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.