Brown McClain Prock Attorneys
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FAQ

Wiretaps

If you've ever heard a mysterious click during a phone conversation, you've probably wondered if your phone was being tapped. In reality, however, wiretaps are fairly rare and can only be used to investigate certain serious crimes. When you discover the government has intercepted your conversation to investigate a criminal case, it is critical to contact an attorney who understands all the legal hoops the governement must jump through to lawfully eavesdrop on private conversations.

According to the most recent government reports available in April of 2015, there were 3,576 federal and state wiretap orders issued in 2013. That number was up 5% from 2012. Federal Courts issued 1,476 of those orders. The California Attorney General reported that there were a total of 674 wiretap orders signed in California in 2013 resulting in 799 arrests. California accounted for 1/3 of all wiretap orders issued by state courts in the United States. Los Angeles county courts signed 146 wiretap orders, Orange county courts signed 4, and Riverside courts signed 329. [Read more.] Over 80% of state and federal wiretaps related to narcotics offenses. Over 95% of all orders were to tap "portable devices."

Whenever a State or Federal law enforcement agency has probable cause to believe that a person or persons are commiting or committed serious felony offenses, and normal law enforcement techniques are not likely to develop evidence of guilt, they can ask a prosecutor to apply to a judge for a wiretap. To obtain a state wiretap, only the District Attorney of a county or the top three members of the criminal division of the Attorney General's office can apply for a wiretap. Federal wiretaps may only be sought by the "highest ranking prosecutor" listed in the applicable wiretap statute.

Likewise, state wiretaps may only be signed by the presiding judge of a county or one other judge in that county. Federal wiretaps may only be signed by judges specifically authorized by statute. State judges may only sign a wiretap to intercept communications within their territorial jurisdictions.

Wiretaps in California regarding narcotics investigations can only be used in major narcotics cases. In fact a court must have probable cause to believe that "a substance containing heroin, cocaine, PCP, methamphetamine, or their precursors or analogs where the substance exceeds 10 gallons by liquid volume or three pounds of solid substance by weight" is involved. However, wiretaps may also be issued to gather evidence related to murder, solicitation to commit murder, destructive devices, weapons of mass destruction, kidnapping, and felony gang offenses.

State wiretaps cannot be ordered to gather evidence of other offenses not listed above. Federal wiretaps may be sought for a broader list of felony offenses listed in Title 18 United States Code section 2516(2).

If you were named in a federal wiretap order, or application for an order, you are entitled to notice of this fact within 90 days. Failure to provide this notice entitles the person who's conversations were intercepted to suppression of the conversations as evidence and to civil money damages. Persons who's conversations were intercepted must be identified to the federal judge who issued the order who then decides whether those persons will be notified of the interception.

State wiretap rules are even more stringent in this regard. The California wiretap law is Penal Code sections 629.50 through 629.98. Penal Code section 629.68 requires that all persons who's calls were intercepted and can be identified, must be notified of the interception within 90 days of the termination of the order regardless of whether criminal charges are ever filed.
Thus, persons who's conversations were intercepted but were not the targets of the wiretap are likely going to find out, one way or another.

Persons arrested based on wiretap evidence can challenge, as an illegal search and seizure, the validity of the wiretap order. Oftentimes, one wiretap order will lead to another "hand off" wiretap order. This occurs where a targeted individual speaks to another party and the police thereafter seek a wiretap on the other party. The second party may challenge not only the legal validity of the wiretap made regarding his own phone, but also as to first wiretap that supported the probable cause for the second.

Nathaniel Brown