People v. Murtha

• Decision Date: 01 April 1993
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Francis MURTHA, Defendant and Appellant. A049473.

Page 324

18 Cal.Rptr.2d 324

14 Cal.App.4th 1112

The PEOPLE, Plaintiff and Respondent, v. John Francis MURTHA, Defendant and Appellant.

A049473.

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

April 1, 1993.

Rehearing Denied April 27, 1993.

Review Denied July 22, 1993.

[14 Cal.App.4th 1114] Elizabeth Bader, First Dist. Appellate Project, under appointment by the Court of Appeal, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., John R. Vance, Jr., Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Justice.

Appellant John Francis Murtha appeals following his conviction, based upon a plea of nolo contendere, to a charge of residential burglary. (Pen.Code, §§ 459, 460, former

                subd. 1.)   He asserts the court erroneously denied his motion to quash the search warrant and suppress the seized evidence.  We affirm
                

STATEMENT OF THE FACTS

On September 12, 1989, Officer Anthony Welch of the Suisun City Police Department received a telephone call from Sergeant Cimino of the Fairfield Department of Public Safety. Cimino told Welch he had received an anonymous tip that appellant and Anthony Moraga were going to commit a burglary in Suisun City. The informant reported that appellant and Moraga were going to meet at a Round Table Pizza restaurant in Fairfield, and were then going to burglarize a white house with green trim on Buena Vista Avenue in Suisun City. The informant could not provide the address, but indicated that a blue 4-wheel drive vehicle would be parked in front of the house.

Officers Welch and Rowe drove to Buena Vista Avenue and determined that the house at 52 Buena Vista matched the informant's description. The officers performed a security check on the home, and found the rear sliding glass door closed, but unlocked. There were no signs of forced entry and the interior of the home appeared undisturbed. Officer Welch left a business card on the door, requesting the owners to contact him.

Later that day, Officer Smothers of the Suisun Police Department was dispatched to 52 Buena Vista to investigate a residential burglary. The victim, Richard Reed, reported that a pager, a wedding ring and tools were taken from his home.

On September 14 Officer Smothers told Welch a confidential informant had given him a tape cassette containing a conversation between appellant and Moraga in which they discuss robbing a house in the informant's neighborhood. The informant stated that he or she has known both appellant and Moraga for a long period of time.

The tape contained two conversations between appellant and Moraga. In the first conversation they discuss a "job to do," and note that there are guns and money at Tom's house. The two agree to meet at Round Table Pizza in Fairfield to discuss the "job." In the second conversation the men say they are ready and agree to meet by a fence "right now."

At the preliminary hearing Officer Welch stated he knew it was illegal to surreptitiously tape record other parties' telephone conversations. He nonetheless included the information gathered from the tape in the affidavit he prepared in support of the search warrant because he believed that so long as the tape was made by a private citizen, and not a police officer, it could be used as evidence. Welch testified he discussed the use of the tape with his supervisor, who told him he could include the information from the telephone conversation in the affidavit. Finally, Officer Welch admitted he had not disclosed in his affidavit that the tape of the suspects' conversation was illegally recorded.

Officer Welch obtained a search warrant and searched Moraga's home on September 15. During the search a PacTel pager was discovered in Moraga's bedroom and Moraga was placed under arrest. Subsequently, appellant's home was searched and he too was arrested for the burglary. Moraga initially claimed he committed the burglary alone; however, after he listened to the tape-recorded conversations, he admitted appellant had helped him.

STATEMENT OF THE CASE

On September 19, 1989, a complaint was filed in Solano County Municipal Court charging appellant with residential burglary. (Pen.Code, §§ 459, 460, former subd. 1.)

On October 13, 1989, appellant filed a motion to quash search warrant and suppress evidence, and on November 9 filed supplemental points and authorities in support of the motion. The District Attorney filed opposition papers on November 27. On November 30, following a hearing on the matter, the magistrate denied the motion, concluding (1) the information on the tape was properly included in the affidavit; and (2) Officer Welch had not recklessly omitted information from the affidavit. On December 15 appellant was arraigned in On January 25, 1990, appellant filed a motion to traverse and quash search warrant and suppress evidence in the superior court; this was denied on February 21, 1990.

Superior Court on an information filed December 14, 1989.

On March 1, 1990, appellant entered a plea of nolo contendere. He was thereafter placed on probation for three years, and was ordered to serve a concurrent sentence of 180 days in the county jail. Appellant was also ordered to pay restitution fines and perform 100 hours of community service.

This timely appeal followed. In November 1991, we issued an opinion affirming the conviction. We subsequently granted appellant's petition for rehearing. ¹

DISCUSSION

I.

Appellant contends the court erred in denying his motion to quash the search warrant because the affidavit included evidence that was illegally obtained.

In 1968 the United States Congress enacted the Omnibus Crime Control and Safe Streets Act. (18 U.S.C. § 2510 et seq., the "Act.") Title III of the Act makes it a crime for any person to surreptitiously intercept others' wire or oral communications unless prior authorization for the interception is obtained in accordance with the provisions of the Act. ² Section 2515 contains a broad suppression provision that guards against the use of any illegally intercepted evidence: "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." As appellant correctly notes, the Act applies to private parties, since section 2511 forbids interception by "any person," and a "person" is defined as "any employee, or agent of the United States or of a State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation." (18 U.S.C. § 2510(6), italics added.)

The parties agree that the taped conversations given the police were surreptitiously intercepted. ³ Appellant argues Title III therefore absolutely precludes the use of the tape to support the search warrant. In response, the People maintain the Act does not apply here because the tape was made by a private party and the police were not involved in any wrongdoing.

Several federal cases have examined the application of Title III where the tape recording is made by a private party, rather than the government. In U.S. v. Vest (1st Cir.1987) 813 F.2d 477 the defendant, a police detective, was indicted for making false statements before a grand jury. He The government claimed the exclusionary rule of section 2515 was inapplicable because it was the "innocent recipient, rather than the procurer," of the illegally intercepted communication. (813 F.2d at p. 480.) The government argued, as the People do in this appeal, that because the purpose of section 2515 was to deter further violations of the Act, the statutory objectives would not be served by applying the exclusionary rule against the government where it is merely the innocent recipient of the recording.

moved to suppress a privately made recording of a transaction proving (contrary to his statements under oath) that he accepted payments on behalf of another detective to ensure police efforts to protect an accused man from imprisonment. The accused man, Waters, testified at the suppression hearing that he made the tape to create a record in the event the officers denied that payment had been made.

The court in Vest rejected this argument, concluding section 2515 was not solely intended to deter violations of the Act. The court noted that "the protection of privacy was an overriding congressional concern" when Title III was passed (813 F.2d at p. 481, quoting Gelbard v. United States (1972) 408 U.S. 41, 47-52, 92 S.Ct. 2357, 2360-2363, 33 L.Ed.2d 179) and observed that "an invasion of privacy is not over when an interception occurs, but is compounded by disclosure in court or elsewhere. The impact of this second invasion is not lessened by the circumstance that the disclosing party (here, the government) is merely the innocent recipient of a communication illegally intercepted by the guilty interceptor...." (813 F.2d at p. 481.)

The court in U.S. v. Underhill (6th Cir.1987) 813 F.2d 105 reached the opposite conclusion on similar facts. In that case, the defendants, participants in an illegal gambling enterprise, sought to suppress recordings of telephone conversations some of them had made in the course of running their gambling operation. The court refused to suppress the evidence on two grounds. First, the court concluded "Congress did not intend for § 2515 to shield the very people who committed the unlawful interceptions from the consequences of their wrongdoing." (813 F.2d at p. 112.) The court also reasoned that Underhill waived his right of privacy with respect to these conversations by "(his] deliberate act of causing them to be...