Imagine how you would feel if you discovered that your son incrementally had stolen the family jewels and sold them on the street to support his drug habit. You would be enraged and perplexed. You would try to forgive, but you could not forget. You'd realize that, despite your best intentions, you could never trust your son again.
These days, many L.A. County defense lawyers have similar feelings toward the district attorney's office in the wake of the discovery that deputy district attorneys assigned to its narcotics unit have relied on secret wiretaps for years to gather evidence against their clients--and no one, including judges, knew about the practice. Beyond the obvious legal question of whether the district attorney knowingly violated the 4th Amendments's prohibition against unreasonable search and seizure is one that cannot be resolved in court: Can the county's criminal-justice system carry on in an atmosphere of mistrust?
The wiretap discovery came in the 1996 Lauro Gaxiola cocaine possession case. Defense lawyers appearing before Superior Court Judge Gregory Alarcon had spent a year trying to obtain their clients' statements. By law, the prosecution is required to turn over such statements to the defense. The lawyers were stunned to learn that the charges were derived from secret wiretaps. Furthermore, the Los Angeles Police Department and the district attorney's narcotics unit had conspired to carry out hundreds of such wiretaps since 1985, all without informing either defense attorneys or trial judges hearing the cases.
The seminal ruling in wiretap law came in 1967, in Katz vs. United States, when the U.S. Supreme Court held that, contrary to the spirit of the 4th Amendment, modern technology afforded the government significant opportunities for invading personal privacy without intruding into physical space. The court rejected the idea that only searches and seizures of tangible property were protected by the amendment and expanded the amendment's protections to invasions of personal privacy even when no physical trespass occurred. Since Katz, the police can only monitor a conversation pursuant to a warrant signed by a judge and based on a showing of "probable cause."
