People v. Garber

• Decision Date: 25 July 1969
• Docket Number: Cr. 7344
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Frank GARBER, Benny Noto and Charles Teran, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 214

80 Cal.Rptr. 214

275 Cal.App.2d 119

PEOPLE of the State of California, Plaintiff and Respondent, v. Frank GARBER, Benny Noto and Charles Teran, Defendants and Appellants.

Cr. 7344.

Court of Appeal, First District, Division 1, California.

July 25, 1969.

Rehearing Denied Aug. 13, 1969.

Hearing Denied Oct. 15, 1969.

Chargin & Parker, San Jose, for Frank Garber and Benny Noto.

James Martin MacInnis, San Francisco, for Charles Teran.

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.

Pillsbury, Madison & Sutro, John A. Sutro, Francis N. Marshall, San Francisco, for The Pacific Tel. & Tel. Co. as amicus curiae.

MOLINARI, Presiding Justice.

Defendants appeal from judgments of conviction following trial by the court. All three defendants were convicted of bookmaking (Pen.Code, § 337a, subd. 2); of conspiracy to obtain telephone service by fraud (Pen.Code, § 502.7, subd. (a), 502.7, subd. (b)); of conspiracy to commit the offense of unlawful use of telephone lines and equipment (Pen.Code, § 591); and of conspiracy to illegally wire tap. (Pen.Code, § 640.) For the reasons hereinafter stated, we have concluded that the judgments must be affirmed.

Facts

A multi-frequency signal generator or 'blue box' is a device designed to enable the user to avoid long-distance telephone charges. The user first dials a toll-free long-distance information number. Then he activates the 'blue box' to produce a 2600 cycle tone which terminates the connection with the information operator although the user still has access to the open trunk line. As long as the line is held open the user can utilize impulses from the 'blue box' to place any number of longdistance telephone calls without the telephone company having any record of areas called or charges incurred. The telephone company records simply indicate that a free call has been made from a given telephone number. On occasion, in order to determine if there is trouble on the lines, the telephone company 'prints out' the unbilled computerized data pertaining to tollfree information calls. From April through November 1966 such 'print outs' indicated that 2,020 long-distance information operator calls were made from number 361--1261. Defendant Garber was the subscriber to this telephone number. A number of the calls were unusually lengthy. The 'print outs' also showed that from August to November 1966 approximately 40 such long-distance operator calls were made from another number (377--4275) listed to defendant Garber. Other computer 'print outs' indicated 345 information calls made in a two-month period from one telephone number listed to defendant Noto and 14 such calls from another number of his. Some of these calls were of an unusual length. Still other 'print out' information obtained by the company showed numerous long-distance calls from numbers listed to defendant Garber under a false name and installed in apartments actually rented to defendant Teran. The telephone company next checked the telephone lines and discovered no trouble in the lines.

The telephone company began monitoring one of Garber's numbers (371--1261) on October 24, 1966, using a device designed to monitor only those outgoing calls commencing with the 2600 cycle tone generated by the 'blue box.' After about 28 hours of actual monitoring, this procedure was discontinued on November 2, 1966. During the time the company was monitoring, only 65 minutes in 'blue box' calls were actually overheard and recorded by the company. Apparently none of the other aforementioned numbers were monitored.

On November 29, 1966, the telephone company met with law enforcement officials and informed them that they had the 'pring out' information indicating the use of 'blue boxes' at the residences of all three defendants. The telephone company representatives also informed the officials that they had monitored the one telephone at defendant Garber's residence. At this time company representatives did not divulge the contents or subject matter of the recordings made during the monitoring procedure. The district attorney made a written demand for the recordings and they were subsequently produced on November 30, 1966. The recordings were introduced in evidence at the grand jury hearing as well as at the trial and it was stipulated at the trial that these recordings clearly indicated bookmaking activities. The admission of this evidence was over the objection of all defendants.

On December 11, 1966, a warrant was procured for the search of the premise at 2395 New Jersey Avenue, San Jose, the residence address of defendant Garber. On the morning of December 12, 1966, San Jose police officers went to the address to execute the warrant. Although they had information that defendant Garber was not at home, the officers went to the door and rang the bell. After receiving no response they rang the bell a second time. They then heard some unintelligible noises in the house, the sort of noises which indicated movement within the house. One of the officers then kicked open the door so that an entry could be made. Mrs. Garber and a minor child were in the house. They had apparently been bathing. Approximately 40 seconds elapsed between the forced entry and the first ringing of the doorbell. In the search that followed, the officers found one piece of lined paper with first names, initials and telephone numbers, one piece of lined paper with defendant Noto's name and a series of telephone numbers; a longdistance telephone bill with defendant Noto's name, a newspaper clipping concerning wiretapping and some printed sheets on 'Bowl Games.' The officers also saw a box similar to a 'blue box' but did not seize it. The items taken were admitted into evidence before the grand jury and at trial defense counsel objected to their admission on the ground that the officers had not properly identified themselves pursuant to the provisions of Penal Code, section 1531.

On December 11, 1966, a warrant for the search of the Santa Clara premises of defendant Noto was also obtained. The warrant was executed on the morning of December 12, 1966, at which time defendant Noto admitted the officers. During the search a number of dated publications entitled 'The National Daily Reporter' were found. Accounting sheets and other bookmaking paraphernalia were also uncovered. A 'blue box' was also discovered and seized. These items were all introduced into evidence at the grand jury hearing.

No warrant was obtained for the search of the apartment of defendant Teran. Police began surveillance of this apartment on the evening of December 11, 1966. The next morning the telephone company put its monitoring device on the telephone line to this apartment. A little after 10 a.m., by use of this monitoring equipment, a telephone company representative heard the 2600 cycle tone emitted by a 'blue box.' Law enforcement officials were informed but no record of calls was made because the equipment was not properly adjusted. By prearrangement police officers were advised that the device was being used and they then went to the apartment. The officers knocked on the door and defendant Teran appeared at a window and asked who was there. One of the officers held his sheriff's identification card to the window for Teran to read. Teran then disappeared and when there was no further response, the officers forced entry. Defendants Garber and Teran were both found in the apartment. An adding machine and almost $3,000 in currency was discovered. Two of the 'blue box' devices were also recovered, along with a number of racing journals and betting records. Both Teran and Garber were placed under arrest. At trial, counsel for defendant Teran objected to the admission of this evidence.

A Federal Bureau of Investigation specialist in bookmaking investigation testified before the grand jury to the effect that the material recovered during the searches was used for bookmaking activity.

Contentions

All defendants contend that the convictions must be reversed because they are based on evidence obtained in violation of 47 U.S.C.A. section 605 prohibiting the unauthorized publication or use of certain communications by wire or radio, and that the monitoring procedure violated the right of privacy guaranteed by the Fourth Amendment. Defendants Garber and Noto also contend that the evidence obtained at Garber's residence was inadmissible because the officers who executed the search warrant failed to comply with the provisions of Penal Code, section 1531. Defendant Teran also argues that the evidence obtained at his apartment is inadmissible because the officers did not have a search warrant. At oral argument Teran also contended that the forcible entry of Teran's residence was in violation of Penal Code, section 844.

The Fourth Amendment

In Katz v. United States (1967) 389 U.S. 347, 353, 354--359, 88 S.Ct. 507, 19 L.Ed.2d 576, it was held that electronic eavesdropping by law enforcement authorities upon private conversations is a search and seizure within the meaning of the Fourth Amendment and that such eavesdropping meets constitutional standards only when authorized by a neutral magistrate upon a showing of probable cause under precise limitations and appropriate safeguards. (See also Desist v. United States (1968) 394 U.S. 244, 89 S.Ct. 1030, 1032, 22 L.Ed.2d 248, 253.) This rule applies, however, only to cases in which the prosecution seeks to introduce the fruits of an electronic surveillance conducted after December 18, 1967, the date of the Katz decision. (Desist v. United States, supra.)

We note, moreover, that although evidence obtained in violation of the Fourth Amendment is inadmissible in state courts, the amendment does not apply to searches by a private individual unless such individual is wilfully participating in a joint activity with a state agent who either requests...