People v. Elder
| Decision Date | 27 August 1976 |
| Docket Number | Cr. 7591 |
| Citation | 134 Cal.Rptr. 212,63 Cal.App.3d 731 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Karen Hope ELDER and Kathie Jo Hatrick, Defendants and Appellants. |
Defendant Elder was found guilty by a jury of one count of conspiracy to commit bookmaking (Pen.Code, § 182, subd. 1) and 29 counts of violation of Penal Code section 337a (bookmaking). Defendant Hatrick was found guilty of one count of conspiracy to commit bookmaking (Pen.Code, § 182, subd. 1) and 27 counts of violation of Penal Code section 337a (bookmaking).
Both defendants were granted probation. 1
Ronald Mitre, an undercover operative in a bookmaking investigation by the Orange County District Attorney's Organized Crime Unit, on June 11, 1974 contacted George Brazer at the Blue and White Cab Company and indicated he was interested in becoming associated with Brazer's bookmaking operation. Brazer indicated that Mitre would be contacted by a person named Al. Contact was made between Al and Mitre later that day, Mitre identifying himself as Ron Barnett. A meeting was arranged for the Marquis Lounge in Anaheim.
Mitre, wearing a record device, met as scheduled with Al Hickin. Hickin gave Mitre a piece of paper containing the name Sam, a phone number, and the notation Ron 29. Mitre apparently called the phone number given him by Hickin and asked for Sam. A female voice responded. Similar calls were made for the following four days from a telephone in the Organized Crime Unit and on each occasion bets were placed.
On June 17, 1974, Mitre met with Brazer, Hickin, and defendant Hatrick at the Saddleback Inn. The conversation included the method used to determine how much money was won or lost by individual bettors. Brazer indicated Hickin would meet with Mitre on the following day to discuss collection problems. After giving Brazer $26 for bets he had lost, Mitre left the Inn.
On the following day, June 18, Hickin and Mitre met at a Texaco station. Hickin indicated there were problems collecting bets from Dave Klein who owed them approximately $1,000 and Ernie who was approximately $1,500 in arrears. Hickin also indicated that he and Brazer were partners in the operation. Mitre's percentage for collecting these delinquent bets was to be one-quarter.
On the following three days, June 19, 20 and 21, Mitre again called the telephone number originally given him by Hickin and placed bets with Sam.
Another meeting with Brazer at the Saddleback Inn occurred on June 24, 1974. Mondays had previously been arranged as pay-off days. After discussing how much he owed Brazer, Mitre gave him $35. Brazer also informed Mitre that defendant Hatrick was making the collections that day since Hickin was in the hospital.
On June 24 defendant Hatrick was seen entering a residence at 12341 Harvey Way in Garden Grove. Later that same day defendant Hatrick met with Brazer at the Elbow Room Bar in Santa Ana.
On June 26 Mitre again placed bets over the phone with Sam. Following this call, he telephoned defendant Hatrick at the Blue and White Cab Company. Three similar calls to Sam were placed on June 27, 1974. Mitre placed many bets that day in the hope of losing money and effecting an arrest of Brazer during the purported payoff. Instead, he won $220. The last two contacts between Mitre and the bookmaking operation were on June 28, 1974. First, Mitre called the Blue and White Cab Company and spoke with George Brazer. Next, in the presence of district attorney investigator Don Carroll, Mitre called Sam's number and began placing bets. While this call was being placed, investigator Marwin was outside 12341 Harvey Way, the residence where the phone was located. When Mitre began placing his bets, Carroll so informed Marwin, who in turn proceeded to the residence to execute a search warrant in his possession.
After receiving Carroll's message, Marwin went to the front door of the residence, knocked loudly and said, 'Police officers, open up, you are under arrest for bookmaking.' Marwin, receiving no acknowledgment for approximately 20 seconds after knocking, then opened the door and entered the residence. Defendant Elder was seen eight to ten feet from the door, walking in its direction. Going to the kitchen, Marwin saw the telephone off the hook, picked it up and heard Mitre's voice on the other end.
Searching the residence pursuant to the search warrant, numerous pieces of betting paraphernalia were confiscated.
Three other search warrants issued the same day for two residences and a business all produced evidence of betting. When Brazer was informed by one of the investigators he was under arrest for bookmaking, he said to Mitre, who had accompanied the officers in executing the warrant on the Blue and White Cab Company office, 'I knew you were a cop, I told you so.' Defendant Elder was also an employee of the Blue and White Cab Company, and had used the nickname Sam.
Karen Elder's Contentions
Defendant Elder claims her constitutional right to privacy was violated by a warrantless search and seizure of records of Pacific Telephone Company and Southern California Gas Company. 2 Law enforcement, as previously indicated, had a telephone number through which bets were placed. The district attorney investigator obtained from the telephone company the name and address of the subscriber to that number, to wit: Tamara Ballein, 12341 Harvey Lane, Garden Grove. 3
The address was then submitted to the gas company which disclosed the subscriber to be a Robert E. Cooper. Cooper's employment at the Tustin Cab Company tied him to Brazer, who was working out of that same location. The district attorney's family support records were then checked under Cooper's name and they disclosed an action previously brought against him by Elder as complaining witness. The name of defendant Elder's daughter was listed as Tamara Ballein.
Defendant relies on Burrows v. Superior Court, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, in which it was held that a warrantless search of bank records was a violation of the constitutional right to privacy. Additional reliance is placed on People v. McKunes, 51 Cal.App.3d 487, 124 Cal.Rptr. 126, in which the Burrows' lead was followed in holding the police seizure of records of telephone calls was an unconstitutional invasion of privacy.
It is said in Burrows that '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.' (At 13 Cal.3d p. 243, 118 Cal.Rptr. at p. 169, 529 P.2d at p. 593.) In both Burrows and McKunes the material seized disclosed personal affairs of the defendants. Here, unlike both Burrows and McKunes, there was no seizure of the 'current biography' of the affairs of defendant (or Ballein or Cooper). Defendant seeks to carry the concept of Burrows and McKunes too far.
Name and address relate to identification rather than disclosure of private, personal affairs. It is virtually impossible to live in our current society without repeated disclosure of name and address, both privately and to the government. While a myriad of reasons motivate some to reduce the degree of their identity before the public eye which includes, for example, subscribing to an unlisted telephone number, this quest for anonymity does not compel the conclusion that a reasonable expectation of privacy existed on the facts before us.
We think the answer to the contention raised is simply this: There is no reasonable expectation of privacy in name, address, or telephone number as found in the records of the telephone company nor any reasonable expectation of privacy in the address of the subscriber of gas company services from disclosure to law enforcement, without the benefit of a warrant, as a part of its normal and legitimate investigative procedures. We think it unreasonable to conclude that the information of identity here obtained would be reasonably contemplated by the subscriber to be within the constitutional privacy protection. If the police go further, as demonstrated by Burrows and McKunes, the nature of the information obtained changes the result.
A search warrant was obtained for the residence at 12341 Harvey Lane. The plan in executing the warrant was that a call would be made placing a bet. Investigator Marwin was to be given notice one minute before the call and then notified again when the bet taking was in progress. At that point Marwin was to effect the arrest of the person taking the bet on the telephone and serve the search warrant.
When Marwin was advised that bets were then being accepted, he went to the front door, knocked,...
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People v. Chapman
...and governmental organizations, it is unreasonable to expect that this information will remain private. People v. Elder (1976) 63 Cal.App.3d 731, 736-738, 134 Cal.Rptr. 212, is cited as authority for this proposition. The Elder court found that a telephone customer had no reasonable expecta......
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