United States v. Perez-Valencia

Under 18 U.S.C. § 2516(2), the principal prosecuting attorney of a political subdivision can designate an attorney to have the authority to apply for a wiretap in his or her absence, as long as the applicable state wiretap statute is also adhered to.

Mayel Perez-Valencia appealed after the district court denied his motion to suppress evidence obtained as a result of a wiretap filed by Assistant District Attorney Dennis Christy (“ADA Christy”), which revealed Perez-Valencia’s involvement in a methamphetamine organization. Perez-Valencia argued that the wiretap application was invalid because 18 U.S.C. § 2516(2) allows only “the principal prosecuting attorney” of a political subdivision to apply to a state court for a wiretap. District Attorney Michael Ramos (“DA Ramos”) was out of town when ADA Christy applied for a wiretap, and previously, pursuant to California Penal Code § 629.50(a), Ramos authorized three individuals, including ADA Christy, to act in his absence. California Penal Code § 629.50(a ) states that “a district attorney, or the person designated to act as district attorney in the district attorney’s absence,” is able to apply for a wiretap. The Ninth Circuit held that a state assistant district attorney who has been duly designated to act in the absence of the district attorney has the authority to apply for a wiretap while complying with 18 U.S.C. § 2516(2), so long as the state statute is followed. However, in § 629.50, “the” designated attorney must be acting for all purposes as the district attorney of the political subdivision in question, not simply with limited authority to apply for a wiretap order. The factual record was currently insufficient to determine the precise nature of ADA Christy’s power in DA Ramos’s absence. The panel remanded to the district court to determine if ADA Christy was designated to act for all or limited purposes in DA Ramos’s absence. The panel did not address the government’s attenuation argument because it will only become ripe if ADA Christy lacked authority to apply for the wiretap. REMANDED.