Whitaker v. Garcetti
| Citation | 291 F.Supp.2d 1132 |
| Decision Date | 17 November 2003 |
| Docket Number | No. CV 99-8196WJR(CWX).,CV 99-8196WJR(CWX). |
| Court | U.S. District Court — Central District of California |
| Parties | Jack N. WHITAKER; Ramon Portillo, aka Candido Gutierrez-Elenes; Avelino Avalos; Eduardo Martinez; Virginia Delgado, aka Edna Cabrera; Ricardo Carrizoza, aka Vicente Lopez-Carrizoza; Lauro Rocha-Gaxiola; Antonio Rocha Gastelum, Plaintiffs, v. Gil GARCETTI, Curtis A. Hazell, David Demerjian, Jason Lustig, County of Los Angeles, Willie Williams, Dan Harden, Horacio Marco, Chuck Livingston, Keith Lewis, City of Los Angeles, Does One Through Ten, Defendants. |
Roger J. Rosen, Roger J. Rosen Law Offices, Los Angeles, CA, Philip A. DeMassa, Philip A. DeMassa Law Offices, San Diego, CA, for Plaintiffs.
Scott S. Widitor, Kemalyan & Richland, Richard S. Kemalyan, Jad T. Davis, Dwyer, Daly, Brotzen & Bruno, Cecil W. Marr, Cory M. Brente, Kim Rodgers Westhoff, Gary G. Geuss, Susan Kawala, Los Angeles City Attorney's Office, Los Angeles, CA, Felipa R. Richland, Richland & Associates, Beverly Hills, CA, for Defendants.
Both Defendants and Plaintiffs have brought motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. The matter came on for hearing before the Court, the Honorable William J. Rea, Judge, presiding, on October 1, 2003. Having considered the motions, the papers filed in support thereof and in opposition thereto, the oral argument of counsel, and the file in the case, the Court now makes the following decision.
This action arises out of a dispute between Plaintiffs Jack Whitaker, Ramon Portillo, Avelino Avalos, Eduardo Martinez, Virgina Delgado, Ricardo Carrizoza, Lauro Rocha Gaxiola and Antonio Rocha Gastelum1 and Defendants Gil Garcetti, Curtis Hazell, David Demerjian, Jason Lustig, the County of Los Angeles, Willie Williams, Dan Harden, Horacio Marco, Chuck Livingston, Keith Lewis and the City of Los Angeles.2 Plaintiffs claim that their statutory and constitutional rights were violated by Defendants' unlawful electronic surveillances.
The events that gave birth to the instant dispute were two separate narcotics wiretap investigations conducted by the Los Angeles Police Department ("LAPD"). The first investigation revolved around Downey Communications ("Downey" and "the Downey wiretaps"), while the second revolved around the Atel Cellular and Pager Company ("Atel" and "the Atel wiretaps"). LAPD investigators supposedly suspected these companies of facilitating drug deals by providing cellular telephone and digital paging services to narcotics traffickers and money launderers. The Defendants then submitted to the Los Angeles Superior Court applications for wiretap orders, which included sworn affidavits in order to establish probable cause against Downey and Atel.3 In relying on the sworn statements within the affidavits, the Superior Court issued wiretap orders for the Downey and Atel wiretaps.4 Thus, the wiretaps were supposedly designed to further investigate the suspected criminal activity of Downey Communications and Atel Cellular and Pager Company, and their respective principals and employees.
More specifically, on November 7, 1994, County Defendant Gil Garcetti and City Defendant Willie Williams authorized an application for a wiretap order to intercept the communications of Downey. The Affidavit in Support of the Application for an Order Authorizing the Interception of Wire Communications, which was prepared by City Defendant Keith Lewis and presented to the Los Angeles Superior Court, alleged that:
Williams authorized an application for a wiretap order to intercept the communications of John Lopez, Atil Nath and other principals and employees of Atel Cellular and Paging. The Affidavit in Support of the Application for an Order Authorizing the Interception of Wire Communications, prepared by County Defendant Jason Lustig, alleged that Atel was a "`corrupt' cell phone retailer ... whose role is to facilitate communication among large scale narcotics dealers by providing cellular phone, pagers, and other services in a manner which minimizes the risks to the dealer." Plaintiffs' First Am. Compl., Ex. 10 at 159. The Affidavit also alleged that the Atel principals and employees "were heavily involved in the sales and transportation of narcotics, as well as supplying cellular phones and pagers to narcotics dealers in order to facilitate their drug trafficking activities." Id. at 166. Moreover, it stated that John Lopez and Atil Nath, who are the owners of Atel, opened the business "to provide narcotics traffickers and money launderers assistance with secure, untraceable cellular phone services, and digital pager service." Id. at 209. The Los Angeles Superior Court granted the application to intercept twenty-two telephone lines on May 21, 1996. Due to the myriad of extensions sought and obtained, Defendants were able to intercept dozens of thousands of conversations over the course of twenty-two months.
Unsurprisingly, the Downey and Atel wiretaps uncovered substantial criminal activity, although none on the part of any of the putatively targeted parties.8 While intercepting calls pursuant to these broad and enduring wiretaps, Defendants became aware of suspicious conduct on the part of Plaintiffs, although none of the Plaintiffs were so much as named in the wiretap orders or under investigation by the LAPD at the time of the orders. In other words, Plaintiffs were mere clients of Downey or Atel, or merely involved in conversations with clients of Downey or Atel, but as a result of the two wiretaps, were indirectly subjected to electronic surveillance. These electronic surveillances served as the soil out of which the investigations against Plaintiffs originally grew.9
Neither the Portillo Plaintiffs nor Plaintiffs Gaxiola and Gastelum were informed of the wiretaps to which they were subjected until long after their indictments, convictions and confinement.10 The reason for this is very simple: the LAPD and the office of the Los Angeles District Attorney ("Office of the LADA") intentionally concealed the existence of the wiretaps from the Plaintiffs. More specifically, the LAPD and the Office of LADA utilized the "hand off" procedure. This procedure was designed to allow the Defendants to make use of the incriminating evidence derived from the wiretap, while at the same time, preventing the Plaintiffs from ever learning of the existence of the wiretap. The "hand off" procedure is the focal point of the instant case.
The wiretap "hand off" procedure appears to have first been used by the LAPD and the Office of the LADA in the mid-1980's. The logistics of the procedure are rather simple. An investigative unit applies for and obtains a wiretap order from a judge. Pursuant to the wiretap order, the investigative unit conducts electronic surveillance and gathers specific evidence of imminent criminal conduct. Rather than arriving at the scene and making arrests after observing the criminal conduct, the investigating unit transmits the information to another unit without expressly stating that the delivering unit obtained the information via a wiretap. The receiving unit is given both the specific information gathered through the wiretap and the critical instruction to "investigate" the conduct, which, in law enforcement code, see infra, signifies that the receiving unit should arrive at the crime scene and, rather than execute an arrest, observe the illicit conduct in order to obtain what law enforcement refers to as "independent" probable cause.
Upon acquiring this so-called "independent" probable cause, the receiving unit either makes an immediate arrest or obtains a search warrant on the sole basis of the so-called "independent" probable cause. The criminally accused is then prosecuted without ever knowing that he was subjected to the wiretap surveillance, as no mention of the wiretap is made in any police reports, through any discovery disclosures, or by any testifying detectives at hearings or at trial (the testifying detectives, non-coincidentally, belong to the receiving unit).1112 The conviction follows, yet the very existence of the wiretap is concealed from the criminally accused, in order to permit the survival of any pending investigations revolving around the wiretap.
With respect to the procedural and substantive constitutional rights of the accused, the LAPD and the Office of the LADA believe that the "hand off" drives an iron wedge between the pre-"hand off" wiretap and the post-"hand off" investigation, thus rendering the pre-"hand off" wiretap "uninvolved" in the ultimate prosecution and outside the...
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