Sunday, June 26, 2005

Case o' The Week: D.W. a Title III hero in Gonzalez

The week brought that rarest of all things: a great wiretap decision. See United States v. Gonzalez, __ F.3d __, 2005 WL 1459569 (9th Cir. June 22, 2005), available here. In Gonzalez, Judge D.W. Nelson applies a rigorous Title III analysis to uphold a district court's suppression of wiretap proceeds. The opinion is a gold mine of good language harking back to the old days when Title III was actually enforced, and privacy rights were of real concern.

Players: Authored by DW Nelson, a senior judge who remembers that Title III actually has statutory limitations intended to protect privacy.

Facts: A long-term smuggling investigation focused on a bus company operating out of Arizona. Id. at *1. The feds had much success in infiltrating the smuggling ring in Arizona, but nonetheless secured Arizona wiretaps as well. Id. It then secured wiretaps in Los Angeles, in offices associated with executives of the bus firm. Id. at *2. The district court suppressed the L.A. wiretaps on necessity grounds, granting standing to executives who owned the buildings as well – even though they weren’t on the wires. Id. at *4. The government appealed.

Issue(s): 1. Did the defendant’s make a sufficient requisite showing to merit a Franks hearing? 2. On de novo review, did the wiretap applications establish Title III necessity? 3. Did the building’s owners, who weren’t on the wires, have standing to challenge the wiretaps?

Held: 1. "Because the defendants made an adequate initial showing of intentional or reckless material misrepresentations or omissions in the wiretap application, the district court did not err in holding a Franks hearing." Id. at *6. 2. "In our judgment, the facts attested to in the [wiretap] affidavit indicated that the government side-stepped its responsibility to use promising traditional techniques when it began to investigate the Blake Avenue office, and instead conducted only the most cursory investigation before seeking a wiretap. We hold that the necessity provisions require the government to do more." Id. at *8. 3. "[B]ecause the Gonzalezes were corporate officers and directors who not only had ownership of the Blake Office but also exercised full access to the building as well as managerial control over its day-to-day operations, they had a reasonable expectation of privacy over calls made on the premises." Id. at *12.

Of Note: Gonzalez breaks the chain of particularly bad wiretap law coming out of the Ninth Circuit, including McGuire, 307 F.3d 1192 (9th Cir. 2002), and Callum, __ F.3d. __, 2005 WL 1206805 (9th Cir. May 23, 2005). The opinion is crammed full of great language on the statutory restraints for Title III wiretaps, and the minimal showings necessary for the defense to earn a Franks hearing. It is also the clearest statement of the Title III necessity requirements, and the wiretaps standards of review, of any recent Ninth Circuit case.

How to Use: Any defense counsel tangled up in a wiretap should begin by poring over Gonzalez. In addition to providing a valuable foundation for the wiretap challenge, the case marshals all of the favorable authority requiring rigorous review of wiretap applications. See, e.g., id. at *4 (collecting good authority for the proposition that the defense is entitled to a Franks hearing upon a simple "substantial showing" of intent or recklessness on the part of the affiant.")

For Further Reading: The civil liberties group EPIC has a very useful site gathering various wiretap resources. See site here. EPIC reports that wiretaps were at an all-time high in 2004, and that not a single wiretap application was denied that year. Id. EPIC also provides links to interesting US Administrative Office statistics, which include wiretap applications in your district – applications that have not yet been publicly disclosed. Check those stats – interesting what one can glean about impending wiretap cases.

Steven Kalar, Senior Litigator N.D. Cal. FPD, website available at


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