People v. Superior Court (Westbrook)

The People seek a writ of mandate after the court granted Earl Frank Westbrook’s (Westbrook) motion to suppress tape recordings of certain telephone conversations. Westbrook argued, inter alia, there was no timely order regarding sealing and the tapes had never been delivered to the judge as purportedly required by Penal Code 1 section 629.14. The court granted the motion based on the government’s failure to comply with the section’s purported requirement that sealing be conducted under the supervision of the judge. Because we conclude a timely oral sealing order was in effect and the court’s participation in the physical sealing of the tapes was not required by statute, we grant the petition.

Background

On January 15, 1992, the Honorable Raymond Edwards, Jr., on application of the San Diego District Attorney’s office issued an order authorizing the interception of wire communications of telephone numbers belonging to Westbrook and another defendant. On February 13, 1992, Judge Edwards signed an extension of the authorization. On February 26, 1992, the wiretap concluded. The wiretap authorization was issued in connection with an *44 ongoing investigation of a purported…

In granting Westbrook’s Penal Code section 1538.5 motion to suppress the wiretaps, the court explained:

I agree with the trial court. The statutory requirement for court sealing is meaningless if the judge can merely delegate to law enforcement the job of sealing the tapes at a later time.

To a great extent the majority rests its conclusion on United States v. Abraham (6th Cir. 1976) 541 F.2d 624 , which it describes as “the only case with facts similar to those in issue here.” (Maj. opn., ante, p. 50) Although this may be literally correct, there are a number of cases from both federal and state court which fairly reflect the appellate court’s understanding that the tapes must be physically presented to the authorizing judge (or at least a judicial employee) for sealing. (See, e.g., U.S. v. Vastola (3d Cir. 1990) 915 F.2d 865, 866 [“[T]he government did not immediately present them for judicial sealing, as required by section 2518 . . . .”]; United States v. Rodriguez (2d Cir. 1986) 786 F.2d 472, 476 [“[W]e suggested that any presentation made more than two days after the end of the wiretap could not be considered immediate”]; United States v. Cohen (5th Cir. 1976) 530 F.2d 43,…

Eugene G. Iredale for Real Party in Interest.

OPINION

TODD, J.

The People seek a writ of mandate after the court granted Earl Frank Westbrook's (Westbrook) motion to suppress tape recordings of certain telephone conversations. Westbrook argued, inter alia, there was no timely order regarding sealing and the tapes had never been delivered to the judge as purportedly required by Penal Code [1] section 629.14. The court granted the motion based on the government's failure to comply with the section's purported requirement that sealing be conducted under the supervision of the judge. Because we conclude a timely oral sealing order was in effect and the court's participation in the physical sealing of the tapes was not required by statute, we grant the petition.

On January 15, 1992, the Honorable Raymond Edwards, Jr., on application of the San Diego District Attorney's office issued an order authorizing the interception of wire communications of telephone numbers belonging to Westbrook and another defendant. On February 13, 1992, Judge Edwards signed an extension of the authorization. On February 26, 1992, the wiretap concluded. The wiretap authorization was issued in connection…