Wiretap Evidence

Pre-Trial Evidentiary Hearings

March 2, 2004

JUDGE: Okay. I think the first order of business this morning is to rule on the wiretapping evidence in this case. And so I will hear what you have got to say, Mr. Geragos, and then I'll hear from the prosecution, and then I'll make my ruling.

GERAGOS: In short order. Thank you. As the Court knows, the Court read --

JUDGE: I have read all of it.

GERAGOS: You have read all of that. I don't want to beat it again, because I know you have been through it at least three or four times.

JUDGE: Yeah.

GERAGOS: I don't need to address the sanctions. I don't need to address the fruit of the poisonous tree, as the Court knows. But I do think that the one obstacle that this court can't get around -- not that it would be inclined to try to get around -- but the one thing that is provable and demonstrable from Investigator Jacobson's testimony, and from all the other evidence that was produced in camera, is the necessity requirement. And the Court, I do not believe under the current state of the law, is ever going to be able to say that there was a sufficient reason, and there was a sufficient necessity at that point. The unrebutted testimony from Investigator Jacobson is that at the point on January 10th, they had a number of people who were cooperating. That they had -- I think his exact quote was, that it was unprecedented in his 13 years the number of tips that had been forwarded to him. That they still had scientific evidence that was on the way back there. Was still waiting for all kinds of logs and other types of material that he believed at that point that they had a sufficient quantum of evidence. That he comes from the old school, and wanted to just make it stronger. All of those things, while admirable for their honesty and conceding them, I don't see how the Court could possibly make a finding that necessity is required. And, obviously, I don't have to remind this court that wiretaps are disfavored, and especially in the state context, there has been a resistance to the implementation of 629 for virtually 25 years. It was only under extreme circumstances in which the courts found that there was no other reasonable alternative that they could possibly invoke was a wiretap sustained. Clearly under the caselaw, and the Second District case that's been cited in the paperwork is the one that controls in this case because there is no other law. It would seem to -- I think out of the six factors, four on their face don't comply. If they don't comply, the wiretap is no good.

JUDGE: Talking about Zepeda?

GERAGOS: Yes. And under the analysis of Zepeda, I don't know that I need to argue this much more. I think that -- we have had three days of hearing. I don't think that you can make a better record that would demonstrate amply that there was no necessity, and everything else. Unless the Court wants to hear more from me, I would submit, because I think that controls the entire issue.

JUDGE: Okay. Mr. Distaso.

DISTASO: Your Honor, briefly, just -- actually I had listed ten separate items that we needed to address here in the wiretaps. Counsel really just focused on necessity. I'm just going to focus on that, and assume the Court's ruling is going to cover remaining items.

JUDGE: He's not taking that issue with sanctions, so that's not an issue. He's not arguing about fruit of the poisonous tree, so you can forget about arguing that. That's no longer an issue.

DISTASO: The only ones I would bring up, so we're all on the same page. I think the Franks issue regarding the evidence of the dog alerting in the shed. I think that's amply covered by the testimony that the officer was originally told that the dog did alert, so I don't really think that's an issue any longer. And the -- and the only other issue is that whether 629.80 is constitutional. And since he raised this issue in his papers, I just wanted to bring them up and make sure that -- I don't think he's withdrawing them. I think he's just basically submitting them for the Court's ruling, and I'll do the same. Regarding the necessity issue, it's -- I'm going to be brief. But it's solely a legal question it's reviewed for. Actually, Investigator Jacobson, in my opinion, his testimony completely supported necessity. He talked about all of the things that the government, or the people in this case, had done to try to help him make an effective case. And that's the standard. It's whether or not there is evidence sufficient to prove the case beyond a reasonable doubt. And in this particular case, as he states in the affidavit, there were no -- on January 10th, there were no even bodies in this case. So I don't see how you can get around that fact, how can you have a murder case without any bodies? I mean I guess technically you can, and in some instances they have done that. In this particular case, and what the Court's heard, the state of the evidence certainly was such that there was no case without the bodies being found. And on January 10th they had not been found. So clearly the wiretaps, by that definition alone, were necessary. And, your Honor, with that I'll submit on the necessity question.

JUDGE: All right. Mr. Geragos.

GERAGOS: Submit it.

JUDGE: All right. The Court read and considered the moving papers from both sides. The Court has spent a lot of time reviewing the cases also. And you can see from the file here that there is a lot of information to cover. The Court has to look at Penal Code Section 629.50 and get some guidance from the federal cases that have been cited in the briefs for both sides. Under U.S. versus McGuire, 307 Federal 3d at 1192, which is a 2002 case, that case sets forth a test. Necessity requirement has been met in this case. It can be met where it is shown that ordinary investigative procedures employed in good faith would likely be ineffective in the particular case under consideration. And then you look at U.S. versus Bennett. That's a 2002 case, 291 F.3d at 1117. In Bennett, if there has been some success by law enforcement using traditional investigation, this does not mean that a wiretap cannot be obtained. And if you look at Zepeda, Zepeda sets forth these particular tests or rules, for lack of a better word. But in reviewing Zepeda, I think that Zepeda is case specific. And I think you have to look at the federal authorities for guidance. And I cite those two cases, U.S. versus McGuire, U.S. versus Bennett. And McGuire goes on to say that the Court authorizing wiretap has considerable discretion. And this would be Judge Ladine. And a finding of necessity is reviewed for abuse of discretion. And so I guess I'm in a position of reviewing Judge Ladine's decision in authorizing the wiretaps. With respect to Wiretap Number 2 and Wire Number 3, in reviewing the affidavit, the Court is satisfied that it sufficiently shows normal investigative procedures have been tried and failed. Affidavit also shows that normal investigative procedures, though not yet tried, reasonably appeared to be unlikely to succeed if tried. Again, that's citing U.S. versus McGuire, 307 Federal 3d at 1192. And then Scott versus the United States, 1978 case, 437 U.S. at 128, stands for the general proposition that the actions of the investigators with respect to the wiretap must be evaluated using, quote, standard of reasonable, unquote, under the facts and circumstances known to the investigator at the time. And, in this matter, the Court has heard and reviewed the tapes in question, the instructions given, the policy followed, and the methodology used. The Court finds that the investigators were instructed in accordance with Penal Code Section 629.80 with respect to the monitoring of privileged communications by Mr. Distaso. So the Court's of the opinion that no misconduct occurred. Apparently Mr. Geragos is not disputing that. He's not arguing the issue of sanctions as it relates to Mr. Distaso and as to some of this other evidence, how it would be tied together. The Court has heard the actual recordings of the attorney-client communications, including the one with the private investigator, and the Court finds that the information recorded was so minimal as to be of no consequence. The Court further finds that the investigators were reasonable in their attempts to monitor all of the calls, including privileged ones, and the Court further finds that there was no action on the part of the DA or the investigators that was so egregious as to require the exclusion of the witnesses, a dismissal of the charges, suppression of the wiretap. Therefore, it is not required -- a dismissal is not required, and the motion will be denied. Court also, since the DA will not be offering the privileged cases in evidence -- privileged calls in evidence, as I understand it, in reading his moving papers, no suppression of those calls is required. If the District Attorney attempted to offer those in evidence then they would be suppressed. With respect to the Franks hearing the Court has heard, reviewed the evidence, and the Court finds that there has not been a sufficient showing by the defense in order to have a Franks hearing, so the Franks hearing is denied. Okay. So that takes care of that.