People v. Chavez

• Decision Date: 24 April 1996
• Docket Number: No. C019365,C019365
• Citation: 52 Cal.Rptr.2d 347,44 Cal.App.4th 1144
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 2863, 96 Daily Journal D.A.R. 4733 The PEOPLE, Plaintiff and Appellant, v. Gilbert A. CHAVEZ, et al., Defendants and Respondents.

Page 347

52 Cal.Rptr.2d 347

44 Cal.App.4th 1144, 96 Cal. Daily Op. Serv. 2863,

96 Daily Journal D.A.R. 4733

The PEOPLE, Plaintiff and Appellant, v. Gilbert A. CHAVEZ, et al., Defendants and Respondents.

No. C019365.

Court of Appeal, Third District, California.

April 24, 1996.

As Modified on Denial of Rehearing

May 22, 1996.

Review Denied July 24, 1996. ^*

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, J. Robert Jibson, Supervising Deputy Attorney General and Karen L. Ziskind, Deputy Attorney General, for Plaintiff and Appellant.

Jeffrey J. Stuetz, San Diego, for Defendant and Respondent Gilbert A. Chavez.

K. Douglas Cummings, Sacramento, for Defendant and Respondent Raymond Shank.

Berley & DeVito and Diane E. Berley, Woodland Hills, for Defendant and Respondent Carole Miller.

DAVIS, Associate Justice.

A jury convicted each of the three defendants of two drug sale offenses. The trial court then granted defendants' motion for new trial, finding their counsel ineffective for failing to find the avenue by which the evidence could have been suppressed. We conclude the trial court erred in finding counsel ineffective and therefore erred in granting defendants' motion for new trial. In so doing we find that the restrictions on eavesdropping contained in the Cordless and Cellular Radio Telephone Privacy Act of 1990 are fully subject to the law enforcement exception codified in Penal Code section 633. Consequently, we reverse the order granting defendants a new trial and remand the matter for the trial court to reinstate the defendants' convictions.

BACKGROUND

At the end of June 1991, a confidential citizen informant (CI) contacted the El Dorado County Sheriff's Department to report that while he was listening to his radio scanner, he overheard a cordless telephone conversation concerning a narcotics transaction. ¹ The CI explained he had a multichannel scanner which allowed him to monitor the radio portion of cordless telephone conversations. The typical cordless phone consists of a base unit, which is attached to the land-based telephone line system, and a hand-held or "remote" unit which transmits and receives radio signals that carry the actual conversation to and from the base unit. (See U.S. v. Smith (5th Cir.1992) 978 F.2d 171, 178; Pen.Code, § 632.7, subd. (c)(2)).

The CI sought authorization to continue the monitoring. On the basis of section 633, a deputy sheriff, in consultation with a higher-ranking officer, authorized the CI to continue the monitoring and to record the conversations. The CI obliged, using his scanner which he had purchased from Radio Shack. The sheriff's department supplied the CI with a recorder and some cassette tapes.

Later, officers from the sheriff's department took over the monitoring of the cordless telephone conversations, which were occurring over defendant Chavez's cordless telephone. This monitoring by the CI on behalf of the police and by the police themselves was undertaken indiscriminately. ²

Based on this surveillance, a search warrant was issued. The search yielded incriminating evidence on which defendants Chavez, Shank, and Miller were convicted of the drug sale offenses.

Prior to trial, defendants had moved unsuccessfully to suppress the evidence against them. In proceedings culminating in a motion for new trial, the trial court revisited its ruling on the pretrial suppression motion and granted the motion for new trial. In granting the motion for new trial, the trial court determined that defense counsel had been ineffective in failing to find the key to suppressing the evidence found in the search. That key was the interplay of section 633 with a federal statute, 47 U.S.C.A. § 605 (hereafter, section 605).

DISCUSSION

Before we can address the substance of the motion for new trial, we must consider whether we can hear this appeal at all.

1. Appealability

Confused by the post-conviction proceedings in this case, defendants claim the People cannot maintain this appeal. Defendants assert that the trial court's order suppressing the evidence is cognizable only under section 1538.5 via a writ.

The problem for defendants is that the trial court did not grant a motion to suppress evidence. The trial court granted a motion for new trial, finding counsel ineffective for failing to suppress evidence. A trial court may grant a motion for new trial on the ground of ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583, 189 Cal.Rptr. 855, 659 P.2d 1144.) The People can appeal from an order granting a new trial. (§ 1238, subd. (a)(3).) We therefore can hear this appeal.

2. The Motion for New Trial

In the motion for new trial proceedings, the trial court focused on the section 633 phrase "prior to the effective date of this chapter." ³ The chapter referred to in section 633 is Part 1, Title 15, chapter 1.5 of the Penal Code, which sets forth California's Invasion of Privacy Act. The Invasion of Privacy Act generally forbids wiretapping and electronic eavesdropping. (See §§ 630-637.6; People v. Conklin (1974) 12 Cal.3d 259, 263, 114 Cal.Rptr. 241, 522 P.2d 1049.) The effective date of chapter 1.5 was November 8, 1967. (Vol. 49, Pen.Code, Effective Date Table, p. XVII.)

The trial court construed the first paragraph of Penal Code section 633 to mean that law enforcement agencies are prohibited from engaging in electronic eavesdropping or recording activity if they were prohibited from doing so "prior to the effective date of [the] chapter," November 8, 1967. The trial court correctly determined that, prior to November 8, 1967, neither federal constitutional law nor state law on electronic eavesdropping prohibited law enforcement from overhearing, through a scanner and without a warrant, the radio portion of cordless phone communications. Federal constitutional law prohibited such endeavors only if there was a physical intrusion or trespass (Olmstead v. United States (1928) 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944; see Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Kaiser v. New York (1969) 394 U.S. 280, 281-282, 89 S.Ct. 1044, 1045-1046, 22 L.Ed.2d 274), while state law exempted radio communications from protection against electronic eavesdropping (former Pen.Code, § 653j, subd. (a); Stats.1963, c. 1886, § 1). However, the trial court found that, prior to November 8, 1967, a federal statute, section 605, prohibited law enforcement agencies from intercepting radio communications. ⁴ Consequently, the trial court determined that defense counsel should have used Penal Code section 633 and section 605 to suppress the evidence found in the search in this case. The trial court found defense counsel ineffective for failing to do so and granted defendants a new trial.

Simply for purposes of our analysis, we will assume the trial court correctly interpreted We start by noting that overhearing the radio portion of cordless phone communications via a radio scanner falls under the electronic surveillance method of electronic eavesdropping rather than wiretapping. (United States v. Hall (1973) 488 F.2d 193, 194, 196-197 [conversations over a radio-telephone in a car "were intercepted by an ordinary radio receiver and not by a phone tap;" "the eavesdroppers merely tuned their radio receivers to the proper station"]; see Carr, The Law of Electronic Surveillance (1986), §§ 1.1(a), 1.1(b), p. 1-3 ["Wiretapping, as the name itself suggests, refers to the interception of wire (i.e., telephone) communications. [It] usually involves a connection to the wires ..., although it is possible to intercept wire communications ... [without necessarily] ... cut[ting] the wires...." [p] "The term bug[ging] refers to a[n] ... electronic device which overhears, broadcasts, or records a speaker's conversation."]; Van Boven, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1183, fn. 6 ["Electronic surveillance comprises the practices commonly known as wiretapping and electronic eavesdropping or 'bugging.' Wiretapping refers to the interception by any method of telegraphic or telephonic communications; the term electronic eavesdropping encompasses all other forms of electronic surveillance."]; People v. Ratekin (1989) 212 Cal.App.3d 1165, 1168, 261 Cal.Rptr. 143 ["Penal Code section 631 prohibits 'wiretapping,' i.e., intercepting communications by an unauthorized connection to the transmission line. Penal Code section 632 prohibits 'eavesdropping,' i.e., the interception of communications by the use of equipment which is not connected to any transmission line. In order to violate section 631 it is necessary that the intercepted communication be carried over '... telegraph or telephone wire, line, cable, or instrument of any internal telephonic communication system....' No such limitation is found in section 632." (Italics in original.) ].)

Penal Code section 633 as holding law enforcement to the electronic surveillance prohibitions in force prior to the November 8, 1967 effective date of the Invasion of Privacy chapter. As noted, the trial court found one of these prohibitions to be section 605, prohibiting law enforcement from intercepting radio communications. This is where we will part company with the trial court. We conclude that the pre-November 8, 1967 version of section 605--actually enacted in 1934--does not prohibit law enforcement, or its properly-authorized designee, from overhearing or recording the radio portion of cordless phone communications through a radio scanner without a warrant.

The pre-November 8, 1967 section 605 applied in a quite limited way to electronic eavesdropping. The section's primary focus, as judicially construed, was on excluding evidence obtained through wiretapping, but the section also protected non-public radio broadcasts meeting radio licensing...