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

The PEOPLE, Plaintiff and Respondent, v. Maria Luisa MEJIA, Defendant and Appellant.

Cr. 33908.

Decided: August 02, 1979

Steven J. Haber, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Roy C. Preminger and Pamela M. Nelson, Deputy Attys. Gen., for plaintiff and respondent.

By information, defendant was charged with the felony offense of a violation of Health and Safety Code section 11359 possession of marijuana for the purpose of sale committed on May 18, 1978. Defendant entered a plea of not guilty. Defendant's motion to suppress evidence, made pursuant to Penal Code section 1538.5, was denied. Defendant also made a motion to dismiss the action for failure of the prosecution to produce a material witness; this motion was denied.

Defendant waived her trial constitutional rights, withdrew her not guilty plea, and entered a plea of guilty to the offense as charged in the information. Pronouncement of judgment and sentence was suspended. Defendant was placed on probation for three years on condition, Inter alia, that she spend 90 days in the county jail. On defendant's motion, the court ordered that, in the event the notice of appeal was filed and defendant posted bond, the jail sentence and all of the terms and conditions of probation were stayed pending determination of the appeal.

Defendant has appealed from the judgment of conviction. The notice of appeal states that the appeal is being taken from the “denial of the motions to suppress and disclosure of informants.”


Contents of the Affidavit for the Search Warrant

On this appeal, defendant's main contention is that her suppression-of-evidence motion was improperly denied. This issue may be raised here despite the entry of a guilty plea by defendant. (Pen.Code, s 1538.5, subd. (m).)

We summarize the salient facts contained in the search warrant affidavit of the investigating police officer, Braxton Tatum, included in our record on appeal.

On May 18, 1975, Oxnard Police Officer Tatum received a telephone call from a federal narcotics agent, Billy Fernandez, located in Calexico. Fernandez informed Tatum that he had learned that a large amount of marijuana, approximately 350 kilos, had recently been transported to Oxnard. This information has been supplied by an informant, but Tatum was not told if the informant was reliable. Fernandez stated that the persons who had brought the marijuana to Oxnard were staying at a place with the phone number 487-5538, in apartment 28, but that the address was unknown to him.

Officer Tatum called telephone number 487-5538, and discovered that it belonged to the City Center Motel in Oxnard. He went to that location and spoke with the motel manager. The manager told him that two persons were registered at the motel, a George Cesar in room 23 and a Jose Campos in room 28; both listed their addresses as located in Calexico. The manager showed Officer Tatum the records the manager maintained of telephone calls made from the motel rooms. The record for room 28 showed several calls to the telephone number 483-5148 made during the preceding three days.

Officer Tatum then went to room 28, and was admitted by a female later identified as Maria Trujillo. Officer Tatum interviewed there the man registered as “Jose Campos,” whose true identity was Ignacio Navarro. With Navarro's consent, a search was conducted of his automobile parked outside; marijuana debris was found in the trunk. Navarro talked freely to the police after he was arrested. He said he had just transported a large quantity of marijuana to Oxnard from Calexico, and had been instructed to call telephone number 483-5148 and speak to “Licha.” He had met “Licha” after making the call; he described her to the police. Navarro said that “Licha” had taken possession of the marijuana. Navarro and others had then gone to the City Center Motel to stay around for awhile. Navarro stated that “Licha” had visited him there, and had used his telephone to call someone in Oxnard to report that the marijuana had arrived.

Officer Tatum's affidavit set forth that he then again checked the manager's telephone records at the City Center Motel, and found an additional call to a number in Oxnard. Tatum traced that phone number to an individual and an address in Oxnard with which he was familiar. This individual, with the code name of Leo Kottke, had been a reliable informant for the police on prior occasions with respect to narcotics transactions. Tatum went to Kottke's home and, in a search consented to by Kottke, found two individually wrapped kilos of marijuana concealed in the trunk of Kottke's car. Kottke was arrested for possession of this marijuana.

Kottke agreed to tell the police what he knew about the marijuana in order to get a favorable recommendation to the District Attorney. He stated he had received it from a woman known to him as “Licha,” whose real name was that of the defendant, Maria Mejia. Kottke described “Licha” and said she had told him she had about 180 kilos more at her home. Kottke drew a map of the location of “Licha's” house for the police.

Officer Tatum traced the telephone number 483-5148 a call to which had been made from room 28 of the City Center Motel and discovered that it belonged to defendant Maria Mejia at 421 Gloria Court in Oxnard. Tracing the license of a Pontiac vehicle parked in front of the Gloria Court address, the police learned that the vehicle was registered to defendant. The records of the Department of Motor Vehicles provided a physical description of “Licha” which matched that given by Navarro and Kottke. Tatum then prepared his affidavit for a search warrant of defendant's premises, declaring that in his opinion a large quantity of marijuana would be found there.


Disclosure by a Motel Manager of Telephone Numbers Called from a Guest's Motel Room A Violation of the Guest's Constitutional Right of Privacy

Defendant advances the position that it was the disclosure by the manager of the City Center Motel to Officer Tatum of the record of telephone calls made from room 28 that ultimately led to her conviction, and that the disclosure violated the right to privacy of Navarro, the room's occupant. (Cal.Const., art. I, s 1.)1 It is further contended that the information thus obtained by Officer Tatum, i. e., defendant's phone number and the identity of the informant, Kottke, constituted fruit of the poisonous tree; that without that information and the leads thus provided, there was insufficient probable cause to issue the search warrant, thus making the warrant invalid.

The Attorney General responds by asserting that the occupant of room 28 at the City Center Motel had no reasonable expectation of privacy, pointing out that it is possible to participate in modern life without using a motel telephone system and noting that “even motel guests can use a public pay phone if they really want privacy.” Thus, it is argued, Officer Tatum's use of the motel telephone records was entirely proper.

The principal case in California dealing with the right to privacy under the California Constitution is Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, in which our Supreme Court held that a bank depositor has a reasonable expectation of privacy with respect to his bank records, and that the police had violated this expectation by obtaining his bank statements from the bank without judicial process. As Burrows explained, “in determining whether an illegal search has occurred under the provisions of our Constitution (California), the appropriate test is whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable governmental intrusion.” (Id. at pp. 242-243, 118 Cal.Rptr. at pp. 169, 529 P.2d at pp. 593.)

In holding that an illegal search had taken place in violation of the bank customer's right of reasonable expectation of privacy, the Burrows court relied upon the unreasonable search and seizure provisions set forth in section 13 of article I of the California Constitution.2

In People v. McKunes (1975) 51 Cal.App.3d 487, 124 Cal.Rptr. 126, the Burrows principle was applied to provide protection to subscribers against disclosures of their telephone company records. The McKunes court aptly observed that, “(a)s with bank records, a subscriber has a reasonable expectation that records of his calls will be utilized Only for the accounting functions of the telephone company in determining his bills.” (Id. at p. 492, 124 Cal.Rptr. at p. 129.) (Emphasis added.) And in People v. Doyle (1977) 77 Cal.App.3d 126, 141 Cal.Rptr. 639, it was held that clients of an attorney have a reasonable expectation of privacy with respect to his records.

In United States v. Miller (1976) 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71, the United States Supreme Court expressly rejected the expectation-of-privacy concept for a customer's bank records insofar as the United States Constitution is concerned. But since the holdings of Burrows, McKunes and Doyle are predicated on the California Constitution, they are not affected by the Miller interpretation of the federal Constitution.

We are asked here to distinguish McKunes from the case at bench by limiting the right of reasonable expectations of privacy to telephone records maintained by the telephone company for those subscribers using a telephone at home. At issue is the relevance of the fact that a motel or a hotel guest understands that his telephone calls from those establishments are being made in a manner which permits the motel or hotel management to keep a record of such calls. From that understanding, does it follow that there is No reasonable expectation that such telephone calls and the records of such calls will be private?

The Burrows court spoke of the importance of a person's bank records in providing an autobiographical sketch of that person, and noted that modern economic life mandates the use of banking institutions. The McKunes court found the same characteristics associated with the use of telephones; records of such use disclose one's associates and the frequency of contact part of a “profile” of a telephone subscriber. Telephones are without question essential to the conduct of modern life.

It is our view that, however temporary a stay in a hotel or motel room may be, such room represents to the occupant an enclosed, private space for which payment is being made. Included, normally, is access to a telephone as an extension of that private space and an amenity that most travellers would require. In McKunes, the court found that the telephone company necessarily kept records of calls made from the homes of subscribers. So in the case before us, a record of telephone calls from hotel and motel rooms is necessarily kept by the hotel and motel management in order to properly charge the guest. Keeping such a record has no other obvious function.

We can find no logical distinction between a home phone and a motel or hotel phone. We hold, therefore, that those who use them have a reasonable expectation of privacy and do not contemplate that records of calls will be perused by the police or others without a warrant or other advance judicial sanction. Hence, there was an invasion of Navarro's right of privacy in the case at bench, and defendant's motion to suppress evidence should have been granted.

The Attorney General has urged that, should we find an invasion of Navarro's right of privacy, we should not uphold the standing of defendant to assert the invasion of Navarro's right of privacy. This right of a defendant to exclude evidence obtained in violation of another's constitutional right is known as the “vicarious exclusionary rule.” It was recognized by the California Supreme Court in People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855, and reaffirmed in Kaplan v. Superior Court (1971) 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1. In view of Martin and Kaplan, it would be more appropriate for the Attorney General to address his argument to the California Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

The judgment is reversed.


1.  Section 1, article I, of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

2.  Section 13 of article I of the California Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”After Burrows, the California Legislature enacted the “California Right to Financial Privacy Act” (Stats.1976, ch. 1320, s 5), which is contained in the Government Code commencing with Section 7460 and which extends by statute privacy protection to records maintained by savings and loan associations and credit unions, among others.

JEFFERSON, Associate Justice.

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

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