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Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. James E. CONKLIN, Defendant and Respondent.

Cr. 22305.

Decided: April 26, 1973

Joseph P. Busch, Dist. Atty., of Los Angeles County, Harry Wood, Head, Appellate Division, Arnold T. Guminski, Deputy Dist. Atty., for plaintiff and appellant. Eagleton & Petterson and James D. Petterson, Bellflower, for defendant and respondent.

Defendant was charged with wiretapping. (Pen.Code, § 631.) He demurred to the information on the ground that Congress, in enacting title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510–2520), had preempted state legislation (California Invasion of Privacy Act, Pen.Code, §§ 630–637.2), in the field of wiretapping and electronic surveillance. Relying on Halpin v. Superior Court, 6 Cal.3d 885, 896–900, 101 Cal.Rptr. 375, 495 P.2d 1295, the trial court sustained the demurrer and dismissed the information. The People appeal from the judgment on demurrer. The appeal lies. (Pen.Code, § 1238, subd. (a)(2).)

It appears from the transcript of the preliminary hearing that defendant was employed as a supervising welfare fraud investigator, department of social services, County of Los Angeles; that in his office there were four inter-connected telephone lines for internal and external use by welfare fraud investigators and defendant; and that an unauthorized wiretapping device connected to the four telephone lines was discovered in defendant's desk.

Section 2511 of title 18 of the United States Code makes it a crime, subject to exceptions not applicable, to wilfully intercept or to endeavor to intercept any wire or oral communication (subd. (1)(a)), or to wilfully use or endeavor to use any device to intercept an oral communication when such device is affixed to a wire or other like connection used in wire communication. (Subd. (1)(b).) Section 2515 prohibits the introduction of evidence obtained in violation of section 2511.

Subdivision (a), section 631, Penal Code, provides in pertinent part: ‘Any person who, by means of any machine, instrument, or contrivance, . . . makes any unauthorized connection . . . with any . . . telephone wire, . . . including . . . any internal communication system, or who willfully and without the consent of all parties to the communication . . . attempts . . . to learn the contents of any . . . communication while the same is in transit . . .; or who uses . . . in any manner . . . any information so obtained . . . is punishable by a fine . . . or by imprisonment . . .’ (Italics added.) Subdivision (b) sets forth exceptions, not applicable to the facts here presented. Subdivision (c) prohibits the introduction of evidence obtained in violation of the section.

The prosecution is based solely upon the italicized portion of section 631, the prohibition against the making of an unauthorized connection with a telephonic communication system. There is no evidence of the interception and disclosure of any communication, the subject of Halpin, supra, (6 Cal.3d at pp. 896–900, 101 Cal.Rptr. 375, 495 P.2d 1295); as a result we are not concerned with the remaining portions of section 631 which prohibit such conduct and the admissibility of evidence obtained as a result thereof.

Halpin involved the admissibility of an electronically monitored and tape recorded telephone conversation between a person confined in jail and his wife in a distant city. Although petitioners argued that by enacting title III (18 U.S.C., §§ 2510–2520) Congress intended to preempt state legislation in the field of wiretapping and electronic surveillance, the Supreme Court confined its discussion to the People's contention that the federal legislation was unconstitutional because it constituted an unreasonable infringement upon the state's right, reserved to it by the Tenth Amendment, to regulate and administer the internal affairs of its penal institutions. After reaching the conclusion that the federal legislation was constitutional and that the conversation was inadmissible as a result thereof, the Supreme Court added the following statement which apparently was the basis of the ruling below: ‘. . . we hold that title III has preempted particular fields of wiretapping and electronic surveillance . . ..’ (P. 900, 101 Cal.Rptr. p. 385, 495 P.2d 1295, 1305.)

Although this statement was responsive to one of the arguments made by petitioners, it appears to be dictum and a conclusion that is not supported by the reasoning of the opinion. In fact the Supreme Court's comments clearly indicate an opinion that Congress did not intend to preempt the entire field of wiretapping and electronic surveillance. Thus on pages 898–899, 101 Cal.Rptr. on page 384, 495 P.2d on page 1304 the court stated: ‘That Congress intended to enact comprehensive national legislation, against which all then existing federal and state legislation was to be measured, is also illustrated by the comments of the Senate Committee on the Judiciary. [Footnote omitted.] At the same time, however, Congress left room for the states to supplement the law in certain areas, [footnote omitted] provided the regulations are not more permissive.’ Footnote 17, on page 899, 101 Cal.Rptr. on page 385, 495 P.2d on page 1305, states in part: ‘We do not determine whether 18 U.S.C., §§ 2510–2520 or the Senate Report have authorized the federal government to regulate areas of electronic eavesdropping solely within the legislative domain of this state . . ..’

Furthermore, even if we assume that the Supreme Court's statement represents a holding of federal preemption, its reference to preemption in ‘particular fields,’ without identifying such areas, is ambiguous, and also indicates that preemption was not all-inclusive. Footnote 17, page 899, 101 Cal.Rptr. 375, 385, 495 P.2d 1295, 1305, indicates three areas in which Congress did not intend to preempt state legislation. Later in the footnote the court added: ‘We do not determine whether . . . it has inadvertently failed to indicate other areas in which it intended to set standards.’

The foregoing comments support our conclusion that at most Halpin holds that Congress intended that states be permitted to supplement the federal law and that state laws on the subject will be preempted only if they are more permissive than the federal law. (Halpin at pp. 898–899, 101 Cal.Rptr. 375, 495 P.2d 1295; People v. Jones, 30 Cal.App.3d 852, 855, 106 Cal.Rptr. 749; State v. Siegel, 266 Md. 256, 292 A.2d 86, 94–95; see also Comment, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1199–1200.) This conclusion is fortified by the numerous decisions of the United States Supreme Court which have held that a state regulatory statute is invalid under the Supremacy Clause only if it “stands an an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' [Citation.]' (Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233, 242; see also Florida Avocado Growers v. Paul, 373 U.S. 132, 142–143, 83 S.Ct. 1210, 10 L.Ed.2d 248, 257; Colorado Com. v. Continental Air Lines, 372 U.S. 714, 722, 83 S.Ct. 1022, 10 L.Ed.2d 84, 90.)

As previously mentioned, the instant prosecution is based only on the first portion of section 631, the prohibition against making an unauthorized connection with a telephonic communication system. As to such prohibition the state law is more restrictive, not more permissive than its federal counterpart. (18 U.S.C. § 2511, subd. (1)(a)(b).) For example, section, 631 is violated by a connection to a telephone system, whether or not there is an intent to intercept communications. (People v. Trieber, 28 Cal.2d 657, 661–662, 171 P.2d 1 [construing identical language in former Pen.Code, § 640]; Comment, supra, 57 Cal.L.Rev. 1182, 1201); on the other hand, section 2511, subdivisions (a) and (b) make unlawful a connection only if there be an intent to intercept a communication. Furthermore, section 631 is violated by interception unless ‘all parties to the communication’ consent thereto whereas section 2511, subdivisions (c) and (d) permit interception with the consent of one party to the communication unless it be for an illicit purpose. An additional illustration is found in sections 2516–2519 which permit the interception and disclosure of communications under judicial authority; no similar provision is contained in California law.

Judgment reversed with directions to overrule the demurrer.

SCHWEITZER, Associate Justice.

FORD, P. J., and ALLPORT, J., concur.

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Docket No: Cr. 22305.

Decided: April 26, 1973

Court: Court of Appeal, Second District, Division 3, California.

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