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Name: People v. Campos (2024) 98 Cal.App.5th 1281
Case #: F084307
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/22/2024

The government did not properly notify defendant pursuant to the California Electronic Privacy Communications Act (Pen. Code, § 1546 et. seq.) where it relied on third party providers to notify defendant of government-compelled information. As part of a murder investigation, police sought and obtained warrants for Facebook account information of defendant and two others, and T-Mobile/MetroPCS records pertaining to a telephone number belonging to defendant. Defendant filed a motion pursuant to CalECPA and the Fourth Amendment to void the warrants and suppress the evidence, which the trial court denied following an evidentiary hearing. Defendant was convicted of second degree murder and related firearm enhancements. On appeal, he argued that electronic information evidence should have been suppressed because he was not properly notified of its acquisition by the government pursuant to CalECPA. Held: Affirmed. Section 1546.2(b)(3) establishes several requirements for notice under CalECPA. It specifies (1) who must send the notice, (2) how notice is to be transmitted, (3) the recipient of the notice, and (4) the contents of the notice. Here, the police department relied on Facebook and T-Mobile to notify defendant concerning the information the government sought by warrant. This was improper because CalECPA requires that notice be given by the government, not the service providers. (§ 1546.2(b)(3).) Further, notice under CalECPA must include a copy of all electronic information obtained or a summary of that information. Here, the officer who interrogated defendant told defendant he had received records showing where defendant was on the date and time of the shooting, but the officer could not recall exactly what information he relayed to defendant and, in any event, it was “very limited information.” In no way does this satisfy the notice content requirements of 1546.2.

Despite the notice violation, suppression is not required. CalECPA provides for a motion to suppress evidence obtained in violation of its provisions but does not require suppression with all violations. Here, the court applied the three-part framework developed in People v. Jackson (2005) 129 Cal.App.4th 129 and considered that (1) defendant established a violation of CalECPA’s notice provisions, and (2) the notice provisions play a central role in serving the overall purpose of CalECPA. However, (3) CalECPA’s purpose was achieved in spite of the error. CalECPA’s notice provisions address post-disclosure notice, and under certain circumstances notice can be delayed for months at a time. Because law enforcement’s efforts to obtain defendant’s electronic information were eventually made known to him before trial began, suppression was not appropriate under Jackson. [Editor’s Note: The court further concluded that the record on direct appeal did not support a finding that trial counsel was ineffective for failing to request a Franklin hearing.]