People v. Santos

• Decision Date: 26 June 1972
• Docket Number: Cr. 20243
• Citation: 26 Cal.App.3d 397,102 Cal.Rptr. 678
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Patrick SANTOS, Defendant and Appellant. . Division 5

Page 678

102 Cal.Rptr. 678

26 Cal.App.3d 397

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Patrick SANTOS, Defendant and Appellant.

Cr. 20243.

Court of Appeal, Second District, California.

Division 5.

June 26, 1972.

Clifford Douglas, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Robert F. Katz and Ronald M. Weiskopf, Deputy Attys. Gen., for plaintiff and respondent.

THE COURT:

Defendant was charged by information with murder. (Pen.Code, § 187.) He pleaded not guilty. A motion to suppress evidence seized pursuant to a search warrant was denied. A motion to suppress a tape recorded conversation between defendant and his wife was also denied. A motion to suppress certain admissions made by defendant to a polygraph interviewer and to investigating officers was granted. A jury was impaneled and presentation of evidence commenced. Defendant then withdrew his not guilty plea and pleaded guilty to first degree murder with the understanding that he would be sentenced to life in prison. (Pen.Code, § 1192.5.) This sentence was pronounced, after formal denial of probation. The appeal is from the judgment. (Pen.Code, § 1538.5(m).)

The affidavit in support of the search warrant contained the following factual allegations: On May 13, 1970, officers found the body of one Michael Kopychinski in a Volkswagen. He had been shot to death. On May 15, 1970, John Burns, a bartender at the Mansfield House, told officers that Kopychinski had been in the Mansfield House on May 12, 1970. Defendant had been in the bar at the same time. Kopychinski had left at 11:30 p.m. Defendant had left immediately thereafter. Burns further told officers that a person known to him as 'Chuck' had told him that defendant had robbed him three weeks earlier.

The affidavit further alleged that one Charles Duncan had identified defendant as the man who robbed him on April 6, 1970, after meeting him in the Mansfield House.

It was further alleged that defendant was arrested May 23, 1970, for the robbery of one Jose Moncada who identified defendant as having robbed him. At the time of his arrest defendant gave his address as 712 South Westlake, apartment 215.

The affidavit further alleged that defendant had a conversation with his wife in the visiting room of the Los Angeles City Police Department Central Jail at about 8:30 a.m., May 26, 1970. Defendant and his wife conversed by means of a telephone intercom system. The conversation was monitored by the affiant, Officer Jacques, and his partner Officer Fox. During the conversation defendant stated, 'I'm in for murder.' ¹ His wife asked whom he had killed. Defendant responded, 'Careful, they've got these phones bugged.' He then whispered what sounded like, 'Get rid of it.' His wife said, 'Okay, I'll sell it.' Defendant whispered, 'Be quiet.' His wife said, 'No, no, I meant the TV.' ²

The affidavit further alleged that after overhearing this conversation, Officer Fox spoke to defendant's wife and told her that he was looking for a gun involved in the murder charge against defendant. She told the officer that there was a gun in a hanging lamp in apartment 215, 712 South Westlake Avenue. Prior to visiting defendant at the jail, she had told the affiant officer that she shared that apartment with defendant.

At the hearing on the motion to traverse the search warrant Officer Jacques testified that the intercom telephone over which defendant and his wife conversed at the jail was not part of any public telephone system. Officer O'Reilly, assigned to the electronic section of the police crime lab, testified that the intercom system in the visiting room at the jail drew its power from the lighting system in the police building. The system was not tied in to any public telephone system and could not be used for any purpose but communication between prisoners and their visitors. The visitors' room was completely separate from the attorney-prisoner interview room.

Mrs. Santos testified that she was placed under arrest by Officer Fox as soon as she left the visitors' room on a charge involving the hiding of evidence. She was told that anything she said could be used against her, but was not advised that she had a right to an attorney. ³ She admitted that after her husband told her that the phones were bugged she no longer felt that her conversation with him was private.

Defendant testified in connection with the motion to traverse the warrant that there were no other persons present in the visitors' room other than he and his wife at the time of their conversation. It was his intention to communicate with her confidentially. He had heard that the police sometimes tapped the phones and suspected that they might have done so, but had no actual knowledge that they had done so and did not intend to give up his right to privacy by conversing with his wife over the intercom.

On this appeal defendant contends that the court erred in refusing to suppress the conversation between defendant and his wife, and in refusing to strike those portions of the affidavit in support of the search warrant relating to that conversation as well as the portions relating to Mrs. Santos' conversation with Officer Fox, without which, it is contended, the affidavit would have been insufficient. Defendant challenges the monitoring of his conversation with his wife on numerous grounds, the first being that it violated the federal statute regulating electronic surveillance (18 U.S.C. §§ 2510--2520). The statute purports to regulate the interception of wire and oral communications, which are defined as follows:

'(1) 'wire communication' means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications;

'(2) 'oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . .' (18 U.S.C. § 2510.)

The conversation between defendant and his wife did not meet the statutory definition of a 'wire communication' since it involved no facility furnished or operated by a common carrier. Furthermore, the court below found that neither defendant nor his wife had an expectation of privacy at the time they conversed and that an expectation of privacy under the circumstances would not have been reasonable. These findings have ample support in the record. The conversation thus was outside the statutory definition of 'oral communication' as well. The federal regulatory legislation therefore does not apply. (Cf. Halpin v. Superior Court, 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295; see also, Senate Report 1097, 2 U.S. Code Cong. & Admin.News 1968, p. 2178.) ⁴

Defendant next contends that the monitoring of his conversation...