How an L.A. police misconduct case sparked push to loosen California wiretapping law

Los Angeles County sheriff’s deputies heard a voice on a wiretap in 2009 that they believed was one of their own — a narcotics officer caught on the wrong side of the law.

For the next decade, the department would pursue a case against Det. Carlos Arellano through investigations, courts and civil service hearings. They had little luck. Arellano prevailed at nearly every turn, and the department exhausted its legal avenues last year when the state Supreme Court refused to review the case.

Now the matter has made its way to the state Legislature in a bill that has advanced quietly but could substantially expand how wiretaps are used in California.

The proposed law seems written with Arellano in mind, leaving some concerned that an effort to further the collection of evidence in police misconduct investigations could have broad privacy implications — diminishing protections against government surveillance.

“It greatly ... expands the reach of wiretapping,” said Lee Tien, senior staff attorney at the Electronic Frontier Foundation, which opposes the bill. “We don’t really understand what’s going on.”

The bill’s author, state Sen. Tom Umberg (D-Santa Ana) defended the legislation. He said the state’s existing law includes enough privacy protections to ensure that wiretaps aren’t improperly used, but he supports wiretap evidence being available in civil service hearings. A former federal and military prosecutor, Umberg said he is backing the bill as a public safety measure.

It’s “a tool to investigate and prosecute those who do violate the law,” he said. “Peace officers, anybody.”

The proposal, Senate Bill 439, would allow law enforcement to use intercepted phone calls, emails, Facebook Messenger chats and other electronic communications to build cases for a wide swath of crimes that current state law deems ineligible for such surveillance. The broadened list of crimes includes felonies such as attempted kidnapping and rape of an unconscious person, as well as making criminal threats and firing a weapon from a car.

The bill wouldn’t change what crimes could receive a judge’s approval for a wiretap. But it would expand the kinds of prosecutions that could go forward with overheard evidence, if law enforcement happened to gather it during a legally approved wiretap.

State wiretapping laws, which largely follow federal rules, are meant to prevent undue invasions of privacy and keep law enforcement from using such surveillance to fish for crimes that aren’t deemed the most serious. Wiretap orders are reserved for crimes such as murder, drug and gang conspiracies and violent felonies. If law enforcement officials listening on a legal wiretap hear evidence of another crime — one that a judge wouldn’t sign a wiretap order for — they are often unable to use or share that information.

Sponsored by Los Angeles County Dist. Atty. Jackie Lacey, the bill also contains a narrow provision that applies only to law enforcement officers. It would make overheard evidence of any criminal conduct by a peace officer admissible in the administrative hearings used to discipline and fire officers.

Lacey, who has been criticized for being soft on police misconduct, cited Arellano in a letter to the Legislature advocating for the measure. Her office declined an interview request about the legislation but offered a written statement on her behalf. The statement said that the bill’s purpose was “much broader” than the Arellano case but that it was “one example of a deficiency in the existing law in regards to law enforcement misconduct.”

The San Francisco public defender’s office, which opposes the measure, argued in a letter that obtaining a wiretap is “easy enough as is” — and more often than not doesn’t reveal criminal activity.

In 2018, there were 387 applications for wiretaps resulting in 465 arrests in California, mostly on gang and narcotics charges, according to the state attorney general’s office. The wiretaps resulted in 53 convictions, though some cases may be ongoing.

In Los Angeles, there were 181 wiretap applications resulting in 49 arrests and two convictions that year. In one case cited by the attorney general, L.A. County investigators used wiretaps to seize more than 165 kilograms of methamphetamine, 193 kilograms of cocaine, 33 kilograms of heroin and more than $3.42 million.

But law enforcement also used wiretaps to listen in on thousands of people who didn’t commit crimes, involving hundreds of thousands of calls and messages, said San Francisco Public Defender Manohar Raju in his letter. In one instance, an L.A. wiretap operation in a 2018 murder investigation intercepted more than 43,000 communications from 920 people, with 1% of the interceptions providing incriminating information, according to the state report.

In Arellano’s case, court records say he was heard on the wiretap discussing his involvement with an illegal marijuana grow, arranging for drug payments and offering advice to suspected drug dealers on how to avoid police. Arellano was identified on the wiretap by a voice comparison made by five Spanish-language linguists, according to court records, though Arellano’s lawyer, Elizabeth Gibbons, said it was never proven to be Arellano on tape, and he has maintained his innocence.

The Drug Enforcement Administration and the L.A. County Sheriff’s Department asked a judge to allow the conversations to be used by internal investigators within the Sheriff’s Department. The judge granted the request, but criminal charges were never filed against Arellano because marijuana violations were beyond the scope of the serious crimes included under wiretap law.

The department fired Arellano in 2011 largely based on the wiretap.

Arellano fought the county, arguing that the intercepted conversations should not have been allowed in the civil service administrative hearing that led to his dismissal because that disclosure was beyond the scope of the judicial order that authorized their use by Sheriff’s Department investigators. A judge and a three-person panel of the appellate court agreed, and Arellano was reinstated. The Sheriff’s Department declined to provide Arellano’s current status, referring the question to the California Public Records Act process, though he was on paid administrative leave for a time.

The appellate court in its decision in August suggested that state lawmakers needed to settle the question of whether such wiretap evidence should be admissible in administrative hearings.

But the proposed legislation’s carve-out on peace officers goes beyond a clarification, said Ed Obayashi, a legal advisor and trainer for law enforcement agencies. That’s because, he said, it allows wiretap evidence of any crime by peace officers to be used in administrative hearings — even if there are no criminal proceedings or if that evidence can’t be used in court.

Gibbons, Arellano’s lawyer and a specialist in representing law enforcement officers, said the bill may not be legal because it reduces the rights of officers below those of average citizens.

“They are reducing the constitutional rights of police officers and opening them up for … prosecution based on information that nobody else could be prosecuted for,” Gibbons said.

The bill has cleared the Senate and will next be heard July 9 by the Assembly Public Safety Committee.

Times staff writer Maya Lau contributed to this report.