People v. McKunes
| Decision Date | 18 September 1975 |
| Docket Number | Cr. 26125 |
| Citation | 51 Cal.App.3d 487,124 Cal.Rptr. 126 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. John P. McKUNES, Defendant and Appellant. |
Richard J. Curran, Fullerton, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Cynthia Sonns Waldman and Stephen M. Kaufman, Deputy Attys. Gen., for plaintiff and respondent.
Defendant was charged with grand theft, in violation of subdivision (1) of section 487 of the Penal Code. After a trial by the court, trial by jury having been waived, he was found guilty as charged. Proceedings were suspended and he was granted probation on conditions hereinafter discussed. He has appealed; we reverse.
Sometime prior to July 1973, various instruments and aircraft parts were stolen from the salvage sales department of McDonnell-Douglas Corporation. Eventually they were discovered in the possession of a company in Illinois. Investigation traced the items back to a sale by a man named Kushner. Kushner testified that he had purchased the items herein involved from defendant, at the latter's home. At the time of the alleged sale by defendant to Kushner, defendant was employed by McDonnell-Douglas in the salvage department.
During the course of investigation of the theft, an investigator for the District Attorney of Los Angeles County secured, without subpoena or other court order, telephone company records of calls between Kushner's phone and the phone at defendant's home and office.
Originally, Kushner had told investigators that he had found the items in a bin containing various items legitimately purchased by him from the salvage department and he denied knowing defendant other than as a man with whom he had dealt in buying parts from McDonnell-Douglas. Faced with the telephone records and a threat of prosecution for receiving stolen goods, Kushner, after having been promised immunity, told the investigators of his dealings with defendant at his home. He testified to that effect at the trial.
The only evidence tying defendant to the theft of the items was that of Kushner and the telephone records showing communications between the two men.
Defendant contends that the action of the investigator (admittedly a state agent) in securing the telephone company records was illegal and that Kusher's statements to the investigator and his trial court testimony were 'tainted fruit' of that illegality. He, therefore, argues that both the telephone company records and testimony about them, and Kushner's trial court testimony, should have been suppressed and that the introduction of that evidence was error.
We think it clear that Kushner's testimony was the 'fruit' of the receipt of the telephone company records and that, if that receipt was unlawful, that Kushner's testimony should have been excluded. (People v. Johnson (1969) 70 Cal.2d 541, 75 Cal.Rptr. 401, 450 P.2d 865.) Absent Kushner's testimony and the records, there was no evidence showing defendant's guilt. The items could have been taken by any of some 27 employees in the salvage department, or they could have been stolen by some other person who had gained access (legally or illegally) to that department.
We turn then to the basic question: Is it a violation of a person's constitutional right of privacy for the government to secure records of telephone calls from the telephone company without having secured a subpoena or other court order? We conclude that a violation of the right of privacy did occur and that the evidence thereby secured, and its fruits, was inadmissible against defendant. It follows that defendant's conviction must be reversed.
Defendant relies on the recent decision of the Supreme Court in Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 238, 529 P.2d 590. In that case, the Supreme Court held that an 'informal' request addressed to a bank by the police for a defendant's bank records was an unlawful search and it ordered the evidence thereby secured suppressed. The People seek to distinguish Burrows on the following grounds: 1 ,(a) that the records were those of the telephone company and not of defendant; (b) that a telephone subscriber does not have the same relation to a telephone company as he does to a bank and, therefore does not have a reasonable expectation of privacy as to the telephone company's records; and (c) that the search in Burrows was held objectionable because of the breadth of the request made to the bank.
The first contention was squarely raised in Burrows and there rejected, the court saying (at page 245, 118 Cal.Rptr. at p. 243, 529 P.2d at p. 595):
The third contention is not supported by any record in this case. The only record as to how the telephone records were obtained is a stipulation that the investigator, if called, would testify as follows:
'That he is employed as an investigator by the office of the Los Angeles District Attorney who represent the People in this case; that in that connection, he obtained from the Pacific Telephone Company the public utility records of telephone conversations between Nathan Kushner, K-u-s-h-n-e-r, and John P. Mc,Kunes, which telephone company records are mentioned in the transcript of the preliminary hearing in this case; that he obtained the aforesaid phone records showing the existence, time and duration of private telephone calls made by Nathan Kushner and the defendant, John P. McKunes; that he obtained those records informally from the aforementioned telephone company without subpoena.'
Although the People utilized only calls between Kushner and defendant, and only calls for a described period, we...
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