Court of Appeal, Fourth Appellate District, Division Two
Kevin J. Lane, Clerk/Executive Officer
Electronically FILED on 10/21/2020 by B. Ramirez, Deputy Clerk

 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.1
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.2

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 signi?cant 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.

 

1 (Office of the Attorney General, California Electronic Interceptions Report,
Annual Report to the Legislature 2014, Table 3 (Number of Intercept Orders Granted)

2014.pdf>; United States Courts, Wiretap Report 2014, Table 2
The 2014 figures (as well
as the 2015 figures below) do not account for orders in the United States Foreign
Intelligence Surveillance Court, which do not concern domestic criminal prosecutions.

2 (Office of the Attorney General, California Electronic Interceptions Report,
Annual Report to the Legislature 2015, Table 3 (Number of Intercept Orders Granted),

2015.pdf>; United States Courts, Wiretap Report 2015, Table 2


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.

I. FACTUAL AND PROCEDURAL HISTORY

In 2014 and 2015, two Riverside County judges authorized over twelve hundred
wiretaps that have since been the subject of public scrutiny and consternation. One
federal judge has stated that ?the sheer volume of wiretaps applied for and approved in
Riverside County suggests that constitutional requirements cannot have been met?
(United States v. Mattingly (W.D. Ky. 2016) 2016 U.S. Dist. LEXIS 86489, at p. 
and journalists have reported that the wiretaps ?allowed investigators . . . to intercept
more than 2 million conversations involving 44,000 people? (Heath and Kelman, Justice
o?icials fear nation ?5 biggest wiretap operation may not be legal, USA Today (Nov. 11,
2015) 1/1 1/dea-wiretap-operation-
see also ibid. [reporting that federal prosecutors ?have
mostly refused to use the results in federal court because they have concluded the state

court?s eavesdropping orders are unlikely to withstand a legal The law

distinguishes wiretaps from search warrants and other investigative techniques by
precluding the routine use of wiretaps.3

Wiretap Order No. 15-409 targeted three phones, including Guerrero?s, from June
to July 2015. Guerrero describes himself as a retired California Highway Patrol of?cer
with no criminal record. Guerrero asserts that he never received a notice informing him
his calls had been intercepted, although section 629.68 requires such a notice within a
reasonable time. Guerrero also states that he learned that he had been the target of a
wiretap only in 2016, when family and friends who received a section 629.68 notice
informed him about it. In the ?ve years since his phone calls were intercepted, Guerrero
has not been charged with any crime related to the wiretap, and the district attorney
conceded in trial court that there are no pending criminal charges against him.

A separate statute allows a civil cause of action against any person who intercepts
wire or electronic communications in violation of Califomia?s wiretap statutes.
629.86.) Guerrero is considering bringing such a lawsuit, and he wants to ?educate the
public about the purported justi?cation for Riverside?s unprecedented 2015 wiretapping

campaign.? For these purposes, Guerrero went to court to request access to the wiretap.

 

For a wiretap, a judge must ?nd that ?[n]ormal investigative procedures have
been tried and have failed or reasonably appear unlikely to succeed if tried or too
dangerous.? (Pen. Code, 629.52, subd. undesignated statutory references are to the
Penal Code.) ?The requirement of necessity is designed to ensure that wiretapping is
neither ?routinely employed as the initial step in criminal investigation? [citation] nor
?resorted to in situations where traditional investigative techniques would suf?ce to
expose the crime.? (People v. Leon (2007) 40 Cal.4th 376, 385.)

In October 2018, Guerrero ?led a motion in the trial court, requesting that the
court ?unseal[] the wiretap application and supporting af?davits in Wiretap [Order] No.
15-409 and permit[] inspection of the intercepted communications, applications, and
orders pertaining to? the wiretap.4 He contended, as he does on appeal, that he should be
given access to the wiretap materials pursuant to the ?interest of justice? standard for
inspection of them found in section 62968, as well as under the First Amendment.
Respondent Michael Hestrin, the District Attorney for Riverside County (District
Attorney), opposed, contending in part that California?s wiretap statutes demonstrate a
?clear statutory presumption in favor of sealing.? The District Attorney also relied on a
different provision of California?s wiretap statutes, section 629.66, in claiming that
Guerrero failed to demonstrate the ?good cause? necessary to rebut the presumption that
they be sealed. Thus, Guerrero presented the motion under the ?interest of justice?
standard found in section 62968, but the District Attorney employed the ?good cause?
standard found in section 629.66.

The trial court denied the motion, in an order issued by a judge who was not the
one who authorized the wiretap. The trial court applied section 629.66 and found
Guerrero had not shown good cause for disclosure:

?And when I look at good cause, good cause?the most plain, basic meaning of

that has to mean that there?s something different than normal. Because good causethe hearing, Guerrero called the motion a?prelim1nary discovery motion
prior to being able to file a complaint.?

something different than routine . . . . Otherwise, why put the words good cause. It has
to mean something other than routine.

?And this affidavit?I understand that you?re concerned about the great number in
Riverside County, but there has never been any ?nding, that I am aware of, that
something nefarious was happening. So all you?re asking me to do is consider the
statistics. This is nothing more than routine.

?Every person who?against whom charges are not filed would be similarly
situated with Mr. Guerrero, which would mean that?s not good cause. I mean, that?s
nothing new. That?s nothing unique. I do not find good cause. I find that the affidavit
lacks good cause.?

11. ANALYSIS

The trial court erred when it construed section 629.68 as requiring Guerrero to
demonstrate good cause here. To show why, we consider first the text of section 629.68,
which does not expressly require good cause to access wiretap materials, then the text of
section 629.66, an adjacent section that does expressly require good cause. We then
explain why it is error to import section 629.66?s good cause requirement into section
629.68. After concluding that remand is required, we outline various factors for the trial

court to consider when applying the correct standard.

A. Sections 629. 68 and 629.66

In full, section 629.68 states:

?Within a reasonable time, but no later than 90 days, after the termination of the
period of an order or extensions thereof, or after the ?ling of an application for an order
of approval under Section 629.56 which has been denied, the issuing judge shall issue an
order that shall require the requesting agency to serve upon persons named in the order or
the application, and other known parties to intercepted communications, an inventory
which shall include notice of all of the following:

The fact of the entry of the order.

The date of the entry and the period of authorized interception.

The fact that during the period wire or electronic communications were or
were not intercepted.

?The judge, upon ?ling of a motion, may, 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. On an eX parte showing of good cause to a judge, the serving of the inventory
required by this section may be postponed. The period of postponement shall be no
longer than the authorizing judge deems necessary to achieve the purposes for which it
was granted.?

Four sentences make up section 629.68. The ?rst sentence requires that an

inventory notice be served, soon after the wiretap ends, on ?persons named in the

[wiretap] order or the application? and ?other known parties to intercepted
communications.? The second sentence states that ?the person??that is, any person who
must be served with an inventory notice pursuant to the first sentence?may ?le a motion
to inspect ?the portions of the intercepted communications, applications, and orders? that
the judge, ?in his or her discretion,? ?determines to be in the interest of justice.? The
third sentence states that service of an inventory notice may be postponed upon an ?ex
parte showing of good cause.? (Note that this third sentence, which requires ?good
cause? for postponing notice, does not pertain to the motion described in the second
sentence and at issue in this appeal.) The fourth sentence limits this postponement to ?no
longer than [what] the authorizing judge deems necessary to achieve the purposes for
which [postponement] was granted.?

Section 629.66, which immediately precedes section 629.68 and also addresses
wiretap materials, reads as follows:

?Applications made and orders granted pursuant to this chapter the wiretap
statutes] shall be sealed by the judge. Custody of the applications and orders shall be
where the judge orders. The applications and orders shall be disclosed only upon a
showing of good cause before a judge or for compliance with the provisions of
subdivisions and of Section 629.70 and shall not be destroyed except on order of
the issuing or denying judge, and in any event shall be kept for 10 years.?

The third sentence of section 629.66, like the second sentence of section 629.68,

describes under what circumstances certain wiretap materials (here, only ?applications

and orders?) may be accessed. But unlike section 629.68, section 629.66 expressly
requires ?good cause.? (Section 629.70, which concerns disclosure to criminal
defendants, does not apply, as Guerrero was never charged with a crime.) Thus the issue
arises: did Guerrero have to demonstrate ?good cause,? as section 629.66 requires, or
that disclosure would be in the ?interest of justice,? as section 629.68 requires?

We conclude that Guerrero needed to demonstrate only that disclosure would be in
the interest of justice. The disclosure procedure described in section 629.68 applies only
to those entitled to receive an inventory notice, a narrower category than those who may
seek disclosure under section 629.66, an adjacent provision that is available to anyone
(including, for example, members of the media) who can demonstrate good cause.
Because ?more speci?c provisions take precedence over more general ones? (Collection
Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310), section 629.68 controls over
section 629.66 when both nominally apply. (See also CSC?Laundry v. United States
(1981) 450 US. 1, 6 speci?c statute . . . controls over a general provision
. . . particularly when the two are interrelated and closely Here, Guerrero
was entitled to an inventory notice, so section 629.68 applies.

In the abstract, saying that one must meet an ?interest of justice? standard rather
than one for ?good cause? is not clarifying, as both standards are broad and dif?cult to

de?ne. (See, e. In re Lucas (2012) 53 Cal.4th 849 [?It has long been recognized that

 

5 Sections 629.68 and 629.66 were enacted at the same time, so the rule that ?later
enactments supersede earlier ones? (Collection Bureau of San Jose v. Rumsey, supra, 24
Cal.4th at p. 310) does not apply. (See Sen. Bill No. 1016 (1995-1996 Reg. Sess.).)

?[t]he term ?good cause? is not susceptible of precise Arr Movers, Inc. v. Ni
West, Inc. (1992) 3 Cal.App.4th 640, 651 [?An interests of justice standard is
incompatible with the necessity for a clear standard as to precisely which pretrial orders
are But here a marked difference in substance may be inferred from
context. The wiretap statutes emphasize the protection of privacy of those targeted or
recorded, but there is a reduced need for such protection when the person seeking access
to wiretap materials is the target of the wiretap. This leads us to conclude that the
?interest of justice? standard under section 629.68 is intended to describe a lighter burden
than the ?good cause? standard under section 629.66.

Because ?[t]he Legislature enacted [the wiretap statutes] in order cto expand
California wiretap law to conform to the federal law?? (People v. Zepeda (2001) 87
Cal.App.4th 1183, 1196), we may seek guidance from the federal wiretap law, Title of
the Omnibus Crime Control and Safe Streets Act of 1968 (Title 18 U.S.C. 2510 et
seq.) (See People v. Leon, supra, 40 Cal.4th at p. 384; People v. Acevedo (2012) 209
Cal.App.4th 1040, 1051.)

In passing Title in 1968, Congress was driven by two competing interests. The
first was the need to combat organized crime: as a senate report noted, ?[t]he major
purpose of [T]itle is to combat organized crime.? (Sen. Rep. No. 90-1097, 90th
Cong, 2d Sess. (1968), reprinted in 1968 US. Code Cong. Admin. News, p. 2157
(Senate Report).) Congress found that ?[o]rganized criminals make extensive use of wire

and oral communications in their criminal activities,? and that ?[t]he interception of such

10

communications to obtain evidence of the commission of crimes or to prevent their
commission is an indispensable aid to law enforcement and the administration of justice.?
(Pub.L. No. 90-351, 801(c) (June 19, 1968) 82 Stat. 197, 211.)

The second was the need to protect personal privacy. The Senate Report noted
that ?tremendous scienti?c and technological developments that have taken place in the
last century have made possible today the widespread use and abuse of electronic
surveillance techniques.? (Senate Report, supra, at p. 2154.) As a result, ?privacy of
communication? had become ?seriously jeopardized,? and ?[n]ew protections for
privacy? were necessary. (Id at pp. 2154, 2156.)6

Title 111 thus has ?as its dual purpose (1) protecting the privacy of wire and oral
communications, and (2) delineating on a uniform basis the circumstances and conditions
under which the interception of wire and oral communications may be authorized.?
(Senate Report, supra, at p. 2153.) It ?prohibits all wiretapping and electronic
surveillance by persons other than duly authorized law enforcement officials engaged in
the investigation of speci?ed types of major crimes after obtaining a court order,? with
exceptions not implicated here. (Id. at p. 2113; see also Gelbard v. United States (1972)

408 US. 41, 46 [?Title authorizes the interception of private wire and oral

communications, but only when law enforcement of?cials are investigating speci?ed

 

6 . . . .
The Senate Report also noted that wrretapping proponents and critics both
?agree[d]? that current law had been ?extremely unsatisfactory.? (Senate Report, supra,
at p. 2154.)

ll

serious crimes and receive prior judicial approval, an approval that may not be given
except upon compliance with stringent 

As enforcement mechanisms, Title 111 provides criminal penalties of ?nes and up
to five years of imprisonment (25 U.S.C. 2511(4)), a civil cause of action (id. at
2520), and a statutory exclusionary rule prohibiting the contents of any wiretap or
evidence derived therefrom from being used as evidence if the disclosure would violate
Title 111 (id. at 2515). (See also Senate Report, supra, at p. 2156 [?Criminal penalties
have their part to play. But other remedies must be afforded the victim of an unlawful
invasion of privacy. Provision must be made for civil recourse for dangers. The
perpetrator must be denied the fruits of his unlawful actions in civil and criminal
California?s wiretap statutes similarly provide for potential jail time
629.84), a civil cause of action 629.86), and a statutory exclusionary rule
629.72). As to the disclosure of wiretap materials, our state?s wiretap statutes almost
entirely conform to Title 111. (Compare 629.86, 629.88 with 25 U.S.C. 2518(8)(b),


Given the extent to which Congress and the Legislature sought to protect ?the
privacy of wire and oral communications? (Senate Report, supra, at p. 2153), it is not
surprising that Title and Califomia?s wiretap statutes limit when a member of the
general public may access wiretap materials. The statutes do so by requiring a movant to
demonstrate ?good cause.? Thus, the federal Second Circuit has held that a newspaper

lacked good cause to obtain the wiretap applications surrounding the govemment?s

12

investigation into a former governor. (In re New York Times Co. to Unseal Wiretap (2d
Cir. 2009) 577 F.3d 401 (New York imes).) That same court has held that a television
network lacked good cause to access wiretap materials surrounding an investigation it
had reported on. (Natl. Broadcasting Co. v. US. Dept. of Justice (2d Cir. 1984) 735 F.2d
51 In both these cases, the court relied on the federal analog of section 629.66?
which, like section 629.66, is not limited to those receiving an inventory notice?and in
both cases, the party seeking access was not someone whose calls had been intercepted as
part of the wiretap. (See New York Times, supra, at p. 405 [interpreting 25 U.S.C.

NBC, supra, at p. 55 [same].) In New York Times, the court, relying on
NBC, noted that there was a ?strong presumption? against disclosure under the procedure
available to the general public. (New York Times, at p. 406.) A statutory presumption
against disclosure makes sense under such circumstances because private information
should not be disclosed publicly.

Legislative concerns over privacy also explain why, as to the intercepted
conversations themselves, a member of the general public has no statutory right of access
at all, under either California or federal law. Section 629.66 provides that even when
good cause is satisfied, a movant is entitled to only ?applications and orders.? Section
62968, on the other hand, allows the target of the wiretap to access ?portions oft/1e
intercepted communications, applications, and orders? (italics added) if doing so is in the
interest of justice. Title 111?s provisions are identical with regard to what materials may

be available to a member of the general public or the target of a wiretap, respectively.

13

(See 25 U.S.C. 2518(8)(b), Thus, both Califomia?s wiretap statutes and Title 
protect individual privacy by requiring a member of the general public to show ?good
cause? before being able to access any wiretap materials, and even if good cause is
shown, that member of the general public is not given access to the intercepted
communications themselves.

There is signi?cantly less need to safeguard a person?s privacy when the person
seeking wiretap materials was the target of that wiretap. The target, in seeking to inspect
the wiretap materials, obviously consents to the disclosure being made (to himself or
herself), and the inspection does not necessarily disclose private information to a third
party. The intercepted conversations typically involve the target as a participant. It is
possible that the application and orders could contain private information about others
(such as, for example, information obtained from another wiretap needed to show
necessity for the target?s wiretap). But this is neither invariably the case nor is it likely
that other individuals? private information would pervade a target?s wiretap documents.
Consequently, the privacy concerns underlying Title and the California wiretap
statutes are diminished when the person seeking access is one whose conversations were
being recorded.

We therefore hold that while there is a presumption against disclosure when a
member of the general public seeks wiretap applications and orders pursuant to section
629.66, no such presumption applies when someone entitled to an inventory notice seeks

wiretap materials pursuant to section 629.68. (See SE. C. v. Rajammam (2d Cir. 2010)

14

622 F.3d 159, 173 [holding, in Title 111 case, that ?[s]ince Congress has speci?cally laid
out different requirements for the disclosure of wiretap applications and orders than for
the disclosure of wiretapped communications, we decline to read the requirements for the
former to apply to the ?Good cause? in the context of section 629.66 requires a
sufficient reason to disclose nonpublic information to a third party. (See In re
Applications of Kansas City Star (8th Cir. 1981) 666 F.2d 1168, 1176 [?Good cause to us
means that, at least minimally, there must be a need for ?Interests of
justice? in the context of section 629.68, on the other hand, requires a consideration of the
particular relevant competing interests advanced in the case, but is not premised on the
same, important concern regarding the privacy of a wiretap target.

The District Attorney contends that ?it is clear that a superior court judge must
?rst ?nd good cause to unseal the wiretap application and order before the court can
consider a motion to inspect under section 629.68.? Thus, in his view, a ?good cause?
determination under section 629.66 must precede an ?interests of justice? determination
under section 629.68. He contends this is so for two reasons. The ?rst is that section
629.66 states that wiretap order and applications ?shall be sealed.? The second is that
section 629.66, which was amended in 2010 to carve out certain exceptions from the
good cause requirement, shows that the Legislature did not intend for section 629.68 to
provide a similar carveout.

Neither of these reasons is convincing. The fact that wiretap materials ?shall be

sealed? in and of itself has no bearing on what standard one must satisfy to access them;

15

it simply means that the materials do not start out as publicly available documents.7
Moreover, the Legislature?s choice to carve out compliance with some provisions from
the good cause requirement in section 629.66 does not necessarily imply anything about
section 629.68. This is especially true here because, as we have discussed, section
629.68 provides a procedure for accessing wiretap materials, available only to those
whose communications were intercepted, that is different and separate from the section
629.66 procedure available to the general public. Section 629.68 ?take[s] precedence?
when it applies (Collection Bureau of San Jose v. Rumsey, supra, 24 Cal.4th at p. 310),
and, in that sense, always has been carved out from the good cause requirement in section
629.66.

Additionally, under the District Attorney?s interpretation, the motion to inspect
made available by section 629.68 would be super?uous, at least as to wiretap orders and
applications. If good cause is shown under section 629.66, then the statute states that the
applications and orders ?shall? be disclosed, without exception, and word ?shall,?

3?

when used in a statute, is ordinarily construed as mandatory . . . . (Severson Werson,

P. C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 946.) As a court must disclose upon a

 

7 This stands in contrast to the common law rule that court records are
presumptively open. (See Satele v. Superior Court (2019) 7 Cal.5th 852, 860 [?Both this
court and the United States Supreme Court have recognized a general right? under the
common law ?to inspect and copy public records and documents, including judicial
records and cf. Cal. Rules of Court, rule 2.550(c) [?Unless con?dentiality
is required by law, court records are presumed to be United States v. Business of
Custer Battle?eld Museum and Store Located at Interstate 90, Exit 514, South of Billings,
Mont. (9th Cir. 2011) 658 F.3d 1188, 1192 [holding that ?the common law right of access
applies to warrant materials after ?an investigation has been 

l6

?nding of good cause, there would be nothing gained in also considering whether
inspection would be in the interest of justice. ?[C]ourts must strive to give meaning to
every word in a statute and to avoid constructions that render words, phrases, or clauses
super?uous.? (Klein 12. United States of America (2010) 50 Cal.4th 68, 80.) Because the
District Attomey?s reading would render the interests of justice standard super?uous as to
certain types of requests, as well as the other reasons stated above, we do not agree with
his construction of sections 629.66 and 629.68. (See also SE. C. v. Rajammam, supra,
622 F.3d at p. 173 [?declin[ing] to read? good cause requirement into federal counterpart
of section 629.68].)

To summarize, section 629.66 does not by its terms limit who may seek disclosure
of wiretap materials, but anyone applying under that section must demonstrate ?good
cause,? which means overcoming a presumption against disclosure, and even then any
disclosure is limited to wiretap applications and orders, not the intercepted conversations.
Section 629.68, which applies to a narrower class of persons, takes precedence when it
applies, and those seeking to inspect under section 629.68 need satisfy only a less
onerous ?interest of justice? standard not so premised against disclosure.

Section 629.68 states that inspection is subject to the trial court?s ?discretion.?
Here, however, the trial court rejected Guerrero?s motion based on its understanding of
?good cause,? an inapplicable standard. The trial court appeared to apply a presumption
against disclosure, requiring ?something different than normal? from Guerrero, rather

than balancing Guerrero?s interests and the reasons counseling against disclosure in the

17

particular case. While we understand that the trial court in this situation lacked clear
appellate guidance, we conclude that the trial court?s decision constituted an abuse of
discretion because it applied the wrong standard. (See In re Charlisse C. (2008) 45
Cal.4th 145, 159 disposition that rests on an error of law constitutes an abuse of


?Because the standard we announce is new, the proper course is to remand to the
trial court for application of the . . . test formulated above to the facts of this case.?
(Richards v. Inc. (2001) 26 Cal.4th 798, 824.) Moreover, the record here
indicates that Guerrero would likely have testified and been cross-examined had the
judge not found that Guerrero?s affidavit failed to demonstrate good cause: Guerrero was
at the hearing and expressed a willingness to testify, and the District Attorney similarly
expressed an intent to cross-examine Guerrero in support of its argument in the



alternative. Accordingly, [w]e cannot foreclose the possibility that further information

777

was available, but not presented, at the time the . . . court ruled upon the motion. (In re
Charlisse C., supra, 45 Cal.5th at p. 167.) ?[T]he prudent course is [therefore] to remand
the matter . . . rather than to decide the matter on the existing state of the evidentiary
record.? (Ibid)

To aid the trial court, we outline some guidance for evaluating Guerrero?s motion

under the ?interests of justice? standard in section 629.68 that we hold applicable here.

18

B. Balancing Interests under Section 629. 68

In considering a motion to inspect wiretap materials under section 629.68, a court
should balance the interests of the movant, the government, those other than the movant
whose information and conservations may become disclosed to the movant, and the
public. We elaborate on each in turn.8

1. The Movant ?s Interest

A target of a wiretap who is criminally charged often receives copies of the
wiretap materials because of his interest in whether the wiretap was properly authorized,
which he can raise in a motion to suppress evidence. (See 629.72 [allowing
suppression motion], 629.70 [generally prohibiting use of wiretaps or evidence derived
therefrom in a proceeding unless wiretap application, order, and copy of all interceptions
are provided to defendant at least 10 days in advance].) But an uncharged target such as
Guerrero also has a potential litigative interest in the materials, in the form of the civil
cause of action under section 629.86. Like a suppression motion, the civil cause of action
helps vindicate privacy interests by deterring wiretaps that do not follow statutory or
constitutional requirements. A section 629.86 cause of action is indeed one of the main

. . . 9 . . .
reasons Guerrero seeks the w1retap records to begm w1th. Congress, in passmg T1tle 

 

8 . . . . .
The 1nterests we here are not 1ntended to be exhaustlve. D1fferent
circumstances may make additional considerations relevant.

Guerrero also states that he wants to ?educate the public about the purported
justi?cation for Riverside?s unprecedented 2015 wiretapping campaign.? We equate this
with the public?s interest, discussed below.

19

speci?cally anticipated that the analogous federal civil cause of action would serve such a
purpose. (See Senate Report, supra, at p. 2196 [?lnjunctive relief, with its attendant
discovery proceedings, is not intended to be available [citation]. It is expected that civil
suits, if any, will instead grow out of the ?ling of inventories under [25 section
italics added.) As such, placing too great a burden on access to those
materials necessary to substantiate a section 629.86 action would render the action
toothless for curbing unlawful government intrusion.

Here, the trial court appeared to require something more than a desire to pursue a
lawsuit under section 629.86. At the hearing, for instance, the trial court stated that
Guerrero?s concerns were ?nothing unique.? Although this appears to have been tied to
its erroneous view that Guerrero needed to demonstrate good cause, we believe that,
under the correct standard, a movant potentially may successfully demonstrate that
inspection would be in the interests of justice on a desire to pursue a section 629.86
action alone.

Furthermore, the fact that others may be in the same position as a movant should
not lessen the significance of a movant?s interest. At the hearing on the motion to inspect
here, the trial court ruled against disclosure partially because ?[e]very person . . . against
whom charges are not filed would be similarly situated wit Guerrero. This reasoning
does not do justice to the privacy interests of a wiretap target. Many people may want to
vindicate their privacy rights. It does not follow that those rights should therefore be

harder to enforce. Assuming, purely for the sake of argument, that many of the wiretaps

2O

authorized in Riverside County in 2014 and 2015 were indeed unlawful, the government
should not be able to more easily keep the records of those wiretaps sealed simply
because there are so many of them.10 The signi?cance of a movant?s interest should be
independent of the possibility that similar motions to inspect may follow.11
2. The Government ?5 Interest
The government, of course, often has a profound interest in maintaining the
confidentiality of its investigations. The govemment?s interest in this respect may

therefore take precedence over any other competing interests when considering a motion

to inspect under section 629.86. (See United States v. Dorfman (7th Cir. 1982) 690 F.s1m11ar reason, we reject the District Attorney?s contention that the

statutory presumption ?that of?cial duty has been regularly performed? (Evid. Code,

664) should guide a motion to inspect under section 629.68. Congress, in enacting Title
contemplated civil suits against government of?cials for wrongful wiretaps, and
nothing in section 629.86 forecloses a similar lawsuit, even though section 629.86 can
make such suits dif?cult to win. (See 629.86 good faith reliance on a court order is
a complete defense to any civil or criminal action brought under this chapter . . . If
the Legislature has given individuals such as Guerrero an opportunity to litigate the issue
of government propriety, it makes little sense for records to be withheld solely on the
presumption of that proprietyany event, here the statute of limitations under section 629.86 may have

already run for others whose calls were intercepted in 2014 and 2015, which would affect
the significance of their interests if they were to similarly seek a motion to inspect.
Although we are not aware of any case discussing the statute of limitations for a section
629.86 action and do not rule on the issue here, we note that (1) the statute does not state
a limitations period, (2) the general ?catch-all? limitations period is four years where the
Code of Civil Procedure does not provide otherwise (Code Civ. Proc., 343), and (3) if
the catchall provision governs, then the limitations period may have already run for many
of those whose calls were intercepted at least five years ago.

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1230, 1234 [?the right of conversational privacy, founded on the Fourth Amendment,?
?yields among other things to imperative needs of law 

The government?s interest in this regard is more pronounced when an
investigation is ongoing, and in the few published cases where the recipient of an
inventory notice has sought wiretap materials outside the context of a ?led criminal case,
courts have routinely cited an ongoing investigation as a primary reason against
disclosure. (See Stoddard v. United States (2d Cir. 1983) 710 F.2d 21, 23 [affirming
denial of motion to inspect where district court considered ?both [defendant?s] arguments
as to the need for disclosure and the harm that such disclosure might work in the context
of a continuing homicide investigation?]; Matter of Steven (D. Kan. 2017) 243 F.Supp.3d
1209, 1215 [?The Movants are not wrong for wanting to know more, they are just too
early. If charges are ever brought, the Movants will have more access to information
surrounding this investigation. Alternatively, if charges are not brought after what seems
to be an unreasonable amount of time, the Movants may have a stronger argument for the
disclosure in a renewed Application of United States Authorizing Interception
of Wire Communications (ED. Pa. 1976) 413 F.Supp. 1321, 1325, 1335 [concluding that,
?at this juncture, the interest of the Government in maintaining secrecy in the grand jury
proceedings outweighs movant?s interest in discovery of the requested materials,? and
noting that ?it is principally a question of timing? in light of availability of civil cause of

action]; In re Persico (E.D.N.Y. 1973) 362 F.Supp. 713, 714 [holding that movants?

22

application for inspection was ?premature? because ?disclosure at this time could
jeopardize the continuing 

The existence and weight of the government?s interest, however, should not be
presumed, but affirmatively articulated and substantiated. Here, we observe that the
District Attorney has not relied on the existence of an ongoing investigation or grand jury
proceeding before the trial court or on appeal. To the contrary, the District Attorney has
conceded that there are ?no criminal charges pending? against Guerrero. Similarly, the
District Attorney has not claimed that there is any sensitive information in the wiretap
materials, such as the identity of an informant, or information related to another open
investigation, such that disclosure could jeopardize current or future investigations.

Additionally, in light of the government?s interest when considering a motion to
inspect, where appropriate, a court may require redactions, in camera review, or both, if
doing so would promote the balance between law enforcement and privacy our elected
officials had in mind when passing Title and California?s wiretap statutes. (See Pack
v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 837 [noting that in
camera review ?is routinely used when a judicial decision concerns information claimed
to be covered by some rule of con?dentiality or privilege?]; Stoddard v. United States,
supra, 710 F.2d at pp. 23-24.)

3. Other Intercepted Persons Interests
Given the federal and California statutes? concern for privacy, a trial court

evaluating a motion under section 629.68 should also consider the interests of

23

nomnovants whose conversations were intercepted or for whom wiretap orders were
sought. Thus, for instance, when a wiretap application involves multiple targets, some of
whom do not seek to inspect under section 62968, the privacy interests of those
nomnovant targets may dictate that their information remain sealed absent a suf?cient
justi?cation (such as consent). Here, Wiretap Order No. 15-409 targeted Guerrero?s
phone as well as two others, so even if the trial court ?nds that allowing Guerrero to
inspect the portions of the wiretap application pertaining to him is in the interest of
justice, a different analysis might well apply to those portions pertaining only to others.
A similar analysis would apply to the orders and intercepted communications
themselves.12

That same consideration for intercepted nonmovants, however, should take into
account the fact that disclosure is being sought not by a general member of the public, but
by someone who was often on the other end of the line. Although we have not
discovered cases suggesting that intercepted nonmovants regularly raise privacy concerns
when a criminal defendant receives a copy of intercepted communications, such persons
may nevertheless have, and raise, legitimate privacy concerns, whether or not the wiretap
target eventually becomes a criminal defendant. For now, we believe that the procedures

currently in place for protecting third party privacy in criminal cases provide adequate

protection here. (See 629.70, subds. [although prosecution must generally

 

m1n1mum, th1s counsels against a court issuing a blanket ?nd1ng pertaining

to all information contained in any application, order, or intercepted communication
relating to a wiretap, without close consideration of any request to seal or redact portions.

24

provide defendant ?a copy of all recorded interceptions from which evidence against the
defendant was derived,? court may issue an order limiting [such] disclosures
. . . upon a showing of good As is the case when considering the
govemment?s interest, protection of these third party interests may require in camera
review, redactions, or both.
4. The Public ?5 Interest

Finally, the trial court should consider the public?s interest in allowing a movant to
inspect wiretap materials concerning him. Crucially, this interest does not emanate from
any desire on behalf of the public to make such materials broadly available. Rather, the
nature of the interest here stems from the importance of public confidence in the criminal
justice system. (See People v. Rhodes (1974) 12 Cal.3d 180, 185 [?It is essential that the
public have absolute con?dence in the integrity and impartiality of our system of criminal
cf. Batson 12. Kentucky (1986) 476 US. 79, 87 [?Selection procedures that
purposefully exclude black persons from juries undermine public confidence in the
fairness of our system of Press-Enterprise o. v. Superior Court of Coltfornta,
Riverside County (1984) 464 US. 501, 508 [public access to trials ?enhances both the
basic fairness of the criminal trial and the appearance of fairness so essential to public

con?dence in the As noted above, the anomalous number of wiretaps

 

13 . .
We express no v1ew as to whether ?good cause? 1n the context of sectlon

629.70, subdivision has the same meaning as in the context of section 629.68. (See In
re Lucas, supra, 53 Cal.4th at p. 849 [the deflmtion of ?good cause? ??varies with the
context in which it is 

25

approved by judges in Riverside County in 2014 and 2015 has elicited scrutiny from
judges and journalists. (See United States v. Mattingly, supra, 2016 US. Dist. LEXIS
86489, at p. *27; Heath and Kelman, Justice o?icialsfear nation ?s biggest wiretap
operation may not be legal, USA Today (Nov. 11, 2015) 
story/news/2015/ 1 1/ 1 1/ 7 548407 

In addition, public con?dence in the criminal justice system and the appearance of
fairness can be damaged not only by actual impropriety, but the possibility of impropriety
as well. (See People v. Rhodes, supra, 12 Cal.3d at p. 186 [?Even the appearance of
. . . impropriety could operate to weaken the public?s con?dence in the system of criminal
Courts considering motions to inspect pursuant to section 629.68 should
therefore not require proof of actual misconduct as a prerequisite. Here, the trial court
discounted the signi?cance of the high number of wiretaps at the hearing on the section
629.68 motion, stating, understand that you?re concerned about the great number in
Riverside County, but there has never been any finding, that I am aware of, that
something nefarious was happening. So all you?re asking me to do is consider the
statistics.? In our view, requiring a preexisting finding of ?nefarious? activity would
place too high a burden on a movant, given the role the civil cause of action is meant to
play against unlawful government intrusion. Instead, it is more appropriate to consider
whether evidence such as ?the statistics? help a movant make an initial showing that
constitutional safeguards may have been violated, which would then bear on whether

inspection would be in the interests of justice. In analogous contexts, courts have always

26

had the ability to infer, at an initial stage, a likelihood of harm given the numbers, such as
when determining whether a juror was imperrnissibly excused on a racial basis. (See
Flowers v. Mississippi (2019) 588 US. [139 2228, 2235, 2245] [Batson v.
Kentucky (1986) 476 US. 79 violation found in part because ?[t]he numbers speak
loudly?: ?the State employed its peremptory challenges to strike 41 of the 42 black
prospective jurors that it could have To say a trial court may consider statistics
in these situations is simply to say a court can consider circumstantial evidence or the
totality of the circumstances.14
C. Guerrero ?s First Amendment Claim

Guerrero, as well as amicus, contend that the public has a quali?ed right of access
to the wiretap materials under the First Amendment. It is a 
however, that courts should decide constitutional questions where
other grounds are available and dispositive of the issues of the (Santa Clara
County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230; see also
v. Cemetery Protective Ass ?n (1988) 485 US. 439, 445 
fundamental and long-standing principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of deciding 

Because our resolution of the statutory issue is dispositive of the matter before us at this

point, we decline to address the constitutional claim.

 

14 . .
We do not mean to suggest that the trial court should make any particular

finding based on the evidence that has been presented so far here.

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 DISPOSITION
The order denying Guerrero?s motion for inspection pursuant to section 629.68 is
reversed. The matter is remanded to the trial court with directions to reconsider the
motion in a manner not inconsistent With this opinion. Guerrero is awarded his costs on
appeal.

CERTIFIED FOR PUBLICATION

RAPHAEL

 

 

 

We concur:
MILLER
Acting P. J.
SLOUGH
J.

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