Court Revives Wiretap Target’s Attempt to Get Information About the Wiretap
From Guerrero v. Hestrin, decided today by the California Court of Appeal, in an opinion written by Justice Michael Raphael and joined by Justices Douglas Miller and Marsha Slough:
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. 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.
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.
The court concluded that, under California statutes, the targets of wiretaps were generally entitled to be informed about the wiretaps “[w]ithin a reasonable time, but no later than 90 days, after the termination of the period of [a wiretap] order”; and the judge may then, “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.”
This “interest of justice” standard, the court concluded, w
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