Failure to Provide Proper Notice Under CalECPA Does Not Warrant Suppression of Cell Phone Records

The PEOPLE, Plaintiff and Respondent, v. Christian Steve CAMPOS, Defendant and Appellant.F084307; Filed January 22, 2024
2024 WL 226419 (Cal.App. 5 Dist.), 1

Summary: Campos contends electronic information evidence introduced in his murder trial should have been suppressed because he was not properly notified of its acquisition by the government pursuant to the California Electronic Communications Privacy Act (Pen. Code, § 1546 et seq.; CalECPA). Although the government did not properly notify Campos pursuant to the CalECPA, suppression is unwarranted.

Government’s Failure to Provide Proper Notice Under CalECPA Does Not Warrant Suppression

Background

The court sentenced Campos  to 15 years to life for the second degree murder conviction, plus 25 years to life for the gun enhancement under section 12022.53, subdivision (d).

Campos challenges the court’s denial of his motion to void warrants issued before trial and suppress the electronic information.

Warrants for Campos’ Facebook and T-Mobile were sought and law enforcement sought and obtained a 90-day extension of the notice period pursuant to section 1546.2, subdivision (b)(1).

Campos filed a motion pursuant to CalECPA (§ 1546 et. seq.) and the Fourth Amendment to void the  warrants and to suppress the evidence.

The prosecution argued that the fruit of the poisonous tree doctrine does not apply, that Facebook notifies all users of government-compelled information in compliance with CalECPA, and that the police report and discovery provided by the prosecution in the case was sufficient notice.

“Prior to passage of CalECPA, California law did not require law enforcement officials to obtain a warrant to access most electronic information. Proponents of CalECPA sought to update the law for ‘the digital age’ and ‘properly safeguard the robust constitutional privacy and free speech rights of Californians, spur innovation, and support public safety by instituting clear warrant standards for government access to electronic information.’ (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 178 (2015–2016 Reg. Sess.) as amended Mar. 16, 2015; see also Freiwald, At the Privacy Vanguard: California’s Electronic Communications Privacy Act (CalECPA) (2018) 33 Berkeley Tech. L.J. 131, 143–147.)” (People v. Meza (2023) 90 Cal.App.5th 520, 545, fn. 15, 307 Cal.Rptr.3d 235.)

Under CalECPA, the government may only compel the production of electronic communication information from a service provider by the means described in section 1546.1. One permissible means is a standard search warrant, so long as it complies with subdivision (d) of section 1546.1.

Section 1546.1, subdivision (d) requires that the warrant describe with particularity the information to be seized “by specifying, as appropriate and reasonable, the time periods covered, the target individuals or accounts, the applications or services covered, and the types of information sought ….” It  requires that the warrant prohibit further review or disclosure of information obtained thereunder that is “unrelated to the objective of the warrant ….” The warrant must be accompanied by an order directing the service provider to produce an affidavit verifying the authenticity of the electronic information. (Id., subd. (d)(3).)

CalECPA Notice Requirements

CalECPA requires that the “government entity that executes a warrant, or obtains electronic information in an emergency pursuant to Section 1546.1, shall serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant or emergency access, a notice that informs the recipient that information about the recipient has been compelled or obtained, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the emergency. The notice shall be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three court days after obtaining the electronic information.” (§ 1546.2, subd. (a)(1).)

“When a warrant is sought or electronic information is obtained in an emergency under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.” (§ 1546.2, subd. (b)(1).)

“Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the warrant or emergency access, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the court’s determination to grant a delay in notifying the individual.” (§ 1546.2, subd. (b)(3).)

Suppression Provision

CalECPA contains a suppression provision, stating:

“Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.” (§ 1546.4, subd. (a).)

The purported “notice” in this case was not sufficient under CalECPA.

Section 1546.2, subdivision (b)(3) establishes several requirements for notice under CalECPA. It specifies (1) who must send the notice, (2) how notice is to be transmitted, (3) the recipient of the notice, and (4) the contents of the notice.

The notice must come from the government, not the service provider.  And “the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective …” notice. (§ 1546.2, subd. (b)(3); see also id., subd. (a)(1).)

The notice must be transmitted to “the identified targets of the warrant or emergency access.” (§ 1546.2, subd. (b)(3); see also id., subd. (a)(1).) The notice must include “the information described in [section 1546.2,] subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the court’s determination to grant a delay in notifying the individual.” (§ 1546.2, subd. (b)(3).)

Notice was Insufficient Under CalECPA

Notice must be given by the government, not the service providers. Information provided to the account holder by Facebook or T-Mobile does not satisfy the government’s responsibility under section 1546.2.

Consequence of Insufficient Notice

Section 1546.4, subdivision (a) provides that a person “may move to suppress” electronic information obtained or retained in violation of the Fourth Amendment or the CalECPA. This provision authorizes the filing of a suppression motion but does not expressly mandate that all electronic information obtained or retained in violation of the CalECPA must always be suppressed. (See Price v. Superior Court (2023) 93 Cal.App.5th 13, 58, 310 Cal.Rptr.3d 520.)

Here, law enforcement’s efforts to obtain Campos’ electronic information were eventually made known to him before trial began and Suppression is not appropriate under the Jackson framework: (1) Has defendant established a violation of CalECPA? (2) If so, was the violated provision intended to play a central role in the statutory scheme? And (3) if so, was the purpose of the provision achieved in spite of the error? (See People v. Jackson, supra, 129 Cal.App.4th at p. 149.)

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