TAVERNETTI v. PEOPLE

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Court of Appeal, Fourth District, Division 1, California.

Thomas Frederick TAVERNETTI et al., Petitioners, v. The SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent; The PEOPLE of the State of California, Real Party in Interest.

Civ. 16573.

Decided: November 15, 1977

Livingston, Grant, Stone & Kay by Laurence D. Kay, San Francisco, Cronin & Cronin by Daniel J. Cronin, Escondido, Dean A. Goetz, Solana Beach, for petitioners. Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman and D. Michael Ebert, Deputy Dist. Attys., for real party in interest.

We are called upon[FN1] to determine whether the contents of telephone conversations, intercepted by a telephone company employee and then disclosed by the employee to the police, are admissible in judicial proceedings in light of title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. ss 2510-2520; referred to below as title III) and in light of California's invasion of privacy statutes (Pen.Code s 630 et seq.).

Thomas Frederick Tavernetti and Eileen Lang are accused of narcotics violations under Health and Safety Code sections 11350, 11358, 11359 and 11377. Police obtained the evidence supporting these charges by conducting a search of their residence pursuant to a search warrant.

The search warrant issued upon the affidavit of police officer Mosemak, which recited in part:

“I have received information this date from Joseph Maco, an employee of the Pacific Telephone Company who states that his job is that of lineman requiring him to trouble shoot and repair line malfunctions for said company. He states that in the course of his duties on 11-15-76 he heard a conversation while testing a line and heard the party calling from the unit assigned 747-6015 address other individuals on the line as ‘Tom’ and ‘Charles' and tell them he had 100,000 ‘bennies' for sale for $5,000. He states that Tom and Charles did not seem interested and the other party did seem anxious to sell the drugs, stressing that he needed the money. Mr. Maco stated that he was testing the line for what he thought was a malfunction and cut in on another conversation between the party at the above number and another party at an unknown location. The party he had heard before stated he had pharmaceutical quality type ‘bennies' in the quantity of one million and he would sell in minimum lots of 100,000 at $5,000 per lot, inviting the unknown party to bring any other interested buyers with him. Mr. Maco states that there was a lapse of time between his cutting in on the conversation and that he cut in because having metered the line electronically, he was of the opinion that there was a malfunction in the line each of the two times. He states that each time he cut in on the line he listened for a short time and did not monitor the entire conversation.”

Petitioners moved to suppress evidence, quash and traverse the search warrant, and set aside the information on the grounds, among others, the interception and disclosure of the conversations by the telephone company employee were violations of federal and state laws and evidence derived from such violations is inadmissible in any judicial proceeding (see 18 U.S.C. s 2515; Pen.Code s 631, subd. (c)). The trial court denied the motions.

Preliminarily, we observe this is not a Fourth Amendment case.

“ ‘The conduct of a person not acting under the authority of a state is not proscribed by the Fourth or Fourteenth Amendments of the federal Constitution. There are no state standards for ”search and seizure“ by a private citizen who is not acting as an agent of the state or other governmental unit.’ ” (People v. McKinnon, 7 Cal.3d 899, 911-912, 103 Cal.Rptr. 897, 905, 500 P.2d 1097, 1105, quoting People v. Superior Court (Smith ), 70 Cal.2d 123, 128-129, 74 Cal.Rptr. 294, 449 P.2d 230; People v. Buchanan, 26 Cal.App.3d 274, 286-287, 103 Cal.Rptr. 66.)

Since “(t)he exclusionary rule does not apply to evidence obtained in a search conducted by a person who is truly a private citizen” (Dyas v. Superior Court, 11 Cal.3d 628, 632, 114 Cal.Rptr. 114, 116, 522 P.2d 674, 676) and since Mr. Maco was acting only as a private citizen, and not as a state agent, the suppression of evidence, if required at all, is required by statutory, rather than constitutional, law.

We first consider petitioners' claims under federal law. “(T)itle III was not intended to occupy the entire field of wiretapping.” (People v. Conklin, 12 Cal.3d 259, 266, 114 Cal.Rptr. 241, 245, 522 P.2d 1049, 1053; Halpin v. Superior Court, 6 Cal.3d 885, 898-899, 101 Cal.Rptr. 375, 495 P.2d 1295). However, even though “Congress left room for the states to supplement the law in certain areas” (Conklin, supra, 12 Cal.3d at p. 272, 114 Cal.Rptr. 241, 249, 522 P.2d 1049, 1057; Halpin, supra, 6 Cal.3d at pp. 898-899, 101 Cal.Rptr. 375, 495 P.2d 1295), state regulations may not be more permissive. Therefore, if the purposes of title III would be frustrated by sanctioning the interception which occurred in this case, it is unnecessary to consider whether the interception would violate state prohibitory statutes as well.[FN2]

Subdivisions (1)(a) and (1)(c) of section 2511 of title III provide in part:

“(1) Except as otherwise specifically provided in this chapter any person who

(a) willfully intercepts . . . any wire or oral communication;

“. . .

(c) willfully discloses . . . to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection;

“. . .

shall be fined . . . or imprisoned . . . or both.“

Subdivision (2)(a)(i) of the same section provides a specific exception:

“(2)(a)(i) It shall not be unlawful under this chapter for an . . . employee . . . of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service . . . . Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.”

Petitioners insist “(w)hen the informant Maco communicated to the police the contents of a private telephone conversation which he overheard while allegedly checking the telephone lines,” he violated section 2511. They correctly note that neither the contents of an unlawfully intercepted communication nor any evidence derived therefrom may be received in evidence in any proceeding if the disclosure of that information would be in violation of section 2511,[FN3] and conclude the affidavit submitted by Officer Mosemak could therefore not support a lawful search warrant.

Petitioners' minor premise, that the telephone company's employee factually violated section 2511, disregards settled principles of appellate review.

“ ‘And appellate court will not disturb the implied findings of fact made by a trial court in support of an order, any more than it will interfere with express findings upon which a final judgment is predicated. When the evidence is conflicting, it will be presumed that the court found every fact necessary to support its order that the evidence would justify. So far as it has passed on the weight of evidence or the credibility of witnesses, its implied findings are conclusive. This rule is equally applicable whether the evidence is oral or documentary.’ ” (Kulko v. Superior Court, 19 Cal.3d 514, 519, fn. 1, 138 Cal.Rptr. 586, 587, 564 P.2d 353, 354, quoting Griffith Co. v. San Diego Col. for Women, 45 Cal.2d 501, 507-508, 289 P.2d 476.)

In accordance with these principles, we may not disturb the trial court's implied finding that it was not unlawful for Mr. Maco, an “employee” of a “communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept . . . (a) communication in the normal course of his employment while engaged in (an) activity which (was) a necessary incident to the rendition of his service.” (18 U.S.C. s 2511, subd. (2)(a) (i); emphasis added.) Nor may we disturb the implied finding that the employee's monitoring of the conversations was only for “mechanical or service quality control checks.” (Id.)[FN4]

So viewing the evidence, we conclude (1) the interception of the communication was not unlawful under section 2511, subdivision (1)(a), because it was authorized by the exception provided in section 2511, subdivision (2)(a)(i); (2) the disclosure of the contents of the communication to the police was not unlawful under section 2511, subdivision (1)(c), because the information was not “obtained through the interception of a wire or oral communication in violation of (section 2511, subdivision (1))”; and (3) since the disclosure of the information would not be in violation of chapter 119 of title III, suppression of the information was not required by section 2515. In short, viewing the evidence as we must, there was no violation of federal law.

We next consider petitioners' claims under state law. They first argue the telephone company employee violated Penal Code section 631, subdivision (a), which states in pertinent part:

“Any person who . . . intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire . . . or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained . . . is punishable by a fine . . . or by imprisonment . . . or by both . . . .”

Like the federal scheme, an exception is provided, which provides in part:

“This section shall not apply (1) to any public utility engaged in the business of providing communication services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited herein are for the purpose of construction, maintenance, conduct or operation of the services and facilities of such public utility . . . .” (Pen.Code s 631, subd. (b).)

Subdivision (c) of Penal Code section 631 provides:

“Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative or other proceeding.” (Emphasis added.)

Petitioners contend that subdivision (b), “born out of the practical necessity to maintain equipment, only allows employees of a public utility to tap a telephonic communication ‘for the purpose of construction, maintenance, conduct, or operation of the services and facilities of such public utility.’ It does not permit intentionally listening to the contents of a conversation for the purpose of communicating the same to the police.”

For reasons explained, petitioners may not insist upon their version of the evidence in this proceeding. The affidavit in support of the search warrant states the telephone company employee's job was “that of lineman requiring him to trouble shoot and repair line malfunctions for said company.” It further states, “having metered the line electronically, he was of the opinion that there was a malfunction in the line each of the two times” he cut in. In addition, the affidavit states, according to the employee, “each time he cut in on the line he listened for a short time and did not monitor the entire conversation.” These facts would justify an implied finding that the interception of the communication by the employee was for the lawful purpose of “maintenance . . . or operation of the services and facilities of (a) public utility.” (Pen.Code s 631, subd. (b).) We presume the court found that fact in support of its order and disregarded petitioners' contrary characterization of the employee's purpose.[FN5]

Accordingly, we conclude Penal Code section 631 does not apply to the interception of the conversation by Mr. Maco by virtue of the first exception defined in subdivision (b) of that section. Since evidence was not obtained by unlawful wiretap in violation of the section, suppression is not required by subdivision (c).[FN6]

Petitioners next argue the telephone company employee's conduct violates Penal Code section 637, which states in part:

“Every person not a party to a telegraphic or telephonic communication who willfully discloses the contents of a telegraphic or telephonic message, or any part thereof, addressed to another person, without the permission of such person, unless directed so to do by the lawful order of a court, is punishable by imprisonment . . . or by fine . . . or by both. . . .”

They note this section has no exceptions.

Even assuming Mr. Maco's disclosure to the police of impending crime is a willful disclosure for the purpose of the statute, petitioners' argument is unavailing for the reason they admit: section 637 does not proscribe the use in judicial proceedings of information disclosed in violation of its provisions.

Finally, petitioners note federal law expressly forbids the use of information “if the disclosure of that information would be in violation of (chapter 119 of title III).” (18 U.S.C. s 2515; see fn. 3.) They urge:

“If, for purposes of argument, it can be said that California law does permit the use of such disseminated communications, in spite of the fact that such dissemination to law enforcement authorities constitutes a felony under PC s 637, then California law would be ‘less restrictive’ than federal law and in violation of (the Supreme) Court's ruling in People v. Conklin, supra, 12 Cal.3d 259 (114 Cal.Rptr. 241, 522 P.2d 1049). Under the rationale of Conklin, the federal law would prevail in this conflict since its provisions are more restrictive, and would supersede the California statute on this point.”

Since we have concluded neither federal nor state law prohibits the use in judicial proceedings of information obtained within the narrow statutory exceptions discussed (18 U.S.C. s 2511, subd. (2)(a)(i); Pen.Code s 631, subd. (b)(1)), and Mr. Maco's conduct fell within those exceptions, we need not address petitioners' final argument.

The petition for writ of prohibition is denied.

FOOTNOTES

1.  This court denied Tavernetti's petition for writ of prohibition; the Supreme Court granted a hearing and retransferred the matter to this court with directions to issue an alternative writ.

2.  “It is doubtful that (a less restrictive state prohibitory) statute would frustrate the purposes of title III since, unlike a state statute authorizing an interception under circumstances not allowed by the federal enactment, a less restrictive prohibitory statute obviously would not permit what is prohibited by federal law, but would merely fail to punish conduct which is in contravention of federal law.” (People v. Conklin, supra, 12 Cal.3d 259, 272, fn. 12, 114 Cal.Rptr. 241, 249, 522 P.2d 1049, 1057.)

3.  Section 2515 of title III provides: “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” (Emphasis added.)

4.  The affidavit in support of the search warrant would justify these implied findings.Our characterizations of Mr. Maco's conduct in this opinion are, of course, solely for the purpose of this proceeding.

5.  At neither the preliminary hearing nor the hearing on the suppression motion was Mr. Maco, the telephone company employee, called to testify as to the circumstances of the wiretap.

6.  Another interpretation of section 631, which we recognize but reject, might lead to a different result. Such interpretation could be argued as follows:Section 631, subdivision (a), prescribes punishment not only for one who intentionally wiretaps, but also for one “who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained.” (Emphasis added.) Thus, disclosure of information obtained by wiretap is an act, distinct from the wiretap itself, which is also prohibited by the section.Subdivision (b) of section 631 provides in part: “This section shall not apply . . . where the acts otherwise prohibited herein are for the purpose of construction, maintenance, conduct or operation of . . . public utility (services and facilities).” (Emphasis added.) Although Mr. Maco tapped the conversation for such a lawful purpose, his disclosure to the police of the information which he overheard was not for the purpose of telephone facility maintenance, but for the purpose of preventing crime. Consequently, the intercepted information is “evidence” “obtained” by the police “in violation” of the anti-disclosure language in subdivision (a) of section 631, and is inadmissible in any judicial proceeding (Pen.Code s 631, subd. (c)).Such argument assumes a legislative intent to render inadmissible not only unlawfully intercepted information, but also lawfully intercepted information “unlawfully” disclosed. However, such intent is not reasonably apparent from the statute.First, the word “obtained” in subdivision (c) most reasonably refers to the original acquisition of the information by wiretap. Such meaning is consistent with the use of the words “so obtained” in the phrase “or to communicate in any way, any information so obtained” in subdivision (a).Second, it is apparent from the second exception of subdivision (b) that the Legislature did not intend the anti-disclosure and suppression provisions to apply to otherwise lawful interceptions. That exception provides in pertinent part:“This section shall not apply . . . (2) to the use of an instrument, equipment . . . furnished and used pursuant to the tariffs of such public utility. . . .”Thus, if Mr. Maco, through some electronic malfunction, had overheard petitioners' conversations in the normal use of his own home telephone, neither the interception nor the disclosure would be unlawful, and suppression would not be required, because the section would not apply. (See Statement by Speaker Unruh Relative to Assembly Bill No. 860, 2 Assem.J. (1967 Reg.Sess.) p. 2517, where the author of the legislation stated: “The legislation would not apply to the use of telephone monitoring or recording equipment by communications public utilities when such equipment is used for the purpose of construction, maintenance, conduct, or operation of the services or facilities of the public utility. Nor would the legislation apply to the normal use of such equipment by a subscriber when furnished by a communication public utility pursuant to its tariffs.”)We conclude the words “so obtained” in subdivision (a) refer to information obtained by unlawful wiretap, and it was not a violation for Mr. Maco to have disclosed the information obtained by lawfully intercepting the communications for the purpose of maintenance. Furthermore, and more importantly, since the original acquisition of the information was not unlawful, it was not “obtained in violation of (the) section” for the purpose of subdivision (c).

GERALD BROWN, Presiding Justice.

COLOGNE and STANIFORTH, JJ., concur.

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