In a decision that could jeopardize pending criminal cases, a 9th U.S. Circuit Court of Appeals panel ruled Wednesday that wiretapping practices of Maricopa County prosecutors violate federal law.

The tribunal said County Attorney Bill Montgomery, relying on a state statute, failed to personally review and approve electronic-surveillance warrants. Judges said U.S. law requires the “principle prosecuting attorney” — not subordinates — to approve applications. 

Alan Simpson, a defense lawyer who did not take part in the case, predicted the appellate ruling will force the suppression of wiretap evidence in numerous ongoing criminal prosecutions, resulting in cases getting dismissed.

“This is really big,” Simpson said. “It’s a tsunami that’s going to wash so many of these cases right out … There’s no legal way around it. The evidence is suppressible.”

Montgomery ‘most likely’ will appeal

The appeals court decision stems from a civil lawsuit filed by Manuela Villa, whose phone conversations were recorded by law-enforcement officers during a 2012 narcotics investigation. Montgomery had delegated his search-warrant role to assistants in the criminal caseand did not review the petition, judges ruled. 

In a written statement, Montgomery said he “most likely” will appeal, and disputed the 9th Circuit finding that he did not read the warrant papers. “Point of fact, I do read each affidavit provided by law enforcement in support of a wiretap application,” he said.

Montgomery did not respond to questions about the ruling’s potential impact on pending cases.

A spokeswoman for the Arizona Prosecuting Attorneys Advisory Council did not respond to an interview request.

Woman alleged privacy breach

The 9th Circuit case involved surveillance in 2011-12 directed at numerous drug suspects and more than 30 phone lines. Wiretaps were authorized by a judge after prosecutors submitted evidence showing probable cause.

Villa, who was not a target of the probe and was not charged with any crime, alleged that her privacy was breached in violation of federal law.

The 9th Circuit panel agreed. An opinion written by Judge William Fletcher says Arizona’s law and Montgomery’s practices violate the Omnibus Crime Control and Safe Streets Act of 1968,  adopted by Congress as a safeguard.

Attorney Cameron Morgan, who argued on behalf of Villa, described the ruling’s legal implications as “huge” because Montgomery routinely has relegated wiretap authority to underlings.

Morgan and Simpson said Arizona defense lawyers have argued in other court cases that the practice is improper, to no avail. Because Arizona’s wiretap provisions are less restrictive, federal agents in anti-crime task forces typically seek state court warrants.  

A USA Today investigation last year found that, in Riverside County, California, a single state judge authorized nearly one-fifth of all U.S. wiretap warrants, allowing agents to eavesdrop on millions of phone calls.

“We’ve seen a lot of abuses of wiretap investigative techniques,” Morgan said. “Hopefully, this will end some of the major abuses … And, hopefully, it’ll make the (Arizona) judiciary sit up and take notice.”

Number of affected cases is unclear

Defense lawyers said the Arizona Attorney General’s Office and other county attorneys in the state have designated underlings for wiretap oversight in the past, but it is unclear how many current cases might be affected.

Simpson said he already is preparing a motion to dismiss a Maricopa County prosecution that mirrors the Villa case and involves 28 defendants. He said he does not believe the 9th Circuit ruling would have retroactive repercussions on cases already adjudicated.

The 2012 drug prosecution targeted about 30 suspects in a marijuana and money-laundering operation. Numerous phone taps were authorized by a judge after prosecutors submitted evidence showing probable cause. Most of the defendants pleaded guilty, and the 9th Circuit ruling is not expected to affect that outcome.

Morgan said Villa, who was not a suspect, was recorded talking with a family member who was convicted. He said Villa’s rights were violated even though she was innocent of wrongdoing. “She’s never done anything illegal in her life.”

Villa filed a class-action lawsuit and sought monetary damages. The 9th Circuit ruled that she is not entitled to class-action status. It disallowed damages based on a finding that prosecutors acted in good faith.

Villa successfully argued that her rights also were violated when investigators failed to submit wiretap recordings to a judge once surveillance ended, as required by federal statute. The recordings in question were not delivered to a judge for more than two months.

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