Bunnell v. Superior Court

• Decision Date: 27 January 1994
• Docket Number: No. C016411,C016411
• Citation: 26 Cal.Rptr.2d 819,21 Cal.App.4th 1811
• Court: California Court of Appeals Court of Appeals
• Parties: Michael D. BUNNELL, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent; The PEOPLE, Real Party in Interest.

Page 819

26 Cal.Rptr.2d 819

21 Cal.App.4th 1811

Michael D. BUNNELL, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent The PEOPLE, Real Party in Interest.

No. C016411.

Court of Appeal, Third District, California.

Jan. 27, 1994.

Rothschild & Wishek, M. Bradley Wishek and Quin Denvir, Sacramento, for Petitioner.

No appearance for respondent.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Cynthia G. Besemer and Harry Joseph Colombo, Deputy Attys. Gen., for real party in interest.

SIMS, Associate Justice.

In this criminal prosecution for misappropriation of public moneys by a public officer (PEN.CODE, § 424)¹, removal of public documents (Gov.Code, § 6200), and conspiracy to violate the personal liberty of another (§§ 182, 236), petitioner Michael D. Bunnell filed a petition for writ of prohibition or mandate in this court, challenging the trial court's denial of his motion to suppress evidence assertedly obtained in violation of state and federal wiretapping laws and the Fourth Amendment. Petitioner contends inter alia the trial court erred in concluding the wiretap was permissible as conduct within the ordinary course of a law enforcement officer's duties. We issued an alternative writ of mandate and stayed proceedings in the trial court. We shall conclude the federal wiretapping statutes bar admission of evidence obtained from the wiretap. We shall therefore issue a peremptory writ directing the trial court to vacate its order denying the suppression motion and to enter a new order granting the suppression motion as to the contents of the intercepted communications and any evidence derived therefrom. ²

FACTUAL AND PROCEDURAL BACKGROUND

During 1991 and 1992, petitioner was Chief Deputy Warden at Deuel Vocational Institution (DVI) in Tracy. By information filed in March 1993, petitioner was charged with one count of misappropriation of public moneys by a public officer (§ 424) for allegedly appropriating public moneys to the use of a prison inmate for cosmetic dental services; one count of removal of public documents (Gov.Code, § 6200), for allegedly removing documents from an inmate's file before a parole board hearing; and one count of conspiracy to violate the personal liberty of others (§§ 182 [conspiracy], 236 [false imprisonment] ), arising from administrative segregation of three inmates following a fight between other inmates.

Petitioner filed a section 1538.5 motion in the trial court to suppress evidence obtained through a wiretap of a DVI prison telephone, on the grounds that the unauthorized interception of the telephone communications violated the California wiretapping statutes (§ 631 et seq.), the federal wiretapping statutes (18 U.S.C. § 2510 et seq.), and the United States and California constitutional guarantees against unreasonable search and seizure. ³

The evidence adduced at the hearing on the suppression motion was as follows:

In the spring of 1991, correctional officer Wayne Green was working on DVI's security squad, a subunit of the Investigative Services Unit (ISU) responsible for investigating criminal activity within DVI. Green received information that two inmates--Ralph Miranda and Gilbert Tewksbury--were involved in the use and distribution of heroin within the prison. The security squad wanted to search the two inmates and their cells but were instructed not to do so by ISU Captain Donald Busser, who had been admonished by petitioner to leave the two inmates alone. The security squad was told Miranda was "the warden's snitch." Green believed the inmates were being protected.

Around April 1991, Green decided to place a wiretap on the captain's clerk's phone, which was used primarily by Miranda in his work assignment as captain's clerk. Green acted on his own and without speaking to any superior officer. ⁴ Green felt it was "within [his] realm" to initiate the wiretap on his own and "due to the circumstances of what was going on within the institution, how we as squad members and other staff members throughout the institution felt about the protection of the inmates that in order to gather intelligence on these inmates it would have to be done without their knowledge."

Green accomplished the wiretap by running a telephone line from the specific telephone terminal down into a hidden location in the basement and connecting a voice-activated tape recorder that recorded any call made from or received at the captain's clerk's phone. Green learned how to identify the telephone line he wanted by talking to a telephone equipment man who happened to be on the premises.

Although Green initially testified the wiretapped telephone was exclusively for use within the institution, on cross-examination he admitted the phone was capable of accessing the DVI switchboard operator, and thus could be used to place calls outside DVI if the operator could be persuaded to do so. Green also testified he assumed the captain's clerk's phone was capable of receiving calls from outside DVI. The tapes were played for the court and demonstrated that the tapped telephone was indeed used for outside calls. ⁵

Green had never previously participated in a wiretap or monitoring of the phone system of which the captain's clerk's phone was a part. Green had no personal knowledge of any other wiretap or monitoring of this phone system during his tenure at DVI. Captain Busser testified he was unaware of any other wiretap of the phone system of which the captain's clerk's phone was a part. The only prior telephone monitoring performed by Green was of inmate telephone calls from DVI pay phones located in the inmates' dorm units. The monitored pay phones were posted with a conspicuous notice advising users the phones were subject to monitoring. The pay phones were monitored from a tower or control room by a switch that turned on a speaker.

Green's stated purpose in placing the wiretap was to catch Miranda and other inmates in drug trafficking. Fifteen or twenty "busts" were made as a result of the wiretap (which remained in place from April 1991 until March 1992). A couple of weeks after initiating the wiretap, Green was surprised when the tapes disclosed conversations between petitioner, then-Warden Al Gomez, and inmate Miranda. ⁶ Green became concerned with the integrity of the administration and suspected criminal conduct involving the administration and inmates. He expanded his investigation from narcotics trafficking to an internal affairs investigation of petitioner. Green did not report his suspicions to any superior officer or the internal investigations unit because "we weren't sure as to how far this went." Instead, he anonymously contacted Department of Justice Special Agent Supervisor Albert Fox and informed him of the situation. According to Green, Fox said the wiretap was legal. Green later met with Fox and turned the tapes over to him.

Fox testified the situation was described to him as a tap on an intrainstitutional phone used only for communication within the prison. He told Green the wiretap was legal as long as the wiretapped phone was for intrainstitutional use only and had no outside connection capabilities.

The trial court denied the motion to suppress. As to the state wiretapping law, the trial court rejected the People's argument that the wiretap fell within the state statutory exclusion for phones used exclusively within a correctional facility (§ 631, subd. (b)), but concluded the evidence was nonetheless admissible under state law by virtue of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)). ⁷ As to the federal wiretapping law, the trial court concluded the wiretap was permissible as occurring within the ordinary course of a law enforcement officer's duties (18 U.S.C. § 2510(5)(a)). The trial court did not specifically address petitioner's Fourth Amendment claim.

Petitioner petitioned this court for a writ of mandate or prohibition, as authorized by section 1538.5, subdivision (i). We issued an alternative writ of mandate and stayed further proceedings in the trial court.

DISCUSSION

I. Federal Law

Petitioner contends suppression of the evidence is compelled by the federal wiretapping statutes contained in Title III of the Omnibus Crime Control and Safe Street Act of 1968 (18 U.S.C. §§ 2510-2521) (hereafter "Title III" or "the Act"). We agree.

Where exclusion of wiretap evidence is required under the federal statutes, the evidence cannot be admitted under California law, because "State law [ ] cannot be less protective than the federal Act." (People v. Otto (1992) 2 Cal.4th 1088, 1092, fn. 1, 1098, 9 Cal.Rptr.2d 596, 831 P.2d 1178 [Court found it unnecessary to decide whether wiretap evidence was admissible under California law, because exclusion was required by the federal statutes].)

A. Title III--Background

The California Supreme Court has described the federal wiretapping law as follows:

"Title III provides a 'comprehensive scheme for the regulation of wiretapping and electronic surveillance.' [Citation & fn. omitted.] The Act makes it unlawful for any person ⁸ to intercept or endeavor to intercept any wire, oral, or electronic communication '[e]xcept as otherwise specifically' permitted by other provisions of the statute. (18 U.S.C. § 2511(1)(a).) Willful disclosure of the contents of communications by a person who knows or has reason to know that the information was obtained through an unlawful interception is also forbidden. (18 U.S.C. § 2511(1)(c).)

"...

"In addition to imposing a criminal penalty for unauthorized interceptions or disclosure of information obtained through such interceptions (18 U.S.C. § 2511(1)(a)), the Act creates a damage remedy for any person whose wire or oral communications have been unlawfully intercepted, disclosed or used. (18 U.S.C. § 2520.) More importantly for our purposes here, the Act also provides a suppression sanction. Title...