People v. Potter

• Decision Date: 07 March 1966
• Docket Number: Cr. 2139
• Citation: 240 Cal.App.2d 621,49 Cal.Rptr. 892
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James J. POTTER and Harvey G. Wolfe, Defendants and Appellants.

Page 892

49 Cal.Rptr. 892

240 Cal.App.2d 621

PEOPLE of the State of California, Plaintiff and Respondent, v. James J. POTTER and Harvey G. Wolfe, Defendants and Appellants.

Cr. 2139.

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

March 7, 1966.

Rehearing Denied March 28, 1966.

Hearing Denied May 4, 1966.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

Heinly, Hewett, Rickles & Heinly, by William A. Dougherty, Santa Ana, for defendants and appellants.

KERRIGAN, Justice.

The record discloses that on April 17, 1964, an Information was filed in the Orange County Superior Court charging the two defendants in three counts of violation of Penal Code, § 640 (wire tapping), and in the fourth count of violation of Penal Code, § 182 (conspiracy).

A jury trial ensued and during the trial Count III (wire tapping) was dismissed. The jury could not agree as to Count I (wire tapping) but returned a verdict finding both defendants guilty of Counts II (wire tapping) and IV (conspiracy).

The defendants were sentenced to one year in the county jail, misdemeanors, the sentences were suspended and each defendant was placed on probation for a period of three years.

STATEMENT OF FACTS

The evidence discloses that in March 1964, there was located at Seal Beach, California, a huge housing development known as 'Rossmoor Leisure World Project,' which consisted of nearly 6000 separate apartments or dwelling units. This substantial residential tract was controlled by multiple corporations. The Golden Rain Foundation was the management firm for the entire Project and held title to the facilities commonly used by all of the residents Residents were advised by Foundation's officers and employees not to enter the attic in their building inasmuch as there was always the possibility of disengaging or moving someone else's antenna, and were informed that the proper procedure would be to contact the management firm for any repairs or services required to be performed in the attic area.

including the recreational club houses, streets, water systems and sewers. The apartments were owned by sundry mutual corporations, and the Foundation had an agreement with each corporation whereby it maintained the streets, yards, grounds and recreational facilities for the benefit of all residents. Each building owned by a mutual corporation contained 12 separate apartments and every building had a common attic, access to which attic was usually gained by the use of a ladder and removal of an unlocked aluminum louvered window. In the attic there existed individual antennae for each of the 12 apartments.

Each resident acquired a stock certificate in the mutual corporation which owned the building in which he resided, together with a certificate of membership in the Foundation entitling him to all of the privileges of the common facilities.

Lewis Letson was the administrator of the Foundation and thus was in charge of all the management operations of the Foundation and the Project. Information came to him through a local city official to the effect that it might be well to conduct an investigation of one of the residents of the Project, Lloyd Gummere. Letson retained a licensed private investigator, the co-defendant Wolfe, to conduct an investigation in early March 1964. During their conversation, Letson informed Wolfe that he had been advised by the Seal Beach Police in connection with a prior, unrelated investigation that it was possible to install a hidden microphone in the apartment of a suspect in order to obtain evidence. Under the retainer agreement, Wolfe was to be employed by the Foundation for the sum of $300.00 per diem for a minimum of seven days. Wolfe advised Letson he would undertake the investigation, but did not inform Letson as to the specific methods he would use to obtain the information desired; however, he would have a party who would identify himself as 'Mr. Evans' contact Letson in the near future.

Thereafter, on Monday, March 9, 1964, 'Mr. Evans,' who, in reality was the co-defendant Potter, visited the Project and was given authorization by Letson to inspect the building where Gummere lived. One of the employees of the Project was instructed to introduce Potter as a representative of a bonding company that wanted to check the roofs of some of the buildings. Later in the day, Potter was seen by several witnesses going into the common attic in Gummere's building, having gained entrance by the use of a ladder.

The following day, Gummere noticed that his television set was not functioning properly and was not receiving any picture. He turned off the set and did not engage it again until Thursday evening, when a gross distortion of the picture was observed. He particularly noted a serious impairment in reception of the visual picture whenever the telephone was in actual use, and concluded there was some relationship between the operation of the telephone and the distortion in the television reception. Because he suspected possible wire tapping, he telephoned the city authorities and two officers were sent to his apartment. He authorized them to conduct an investigation of the premises to determine the source of the difficulty, and soon thereafter they summoned him to a telephone junction box which was located outside of the building in a compartment on the exterior wall. There they pointed out an electronics device known as a parasite radio transmitter, which was attached to the terminal lines leading to the telephone in his apartment. The door of the box was open when the officers first observed it.

The telephone junction box was owned by a mutual corporation and the telephone company had an easement for underground After making this discovery, the officers departed with the electronics device intending to determine by testing whether it was functional, and as they were proceeding back to the station, they observed a dark blue 1954 Ford automobile with three antennae. After making a U-turn, they followed the Ford back towards the Leisure World Project and it stopped and parked approximately 100-150 yards from Gummere's apartment. The officers approached the vehicle and heard a loud metallic crackling sound, known as 'high frequency hash.' The co-defendants were in the car, and after the officers identified themselves, Potter made a jerking motion and the crackling noise terminated. There were three receivers in the car, but during interrogation both defendants denied any knowledge of a radio transmitter intercepting telephone messages.

lines but no easement of access on mutual or Foundation property.

The next evening, Saturday, Gummere noticed that the reception was still poor, and the police and telephone company were contacted on the subsequent Monday.

When the service employee of the General Telephone Company arrived, he found another radio transmitter in the attic connected to Gummere's telephone.

Both electronic devices were later tested, found to be operable, and identified as radio transmitters that could convey messages a distance of 1500-2000 feet in a 40 megacycle range.

Further investigation revealed that a piece of adhesive tape, which was removed from the parasite transmitter found in the junction box, contained a fingerprint, which latent print was later identified to be the defendant Potter's.

The police obtained a warrant for the arrest of each of the co-defendants. After being taken into custody, the defendant Wolfe admitted he had been employed by Letson, and that he was operating a radio receiver approximately 150 yards from Gummere's apartment on March 13, 1964, for the purpose of trying to determine if a transmission was being made from a radio transmitter attached to a telephone line in Leisure World.

After Potter's arrest, he freely and voluntarily stated that he had been employed by Wolfe, had received a check in the sum of $150.00 from Wolfe for his services, and that he had been in the attic above Gummere's apartment trying to determine if someone had tapped Gummere's phone. It should be noted that neither defendant confessed to either of the crimes.

The police obtained a search warrant authorizing a seizure of the $150.00 check at Wolfe's bank. The co-defendants were fingerprinted at the sheriff's office and voluntarily signed an acknowledgment of legal rights so that the prosecution could be conducted in Orange County and not in Los Angeles County. Potter's fingerprint identification card was compared with the latent print on the adhesive tape removed from the junction box, and Potter's signature on both the original fingerprint card and on the acknowledgment of legal rights document were compared with the endorsement on the check issued by Wolfe to Potter, and by the use of such exemplars, were identified as Potter's endorsement on the check.

During the trial, the court denied defendants' motion to suppress the introduction in evidence of the two radio transmitters and the adhesive tape, granted the prosecution's motion to amend Count II of the Information to include the words 'wilfully, unlawfully, feloniously and fraudulently,' refused to permit the Information, as amended, to be taken to the jury room after the jury requested the same, allowed the introduction of defendants' extra-judicial statements, and both the court and prosecutor commented on the defendants' failure to testify.

ISSUES RAISED ON APPEAL

Defendants raise the following issues on appeal:

1. That California Penal Code, § 640 (wire tapping), is unconstitutional inasmuch as Congress has pre-empted the field of electronic communications;

2. That Penal Code, § 640, is unconstitutional in that it constitutes an ex post facto statute;

3. That defendants have an absolute constitutional right to be indicted by a grand jury;

4. Thats' evidence was introduced which was obtained as a result of an illegal search...