People v. Mahoney

• Decision Date: 29 April 1975
• Docket Number: Cr. 25884
• Citation: 47 Cal.App.3d 699,122 Cal.Rptr. 174
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Lee MAHONEY, Sr., Defendant and Appellant.

Page 174

122 Cal.Rptr. 174

47 Cal.App.3d 699

The PEOPLE, Plaintiff and Respondent, v. Robert Lee MAHONEY, Sr., Defendant and Appellant.

Cr. 25884.

Court of Appeal, Second District, Division 3, California.

April 29, 1975.

Hearing Denied June 26, 1975.

Herbert Dodell, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

POTTER, Associate Justice.

By an information filed by the District Attorney of the County of Los Angeles, defendant was charged with a violation of section 502.7(a)(4) of the Penal Code (fraudulently avoiding a lawful charge for telephone service by rearranging, tampering with or making connection with telephone facilities). Appellant pleaded not guilty and made a motion to suppress evidence under Penal Code section 1538.5. After a hearing, this motion was denied. Thereafter the information was amended to delete the allegation that the phone services obtained in violation of the section aggregated 'over $200.00 with(in) a 12 consecutive month period' (which would make the offense a felony under subdivision (f) of section 502.7) and to add a count II alleging violation of subdivision (b) of section 502.7 (making, possessing, selling or otherwise transferring a device used to avoid lawful telephone toll charges).

Defendant pleaded guilty to both counts as amended. The proceedings were suspended as to each count and defendant was granted probation for a period of three years, after both offenses were declared misdemeanors.

Defendant has appealed from the judgment (order granting probation) to review the denial of the motion under section 1538.5, pursuant to subdivision (m) of said section.

Facts

The offenses with which defendant was charged were the use and manufacture of multifrequency signal generators designed to enable the user to circumvent the telephone company's billing equipment and thereby avoiding long distance toll charges. The device, commonly referred to as a 'blue box,' is capable of emitting audio signals at various frequencies, duplicating those generated in the telephone company's long distance network in the completion of long distance calls. Once the user has entered the long distance network by dialing a toll free (800) long distance number, the blue box, by sending a 2600 cycle tone, disconnects the terminal portion of the long distance train but retains a connection to the long distance network. Then a different frequency signal commanding the equipment to receive additional instructions is sent. Following this, a series of signals corresponding to the numerical components of the desired number are transmitted by the blue box and ultimately a terminal signal telling the equipment to execute the call to the new number is sent.

The user avoids toll charges through this method by virtue of the fact that the local billing equipment collects and stores only the initial directly dialed numerical signal, in this case a toll free 800 number. If the covert number is answered, the billing equipment records completion of the call and its duration but no charge therefor is included in the bill sent to the subscriber.

On March 5, 1973, Walter P. Schmidt, a special agent for the General Telephone Company of California, received a tip from a security agent of the Southern Bell Telephone Company in Atlanta, Georgia. This tip was to the effect that a person under investigation for use of a blue box in Georgia reported that a Mr. Lazarus, from whom he had purchased it, advised him defendant was 'the person who manufactured and repaired the box.' In addition, the Atlanta informant advised Schmidt that defendant was a subscriber of General Telephone Company and gave his phone number.

Schmidt's function as special agent was 'to protect the assets of the company' and his assignments included 'investigation of toll fraud.' To ascertain whether defendant was employing a blue box, Schmidt called for a computer print out of the records routinely kept showing the originating number and the number dialed in all telephone calls from subscribers' phones. These records included the 800 numbers dialed, if they were long distance, despite the fact that no charge was made therefor. Knowing that 800 numbers are customarily used as a means of entry into a long distance network when toll fraud is accomplished through the use of a blue box, Schmidt obtained and examined the computer print out of all of the 800 numbers called from defendant's telephone from January 10, 1973 through March 21, 1973. This print out showed 134 calls from defendant's number to 800 numbers. One of these numbers, with the prefix 800--654 (assigned to the State of Oklahoma) was shown to have been called 120 times and to have been answered each time with conversations of from one to several minutes in length. This number was, however, a nonworking number, which meant that if the call had not been rerouted after the original dialing from defendant's phone, it could not have been answered. Various other nonworking numbers were similarly reported as having been called and having been answered.

From this print out Schmidt formed the opinion that a blue box was being employed on defendant's phone.

To verify this conclusion, Schmidt attached a dial number printer with a magnetic tape recorder to defendant's line. This equipment had the capability of detecting and recording the original 800 number dialed. This equipment also recognized and printed a record of the 2600 cycle tone and the subsequent multifrequency signals redirecting the long distance call to a number other than the 800 number dialed. On order (1) to back stop this latter function, (2) to verify the fact that the call was completed by the called party answering, and (3) to identify the calling party (as opposed to the station), the equipment included a magnetic tape recorder which was also activated when and only when the 2600 cycle tone was transmitted. To permit accomplishment of these three functions, the tape recorder continued in operation for a period of one to one and a half minutes and then automatically shut off until the next 2600 cycle was transmitted.

The original installation of this equipment continued from March 16 through March 27. During this interval it recorded a very large number of network entries employing the 2600 cycle signal, a substantial number of which were to the same three stations: an aeronautics school in Tulsa, Oklahoma, an instrument company in Shiller Park, Illinois, and a general Electric Company facility in Bethesda, Maryland. Though the vast majority of these calls did not produce any conversation from defendant's phone, ¹ on at least some of the calls defendant identified himself and explained the operation of the blue box.

Results of Schmidt's surveillance verified his analysis of the original computer information and confirmed that a blue box, or blue boxes, were being used on defendant's phone and that defendant was using such device. The large number of unsuccessful test entries suggested further that defendant was manufacturing the devices and testing them in this fashion.

On the basis of this data, Schmidt prepared a report, stating his conclusion in this respect for the purpose of submitting it to law enforcement agencies. The report was prepared on April 11, 1973, and was submitted to the United States Attorney on April 13, 1973. The United States Attorney declined to prosecute. Thereafter, on May 14, 1973, Schmidt contacted Mr. Ralph Mayer of the Los Angeles County District Attorney's office and told him that, in his opinion, 'we had a 'blue box' operating from the specific telephone number.' Mayer requested that he be permitted to see the report prepared by Schmidt and it was submitted to him on May 14. Schmidt did not at that time relate any of the conversation recorded between March 16 and March 27. ²

The surveillance equipment was again attached to defendant's phone line on May 18, 1973, for a period of 48 hours 'to check that the fraud was continuing.' This surveillance produced additional data of the character obtained in the March 16 to March 27 interval. A further report summarizing the result of this operation was prepared by Schmidt and submitted to Mayer on May 30, 1973. Again no conversation was related in that report.

On August 15, 1973, to confirm 'whether the fraud was continuing,' the printed portion only of the surveillance equipment was reattached to defendant's telephone line to record each network entry by means of an 800 number followed by redirection of the call through employment of the 2600 cycle signal. This attachment continued until August 17 (on which date defendant was arrested incident to a search of his home pursuant to a warrant issued August 16, 1973). Use of the blue box on defendant's phone was thus shown to be continuing.

The warrant was issued by the magistrate on the basis of an affidavit of Joe B. Medina, investigator for the Los Angeles County District Attorney's office, setting forth the above facts but without reference to the content of any of the phone conversations.

The search warrant authorized a search of defendant's house for blue boxes, drawings, parts and tools used in the assembly of such equipment in testing it, as well as records, manufacture instructions for use, and articles of personal property tending to establish the identity of persons in control of the premises and such devices. When this warrant was executed on August 17, 1973, there were numerous items of physical evidence seized, including several blue boxes, a substantial quantity of component parts, testing equipment and records.

In the 1538.5 motion, defendant, without specifying each item, sought to suppress 'any information which was obtained from Mr. Schmidt's use of wire tapping...