People v. Graff

• Citation: 300 P.2d 837,144 Cal.App.2d 199
• Decision Date: 27 August 1956
• Docket Number: Cr. 3218
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ruben GRAFF, Defendant and Appellant.

Page 837

300 P.2d 837

144 Cal.App.2d 199

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ruben GRAFF, Defendant and Appellant.

Cr. 3218.

District Court of Appeal, First District, Division 2, California.

Aug. 27, 1956.

Rehearing Denied Sept. 11, 1956.

Hearing Denied Sept. 25, 1956.

Benjamin M. Davis, San Francisco, Lionel B. Browne, San Francisco, of counsel, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty., City and County of San Francisco, Franklin Campbell, Asst. Dist. Atty., San Francisco, for respondent.

PER CURIAM.

Appellant was found guilty by the court sitting without a jury on all three counts of an information charging violation of Penal Code sections 337a, subdivision 2 (keeping a certain apartment for the purpose of recording and registering bets on horse races), 337a, subdivision 4 (recording and registering such bets), and 337a, subdivision 6 (laying and accepting such bets) all on July 13, 1955. After motions for arrest of judgment and for a new trial had been denied, appellant was given a suspended sentence of one year in the County Jail on each count to run concurrently and placed on probation on condition of paying a fine. He appeals from the judgment and the order denying his motion for a new trial.

On July 13, 1955, at 11:30 a. m. appellant was arrested on suspicion of bookmaking by police officers attached to the Bureau of Speicial Services, Bookmaking Detail, when he stepped out of apartment 512 of the apartment house at 1472 Filbert Street in San Francisco, which apartment was then leased by a Miss Morris, who was present in the apartment at the time of the arrest. Appellant, who was carrying under his arm a San Francisco Examiner of that day opened to the racing section of the sports section, was searched and in a pocket were found two slips of paper, one of which, as explained by appellant, contained entries of horse race bets. He told the officers that an addition of figures totalling $250 on said slip represented the total amount of bets that he had taken that day in that apartment. It was his total business: '* * * I was just finished when you got me.' He had been in business at that apartment for two months. His average had been $175 a day. The police officer who testified to the above also declared that there had been no violence, threats or promises and such is not disputed.

Prior to making the arrest the officers had that morning listened in on the occupants of apartment 512 from the adjacent apartment 501, by arrangement with the apartment manager. They had gone to apartment 501 after they had seen appellant enter the apartment building, had applied amplifying equipment containing a microphone and amplifier to the wall between the two apartments and had used it from 10 a. m. on to listen to the sounds emanating from apartment 512. They had heard from time to time the voice of a man and of a woman, mainly of a man, and at certain times a sound as of dialing of a telephone number. After such a dialing sound the male voice was heard to say: 'Hello. This is Oscar R. I am only going to give you one, Super Upper, second race at Saratoga. It goes in ten minutes. I'll call you in ten minutes and give you the rest.' Later, again after the sound of a telephone being dialed, a male voice and the following conversation: 'Johnny, this is Oscar R. You got the rest? Yes.' 'What's the bet?' 'Mamru. That's a total of six. What are they, Bernie? They are all shorties. 142 good.' Other conversation testified to were (by male voice): 'Johnny L. I have got something for you in the first,' and after hesitation 'Prom Hall.' (pause) 'In the eighth Attavar.' (pause) 'Forty' (pause) 'Right on the barrel head' (pause) 'About two, okay.' In a conversation between man and woman not on the telephone the male voice said: 'There is a guy we have never been able to beat but we finally beat him. He has to wait for a loan to come through to pay off.' And 'We can't lose. For every bet we win we make fifty per cent. For every bet we lose we only lose five per cent. * * *' etc. At approximately 11:30 the dialing sound was heard and the male voice: 'What can I do? I can't get rid of it all. I'll be out of here in five minutes.' Then the arrest was made.

Appellant contends in substance that the listening of the officers with the amplifying equipment was an unreasonable invasion of appellant's privacy and an illegal search against which he was protected by the 4th and 14th amendment of the Federal Constitution and by article 1, section 19 of the State Constitution, that it compelled him to testify against himself in violation of the 5th amendment of the Federal Constitution and article 1, section 13 of the State Constitution and that it violated section 605 of the Federal Communications Act, 47 U.S.C.A. § 605, prohibiting divulging of intercepted communications; that the search of appellant without a warrant was illegal; that under the new rule of People v. Cahan, 1954, 44 Cal.2d 434, 282 P.2d 905 and People v. Tarantino, 1955, 45 Cal.2d 590, 290 P.2d 505, evidence so illegally obtained is inadmissible for any purpose, and that then there was no proof of the corpus delicti which would permit the use of appellant's extrajudicial admissions. It is undisputed that sufficient objections have been made to permit review of said contentions. However, we have found them without merit.

There can be no doubt that the unknown listening to what happened in a private apartment by means of electronic equipment, an aggravated form of eavesdropping, is a serious invasion of the privacy of the occupants of the apartment, but it does not follow that the cited constitutional provisions provide guaranties against it and that evidence so obtained is inadmissible. The question has not been decided in California under the new exclusionary rules, but has been decided against appellant in the federal courts where said exclusionary rules have been in force since Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. In Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, federal agents from an adjacent office, by means of a 'detectaphone', a device similar to the one herein used, placed against the partition wall, heard what defendants spoke in their office and what one of them said talking over the telephone. The Supreme Court held, 316 U.S. at page 135, 62 S.Ct. at page 996, that the use of the detectaphone was not a violation of the Fourth Amendment, on the authority of Olmstead v. United States, 1928, 277 U.S. 438, 48 S.Ct. 564, 565, 72 L.Ed. 944. The evidence in the latter case was largely gathered by the interception by federal officers of telephone messages of the defendants by tapping their lines in the streets, without trespass upon property of the defendants. The court held that the Fourth Amendment by its language was not applicable because it relates to the search of material things "persons, houses, papers, and effects" only. 'There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses of offices of the defendants.' 227 U.S. at page 464, 48 S.Ct. at page 568. Congress might make such intercepted messages inadmissible in evidence by direct legislation but the courts could not give such unusual meaning to the Fourth Amendment, 277 U.S. at pages 465, 466, 48 S.Ct. at page 568. It was also held in the Olmstead case that the Fifth Amendment was not involved because no compulsion induced defendants to talk over their telephones; they acted voluntarily without knowledge of the interception, 277 U.S. at page 462, 48 S.Ct. at page 567. In the Goldman case, supra, it was also held that in that case there was no violation of section 605 of the Federal Communications Act, which protects the message during the course of its transmission by the instrumentality of transmission, not at the moment it is spoken into or after it is received from said instrumentality, 316 U.S. at pages 133-134, 62 S.Ct. at page 995; to the same effect People v. Malotte, 46 Cal.2d 59, 292 P.2d 517. The Olmstead and Goldman cases were followed in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270. In People v. Malotte, supra, 46 Cal.2d at page 59, 292 P.2d at page 519, our Supreme Court expressly abstained from deciding whether the Goldman and Olmstead cases had been 'unsettled' by Irvine v. People of State of California, 1954, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, because the facts of the Malotte case were distinguishable. As the facts of our case cannot be distinguished from those of the Goldman case, we must consider whether the Irvine case shows that Goldman does not now represent the Federal law. Irvine certainly does not overrule Goldman expressly. Neither are the decisions inconsistent. Irvine is not concerned with the question whether the Fourth Amendment protects against invasion of privacy without trespass or search and seizure in the historical sense. In the Irvine case evidence had been admitted which had been obtained by means of serious trespasses among which repeated invasions of a home to place microphones and prolonged listening in by means of said devices. The California District Court in 1953, prior to the Cahan case, supra, affirmed the conviction and the Supreme Court denied a hearing, 113 Cal.App.2d 460, 248 P.2d 502. The problem before the...