Manuela Villa v. Maricopa County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUELA VILLA, No. 15-15460

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-01681-

DJH

MARICOPA COUNTY; MARICOPA

COUNTY BOARD OF SUPERVISORS;

WILLIAM GERARD MONTGOMERY, OPINION

Maricopa County Attorney,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

Argued and Submitted February 13, 2017

San Francisco, California

Filed August 2, 2017

Before: William A. Fletcher and Johnnie B. Rawlinson,

Circuit Judges, and Robert W. Pratt,* District Judge.

Opinion by Judge W. Fletcher

*

The Honorable Robert W. Pratt, United States District Judge for the

Southern District of Iowa, sitting by designation.

2 VILLA V. MARICOPA COUNTY

SUMMARY**

Civil Rights / Standing / Preemption

The panel affirmed on different grounds the district

court’s dismissal of Manuela Villa’s putative class action

against Maricopa County defendants, alleging that portions of

the Arizona wiretapping statute, and the County’s practices

thereunder, were preempted by and violated Title III of the

Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. § 2510 et seq.

The panel held that Villa lacked Article III standing to

seek injunctive or declaratory relief on behalf of herself or a

putative class, but that she had standing to pursue individual

damages.

On the merits, the panel held that Ariz. Rev. Stat. § 13-

3010(A), as applied by Maricopa County officials, was

preempted by Title III, and that Villa’s rights under 18 U.S.C.

§ 2516(2) were violated because applications for wiretaps

were not made by the “principal prosecuting attorney.” The

panel held further that Ariz. Rev. Stat. § 13-3010(H) was not

preempted by Title III if it was construed to require that

recordings of intercepted conversations be submitted to a

court for sealing within ten days of the termination of the

court’s order authorizing a wiretap on each particular target

date.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

VILLA V. MARICOPA COUNTY 3

The panel held that Villa’s rights under 18 U.S.C.

§ 2518(8)(a) were violated because the recordings of her

intercepted conversations were submitted for sealing more

than a month after the termination of the order authorizing the

wiretap on the target line on which her conversations were

intercepted.

Finally, the panel held that because the law enforcement

officials were acting in good faith within the meaning of

18 U.S.C. § 2520(d), they were protected from a damage

judgment.

COUNSEL

Cameron A. Morgan (argued), Scottsdale, Arizona, for

Plaintiff-Appellant.

James Kenneth Mangum (argued), Deputy County Attorney;

William G. Montgomery, Maricopa County Attorney; Civil

Services Division, Maricopa County Attorney’s Office,

Phoenix, Arizona; for Defendants-Appellees.

OPINION

W. FLETCHER, Circuit Judge:

Law enforcement officials in Maricopa County

intercepted and recorded eight conversations between

Plaintiff Manuela Villa and her daughter in 2011 and 2012.

The target phone number over which Villa’s conversations

were intercepted belonged to neither Villa nor her daughter.

The wiretap application was authorized by Maricopa County

4 VILLA V. MARICOPA COUNTY

Attorney William G. Montgomery, but the application was

made by Deputy County Attorney Jennifer Brockel. Before

making the application, Brockel personally reviewed a

lengthy supporting affidavit. Montgomery did not review the

affidavit supporting the application.

After Villa learned that her conversations had been

intercepted, she brought a would-be class action against

County Attorney Montgomery, the Maricopa County Board

of Supervisors, and Maricopa County (“Defendants”),

alleging that portions of the Arizona wiretapping statute, as

well as the county’s practices adopted in reliance on the

statute, were preempted by and violated Title III of the

Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. § 2510 et seq. (“Title III”). Villa also alleged that

her Fourth Amendment rights had been violated.

The district court concluded that Arizona’s wiretapping

statute and practices thereunder were not preempted by, and

did not violate, Title III. The court dismissed Villa’s suit in

its entirety under Federal Rule of Civil Procedure 12(b)(6).

The court did not discuss Villa’s Fourth Amendment claim.

Villa has appealed only the court’s adverse rulings on her

Title III claims.

We hold that Villa lacks Article III standing to seek

injunctive or declaratory relief on behalf of herself or a

putative class, but that she has standing to pursue individual

damages. On the merits, we hold that Ariz. Rev. Stat. § 13-

3010(A), as applied by Maricopa County officials, is

preempted by Title III, and that Villa’s rights under 18 U.S.C.

§ 2516(2) were violated because applications for wiretaps

were not made by the “principal prosecuting attorney.” We

hold, further, that Ariz. Rev. Stat. § 13-3010(H) is not

VILLA V. MARICOPA COUNTY 5

preempted by Title III if it is construed to require that

recordings of intercepted conversations be submitted to a

court for sealing within ten days of the termination of the

court’s order authorizing a wiretap on each particular target

line. However, Villa’s rights under 18 U.S.C. § 2518(8)(a)

were violated because the recordings of her intercepted

conversations were submitted for sealing more than a month

after the termination of the order authorizing the wiretap on

the target line on which her conversations were intercepted.

Finally, we hold that because the law enforcement officials

who violated §§ 2516(2) and 2518(8)(a) were acting in good

faith within the meaning of 18 U.S.C. § 2520(d), they are

protected from a damage judgment. We therefore affirm,

though on different grounds, the decision of the district court.

I. Background

The following narrative is taken from Villa’s complaint

and from documents to which the complaint refers. We take

as true the complaint’s plausible and properly pleaded

allegations, which we summarize here. Zucco Partners, LLC

v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009).

On November 9, 2011, Deputy County Attorney Jennifer

Brockel submitted an application for an order permitting

wiretapping of four cell phones as part of a criminal

investigation designated CWT-412. The application included

three documents.

The first document was the application itself, dated

November 9, 2011, and signed under oath by Deputy County

Attorney Brockel. The preface to the application recited,

“WILLIAM G. MONTGOMERY, the duly elected and

qualified Maricopa County Attorney, by his appointed and

6 VILLA V. MARICOPA COUNTY

authorized Deputy County Attorneys of Maricopa County,

Jennifer Brockel and/or Vanessa Losicco and/or Jeffery

Beaver and/or Tony Novitsky, being duly sworn, deposes and

says: . . . .” Paragraph V of the application recited further,

“That he, WILLIAM G. MONTGOMERY, designated in

writing that Deputy County Attorneys of Maricopa County,

Jennifer Brockel and/or Vanessa Losicco and/or Jeffery

Beaver and/or Tony Novitsky, has authority pursuant to

A.R.S. § 13-3010(A) to make further applications for

amendments or extensions of the Order authorizing

interception of communications.” Brockel stated in the

application that she had read a sworn affidavit signed by

several detectives, that there was probable cause to believe

that there had been and would be violations of specific

provisions of Arizona criminal law, that there was probable

cause to believe that electronic interception would provide

evidence of these crimes, that other investigative techniques

had been tried and failed, and that further pursuit of other

investigative techniques would be unlikely to succeed or

would be dangerous. The application requested that the

Maricopa County Attorney, the Phoenix Police Department,

or the Drug Enforcement Administration or their

representatives be authorized to engage in interception. The

application sought a court order authorizing wiretaps on four

specified targeted telephone numbers (“Target Lines 1–4”),

used by two named persons. County Attorney Montgomery

did not sign the application.

The second document was a lengthy affidavit dated

November 9, 2011, signed under oath by three Phoenix Police

Department detectives, to which Brockel referred in her

application.

VILLA V. MARICOPA COUNTY 7

The third document was an authorization to apply for

wiretaps, dated the day before, November 8, 2011, and signed

under oath by County Attorney Montgomery. In the

document, Montgomery authorized “Jennifer Brockel and/or

Vanessa Losicco and/or Jeffery Beaver and/or Tony

Novitsky, Deputy Maricopa County Attorneys, to make

application on my behalf for an Ex Parte Order for

interception of telephonic . . . communications relating to” a

list of specific offenses “which have been, are being, and will

continue to be committed by” three named persons the targets

of the wiretap, and “other known and unknown co-

conspirators.” The caption of the document listed the four

target lines specified in Brockel’s application. The document

also listed three named persons, two of whom are specified in

Brockel’s application as using Target Lines 1–4. Nowhere in

the document did Montgomery state that he had personally

reviewed any evidence supporting an application for a

wiretap.

On November 9, 2011, a judge of the Maricopa County

Superior Court signed an order authorizing wiretaps for thirty

days on Target Lines 1–4. Between November 18, 2011, and

February 8, 2012, as part of investigation CWT-412, the same

judge signed fourteen additional orders authorizing wiretaps

on an additional twenty-eight target lines.

On November 23, 2011, Brockel applied for and obtained

a wiretap order authorizing a wiretap for thirty days on Target

Line 9, a line used by Hugo Gabriel Armenta-Castro.

Armenta-Castro was one of the three persons specified in

Montgomery’s November 8 authorization and Brockel’s

November 9 application. The telephone number for Target

Line 9 was specified neither in Montgomery’s authorization

nor in Brockel’s initial application. The wiretap on Target

8 VILLA V. MARICOPA COUNTY

Line 9 was later extended for thirty days in an order dated

December 21, 2011, based on a further application by

Brockel.

On eight occasions on December 12, 2011, and January

8, 2012, Villa’s conversations with her daughter over Target

Line 9 were intercepted and recorded by Maricopa County

officers. All of the recordings of the intercepted

communications for the thirty-two target lines in investigation

CWT-412 were submitted to the Arizona Superior Court for

sealing on March 1, 2012.

II. Standard of Review

We review de novo a district court’s dismissal for failure

to state a claim pursuant to Rule 12(b)(6). Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th

Cir. 2011). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

III. Standing

Villa seeks statewide declaratory and injunctive relief on

behalf of herself and the class she seeks to represent. She

alleges standing to seek such prospective relief on two

grounds — as a taxpayer in Arizona, and as an individual

whose conversations were intercepted in violation of federal

law. We hold that Villa lacks Article III standing to pursue

either form of prospective relief. See Ellis v. Costco

Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011) (a

plaintiff “must show standing with respect to each form of

VILLA V. MARICOPA COUNTY 9

relief sought”). Because Villa herself lacks Article III

standing to pursue this relief, she cannot represent a plaintiff

class seeking such relief. See Hodgers-Durgin v. de la Vina,

199 F.3d 1037, 1044–45 (9th Cir. 1999) (en banc).

For standing to seek prospective relief based on taxpayer

status, Villa alleges that she is a resident of Maricopa County

and that she pays taxes “in the state of Arizona.” She does

not explicitly so state, but we infer that she pays both state

and county taxes. She further alleges that “defendants are

using state and county taxes to investigate, detain, prosecute

and imprison persons based on communications obtained

from illegal wiretaps.” Villa’s status as a taxpayer does not

confer standing to seek prospective relief against Defendants.

In Asarco Inc. v. Kadish, 490 U.S. 605 (1989), the Supreme

Court held that a state taxpayer must allege “‘direct injury,’

pecuniary or otherwise” to have taxpayer standing under

Article III. Id. at 613–14 (quoting Doremus v. Bd. of

Education, 342 U.S. 429, 434 (1952)). We see no reason why

the standing analysis in a non-establishment clause case

should be different for a county taxpayer challenging an

allegedly illegal act of the county. Compare Flast v. Cohen,

392 U.S. 83 (1968); Everson v. Bd. of Education, 330 U.S. 1

(1947). Villa’s allegation that her taxes have been used to

finance Maricopa County officials who have “intercept[ed]

communications in violation of Title III,” is an insufficient

allegation of direct injury within the meaning of Asarco.

For standing for prospective relief based on interception

of her communications, Villa alleges that eight conversations

were illegally intercepted in 2011 and 2012. The wiretap that

intercepted these conversation has been terminated. Villa

does not allege that she is more likely than any other member

of the public to have her future conversations illegally

10 VILLA V. MARICOPA COUNTY

intercepted. In order to have Article III standing to seek

prospective relief, Villa must allege either “continuing,

present adverse effects” due to her exposure to Defendants’

past illegal conduct, O’Shea v. Littleton, 414 U.S. 488,

495–96 (1974), or “a sufficient likelihood that [s]he will

again be wronged in a similar way.” City of L.A. v. Lyons,

461 U.S. 95, 111 (1983). The allegations in Villa’s complaint

satisfy neither of these criteria. See id. at 105–106.

Although Villa lacks Article III standing to pursue

prospective relief on her own behalf or on behalf of a class,

she does have Article III and statutory standing to seek

individual damages for past interception of her

communications. Title III provides, “[A]ny person whose

wire, oral, or electronic communication is intercepted,

disclosed, or intentionally used in violation of this chapter

may in a civil action recover from the person or entity, other

than the United States, which engaged in that violation such

relief as may be appropriate.” 18 U.S.C. § 2520(a). Relief

under Title III includes actual, statutory, and punitive

damages. Id. § 2520(b)(2), (c).

IV. Merits

Villa contends that two provisions of Title III preempt

two provisions of Arizona’s wiretapping statute, and that

Defendants violated these two provisions of Title III. First,

18 U.S.C. § 2516(2) authorizes only the “principal

prosecuting attorney” of a state or its political subdivision to

apply to state courts for a wiretap order. The complaint

alleges that County Attorney Montgomery, acting pursuant to

Ariz. Rev. Stat. § 13-3010(A), improperly delegated to

Deputy County Attorney Brockel the authority that he, as the

“principal prosecuting attorney,” was required to exercise.

VILLA V. MARICOPA COUNTY 11

Second, 18 U.S.C. § 2518(8)(a) requires that “[t]he contents

of any wire, oral, or electronic communication intercepted by

any means authorized by this chapter” be recorded, and that

the recording be submitted to the authorizing court

“[i]mmediately upon the expiration of the period of the order,

or extensions thereof.” The complaint alleges that Brockel,

ostensibly acting under Ariz. Rev. Stat. § 13-3010(H), did not

timely submit the recordings of Villa’s conversations to the

Superior Court that authorized the wiretap.

A. Preemption and Title III

Title III sets forth minimum procedural requirements for

state and federal orders authorizing wiretapping. These

requirements are a floor, not a ceiling. States may choose to

enact wiretapping statutes imposing more stringent

requirements, or they may choose to forego state-authorized

wiretapping altogether. “[S]tates are ‘free to adopt more

restrictive legislation, or no legislation at all, but not less

restrictive legislation.’” State v. Verdugo, 883 P.2d 417, 420

(Ariz. Ct. App. 1993) (quoting S. Rep. No. 90-1097 (1968),

as reprinted in 1968 U.S.C.C.A.N. 2112, 2187); see also

United States v. Marion, 535 F.2d 697, 702 (2d Cir. 1976)

(“But whether the proceedings be federal or state,

interpretation of a state wiretap statute can never be

controlling where it might impose requirements less stringent

than the controlling standard of Title III.”); Sharpe v. State,

350 P.3d 388, 390 (Nev. 2015) (“[S]tates were allowed to

adopt their own wiretap laws, as long as they were at least as

restrictive as federal legislation.”); State v. Serrato, 176 P.3d

356, 360 (Okla. Crim. App. 2007) (“Under . . . Title III, a

state wiretapping law can never be less restrictive than federal

law.”); State v. Rivers, 660 So.2d 1360, 1362 (Fla. 1995)

(“[T]he federal wiretap statute envisions that States would be

12 VILLA V. MARICOPA COUNTY

free to adopt more restrictive legislation . . . but not less

restrictive legislation.” (citation and internal quotation marks

omitted)); People v. Teicher, 425 N.Y.S.2d 315, 321 n.3

(N.Y. App. Div. 1980) (“It was intended that the minimum

standards contained in the Act be binding on the states.”);

State v. Hanley, 605 P.2d 1087, 1091 (Mont. 1979) (“If a

state chooses to allow electronic surveillance by adopting a

statutory scheme, the scheme must be at least as or more

restrictive than the regulations of Title III.”); State v. Farha,

544 P.2d 341, 348 (Kan. 1975) (“If a state wiretap statute is

more permissive than the federal act, any wiretap authorized

thereunder is fatally defective and the evidence thereby

obtained is inadmissible under 18 U.S.C. § 2515.”).

Courts have articulated different standards for

determining whether state wiretapping statutes are “less

restrictive legislation” and therefore preempted by Title III.

The Supreme Court of Kansas has held that state officials

must follow the federal statute to the letter in obtaining

admissible wiretaps. See, e.g., State v. Bruce, 287 P.3d 919,

924–25 (Kan. 2012) (declining to adopt court-specified

parameters governing the delegation of application authority

to assistant attorney generals and thus finding Kansas law

preempted by Title III). The Supreme Court of Rhode Island

has characterized Title III as “preempt[ing] the field in

wiretap,” and has held that state courts must adhere closely to

the limitations on the use of intercepted communications

articulated in Title III. Pulawski v. Blais, 506 A.2d 76, 77

(R.I. 1986).

Other state courts have taken a more flexible approach.

Most prominently, the Supreme Judicial Court of

Massachusetts has held that a state wiretapping statute is not

preempted by Title III so long as it is “substantially similar in

VILLA V. MARICOPA COUNTY 13

design and effect to the Federal enactment.” Commonwealth

v. Vitello, 327 N.E.2d 819, 835 (Mass. 1975). Arizona courts

have relied on Vitello in determining whether state wiretap

provisions are “sufficiently compatible” with Title III. See

State v. Politte, 664 P.2d 661, 669 (Ariz. Ct. App. 1982)

(holding provisions in Ariz. Rev. Stat. § 13-3010 were not

preempted because they were “sufficiently compatible with

the federal [statute] or . . . the statute as a whole would ensure

sufficient compliance with the federal standards” and further

holding any divergent provisions “were ministerial or

reporting requirements which would not lead to preemption

even if different than the federal law”).

In United States v. Smith, 726 F.2d 852 (1st Cir. 1984) (en

banc), the First Circuit, reviewing wiretap procedures in

Massachusetts under Vitello, discussed at length the standard

by which a state’s wiretapping procedures are to be assessed

under Title III. The Smith court described the “basic

presuppositions” of Title III as follows:

that the objectives of federal legislation

controlling electronic surveillance are to

protect privacy, to establish uniform standards

not only on a federal level but in a state or

county governing the authorization of

interceptions, and to ensure adherence to these

standards through centralizing responsibility

in top level state and county prosecutors who

can be held accountable for departures from

preestablished policy; and that, so long as

federal standards are not jeopardized or

eroded, state regulation is not proscribed but

rather specifically contemplated.

14 VILLA V. MARICOPA COUNTY

Id. at 856. In order to ensure that “federal standards are not

jeopardized or eroded,” the First Circuit asked whether state

procedural protections under the statute were “equal to those

required under Title III,” or, in the words of Vitello, quoted in

Smith, whether state procedural protections were “in

substantial compliance with the federal law.” Id. at 856, 861,

857 (quoting Vitello, 327 N.E.2d at 825). Reviewing not only

the Massachusetts statute, but also the judicial interpretation

of that statute by the Supreme Judicial Court, the First Circuit

upheld the wiretap procedures in Massachusetts as consistent

with Title III. Id. at 863.

We agree with the approach taken by the First Circuit.

We do not insist that the procedures set forth by state statute

literally follow or perfectly mimic the provisions of Title III.

Rather, so long as the state wiretapping statute, considered as

a whole and as interpreted by state courts, is in substantial

compliance with, and is therefore equal to, Title III, state

wiretaps are permitted.

B. 18 U.S.C. § 2516(2) and “Principal Prosecuting

Attorney”

Title III provides, “The principal prosecuting attorney of

any State, or the principal prosecuting attorney of any

political subdivision thereof . . . may apply” for an order

authorizing a wiretap interception. 18 U.S.C. § 2516(2). An

application by such “principal prosecuting attorney” must

include, inter alia, a “full and complete statement of the facts

and circumstances relied upon by the applicant, to justify his

belief that an order should be issued, including (i) details as

to the particular offense . . . , (ii) . . . a particular description

of the nature and location of the facilities from which or the

place where the communication is to be intercepted, (iii) a

VILLA V. MARICOPA COUNTY 15

particular description of the type of communications sought

to be intercepted, [and] (iv) the identity of the persons, if

known, committing the offense and whose communications

are to be intercepted,” § 2518(1)(b); “a full and complete

statement as to whether or not other investigative procedures

have been tried and failed or why they reasonably appear to

be unlikely to succeed if tried or to be too dangerous,”

§ 2518(1)(c); and a “full and complete statement of the facts

concerning all previous applications known to the individual

authorizing and making the application . . . ,” § 2518(1)(e).

Based on the information provided by the applicant, the judge

must determine whether “there is probable cause for belief

that an individual is committing, has committed, or is about

to commit a particular [crime],” § 2518(3)(a); whether “there

is probable cause for belief that particular communications

concerning that offense will be obtained through such

interception,” § 2518(3)(b); and whether “normal

investigative procedures have been tried and have failed or

reasonably appear to be unlikely to succeed if tried or to be

too dangerous,” § 2518(3)(c).

Arizona Revised Statutes § 13-3010(A) provides:

On application of a county attorney, the

attorney general or a prosecuting attorney

whom a county attorney or the attorney

general designates in writing, any justice of

the supreme court, judge of the court of

appeals or superior court judge may issue an

ex parte order for the interception of wire,

electronic or oral communications.

16 VILLA V. MARICOPA COUNTY

Under Arizona law, the designated “prosecuting attorney”

may provide the “full and complete statements” required

under § 2518(1). Ariz. Rev. Stat. § 13-3010(B).

Villa contends that the principal-prosecuting-attorney

provision of 18 U.S.C. § 2516(2) conflicts with Arizona law,

which allows delegation of the power to apply for wiretap

orders to a “prosecuting attorney.” We agree.

The purpose of § 2516(2) is to ensure that “a publicly

responsible official subject to the political process”

personally approves a wiretap application. United States v.

King, 478 F.2d 494, 503 (9th Cir. 1973) (quoting S. Rep. No.

90-1097, 1968 U.S.C.C.A.N at 2185). Just as the designation

of “the principal prosecuting attorney of any State” who is

“empowered to authorize interceptions” under § 2516(2) is a

matter of state law, so is “[t]he issue of delegation by that

officer.” S. Rep. No. 90-1097, 1968 U.S.C.C.A.N. at 2187.

However, any state statute authorizing wiretapping “must

meet the minimum standards reflected as a whole in” Title

III. Id. As relevant here, state statutes that authorize

delegation must respect the intent of § 2561(2), which “is to

provide for the centralization of policy relating to statewide

law enforcement in the area of the use of electronic

surveillance in the chief prosecuting officer of the State . . .

[or] the next political level of a State, usually the county.” Id.

The anti-delegation, or centralization, requirement is a

“significant safeguard for the general public” and “not [a]

mere technicalit[y].” King, 478 F.2d at 503, 505.

Our decision in King dealt with a wiretap conducted by

federal officials, to whom Title III applies according to its

precise terms. In assessing whether wiretapping by state

officials comports with Title III and its centralization

VILLA V. MARICOPA COUNTY 17

requirement, we ask whether the state law’s delegation

provisions, as interpreted and applied, “achiev[e] the required

centralized accountability.” Smith, 726 F.2d at 856; see also

United States v. Tortorello, 480 F.2d 764, 777 (2d Cir. 1973);

United States v. Pacheco, 489 F.2d 554, 562 (5th Cir. 1974).

That is, we ask whether the state procedures are “in

substantial compliance with the federal law,” and therefore

“equal to those required under Title III.” Smith, 726 F.2d at

857, 861 (quoting Vitello, 327 N.E.2d at 825).

The text of § 13-3010(A) closely resembles the text of the

Massachusetts statute at issue in Vitello and later upheld, as

applied, in Smith. The Massachusetts statute provided, “The

attorney general, any assistant attorney general specially

designated by the attorney general, any district attorney, or

any assistant district attorney specially designated by the

district attorney may apply ex parte to a judge of competent

jurisdiction for a warrant to intercept wire or oral

communications.” Mass. Gen. Laws Ann. ch. 272,

§ 99(F)(1); Smith, 726 F.2d at 857.

However, the First Circuit in Smith did not hold that the

bare text of the Massachusetts statute complied with Title III.

Indeed, it strongly implied that the broad delegation

authorized by the Massachusetts statute, standing alone, did

not comply and was therefore preempted by § 2516(2). See

Smith, 726 F.2d at 857 (“If this were the complete statutory

framework, appellants’ arguments would have formidable

force.”). The First Circuit concluded the Massachusetts

statute was consistent with § 2561(2) only because the

Massachusetts Supreme Judicial Court had previously read

limitations into the delegation authorized under the statute.

In Vitello, the Supreme Judicial Court had imposed a

“detailed judicial gloss in the nature of a set of required

18 VILLA V. MARICOPA COUNTY

procedures” on this statute. Id. This gloss included “specific

requirements” that (1) “an assistant district attorney . . . bring

the matter for examination before his senior officer, the

district attorney”; (2) “the district attorney . . . determine

whether a particular proposed use of electronic surveillance

would be consistent with the overall policy” by way of a “full

examination . . . of the application”; and (3) the district

attorney “authorize each such application in writing.” Smith,

726 F.2d at 857–58 (quoting Vitello, 327 N.E.2d at 819).

Arizona courts have not read into the Arizona statute

limitations comparable to those read into the Massachusetts

statute in Vitello. In the case before us, County Attorney

Montgomery authorized four named Deputy County

Attorneys, including Brockel, to apply for wiretaps in

connection with investigation CWT-412. Montgomery’s

authorization listed four telephone numbers and three named

persons using those numbers, but Montgomery did not state

that he was personally familiar with any evidence providing

probable cause that would justify a wiretap on any of those

numbers or persons. Nor did he state that he knew that other

investigative techniques had failed in the past and were likely

to fail or be dangerous in the future. The next day, Deputy

County Attorney Brockel filed an application, signed under

oath, for a wiretap on the four telephone numbers specified in

Montgomery’s authorization. Brockel attached a lengthy

sworn affidavit by three Phoenix Police Department

detectives, that she attested to having read, providing

probable cause to support the requested wiretaps and showing

the failure of other investigative techniques.

In Verdugo, the Arizona Court of Appeals, relying on the

decision of the Massachusetts Supreme Judicial Court in

Vitello, held that a wiretap authorized by delegated authority

VILLA V. MARICOPA COUNTY 19

pursuant to Ariz. Rev. Stat. 13-3010(A) complied with

§ 2516(2). 883 P.2d at 420. The procedures by which the

wiretap order in that case was obtained are very similar to the

procedures in the case before us. In Verdugo, the County

Attorney signed a document authorizing Deputy County

Attorneys to apply for a wiretap. Id. Thereafter, a Deputy

County Attorney applied for a wiretap, stating in his

application that he had read affidavits establishing probable

cause, and that investigative techniques other than

wiretapping had been tried and had failed. Id. at 421. When

the wiretap was later challenged in a motion to suppress in a

criminal case, the County Attorney filed an affidavit “in

which he stated that he decides the county’s policy on wiretap

investigations, including when to seek court approval.” Id.

The County Attorney “noted” in the affidavit “that before the

application [in Verdugo] was filed, his deputy had informed

him of the agency seeking the order, the crimes expected to

be uncovered, the general background of the investigation

and the reason for a wiretap request, and the resources to be

used in the investigation.” Id. In Verdugo, as in the case

before us, the County Attorney nowhere stated — in his

initial authorization or in his affidavit later filed in court —

that he had personally reviewed the supporting affidavits or

otherwise learned their contents.

We are willing to assume that the procedures followed in

the case before us are identical to those in Verdugo, including

the procedure described in the County Attorney’s affidavit

filed in resistance to the suppression motion. We hold that

such procedures are not in substantial compliance with the

principal-prosecuting-attorney requirement of § 2516(2).

We hold that, when a wiretap application is filed by a

state, substantial rather than literal compliance with Title III

20 VILLA V. MARICOPA COUNTY

is required. However, substantial compliance with Title III

requires that the principal prosecuting attorney indicate, as

part of the application process, that he or she is personally

familiar with all of “the facts and circumstances” justifying

his or her “belief that an order should be issued.” 18 U.S.C.

§ 2518(1)(b). Section 2516(2) tells us that it is the “principal

prosecuting attorney” who “may apply” for a wiretap order.

Section 2518 tells us what information must be in the

application of the principal prosecuting attorney and what the

issuing judge must find based on the information provided.

These “facts and circumstances,” specified in § 2518(1)(b),

are at the core of the protections provided by Title III.

It is therefore not sufficient for the principal prosecuting

attorney to state that he or she is generally aware of the

criminal investigation, that he or she authorizes a deputy to

seek wiretaps, and that his or her deputy has been authorized

to review and present to the court the evidence in support of

the wiretaps. As we wrote in King, describing the principal-

prosecuting-attorney requirement of Title III: “The Congress

wanted each application passed upon by one of the highest

law enforcement officials in the government[.] . . . The

Congress expected them to exercise judgment, personal

judgment, before approving any application.” 478 F.2d at

503.

County Attorney Montgomery did not indicate, as part of

the process of applying for the wiretap orders in this case, that

he was himself familiar with the relevant facts and

circumstances and that he had himself made the judgment

that an application for a wiretap was justified. We therefore

conclude that the applications for the two judicial orders

authorizing a wiretap on Target Line 9 violated Title III.

VILLA V. MARICOPA COUNTY 21

C. 18 U.S.C. § 2518 and Sealing

Title III provides, “Immediately upon the expiration of

the period of the order, or extensions thereof, such recordings

shall be made available to the judge issuing such order and

sealed under his directions.” 18 U.S.C. § 2518(8)(a).

Arizona Revised Statutes § 13-3010(H) provides, “Within ten

days after the termination of the authorized interception, the

recordings shall be made available to the judge who issued

the order and shall be sealed under the judge’s directions.”

Villa contends that the sealing requirement of

§ 2518(8)(a) conflicts with Arizona law as applied in her

case. We agree.

Neither the federal nor the state sealing requirement is

quite as clear as might at first appear. With respect to

§ 2518(8)(a), we have held that “immediately upon the

expiration” does not really mean “immediately.” Rather, it

“means ‘within one or two days.’” United States v. Reed,

575 F.3d 900, 913 (9th Cir. 2009) (quoting United States v.

Pedroni, 958 F.2d 262, 265 (9th Cir. 1992)). Moreover, the

Supreme Court has held that recordings not turned over for

sealing “immediately” are not per se inadmissible. Late-

sealed recordings may be admitted, provided that the

government “explain . . . why a delay occurred [and] also

why it is excusable.” United States v. Ojeda Rios, 495 U.S.

257, 265 (1990). A delay beyond one or two days thus does

not necessarily result in exclusion; rather, it “calls for

explanation.” Reed, 575 F.3d at 913 (quoting Pedroni, 958

F.2d at 265). However, deliberate delay is not a “satisfactory

explanation.” Ojeda Rios, 495 U.S. at 264.

22 VILLA V. MARICOPA COUNTY

With respect to § 13-3010(H), the date of termination “of

the authorized interception” (the triggering date for the ten

days within which the recording must be submitted for

sealing) has not, in practice, meant the interception of a

particular telephone line. In Arizona v. Salazar-Rosas,

CR2012-006372-040 DT (Ariz. Sup. Ct., Oct. 18, 2013),

criminal defendants moved to suppress conversations

intercepted during investigation CWT-412 (the investigation

in the case before us). In a decision denying the motion, the

Arizona Superior Court wrote that the uniform practice in

Arizona for more than twenty years had been to submit for

sealing within ten days of the termination of the entire

criminal investigation rather than within ten days of the

termination of interception of particular target lines.

However, the court declined to rule on the legality of this

practice under § 13-3010(H). That is, it declined to decide

whether the triggering date under § 13-3010(H) is the

termination of the entire investigation or the termination of

interception on a particular line. See also Arizona v. Valadez-

Sandoval, CR2012-141355-005 DT (Ariz. Sup. Ct., Nov. 1,

2013) (same). In the appeal now before us, Defendants

represented to the federal district court that the long-standing

Arizona practice was abandoned sometime in 2014, and that

recordings of intercepted conversations are now submitted

within ten days of the termination of interception orders on

particular target lines.

We conclude that allowing a ten-day period after

termination of an interception order on a particular target line

under Ariz. Rev. Stat. § 13-3010(H), as apparently now

practiced by Arizona officials, does not substantially

undermine the purpose of § 2518(8)(a). That purpose “is to

ensure the reliability and integrity of evidence obtained by

means of electronic surveillance. . . . [T]he seal is a means of

VILLA V. MARICOPA COUNTY 23

ensuring that subsequent to its placement on a tape, the

Government has no opportunity to tamper with, alter, or edit

the conversations that have been recorded.” Ojeda Rios,

495 U.S. at 263; see also S. Rep. No. 90-1097, at 2193

(“Paragraph (8) sets out safeguards designed to insure that

accurate records will be kept of intercepted

communications.”). We recognize that any delay in

submitting recordings allows an opportunity for tampering,

but we do not regard a ten-day delay as significantly different

from the delay allowed for federal wiretaps under Title III.

We therefore conclude that a ten-day grace period after the

termination of an interception on a particular telephone line,

plus a possible extension of that period based on a sufficient

explanation for lateness as permitted by the Court in Ojeda

Rios, is in substantial compliance with § 2518(8)(a).

However, the long-standing practice that was still in

effect when the recordings of Villa’s intercepted

conversations were submitted for sealing was not in

substantial compliance with § 2518(8)(a). Under that

practice, county officials submitted recordings of intercepted

conversations for sealing only at the conclusion of an entire

criminal investigation. In the case before us, the recordings

of all intercepted calls were submitted to the Superior Court

for sealing on March 1, 2012. That court had issued an order

on November 9, 2011, authorizing wiretaps of Target Lines

1–4 for thirty days, and no extension order was entered for

those lines. Thus, more than two-and-a-half months passed

between the termination of the order and the submission of

the recordings for sealing. For Target Line 9, the line at issue

in this case, the court issued a thirty-day extension order on

December 21, 2011, and no further extension order was

granted. Thus, over a month passed between the termination

of the extension order and the submission for sealing. The

24 VILLA V. MARICOPA COUNTY

Supreme Court in Ojeda Rios emphatically rejected an

argument that would have permitted the government to “delay

requesting a seal for months, perhaps even until a few days

before trial.” 495 U.S. at 263. Such a delay, the Court made

clear, was fatally inconsistent with Congress’s intent to

minimize the possibility of tampering. Taking our cue from

Ojeda Rios, we conclude that the long-standing Arizona

practice, still in effect when Villa’s conversations were

submitted for sealing, did not substantially comply with

§ 2518(8)(a). See United States v. Hermanek, 289 F.3d 1076,

1085–87 (9th Cir. 2002) (sealing requirement of § 2518(8)(a)

is triggered by the expiration of an intercept order for a

particular phone number, not investigation as a whole). That

is, the practice of waiting until the conclusion of an entire

criminal investigation before submitting recordings of

intercepted conversations for sealing was preempted by, and

violated, § 2518(8)(a).

V. Relief

Title III provides that “any person whose wire, oral, or

electronic communication is intercepted, disclosed, or

intentionally used in violation of this chapter may in a civil

action recover from the person or entity, other than the United

States, which engaged in that violation such relief as may be

appropriate.” 18 U.S.C. § 2520(a). That relief includes

actual, statutory, and punitive damages. Id. § 2520(b)(2), (c).

For the reasons given above, Villa does not have standing to

seek prospective relief against Maricopa County or its

officials, but she does have standing to seek individual

damages. However, Title III protects a defendant who has

acted in good faith: “A good faith reliance on . . . a court . . .

order . . . or a statutory authorization . . . is a complete

VILLA V. MARICOPA COUNTY 25

defense against any civil or criminal action brought under this

chapter or any other law.” Id. § 2520(d).

Villa’s rights under Title III were violated in two respects,

but both violations were in good faith within the meaning of

§ 2520(d). First, the application for an interception order was

not made by the “principal prosecuting attorney,” as required

by § 2516(2). But the application by Deputy County

Attorney Brockel was made pursuant to the statutory

authorization of Ariz. Rev. Stat. § 13-3010(A), and the

interception of communications on Target Line 9 was made

pursuant to Superior Court orders. Second, the submission

for sealing on March 1, 2012, was made more than ten days

after the termination of the order authorizing interception on

Target Line 9 because the submission was made only at the

completion of the entire criminal investigation, of which the

wiretapping of Target Line 9 was a part. The submission for

sealing at the conclusion of investigation CWT-412 may or

may not have been in compliance with Ariz. Rev. Stat. § 13-

3010(H). But it was done in accordance with a consistent and

long-standing practice previously approved by Arizona

courts. We therefore conclude that Villa may not recover

damages for violations of her rights under §§ 2516(2) and

2518(8)(a).

Conclusion

We hold that Ariz. Rev. Stat. § 13-3010(A), as applied by

Maricopa County officials, is preempted by 18 U.S.C.

§ 2516(2), and that Villa’s rights under § 2516(2) were

violated by the interception of her communications on Target

Line 9. We further hold that Ariz. Rev. Stat. § 13-3010(H),

if interpreted to require submission for sealing within ten

days of the termination of a wiretap authorization for each

26 VILLA V. MARICOPA COUNTY

target line, is not preempted by § 2518(8)(a). However, the

recordings of Villa’s intercepted communications were not

submitted for sealing within ten days of the termination of the

authorization for Target Line 9, resulting in a violation of

§ 2518(8)(a). Finally, we hold that Villa is not entitled to

prospective relief on behalf of herself or the would-be class

because she lacks Article III standing, and that she may not

recover individual damages because Defendants are protected

by the good faith provision of § 2520(d).

Costs on appeal to be assessed against

Defendants/Appellees.

AFFIRMED.