PEOPLE v. ABBOTT (1979)

Defendant was convicted by a jury of burglary in the first degree (Pen.Code, § 459), assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (b)), and battery upon a peace officer (Pen.Code, § 243). His sole contention on appeal is that the evidence is insufficient to sustain the felony battery conviction. More specifically, defendant asserts that when the battery occurred, the victim was not then engaged in the performance of his duties as a peace officer since his very presence at the site of the physical encounter with defendant was the direct result of a violation of defendant's right of privacy. Finding the contention lacking in merit, we affirm the judgment.

At about 12:30 a. m. on May 2, 1976, Davis Police Officer Hopkins responded to a silent alarm at a jewelry store in downtown Davis. Hearing gun fire as he was leaving his car, he took his shotgun and ran for cover; observing muzzle flash, he soon realized that he was the target of the shots. At that time a suspect emerged from a hole in a fence near the jewelry store and ran into an adjacent field. Hopkins ordered the person to “Freeze!” The suspect, armed with a rifle, swung around toward him; Hopkins fired his shotgun and the person “went down.” As Hopkins sought cover, a second suspect came through the fence; again the officer shouted, “Police! Freeze!” This person also wheeled around to face the officer, revealing in his outstretched hand a hand gun which he pointed at the policeman. Hopkins fired; that person also “went down,” but got up and ran. He was carrying a flashlight with a red ring around the lens.

The first suspect whom Hopkins had encountered was Michael Abbott, defendant's 18-year-old brother. Struck by the shotgun blast, Michael was found wounded, lying in a nearby field wearing a ski mask with a rifle across his body. Michael was carrying his own identification on his person. He was arrested at the scene and taken to the Sacramento Medical Center where he died of his wounds two days later.

The police suspected defendant to be the second burglar. Accordingly, approximately three hours after the shooting, Davis police officers went to the home of defendant's mother to inform her of Michael's wounds and search for the defendant. Defendant's mother informed police he was upstairs sleeping. Defendant, however, was not at the residence, but police found on his bed and seized a bloodstained flashlight with a red ring around the lens.

At about 11 a. m. the same morning, defendant was seen by a campus officer using a pay telephone on the Davis campus of the University of California. From the sound of the coins being deposited, the officer concluded defendant was making a long distance call. After falsely identifying himself, defendant struck the officer in the face and fled.

Following this incident, police requested the Pacific Telephone Company to alert them whenever a male placed a long distance call from a campus pay phone. The police request was without prior judicial authorization.

At about 4:30 p. m. the same day, the telephone company notified police that a long distance call was then being placed by a male from a campus pay phone in the lobby of the library and that the call was to Kaiser Hospital in Sacramento. The telephone company did not monitor or overhear the content of the call. The operator's involvement was not more than is normally required to make a toll connection. Police immediately converged on the library. Defendant, who was not then using the telephone, falsely identified himself to Officer Hilden. While talking to Hilden, defendant saw another officer approach and attempted to flee. He soon encountered Officer Wakimoto, who recognized him and blocked his escape. Defendant struck Wakimoto in the face with his fist but was subdued and arrested. Officer Wakimoto is the victim of the charged battery upon a police officer.

Defendant asserts that notwithstanding the existence of probable cause, his detention by Officer Wakimoto at the library was rendered unlawful (and thus not within the performance of the officer's duty) by the violation of his privacy “which enabled Wakimoto to locate defendant.” Defendant acknowledges that a toll phone caller must expect to disclose to the operator both the number being called and the number from which he is calling. Defendant insists, however, that a caller has a reasonable expectation that the fact that a call is “then being placed” or “in progress” will not be divulged.

The information disclosed to police here was not personal to defendant such as the records of telephone calls from numbers listed to a known individual which were involved in People v. McKunes (1975) 51 Cal.App.3d 487, 124 Cal.Rptr. 126, and described therein somewhat hyperbolically as “a virtual current biography” (at p. 492, 124 Cal.Rptr. 126). All that was disclosed here was that someone (a male) was placing a long distance call from a particular pay telephone. Whatever defendant's expectations may have been, we do not regard as reasonable the bald assumption that confidentiality of the mere fact of use of a public pay telephone is constitutionally protected. Pay telephones are, by their nature, located in places accessible to the public generally and open to public view. While the confidentiality of a pay telephone conversation is protected, the fact of such a conversation is not nor can it reasonably be supposed to be a private matter (see Smith v. Maryland (1979) 442 U.S. 735, _ _, 99 S.Ct. 2577, 2580-2582, 61 L.Ed.2d 220, 227-229). The additional disclosure here that the call being placed was long distance rather than local we consider to be a distinction of no constitutional significance.

It bears emphasis that the fact of defendant's use of the pay telephone did not fill any lacuna in the probable cause equation. The police had probable cause to arrest defendant when they found him. Knowledge of the phone call brought police to a location where defendant possibly (but not necessarily) would be found. Having arrived at that location (a public place), police did not detain defendant until one of their number, Officer Wakimoto, recognized him as the particular person for whom they were looking. When Wakimoto then sought to detain defendant, he was struck in the face. According to defendant, Wakimoto's attempt to detain him was unlawful because their physical convergence was dependent on a violation of defendant's right to privacy; therefore, it is argued, defendant's assault on Wakimoto was not an attack on a peace officer engaged in the performance of his official duty unlawful detention or arrest not being an official duty of a peace officer.

Conceding, arguendo, that the efficient cause of the encounter between Wakimoto and defendant was a violation of defendant's constitutional right to privacy, if Wakimoto could not then lawfully arrest defendant, what was he to do? Assuming defendant would not voluntarily consent to place himself in the officer's custody, the only remaining alternative to immediate nonconsensual arrest has mind-boggling ramifications. Presumably, Wakimoto and his fellow officers, recognizing that their very presence at the scene was constitutionally prohibited, would have to permit defendant's unhindered flight while they sought out a magistrate to issue an arrest warrant. Any effort in the interim to maintain contact with defendant to facilitate service of the warrant, for example, by following him, would of course be an exploitation of the primary illegality, denying defendant his apparent right to a sporting chance successfully to evade arrest. Fortunately, decisional development of the right to privacy has not yet sunk to such depths of absurdity.

The officers had probable cause to arrest defendant for violent felonies (cf. People v. Curtis (1969) 70 Cal.2d 347, 358, 74 Cal.Rptr. 713, 450 P.2d 33: lack of probable cause to arrest), and the circumstances did not require they have a warrant to do so (cf. People v. Ramey (1976) 16 Cal.3d 263, 275-276, 127 Cal.Rptr. 629, 545 P.2d 1333: warrantless arrest within home based on probable cause but in the absence of exigent circumstances). Therefore the officers were not required to forbear, awaiting either action by a magistrate or a later fortuitous encounter with defendant in a neutral location, merely because of the fact (if it be a fact) that discovery of the place defendant could then be found was achieved in violation of his right to privacy. If there is no duty to forbear, and if, as here, the circumstances are exigent, there is a duty to act. Action so taken is within the performance of an officer's official duties. (See People v. Curtis, supra, 70 Cal.2d at pp. 354-355, 74 Cal.Rptr. 713, 450 P.2d 33.)

The judgment is affirmed.

PUGLIA, Presiding Justice.

REGAN and PARAS, JJ., concur.