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District Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph H. THAYER and Judith Magruder, Defendants and Appellants.

Cr. 9199.

Decided: June 08, 1965

Ball, Hunt & Hart and Joseph A. Ball, Long Beach, for defendants and appellants. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

In a jury trial, defendants Thayer and Magruder were convicted of 22 counts of violating section 72 of the Penal Code, for submitting false and fraudulent claims to the Bureau of Public Assistance of Los Angeles County for the treatment of public welfare patients, and for conspiracy to submit such claims. Motions for new trial were denied. Probation was denied to defendant Thayer and he was sentenced to state prison for the statutory terms with concurrent sentences. Probation was granted to defendant Magruder, for three years, on the condition she spend 12 consecutive weekends in the county jail and on other customary conditions. Defendants appeal from the judgments of conviction.

The single issue presented in this appeal is whether personal records, taken under a search warrant, can be introduced to prove the guilt of the person from whom the records were taken, and his employee. Defendants maintain that the introduction of such records violates the Fourteenth Amendment of the Constitution of the United States, in that the use of such evidence (1) constituted an unreasonable search and seizure, and (2) required defendant Thayer to incriminate himself. For reasons later discussed, we are in accord with this conclusion.

There is no dispute as to the facts. Defendant Thayer was an osteopathic physician practicing in the City of Los Angeles. Defendant Magruder was employed by Thayer as an office assistant. Part of defendant Thayer's medical practice consisted of rendering medical care to patients whose care was paid for by the Bureau of Public Assistance of Los Angeles County. It was Thayer's custom to keep a medical record or history on each of his patients, upon which the patient's complaint, the diagnosis and the treatment or medical care rendered, were recorded.

In order to receive payment for services or treatment provided to his public assistance patients, defendant Thayer, in accordance with the practice established by the State Department of Welfare, submitted a separate bill or statement of medical services rendered to each such patient, to the Bureau of Public Assistance. These bills or statements were submitted on a form prescribed by the State Department of Social Welfare known as the ‘Medical Care Statement.’ Each medical care statement form contained, among other things, the name of the patient, diagnosis for which treatment was provided, dates of visits, types of visits (whether office or home call), number of visits, other procedures performed, and the total fee for the services. Also included was a certification by the doctor, that he rendered the services described to the patient named, that the bill was due and unpaid, and represented the entire charge for services to the patient. Defendant Magruder's duties consisted in part of preparing the medical care statements and instructing others in their preparation.

At the trial the prosecution sought to prove that the county was being charged for visits that did not take place and for injections that were not given. The supporting proof was in large part documentary, consisting of the introduction of a series of medical care statements submitted to the bureau by defendants, and a corresponding and comparable series of medical records or histories of the patients for whom the medical care statements were submitted.

Generally speaking, the comparison of the medical care statements with the patients' medical records, showed that there were charges in the medical care statements not shown in the medical records. In addition to this evidence, there was, as to a majority of the counts, testimony of the patients themselves to the effect that they had not received the treatment indicated in the medical care statements. There was also testimony of several of defendant Thayer's employees who prepared the medical care statements. In substance they testified that they were instructed, either by Thayer or Magruder, that when preparing billings to be submitted to the bureau for payment for treatment given to public assistance patients, to show not less than four visits on each billing; that defendant Thayer would not sign that medical care statements unless at least this number of visits were included in the billing.

In his brief on appeal, the Attorney General concedes that the principal items of proof of the crimes for which defendants were convicted were the doctor's medical records and histories. It is further conceded that the keeping of such records was not required by law, and that they were not public records. Pursuant to a search warrant these records were taken from defendant Thayer's possession by the district attorney and were subsequently introduced in evidence over the objections of both defendants.

Although no California court has, up to this time, directly passed on the question of the admissibility of private records, taken under a search warrant, and used as evidence to incriminate the person from whom the records were taken, the United States Supreme Court has clearly decided the issue in defendants' favor. In the leading case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, decided in 1885, that court held that the compulsory production of a person's private papers to be used as evidence to convict him of a crime is violative of both the Fourth and Fifth Amendments. In Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, the defendant was convicted of defrauding the United States. At the trial certain private documents were introduced which belonged to the defendant. These documents were taken from his office under a valid search warrant. The Supreme Court, relying on the Boyd case, supra, held that the admission of such evidence violated the Fourth Amendment privilege against self-incrimination and the Fifth Amendment privilege against unreasonable search and seizure. Concerning the Fourth Amendment, the court stated (255 U.S. at p. 309, 41 S.Ct. at p. 265):

‘* * * search warrants * * * may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken. [Citation.]’

(The Attorney General concedes that none of these exceptions apply in this case.)

In holding the Fifth Amendment applicable, the court in Gouled, said (at p. 311, 41 S.Ct. at p. 265), ‘* * * they [defendant's private papers] having been seized in an unconstitutional search, to permit them to be used in evidence would be, in effect, as ruled in the Boyd case, to compel the defendant to become a witness against himself.’

In United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, although the court was involved with the issue of the reasonableness of a search made without a search warrant during which papers of the defendant were seized, in holding the search to be unreasonable, the court, in the following language, citing Gouled, supra, stated that the papers could not have been taken even under a search warrant (pp. 464–465, 52 S.Ct. p. 423):

‘Respondents' papers were wanted by the officers solely for sue as evidence of crime of which respondents were accused or suspected. They could not lawfully be searched for and taken even under a search warrant issued upon ample evidence and precisely describing such things and disclosing exactly where they were. [Citation.]’

The Fourth Amendment's right to be free from unreasonable search and seizure was held in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, to be enforceable against the states through the Due Process Clause of the Fourteenth Amendment.

Now, with the recent decision of the Supreme Court in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, decided June 15, 1964, the Fifth Amendment privilege against self-incrimination is protected against state action by the Fourteenth Amendment. In Malloy the court stated (378 U.S. pp. 6–9, 84 S.Ct. pp. 1492–1494, 12 L.Ed.2d pp. 658–660):

‘We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.

‘* * *

‘The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he choose to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining [Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97], for such silence.

‘This conclusion is fortified by our recent decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, overruling Wolf v. [State of] Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, which had held ‘that in a prosecution in a state court for a state crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure,’ 338 U.S., at 33, 69 S.Ct., at 1364 [93 L.Ed., at 1788]. Mapp held that the Fifth Amendment privilege against self-incrimination implemented the Fourth Amendment in such cases, and that the two guarantees of personal security conjoined in the Fourteenth Amendment to make the exclusionary rule obligatory upon the States. We relied upon the great case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, decided in 1886, which, considering the Fourth and Fifth Amendments as running ‘almost into each other,’ 116 U.S., at 630, 6 S.Ct., at 532, 29 L.Ed., at 751, held that ‘Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forceable and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of [those Amendments] * * *.’'

The court in Malloy, supra, further determined that the availability of the privilege against self-incrimination to a witness in a state proceeding, as now protected by the Fourteenth Amendment, is to be determined according to the same standards applicable in a federal proceeding. In so holding, the court (378 U.S. at p. 11, 84 S.Ct. at p. 1495, 12 L.Ed.2d at p. 661) stated: ‘It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.’

The Attorney General suggests, however, that the records in the present case were instrumentalities of, or the means used, to commit the crimes charged, and, therefore, were admissible under the federal rules which permit the seizure and introduction of contraband or instrumentalities of the crime, as distinguished from ‘mere evidence.’ (Marron v. United States,275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; United States v. Stern, D.C., 225 F.Supp. 187.) In Stern (at p. 190), the court gave the following examples of property it considered to be ‘instrumentalities': (1) the papers seized, where the crime charged was the possession of such papers, (2) false identification papers, as the means of committing the crime of false impersonation, (3) numbers tickets, as the means of engaging in the business of gambling without having registered or paid the federal tax, and (4) business records, when the offense charged is the failure to keep proper records. The records of defendant Thayer do not fall into this classification. The defendants were charged with presenting false claims and with conspiracy to present false claims. Clearly, the prosecution did not consider defendant Thayer's records as the means of carrying out the crimes charged. They were introduced as prior inconsistent statements to prove defendants' guilt. The records were merely evidence, which the prosecution seized and used, to prove that the claims presented to the county for payment by defendants (in the form of the medical care statements), differed from the true histories of the patients' visits to Thayer's office. (See Takahaski v. United States, 9 Cir., 143 F.2d 118, 124; Smith v. United States, 9 Cir., 321 F.2d 427, 430–431.)

The violation of defendant Thayer's constitutional rights was clearly available to defendant Magruder. Under the rule enunciated in People v. Martin, 45 Cal.2d 755, 761, 290 P.2d 855, the infringement of one person's constitutional rights in securing evidence is available to any defendant against whom such evidence is offered.

The judgments of conviction are reversed. The purported appeals from the orders denying motions for new trial are dismissed.


FILES, P. J., and KINGSLEY, J., concur.