Friday, November 18, 2005
California High Court to Decide Whether Renter of Cellular Phone Loses Privacy Right by Using Alias
By a MetNews Staff Writer
The California Supreme Court has agreed to decide whether a person who rents a cellular telephone under an assumed name has the same expectation of privacy as someone who does so under his or her true name.
The justices, at their weekly conference Wednesday in San Francisco, unanimously agreed to review the Aug. 3 decision by Div. Eight of this district’s Court of Appeal in People v. Leon, B173581.
Both the Attorney General’s Office and the defendants asked the high court to look at the case, in which the Court of Appeal held that Avelino Leon and Victor Aceves had a reasonable expectation of privacy in their prepaid cell phones, but agreed with prosecutors that recordings of their conversations were admissible because they were obtained via valid wiretap orders.
The panel upheld the pair’s convictions for possession of narcotics for sale, in the case of Leon, and conspiracy to sell cocaine and use of a false compartment to hide drugs, in the case of Aceves. Leon was sentenced to 17 years in state prison, and Aceves was sentenced to 15 years, 8 months in state prison, by Los Angeles Superior Court Judge Robert Perry after each pled no contest and reserved the right to appeal.
The pleas were entered after Perry denied defense motions to suppress evidence obtained pursuant to two wiretap orders.
One order was for a phone rented by Leon under the name “Guillermo Rodriguez” using a non-existent Lawndale address.
In the application for the order, they claimed that an unidentified male—later identified as Leon—was in contact with Los Angeles-based distributors for an organization trafficking cocaine between Mexico and the United States. This person, they said, was suspected—based on previous wiretaps—of being a high-ranking member of the organization because of the high volume of calls, suggesting he was a “”high level narcotics trafficker and money launderer who must communicate with his superiors in Mexico on a regular basis.”
A wiretap order was necessary, they said, because they knew of no locations to search, and had no way of infiltrating the organization, which they said was likely made up of persons who dealt only with trusted associates and family members, thus limited potential sources for investigators.
After identifying Leon as “Rodriguez,” officers requested an order to tap four more telephones, including one used by Aceves, and two pagers. The application was based on information obtained by intercepting calls under the first order, which police said led them to believe that Aceves worked for Leon and controlled Leon’s stash locations.
The four telephones, the officers said, were being used to communicate with Leon.
Perry denied the motion to suppress, saying the wiretap orders were based on “specific articulable facts” showing a necessity for the interceptions, and that there was no suggestion those facts were misrepresented.
On appeal, the attorney general argued that Leon could not assert a privacy interest in a cell phone “that was not even in his name.” Cited were cases from other jurisdictions involving defendants who used a false name to obtain a storage locker and failed to pay rent, who used a mailbox bearing someone else’s name to receive fraudulently obtained mailings, or obtained a package addressed to the defendant under an alias,
But Presiding Justice Candace Cooper, writing for Div. Eight, said there was nothing inherently wrong with using an alias to obtain a cell phone, and thus no waiver of the right of privacy when doing so. Citing longstanding federal case law, she said Leon had the same right of privacy that he would have had if he used a phone booth.
Cooper agreed with the trial judge, however, that the wiretap orders were valid and the evidence obtained as a result admissible. She rejected the defense argument that the evidence could have been obtained by surveillance, calling it speculative.
“The government is not required to exhaust every conceivable technique in order to show necessity for a wiretap,” she added.
Copyright 2005, Metropolitan News Company