People v. Conklin, Cr. 17039

• Court: United States State Supreme Court (California)
• Writing for the Court: SULLIVAN; WRIGHT
• Citation: 12 Cal.3d 259,522 P.2d 1049,114 Cal.Rptr. 241
• Parties: , 522 P.2d 1049 The PEOPLE, Plaintiff and Appellant, v. James E. CONKLIN, Defendant and Respondent. In Bank
• Decision Date: 12 June 1974
• Docket Number: Cr. 17039

Page 241

114 Cal.Rptr. 241 12 Cal.3d 259, 522 P.2d 1049 The PEOPLE, Plaintiff and Appellant,
v.
James E. CONKLIN, Defendant and Respondent. Cr. 17039. Supreme Court of California, In Bank. June 12, 1974.
As Modified on Denial of Rehearing July 25, 1974.

[12 Cal.3d 261]

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[522 P.2d 1050] Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Harry Wood and Arnold T. Guminski, Deputy Dist. Attys., for plaintiff and appellant.

Eagleton & Petterson and James D. Petterson, Bellflower, for defendant and respondent.

SULLIVAN, Justice.

Defendant James E. Conklin was charged by information with committing several acts prohibited by Penal Code section 631, subdivision[12 Cal.3d 262] (a). ¹ He demurred to the information (§ 1004, subd. 4), asserting that section 631 is invalid because it conflicts with, or attempts to regulate the same area covered by title III of the Omnibus Crime Control and Safe Streets Act of 1968. (18 U.S.C.A. §§ 2510--2520; referred to hereafter as title III.) The trial court sustained the demurrer and entered a judgment of dismissal. (§ 1008.) The People appeal from that judgment. (§ 1238, subd. (a)(2).)

The People contend that title III has not preempted the filed of wiretapping and that, in any event, the state statute does not conflict with federal law. Defendant, on the other hand, argues that in enacting title III, Congress expressed its intent to occupy the entire field of wire communications, and alternatively, that even if it were not the intent of Congress to regulate the entire field, section 631 conflicts with title III and must therefore yield to it under the supremacy clause of the federal Constitution.

The respective powers of the federal and state governments to regulate the field of communications flow from different sources. Federal power finds its origin in the commerce clause (Benanti v. United States (1957) 355 U.S. 96, 104, 78 S.Ct. 155, 2 L.Ed.2d 126 (applying title III's predecessor, former § 605 of the Federal Communications Act of 1934); Halpin v. Superior Court (1972) 6 Cal.3d 885, 899, 101 Cal.Rptr. 375, 495 P.2d 1295, cert. den., 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246), even where the communications are entirely intrastate [12 Cal.3d 263] (Weiss v. United States (1939) 308 U.S. 321, 327, 60 S.Ct. 269, 84 L.Ed. 298). (See Sen.Rep. No. 1097 (referred to hereafter as the Senate Report) 2 U.S.Code Cong. & Admin.News (1968) pp. 2112, 2180.) ² State power is essentially

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[522 P.2d 1051] the police power which is among those powers 'reserved to the States respectively, or to the people.' (U.S.Const., 10th Amend.)

Although some differences in scope exist, the federal and state acts regulate the same area. In general terms, title III prohibits the interception of wire and oral communications (18 U.S.C.A. § 2511(1)(a)) and their disclosure or use (18 U.S.C.A. § 2511(1)(c)--(d)) ³ except where court authorization is obtained by a law enforcement official (18 U.S.C.A. §§ 2516--2518) and with other limited exceptions. The state Invasion of Privacy Act (§§ 630--637.2) forbids wiretapping (§ 631) and electronic eavesdropping (§ 632) except by law enforcement officers where such activity was permitted prior to the enactment of the state act (§ 633) and with other limited exceptions (see, e.g., § 633.5). Thus the scheme of the federal act is based on the type of the communication, that is whether it is wire or oral; the state act, by contrast, on the type of surveillance, that is whether it is wiretapping or eavesdropping. (Note (1969) 57 Cal.L.Rev. 1182, 1210.) Where evidence is obtained by unlawfully intercepting a communication, both acts make it inadmissible in any judicial, administrative, legislative, or any other proceeding. (18 U.S.C.A. § 2515; §§ 631, 632.)

[12 Cal.3d 264] In determining the validity of a state law which attempts to regulate the same subject as a federal law, a variety of expressions have been used: 'conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula.' (Hines v. Davidowitz (1941) 312 U.S. 52, 67, fn. omitted, 61 S.Ct. 399, 404, 85 L.Ed. 581; see also Pennsylvania v. Nelson (1956) 350 U.S. 497, 501--502, 76 S.Ct. 477, 100 L.Ed. 640.) Nonetheless, we are of the view that we should resolve the issue presented here according to the two-part test set forth in Florida Lime & Avocado Growers v. Paul (1963) 373 U.S. 132, 141, 83 S.Ct. 1210, 10 L.Ed.2d 248, and restated in Head v. New Mexico Board (1963) 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983. In Head (374 U.S. at p. 430, 83 S.Ct. at p. 1763), the high court stated, 'In areas of the law not inherently requiring national uniformity, our decisions are clear in requiring that state statutes, otherwise valid, must be upheld unless there is found 'such actual conflict between the two schemes of regulation that both cannot stand in the same area, (or) evidence of a

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[522 P.2d 1052] congressional design to preempt the field.' (Citation.)' (Fn. omitted.) ⁴

[12 Cal.3d 265] In our application of this twofold test, we shall consider the second part of it

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[522 P.2d 1053] first. We therefore proceed to determine whether it was the intent of Congress that the provisions of title III regulating the interception of wire communications would preempt state law. In other words, did Congress intend to occupy the entire field and thereby intend to exclude state regulation on the same subject matter even where the federal and state laws are not in conflict with each other?

'The settled mandate governing this inquiry, in deference to the fact that a state regulation of this kind is an exercise of the 'historic police powers of the States,' is not to decree such a federal displacement 'unless that was the clear and manifest purpose of Congress,' (citation). In other words, we are not to conclude that Congress legislated the ouster of (a state) statute . . . in the absence of an unambiguous congressional mandate to that effect.' (Florida Lime & Avocado Growers v. Paul, Supra, 373 U.S. 132, 146--147, 83 S.Ct. 1210, 1219 (holding that no preemptive design can be discerned in the Federal Agricultural Adjustment Act respecting [12 Cal.3d 266] maturity standards for agricultural products); see also Head v. New Mexico Board, Supra, 374 U.S. 424, 431, 83 S.Ct. 1759.) ⁵

The question confronting us was answered in part by our decision in Halpin v. Superior Court, Supra, 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295. Halpin involved a warrantless interception of a conversation over a jailhouse telephone. It was asserted that the interception violated title III. The People argued that the application of title III, which prohibits the warrantless interception of wire communications, would improperly infringe on the right of the state to administer the affairs of its penal institutions. Having explained that the reserved powers of the state under the Tenth Amendment cannot override an exercise of federal power under the commerce clause, as represented in Title III, we rejected the People's argument and ordered that the evidence be suppressed.

At the same time, Halpin indicated that title III was not intended to occupy the entire field of wiretapping. We declared, in reference to the federal act, that 'Congress intended to enact comprehensive national legislation, against which all then existing federal and state legislation was to be measured' but also explained that it 'left room for the states to supplement the law in certain areas, provided the regulations are not more permissive. (Citation.)' (Id. at pp. 898--899; fns. omitted, 101 Cal.Rptr. at p. 384, 495 P.2d at p. 1304.) Thus it is clear that when we stated in Halpin that 'title III has Preempted particular fields of wiretapping' (Id. at p. 900, 101 Cal.Rptr. at p. 985, 495 P.2d at p. 1305; italics added), we were employing the term in its broader sense (see fn. 4, Ante) and did not imply that Congress intended to exercise exclusive power over the subject of wire communications.

Our conclusion in Halpin that Congress in enacting title III did not intend to occupy the entire field is supported by two indications of its intent. The first is a statement of congressional findings expressing the need for [12 Cal.3d 267] federal legislation and its purpose (§ 801, Pub.L. 90--351; 82 Stat. 211); the second is a report referred to in Halpin, which was submitted by the Senate Committee on the Judiciary (Sen.Rep. No. 1097, 90th Cong., 2d Sess. (1968) 2 U.S.Code[522 P.2d 1054] Cong. & Admin.News, p. 2112.) Since each of these sources expresses the

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preemptive design of Congress, if any, we need not apply the tests collated by Pennsylvania v. Nelson, Supra, (see fn. 5, Ante); rather, we must ascertain whether these sources evince a "clear and manifest purpose of Congress" (Florida Lime & Avocado Growers v. Paul, Supra, 373 U.S. at p. 146, 83 S.Ct. at p. 1219) to displace state regulation in the same area.

The congressional findings declare in part: 'In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized, to prohibit any unauthorized interception of such communications, and the use of the contents thereof in evidence in courts and administrative proceedings.' (§ 801, par. (b), Pub.L. 90--351; 82 Stat. 211.) ⁶

These findings are amplified by the Senate Report. ⁷ It states, 'Title III has as its dual purpose (1) protecting the privacy of...