People v. Superior Court of Los Angeles County

• Decision Date: 20 January 1969
• Citation: 449 P.2d 230,74 Cal.Rptr. 294,70 Cal.2d 123
• Court: California Supreme Court
• Parties: , 449 P.2d 230 The PEOPLE, Petitioner, v. The SUPERIOR COURT of LOS ANGELES COUNTY, Respondent; Harvey Keith SMITH, Real Party in Interest. L.A. 29591.

Page 294

74 Cal.Rptr. 294

70 Cal.2d 123, 449 P.2d 230

The PEOPLE, Petitioner, v. The SUPERIOR COURT of LOS ANGELES COUNTY, Respondent Harvey Keith SMITH, Real Party in Interest.

L.A. 29591.

Supreme Court of California In Bank.

Jan. 20, 1969.

Rehearing Denied Feb. 19, 1969.

Evelle J. Younger, Dist. Atty., Harry Wood, Harry B. Sondheim and Robert J. Lord, Deputy Dist. Attys., for petitioner.

No appearance for respondent.

Joseph A. Ball and Douglas Dalton, Long Beach, for real party in interest.

SULLIVAN, Justice.

Petitioner, the People of the State of California acting through its attorney, Evelle J. Younger, District Attorney of the County of Los Angeles, by petition filed pursuant to Penal Code section 1538.5 ¹ seeks a writ of mandate commanding respondent court to annul its order of April 15, 1968, suppressing evidence in a criminal action ² against defendant Harvey Keith Smith, real party in interest herein. We issued an alternative writ of mandate. Real party in interest, defendant below, has made a return thereto by demurrer (Cal. Rules of Court, rule 56(c)) asserting in substance that the petition for writ of mandate does not state facts sufficient to entitle the petitioner to the relief requested.

On December 28, 1967, Smith was charged by indictment with five counts of bribery of public officers and employees (§ 67 1/2) and five counts of perjury committed before a grand jury (§ 118). Pursuant to section 1538.5 he moved to suppress certain evidence on the ground that it was obtained in violation of, and was therefore inadmissible under, former section 653j.

The pertinent facts giving rise to the motion to suppress are as follows. In September 1965, Smith employed one Edward N. Bynon, a private detective, to install a recording system which was voice activated and which tape recorded all conversations, including telephone conversations, in all of defendant's offices. Smith hoped that this system would expose the source of substantial annual losses to his companies caused by an internal 'leak.'

Having purchased the equipment authorized by Smith and having obtained Smith's approval of the details of placement of all the various hidden microphones and other components in Smith's offices, Bynon installed a voice-activated tape recorder and commenced testing of it on the afternoon of November 10, 1965. Before leaving Smith's office that day, Bynon placed the voice-activated recording system on its automatic mode ³ so that any voice or other noise in the conference room would cause the unit to record. The object of this test was to examine performance of the recorder under sustained operation.

Later that evening Smith held a meeting in his conference room with several individuals who were later summoned as witnesses before the grand jury. What was said at the meeting was automatically recorded by the system which Bynon had earlier that day left in operation for testing purposes.

On the next day, November 11, Bynon returned to Smith's offices, discovered for the first time that the automatic recorder had taped something, and began testing the manually operated recording equipment. While testing a manual tape recorder in one of the offices, Bynon taped portions of another conversation which was then taking place in Smith's personal office between Smith and another person who was also later summoned as a witness before the grand jury. The portions thus tape recorded were somewhat disconnected since Bynon found it necessary to keep turning the recorder on and off while running it through the various testing and adjusting procedures. On this occasion, Bynon knew that persons were in Smith's office during the testing; however, there is no evidence that at the time he was conducting the test Bynon knew who the persons were or what they were discussing.

It is undisputed that the above tape recordings were made without any request or direction of any law enforcement agency or officer. Some months later, however, Bynon delivered to law enforcement officers a copy of the tape. This was subsequently used by representatives of the district attorney to refresh the memories of those persons taking part in the conversation, who were later called before the grand jury and testified as to such conversation had with Smith. At the hearing on the motion to suppress, it was stipulated that without having their memories refreshed by the tape, none of the witnesses would have any independent recollection of the tape recorded conversation. ⁴

The trial court ordered 1) that the copy of the tape which recorded the conversations had in Smith's office on both November 10 and November 11, be suppressed as evidence; and 2) that the testimony of the various witnesses who appeared before the grand jury and whose memories were refreshed by the tape, insofar as said testimony related to the conversations, be suppressed as evidence and stricken from the record. The declared basis of the court's order was that each of the conversations was a confidential communication within the meaning of former section 653j and was recorded on tape by Bynon without the consent of any party to the conversation in violation of said section. These conclusions rested upon the court's finding 'the absence of consent solely as a matter of law' since there was no showing that Smith or any other party specifically consented to the recording and the further finding that Smith did not 'give a blanket consent to Mr. Bynon to record everything and anything he could catch in any of those rooms at any time of day or night.' Additionally the court found 'that Smith did authorize and direct the installation of the recording system used, and that the recordings Were made by chance, during testing normally incident to the installation, but that such authorization to install and test is not, as a matter of law, sufficient to amount to consent to making the recordings here involved.' (Italics added.)

At the outset we face a procedural question. Although both the People and defendant apparently have assumed that section 1538.5 provides a proper avenue toward the exclusion of the evidence here in controversy, we must decide whether or not the section is available to effect suppression where, as here, the evidence has Not been obtained as the result of a search of seizure by a government agent. We have concluded that in the light of its plain language and legislative history the section is not applicable.

Section 1538.5, which we set out in pertinent part in the margin, ⁵ provides that a defendant may move to suppress as evidence any tangible or intangible thing Obtained as a result of search or seizure either with or without a warrant on the ground that the Search or seizure was Unreasonable. Unquestionably the section by providing for the motion only where there has been a search or seizure, is directed only toward those searches and seizures which are conducted by government agents and which can be considered unreasonable under constitutional or other enumerated standards. Clearly subdivision (2) is inapplicable where the property was not obtained by a government agent because section 1523 requires a warrant to be 'directed to a peace officer, commanding him to search * * *.' and section 1530 precludes service of a search warrant by anyone not mentioned in its directions 'except in aid of the officer on his requiring it, he being present and acting in its execution.'

As to both subdivisions (1) and (2), recent United States Supreme Court cases hold that unless the state standard for reasonableness of a search is higher than the federal standard, the standard or test of reasonableness is that required by the Fourth Amendment of the United States Constitution. (See, e.g., Cooper v. California (1967) 386 U.S. 58, 61--62, 87 S.Ct. 788, 17 L.Ed.2d 730.) Settled principles of constitutional law make the Fourth Amendment applicable to the states through the Fourteenth Amendment which prohibits a state from depriving 'any person of life, liberty, or property, without due process of law.' 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. Therefore, acquisition of property by a private citizen from another person cannot be deemed reasonable or unreasonable (People v. Randazzo (1963) 220 Cal.App.2d 768, 775--776, 34 Cal.Rptr. 65, cert. den. 377 U.S. 1000, 84 S.Ct. 1933, 12 L.Ed.2d 1050; People v. Johnson (1957) 153 Cal.App.2d 870, 873--878, 315 P.2d 468), and a motion to suppress evidence so obtained cannot be made on the ground that its acquisition constitutes an unreasonable search and seizure under section 1538.5.

Furthermore, it is clear from the available legislative history that section 1538.5 was intended to apply to suppression of evidence obtained by government agents. The original drafts of Senate Bill No. 88 which became section 1538.5 provided that:

'(a) A defendant Aggrieved by a search or seizure conducted by a governmental agent may move for the return of property or to suppress as evidence anything so obtained on the ground that:

'(1) The search or seizure without a warrant was unreasonable; or

'(2) The search or seizure with a warrant was unreasonable because * * * (substantially the same as in the enacted bill).' (March 13, 1967.) (Italics added.)

The Legislative Counsel's Digest stated that the bill '(p)rovides exclusive procedure by which criminal defendant may test validity of search or seizure.' This language was retained throughout all subsequent drafts except that in the last two drafts the word 'procedure' was changed to 'remedies.'

The language of the statute itself was retained through the subsequent four drafts of the bill, but in the final two drafts was changed to that of the...