Argued & Submitted February 4, 2013—Pasadena, California
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Carlton F. Gunn, Kaye, McLane, Bednarski & Litt, LLP, Pasadena, California, for Defendant-Appellant.
Jennie L. Wang, Assistant United States Attorney, United States Department of Justice, Violent and Organized Crime Section, Los Angeles, California, for Plaintiff-Appellee.
Before: Diarmuid F. O'Scannlain, Stephen S. Trott, and Richard R. Clifton, Circuit Judges.
The panel remanded a criminal case for the limited purpose of full development of the factual record with respect to the authority of an assistant San Bernardino County district attorney as the person who applied for a state wiretap, and for a second issue should it become ripe.
The panel held that the language "the principal prosecuting attorney" found in 18 U.S.C. § 2516(2) can include a state assistant district attorney who has been duly designated to act in the absence of the district attorney, and that compliance with § 2516(2) necessarily requires an analysis of the applicable state wiretap statute, here California Penal Code § 629.50.
The panel also held that "the" attorney designated to act in the district attorney's absence – as § 629.50 specifies – must be acting in the district attorney's absence not just as an assistant district attorney designated with the limited authority to apply for a wiretap order, but as an assistant district attorney duly designated to act for all purposes as the district attorney of the political subdivision.
Because the record is insufficient for the panel to determine the precise nature of the assistant district attorney's authority at the time he applied for the disputed wiretap, the panel remanded for development of the factual record as to that authority.
The panel did not address the government's argument that the evidence subject to the defendant's suppression motion was so attenuated from the alleged statutory violation that it need not be excluded, an issue that will only become ripe if the district court invalidates the wiretap on the ground that the assistant district attorney lacked authority to apply for it.
The panel stated that it retains jurisdiction over any further appeals.
TROTT, Circuit Judge: