Metropolitan News-Enterprise


Thursday, October 22, 2020


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Motion to Inspect Riverside Wiretap Records Was Improperly Denied—Court of Appeal


By a MetNews Staff Writer


A Riverside trial judge used the wrong standard in ruling on, and denying, a retired California Highway patrol officer’s request to inspect materials related to a wiretap issued at a time when the county’s massive wiretap operation was under national scrutiny, Div. Two of the Fourth District Court of Appeal held yesterday, avoiding an issue raised as to whether there is a qualified right of access to the materials under the First Amendment.

Under Penal Code §629.88, Justice Michael J. Raphael pointed out, a judge “may, in his or her discretion, make available to the person” affected by a wiretap “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.”

Raphael said that Riverside Superior Court Judge John D. Molloy erred in denying a motion pursuant to that section by importing into it a “good cause” requirement contained in another provision, §629.66.

Sec. 629.88—which conditions disclosure on a showing that it would be “in the interests of justice”—applies to persons directly affected by a wiretap, who are entitled to notice of the wiretap and an inventory of materials relating to it once an investigation has ended, Raphael noted. By contrast, he said, §629.66 is a broader “provision that is available to anyone (including, for example, members of the media) who can demonstrate good cause.”

Specific Statute

A specific statute takes precedence over a general one, Raphael recited, declaring that the appellant, former patrol officer Miguel Guerrero, “was entitled to an inventory notice, so section 629.68 applies.”

He went on to comment:

“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 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.”

The case was remanded for a determination under the proper standard.

National Attention

National attention had been drawn, initially by a series of articles in USA Today, to the massive issuance of wiretap orders in Riverside County.

Raphael wrote:

“In 2014, a single Riverside County Superior Court judge signed 602 orders authorizing wiretaps. To put that in perspective, all other judges in the state authorized 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. 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.”

That judge was identified by USA Today and in other news reports as Helios Joe Hernandez II. Appointed in 2001, he retired in 2018.

In 2015, Hernandez authorized the tapping of Guerrero’s phone.

“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 significant doubts about whether the wiretaps complied with constitutional requirements,” Raphael said.

First Amendment

The Reporters Committee for Freedom of the Press and 25 media organizations argued in an amicus curiae brief:

“Now that the investigation into Appellant has concluded, public access to the application, supporting documentation, and wiretap order targeting Appellant will provide insight into how law enforcement sought and obtained judicial authorization to execute a wiretap targeting him. For the public to have confidence in the wiretap process in this State, press and public access to wiretap materials post- investigation is necessary. This Court should thus reverse the decision of the trial court and find a qualified First Amendment right of access to those materials.”

That issue was not addressed. Raphael said:

“Because our resolution of the statutory issue is dispositive of the matter before us at this point, we decline to address the constitutional claim.”

The case is Guerrero v. Hestrin, 2020 S.O.S. 4904.


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