July 2015. Guerrero describes himself as a retired California Highway Patrol officer with no criminal record. Guerrero asserts that he never received a notice informing him his calls had been intercepted, although section 629.68 requires such a notice within a reasonable time. Guerrero also states that he learned that he had been the target of a wiretap only in 2016, when family and friends who received a section 629.68 notice informed him about it. In the five years since his phone calls were intercepted, Guerrero has not been charged with any crime related to the wiretap, and the district attorney conceded in trial court that there are no pending criminal charges against him.

A separate statute allows a civil cause of action against any person who intercepts wire or electronic communications in violation of California's wiretap statutes. (§ 629.86.) Guerrero is considering bringing such a lawsuit, and he wants to "educate the public about the purported justification for Riverside's unprecedented 2015 wiretapping campaign." For these purposes, Guerrero went to court to request access to the wiretap.

In October 2018, Guerrero filed a motion in the trial court, requesting that the court "unseal[ ] the wiretap application and supporting affidavits in Wiretap [Order] No. 15-409 and permit[ ] inspection of the intercepted communications, applications, and orders pertaining to" the wiretap.⁴ He contended, as he does on appeal, that he should be given access to the wiretap materials pursuant to the "interest of justice" standard for inspection of them found in section 629.68, as well as under the First Amendment. Respondent Michael Hestrin, the District Attorney for Riverside County (District Attorney), opposed, contending in part that California's wiretap statutes demonstrate a "clear statutory presumption in favor of sealing." The District Attorney also relied on a different provision of California's wiretap statutes, section 629.66, in claiming that Guerrero failed to demonstrate the "good cause" necessary to rebut the presumption that they be sealed. Thus, Guerrero presented the motion under the "interest of justice" standard found in section 629.68, but the District Attorney employed the "good cause" standard found in section 629.66.

The trial court denied the motion, in an order issued by a judge who was not the one who authorized the wiretap. The trial court applied section 629.66 and found Guerrero had not shown good cause for disclosure:

"And when I look at good cause, good cause—the most plain, basic meaning of that has to mean that there's something different than normal. Because good cause—something different than routine .... Otherwise, why put the words good cause. It has to mean something other than routine.

"And this affidavit—I understand that you're concerned about the great number in Riverside County, but there has never been any finding, that I am aware of, that something nefarious was happening. So all you're asking me to do is consider the statistics. This is nothing more than routine.

"Every person who—against whom charges are not filed would be similarly situated with Mr. Guerrero, which would mean that's not good cause. I mean, that's nothing new. That's nothing unique. I do not find good cause. I find that the affidavit lacks good cause."

II. ANALYSIS

The trial court erred when it construed section 629.68 as requiring Guerrero to demonstrate good cause here. To show why, we consider first the text of section 629.68, which does not expressly require good cause to access wiretap materials, then the text of section 629.66, an adjacent section that does expressly require good cause. We then explain why it is error to import section 629.66's good cause requirement into section 629.68. After concluding that remand is required, we outline various factors for the trial court to consider when applying the correct standard.

A. Sections 629.68 and 629.66

In full, section 629.68 states:

"Within a reasonable time, but no later than 90 days, after the termination of the period of an order or extensions thereof, or after the filing of an application for an order of approval under Section 629.56 which has been denied, the issuing judge shall issue an order that shall require the requesting agency to serve upon persons named in the order or the application, and other known parties to intercepted communications, an inventory which shall include notice of all of the following:

"(a) The fact of the entry of the order.

"(b) The date of the entry and the period of authorized interception.

"(c) The fact that during the period wire or electronic communications were or were not intercepted.

"The judge, upon filing of a motion, may, in his or her discretion, make available to the person or his or her counsel for inspection the portions of the intercepted communications, applications, and orders that the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge, the serving of the inventory required by this section may be postponed. The period of postponement shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted."

Four sentences make up section 629.68. The first sentence requires that an inventory notice be served, soon after the wiretap ends, on "persons named in the [wiretap] order or the application" and "other known parties to intercepted communications." The second sentence states that "the person"—that is, any person who must be served with an inventory notice pursuant to the first sentence—may file a motion to inspect "the portions of the intercepted communications, applications, and orders" that the judge, "in his or her discretion," "determines to be in the interest of justice." The third sentence states that service of an inventory notice may be postponed upon an "ex parte showing of good cause." (Note that this third sentence, which requires "good cause" for postponing notice, does not pertain to the motion described in the second sentence and at issue in this appeal.) The fourth sentence limits this postponement to "no longer than [what] the authorizing judge deems necessary to achieve the purposes for which [postponement] was granted."

Section 629.66, which immediately precedes section 629.68 and also addresses wiretap materials, reads as follows:

"Applications made and orders granted pursuant to this chapter ...