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Name: People v. Roberts
Case #: D053377
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/21/2010

When a defendant moves to suppress wiretap evidence, he first bears the burden of showing a provision of the law was violated, and that the violated provision plays a central statutory purpose, then the burden shifts to the prosecution to show that the statute’s purpose was achieved notwithstanding the error. Co-appellants were prosecuted for conspiracy to commit murder based in large part on intercepted cell phone calls in which they discussed a plan to "lay down" (kill) "credible heads" (leaders) of a rival gang involved in a gang war with them. On appeal, the appellants took issue with the denial of the motion to suppress. They argued the wiretap was originally issued to investigate drug offenses, not murder, so evidence regarding those calls should have been excluded. They also argued the statute’s reporting requirements were not met. (One of the requirements is reports to the issuing judge at least every six days describing the progress or lack thereof on investigating a specified crime, and the continued need for the wiretap.) The Court of Appeal provided an overview of the state wiretap law (Pen. Code, sec. 629.50 et seq), including its purposes and requirements. The court acknowledged that the original wiretap was ordered for a drug-distribution conspiracy, but the trial court properly concluded that the need for the wiretap had not expired when police intercepted calls relating to the murder conspiracy. And while the statute requires police to "minimize" interceptions of non-targeted communication, the court disagreed with appellants that the calls about the planned murders had to be excluded on that basis. Rather, the court interpreted the statute to mean that if calls relating to crimes enumerated in the statute are overheard, in addition to the crime for which the wiretap was authorized, that evidence can be used. The court did agree that the reporting requirements were not met because some reports were late, and one was not signed by a judge. The court also agreed that the timeliness of the reports contravene a central purpose of the wiretap statute. But, the error does not require suppressing the evidence because the supervising judge was informed of developments, and he would not have immediately terminated the wiretap. In fact, the wiretap was subsequently extended and another approved. As to who must review the wiretap reports, the court said it was permissible for a substitute judge to review them as a long as he or she is fully informed.