People v. Jones

• Decision Date: 26 February 1973
• Docket Number: Cr. 5127
• Citation: 106 Cal.Rptr. 749,30 Cal.App.3d 852
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Mary Louise JONES et al., Defendants and Respondents.

Page 749

106 Cal.Rptr. 749

30 Cal.App.3d 852

The PEOPLE of the State of California, Plaintiff and Appellant, v. Mary Louise JONES et al., Defendants and Respondents.

Cr. 5127.

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

Feb. 26, 1973.

Hearing Denied April 25, 1973.

[30 Cal.App.3d 853] Edwin L. Miller, Jr., Dist. Atty., Terry J. Knoepp and Charles R. Hayes, Deputy Dist. Attys., for plaintiff and appellant.

Crobarger & Tessem and Roger C. Crobarger; Dougherty & Wolfe and Wallace E. Wolfe, Gerald S. Mendell, San Diego, for defendants and respondents.

OPINION

GERALD BROWN, Presiding Justice.

The People appeal an order dismissing an indictment (Pen.Code § 1358), following the superior court's order suppressing evidence (Pen.Code § 1538.5).

A confidential informant told F.B.I. special agents that Mary Jones (defendant) was illegally bookmaking. In June 1971, upon application by an assistant United States attorney and a special agent, the United States District Court authorized a 20-day tap of Jones' telephone (United States Code, Title 18, Section 2510(7)). Twenty original tape recordings of monitored telephone conversations were given to the San Diego County District Attorney and were introduced into evidence in a grand jury proceeding. The grand jury indicted Jones and other defendants with conspiracy to commit bookmaking (Pen.Code §§ 337a, 182.1), and other related crimes. The court held the wiretap evidence was legally obtained under the United States statute, but suppressed it, reasoning the evidence is inadmissible in California under Penal Code section 631.

Penal Code section 631 states:

'Any person who . . . intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire . . . is punishable by a fine . . . or by imprisonment . . . or by both . . ..

'. . .rso

'Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial . . . proceeding.'

Penal Code section 633 qualifies section 631:

'Nothing in Section 631 . . . shall be construed as rendering inadmissible any evidence obtained by the abovenamed persons (law enforcement and police officers) . . . which they could lawfully overhear or record prior to the effective date of this chapter.'

Before Penal Code section 631 was enacted, old Penal Code section 640 prohibited wiretapping. Section 640 did not provide specifically for excluding illegally obtained evidence; evidence obtained in violation of section 640 would not necessarily have been inadmissible unless a constitutional right was also violated. Penal Code section 631 specifically makes inadmissible any evidence obtained in violation of it. The exception provided by section 633 makes admissible any evidence which would have been lawfully Obtained before enactment of section 631. Sections 631 and 633 exclude evidence which would have been excluded before enactment of section 631; also excluded is all evidence unlawfully obtained under section 631 which would have been unlawfully obtained under old section 640.

Section 631 makes unlawful any 'unauthorized' wiretap. Old section 640, from which section 631 was derived, also proscribed unauthorized wiretaps. The authorization required for a legal wiretap under section 640 was the consent of the subscriber to the telephone, and the consent of the telephone company (People v. Trieber, 28 Cal.2d 657, 662--664, 171 P.2d 1). Jones, the subscriber to the telephone bugged in this case, did not consent to the tap. The wiretap, therefore, would have been unlawful under old section 640, and the exception provided by section 633 does not apply. Trieber's interpretation of the word 'unauthorized' applies to section 631 (People v. Superior Court (Young), 13 Cal.App.3d 545, 548, 91 Cal.Rptr. 699). The evidence in question, obtained without the required authorization, was unlawfully obtained under section 631, and was therefore properly excluded.

The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. sections 2510--2520, provides, among other things, a uniform procedure for obtaining federal court authorization for phone taps. While this law has allowed federal officers to tap phones in California in a manner not authorized by state law, the purpose of the Federal Law is not to circumvent state law, but to 'protect effectively the privacy of wire and oral communications . . ..' (...