People v. Chapman, Cr. 22776

• Court: United States State Supreme Court (California)
• Writing for the Court: BIRD
• Citation: 679 P.2d 62,36 Cal.3d 98,201 Cal.Rptr. 628
• Parties: , 679 P.2d 62 The PEOPLE, Plaintiff and Appellant, v. Oris Lee CHAPMAN et al., Defendants and Respondents.
• Decision Date: 26 April 1984
• Docket Number: Cr. 22776

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201 Cal.Rptr. 628 36 Cal.3d 98, 679 P.2d 62 The PEOPLE, Plaintiff and Appellant,
v.
Oris Lee CHAPMAN et al., Defendants and Respondents. Cr. 22776. Supreme Court of California,
In Bank. April 26, 1984.
Rehearing Denied June 21, 1984.
As Modified June 21, 1984.

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[36 Cal.3d 103] [679 P.2d 64] Fred L. Heene, Couwenberg & Heene, Pomona, and James Michael Gunn, Ontario, for defendants and respondents.

Quin Denvir, State Public Defender, Alice V. Collins, Deputy State Public Defender, Fred Okrand, Los Angeles, Robert K. Calhoun, Jr., Margaret C. Crosby, Alan L. Schlosser and Amitai Schwartz, San Francisco, as amici curiae on behalf of defendants and respondents.

Dennis Kottmeier, Dist. Atty., Joseph A. Burns and W. Robert Fawke, Deputy Dist. Attys., for plaintiff and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Jay M. Bloom, Deputy Attys. Gen., John K. Van de Kamp, Dist. Atty. (Los Angeles), Harry B. Sondheim and Roderick W. Leonard, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and appellant.

BIRD, Chief Justice.

May the police, acting without a search warrant, ¹ obtain from a telephone company the name and address of an unlisted telephone subscriber[36 Cal.3d 104] when they suspect the telephone may be used for an unlawful activity?

I.

On December 5, 1980, a confidential informant contacted Detective Mauldin of the San Bernardino County Sheriff's Department and claimed she had some information about illegal offtrack betting. The informant, who had been betting heavily for six months and owed her bookie over $9,000, told Mauldin that she placed bets by calling a particular telephone number. She stated that the "phone spot" operator at this number was a woman called "Lucille," but that "Lucille" was a fictitious name and her true name was probably Marge.

Detective Mauldin knew from his experience and from that of his fellow officers that illegal betting operations use "phone spot" operators to take bets from patrons. The "phone spot" operator then relays the

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[679 P.2d 65] bet to a central location and provides the patron with up-to-date racing information.

Detective Mauldin had the informant call "Lucille" and attempt to place a bet on thoroughbred racing at Bay Meadows, a racetrack in Northern California. "Lucille" told the informant that she would not accept any further bets until the informant paid the money she owed to a man named Lee. At the informant's request, "Lucille" checked her records and reported that the exact amount of the debt was $9,739.20.

The informant told Detective Mauldin that she had paid gambling debts of $10,000 over the past three months to someone she knew as "Lee." She gave Detective Mauldin a description which was similar to the physical characteristics of respondent Oris Lee Chapman. She also identified a picture of Chapman from the Pomona Police Department's files. The police knew Chapman as a bookmaker who lived in Pomona.

Acting without a warrant, Detective Mauldin checked with the telephone company serving that area and learned that the number which he had been given was unlisted. He asked for and received the name and address of the subscriber, Margaret McGee. He then swore out an affidavit and obtained a warrant to secure billing information and an activity printout for that number for a six-month period. The affidavit recited respondent McGee's name and address and described the telephone call which the informant had made to that number.

A week later, Detective Mauldin obtained a second warrant, which authorized a search of respondent McGee's house and car. In the affidavit for [36 Cal.3d 105] this warrant, McGee's name and address, as originally obtained from the telephone company, were recited. (Other information, learned from the return to the first warrant and from a subsequent investigation, was also included.) Pursuant to the second warrant, the police conducted a search of McGee's home and seized evidence of illegal betting activity. Chapman and McGee were arrested and charged with conspiracy to commit bookmaking. (Pen.Code, §§ 182, 337a, subd. 1. ² )

Respondents moved under section 1538.5 to suppress the evidence seized during the search of McGee's home. They contended, inter alia, that Mauldin unlawfully obtained McGee's name and address from the telephone company without a warrant. The trial court granted respondents' motions to suppress and set aside the information. (§ 995.) The prosecution appeals from those orders. ³

II.

The sole issue presented by this case is whether Detective Mauldin violated a constitutionally protected expectation of privacy by obtaining, without a warrant, the

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[679 P.2d 66] name and address of McGee from the telephone company although the number is unlisted. ⁴ Respondents contend that article I, section 13 of the California Constitution protects California's residents [36 Cal.3d 106] from search or seizure of this information without prior judicial approval. ⁵ They argue that McGee's action in obtaining an unlisted telephone number demonstrated a reasonable expectation of privacy which was violated by this unreasonable governmental intrusion. (Burrows v. Superior Court, supra, 13 Cal.3d at pp. 242-243, 118 Cal.Rptr. 166, 529 P.2d 590; People v. Krivda (1971) 5 Cal.3d 357, 364-365, 96 Cal.Rptr. 62, 486 P.2d 1262, judgment vacated and cause remanded (1972) 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45, reiterated (1973) 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457; see Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.)

This court has held that "in determining whether an illegal search has occurred under the provisions of our Constitution, 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." (Burrows v. Superior Court, supra, 13 Cal.3d at pp. 242-243, 118 Cal.Rptr. 166, 529 P.2d 590; accord, People v. Krivda, supra, 5 Cal.3d at pp. 364-365, 96 Cal.Rptr. 62, 486 P.2d 1262.)

This case addresses the reasonableness of a privacy interest in information disclosed to third parties. Therefore, it is governed by the principles set forth in Burrows v. Superior Court, supra, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, and in People v. Blair, supra, 25 Cal.3d 640, 159 Cal.Rptr. 818, 602 P.2d 738. Those cases recognized an individual's right to privacy as to information which is in the possession of third parties, specifically bank records and telephone call records. The court held that such information could not be disclosed to law enforcement authorities without legal process. (Burrows v. Superior Court, supra, 13 Cal.3d at p. 245, 118 Cal.Rptr. 166, 529 P.2d 590; People v. Blair, supra, 25 Cal.3d at p. 654, 159 Cal.Rptr. 818, 602 P.2d 738.)

Burrows analyzed an individual's constitutionally protected privacy interest in bank records, financial statements, and cancelled checks. The fact that these records were kept by the bank rather than by the individual was considered irrelevant. (Burrows, supra, 13 Cal.3d at p. 244, 118 Cal.Rptr. 166, 529 P.2d 590.) This court recognized that people disclose the information contained in these records to the bank for very limited purposes. The clear expectation is that those limits will be honored. "A bank customer's reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes.... The disclosure by the [36 Cal.3d 107] depositor to the bank is made for the limited purpose of facilitating the conduct of his financial affairs ...." (Id., at pp. 243-244, 118 Cal.Rptr. 166, 529 P.2d 590.) In so holding, this court rejected the idea that because information is turned over to a bank, it is no longer private. As the court observed, "it seems evident that [the] expectation of privacy is not diminished

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[679 P.2d 67] by the bank's retention of a record of such disclosures." (Id., at p. 244, 118 Cal.Rptr. 166, 529 P.2d 590.)

Burrows also pointed out that an individual's disclosure of information to a bank is not necessarily voluntary. (Burrows, supra, at p. 247, 118 Cal.Rptr. 166, 529 P.2d 590.) Disclosure of the information is required in order to maintain a bank account. In this complex society, few people can live or conduct business without a bank account. "For all practical purposes, the disclosure by individuals or business firms of their financial affairs to a bank is not entirely volitional, since it is impossible to participate in the economic life of contemporary society without maintaining a bank account." (Ibid.) Under these circumstances, the expectation of privacy in bank records is a reasonable one.

In People v. Blair, supra, 25 Cal.3d 640, 159 Cal.Rptr. 818, 602 P.2d 738, this court applied the principles of Burrows to records of telephone calls made by an individual from his hotel room. This court held that under the California Constitution, such records are protected from warrantless disclosure. ⁶ Blair cited with approval People v. McKunes (1975) 51 Cal.App.3d 487, 124 Cal.Rptr. 126. (Id., at pp. 653-654, 159 Cal.Rptr. 818, 602 P.2d 738.) There, the Court of Appeal held that an individual's right to privacy was violated when telephone company records of his outgoing calls were obtained without a warrant. (People v. McKunes, supra, at pp. 490-491, 124 Cal.Rptr. 126.) A telephone "subscriber has a reasonable expectation that records of his calls will be utilized only for the accounting functions of the [36 Cal.3d 108] telephone company in determining his bills. He has no reason to expect that his personal life, as disclosed by the calls he makes and receives, and the day and time of those calls, will be disclosed to outsiders without some prior judicial inquiry...