Villa v. Maricopa Cnty.
| Decision Date | 02 August 2017 |
| Docket Number | No. 15-15460,15-15460 |
| Parties | Manuela VILLA, Plaintiff–Appellant, v. MARICOPA COUNTY; Maricopa County Board of Supervisors ; William Gerard Montgomery, Maricopa County Attorney, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cameron A. Morgan (argued), Scottsdale, Arizona, for Plaintiff–Appellant.
James Kenneth Mangum (argued), Deputy County Attorney; William G. Montgomery, Maricopa County Attorney; Civil Services Division, Maricopa County Attorney's Office, Phoenix, Arizona; for Defendants–Appellees.
Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Robert W. Pratt,* District Judge.
Law enforcement officials in Maricopa County intercepted and recorded eight conversations between Plaintiff Manuela Villa and her daughter in 2011 and 2012. The target phone number over which Villa's conversations were intercepted belonged to neither Villa nor her daughter. The wiretap application was authorized by Maricopa County Attorney William G. Montgomery, but the application was made by Deputy County Attorney Jennifer Brockel. Before making the application, Brockel personally reviewed a lengthy supporting affidavit. Montgomery did not review the affidavit supporting the application.
After Villa learned that her conversations had been intercepted, she brought a would-be class action against County Attorney Montgomery, the Maricopa County Board of Supervisors, and Maricopa County ("Defendants"), alleging that portions of the Arizona wiretapping statute, as well as the county's practices adopted in reliance on the statute, were preempted by and violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. ("Title III"). Villa also alleged that her Fourth Amendment rights had been violated.
The district court concluded that Arizona's wiretapping statute and practices thereunder were not preempted by, and did not violate, Title III. The court dismissed Villa's suit in its entirety under Federal Rule of Civil Procedure 12(b)(6). The court did not discuss Villa's Fourth Amendment claim. Villa has appealed only the court's adverse rulings on her Title III claims.
We hold that Villa lacks Article III standing to seek injunctive or declaratory relief on behalf of herself or a putative class, but that she has standing to pursue individual damages. On the merits, we hold that Ariz. Rev. Stat. § 13-3010(A), as applied by Maricopa County officials, is preempted by Title III, and that Villa's rights under 18 U.S.C. § 2516(2) were violated because applications for wiretaps were not made by the "principal prosecuting attorney." We hold, further, that Ariz. Rev. Stat. § 13-3010(H) is not preempted by Title III if it is construed to require that recordings of intercepted conversations be submitted to a court for sealing within ten days of the termination of the court's order authorizing a wiretap on each particular target line. However, Villa's rights under 18 U.S.C. § 2518(8)(a) were violated because the recordings of her intercepted conversations were submitted for sealing more than a month after the termination of the order authorizing the wiretap on the target line on which her conversations were intercepted. Finally, we hold that because the law enforcement officials who violated §§ 2516(2) and 2518(8)(a) were acting in good faith within the meaning of 18 U.S.C. § 2520(d), they are protected from a damage judgment. We therefore affirm, though on different grounds, the decision of the district court.
The following narrative is taken from Villa's complaint and from documents to which the complaint refers. We take as true the complaint's plausible and properly pleaded allegations, which we summarize here. Zucco Partners, LLC v. Digimarc Corp. , 552 F.3d 981, 989 (9th Cir. 2009).
On November 9, 2011, Deputy County Attorney Jennifer Brockel submitted an application for an order permitting wiretapping of four cell phones as part of a criminal investigation designated CWT–412. The application included three documents.
The first document was the application itself, dated November 9, 2011, and signed under oath by Deputy County Attorney Brockel. The preface to the application recited, "WILLIAM G. MONTGOMERY, the duly elected and qualified Maricopa County Attorney, by his appointed and authorized Deputy County Attorneys of Maricopa County, Jennifer Brockel and/or Vanessa Losicco and/or Jeffery Beaver and/or Tony Novitsky, being duly sworn, deposes and says: ...." Paragraph V of the application recited further, "That he, WILLIAM G. MONTGOMERY, designated in writing that Deputy County Attorneys of Maricopa County, Jennifer Brockel and/or Vanessa Losicco and/or Jeffery Beaver and/or Tony Novitsky, has authority pursuant to A.R.S. § 13-3010(A) to make further applications for amendments or extensions of the Order authorizing interception of communications." Brockel stated in the application that she had read a sworn affidavit signed by several detectives, that there was probable cause to believe that there had been and would be violations of specific provisions of Arizona criminal law, that there was probable cause to believe that electronic interception would provide evidence of these crimes, that other investigative techniques had been tried and failed, and that further pursuit of other investigative techniques would be unlikely to succeed or would be dangerous. The application requested that the Maricopa County Attorney, the Phoenix Police Department, or the Drug Enforcement Administration or their representatives be authorized to engage in interception. The application sought a court order authorizing wiretaps on four specified targeted telephone numbers ("Target Lines 1–4"), used by two named persons. County Attorney Montgomery did not sign the application.
The second document was a lengthy affidavit dated November 9, 2011, signed under oath by three Phoenix Police Department detectives, to which Brockel referred in her application.
The third document was an authorization to apply for wiretaps, dated the day before, November 8, 2011, and signed under oath by County Attorney Montgomery. In the document, Montgomery authorized "Jennifer Brockel and/or Vanessa Losicco and/or Jeffery Beaver and/or Tony Novitsky, Deputy Maricopa County Attorneys, to make application on my behalf for an Ex Parte Order for interception of telephonic ... communications relating to" a list of specific offenses "which have been, are being, and will continue to be committed by" three named persons the targets of the wiretap, and "other known and unknown co-conspirators." The caption of the document listed the four target lines specified in Brockel's application. The document also listed three named persons, two of whom are specified in Brockel's application as using Target Lines 1–4. Nowhere in the document did Montgomery state that he had personally reviewed any evidence supporting an application for a wiretap.
On November 9, 2011, a judge of the Maricopa County Superior Court signed an order authorizing wiretaps for thirty days on Target Lines 1–4. Between November 18, 2011, and February 8, 2012, as part of investigation CWT–412, the same judge signed fourteen additional orders authorizing wiretaps on an additional twenty-eight target lines.
On November 23, 2011, Brockel applied for and obtained a wiretap order authorizing a wiretap for thirty days on Target Line 9, a line used by Hugo Gabriel Armenta–Castro. Armenta–Castro was one of the three persons specified in Montgomery's November 8 authorization and Brockel's November 9 application. The telephone number for Target Line 9 was specified neither in Montgomery's authorization nor in Brockel's initial application. The wiretap on Target Line 9 was later extended for thirty days in an order dated December 21, 2011, based on a further application by Brockel.
On eight occasions on December 12, 2011, and January 8, 2012, Villa's conversations with her daughter over Target Line 9 were intercepted and recorded by Maricopa County officers. All of the recordings of the intercepted communications for the thirty-two target lines in investigation CWT–412 were submitted to the Arizona Superior Court for sealing on March 1, 2012.
We review de novo a district court's dismissal for failure to state a claim pursuant to Rule 12(b)(6). Cervantes v. Countrywide Home Loans, Inc. , 656 F.3d 1034, 1040 (9th Cir. 2011). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "
Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
Villa seeks statewide declaratory and injunctive relief on behalf of herself and the class she seeks to represent. She alleges standing to seek such prospective relief on two grounds—as a taxpayer in Arizona, and as an individual whose conversations were intercepted in violation of federal law. We hold that Villa lacks Article III standing to pursue either form of prospective relief. See Ellis v. Costco Wholesale Corp. , 657 F.3d 970, 978 (9th Cir. 2011) (). Because Villa herself lacks Article III standing to pursue this relief, she cannot represent a plaintiff class seeking such relief. See Hodgers–Durgin v. de la Vina , 199 F.3d 1037, 1044–45 (9th Cir. 1999) (en banc).
For standing to seek prospective relief based on taxpayer status, Villa alleges that she is a resident of Maricopa County and that she pays taxes "in the state of Arizona." She does not explicitly so state, but we infer that she pays both state and county taxes. She further alleges that "defendants are using state...
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