Grounds for the Narcotic Officers' Petition

In their petition to modify D.90-12-121, the principal ground relied on by the Narcotic Officers is that requiring law enforcement officials to use legal process in order to obtain utility customer information is inconsistent with the Crime Victims' Bill of Rights, which was enacted as Proposition 8 in June of 1982.² The Narcotic Officers contend that D.90-12-121 has created an "anomaly" in criminal law, because "utility user information is admissible in a criminal prosecution without a warrant, but law enforcement is forbidden to engage in the more preliminary act of investigation in the absence of a warrant." (Petition, p. 3.) The Narcotic Officers contend that the requirement of a subpoena is anomalous for the following reasons:

"The Crime Victims' Bill of Rights . . . provided that criminal defendants could claim no greater privacy rights than those that exist pursuant to federal constitutional law. Under federal law, there is no recognized right of privacy with respect to utility records, Smith v. Maryland, 442 U.S. 753 (1979). Subsequent to Proposition 8 being enacted, In re Lance W., 37 Cal. 3d 873 (1985) and People v. Rooney, 175 Cal.App. 3d 634 determined that California peace officers did not need a warrant to obtain names and addresses from utilities, there being no constitutional protection of such information found under federal law." (Id. at 5-6.)

The Narcotic Officers continue that the requirement of legal process slows down their everyday work, and prevents them from following up promptly on valuable leads:

"On a daily basis narcotic officers receive innumerable tips regarding suspected drug activity, characteristically from citizens observing suspicious behavior at a particular address. If utility records can be swiftly accessed, these leads can be winnowed. For example, long-standing residence and stable employment would indicate that illegal activity is less likely; on the other hand, multiple listings - particularly in fictitious names - or a prior criminal record (discovered by submission of the subscriber's name to the criminal justice information system) would indicate that a full investigation may be necessary.

"Sophisticated drug rings set up numerous locations for various uses, including `stash houses,' `money houses,' or bogus living quarters. By review of utility records, officers can determine if an individual has initiated service at multiple locations at the same time, identifying possible sites of drug activity and gathering information needed to obtain search warrants. Fast access to records is necessary to facilitate investigation and make maximum use of very limited law enforcement resources. . ." (Id. at 4.)

Although they do not mention Pub. Util. Code § 588 specifically, the Narcotic Officers suggest that D.90-12-121 be modified to provide for a procedure similar to the one set forth in that statute, which allows designated investigators and inspectors in child abduction cases to obtain utility customer information without legal process. CNOA urges that using procedures similar to those in § 588, its members should be able to obtain upon written request, but without a warrant or subpoena, "the full name and address, prior address and place of employment of, and date of service instituted by" a utility customer. (Id. at 7-9.)