People v. Suite, Cr. 19249
| Decision Date | 31 January 1980 |
| Docket Number | Cr. 19249 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Alan SUITE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
August B. Rothschild, Jr., San Francisco, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler, Robert M. Foster, Deputy Attys. Gen., San Diego, for plaintiff and respondent.
Larry Alan Suite appeals from the judgment entered after he pled guilty to two counts of possession of a destructive device or explosive in a public place. (Pen.Code, § 12303.2.) His guilty plea followed the denial of his motions to dismiss and to suppress certain evidence. (Pen.Code, §§ 995, 1538.5.)
Appellant contends the trial court erred in not suppressing evidence obtained when state university police arranged for a "trap" of their own telephone line in an effort to locate the source of several bomb threats, and when the police also tape-recorded those threatening calls. We disagree. We conclude that "trapping" is not conduct prohibited by PENAL CODE SECTION 6311, subdivision (a), that the taping procedure did not violate the statutory prohibition against recording of a confidential conversation, and that neither the "trapping" nor the tape-recording violated appellant's rights under either the Fourth Amendment to the United States Constitution or article I, section 13 of the California Constitution.
Early in the morning of December 5, 1977, an anonymous caller telephoned the emergency police phone number at California State University at San Jose, and reported that a fake bomb had been placed on a stairway of Duncan Hall, a campus building. The call was automatically tape-recorded, as are all emergency calls to the university police. The university police officers dispatched to that location found a shoe box, which contained the burned pieces of a propane tank, a battery, a clock, and a rocket engine, all described by one expert as the remains of an improvised explosive device. At least three other anonymous calls were received on that day, all reporting the placement of bombs, set to go off, in various university buildings. Three buildings were evacuated and searched, but no bombs were found.
Later the same day, the university police requested Pacific Telephone to put a "trap" on the university's emergency lines. In the San Jose area, where all telephone switching is done by computer, that computer is ordinarily programmed to retain a record of all calls made From every number, for billing purposes. When a "trap" is made, the computer is programmed to record and print out, if requested, the phone number source of all calls To a given number.
On December 6, Robert G. Fowler, an assistant professor of biology at the university, received an anonymous call from someone claiming to have placed the device in Duncan Hall. The caller told Fowler that unless he cancelled the genetics exam scheduled for the next day, some of his students would be hurt. Fowler then compiled a list of his students who were "significantly below average" in their grades at that time; appellant was among them.
Later that day, campus police went to an office in the school's Business Tower in response to a call from a custodian. An officer found pieces of twisted metal and part of an electric charcoal starter, which appeared to be the remains of an explosion. The next day, December 7, at 7 a. m., university police received another anonymous call, asking if they had found the "goodie" or "toy" in the Business Tower. The printout from the trap indicated that the call came from appellant's phone number.
About an hour later, campus police received a call reporting that a bomb had been placed in the Old Science Building, which was the building where Prof. Fowler's exam was to be held. The trap revealed the call came from a campus pay phone.
Appellant was then arrested. A search of his residence and garage, conducted with his consent, disclosed a propane canister and other items.
First, appellant contends that trapping of a phone line is an "unauthorized connection" prohibited by Penal Code section 631, subdivision (a), and that the evidence obtained thereby is inadmissible.
Section 631 is part of the state's Invasion of Privacy Act ( §§ 631-637.3; People v. Conklin (1974) 12 Cal.3d 259, 263, 114 Cal.Rptr. 241, 522 P.2d 1049). Section 631, subdivision (a) provides in pertinent part: "Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or Makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, . . . or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, . . . or who uses, or attempts to use . . . any information so obtained . . . is punishable by a fine . . . or by imprisonment." (Emphasis added.) Section 631, subdivision (c) provides that no evidence obtained in violation of the section shall be admissible in any judicial proceeding.
The term "unauthorized connection" is undefined by statute. In early cases involving former section 640, the antecedent of section 631, identical language prohibiting an "unauthorized connection" to a telephone line was construed to prohibit a subscriber to telephone service from connecting his own equipment (i. e., an extension line) to his phone line without permission of the Telephone Company. The consent of both the subscriber and the phone company was required for such a connection to be "authorized." (See, e. g., People v. Trieber (1946) 28 Cal.2d 657, 662-663, 171 P.2d 1; see also Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1202.) However, trapping is not analogous to this form of "unauthorized connection," which in effect was an attempt to utilize the company's line without payment.
More frequently, the prohibitions of section 631, subdivision (a) have been applied to prevent wiretapping or other similar interception of the content of telephone conversations. The Supreme Court's recent discussion of the scope of section 631 in Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 148 Cal.Rptr. 883, 583 P.2d 737, is instructive. At issue in Travernetti was whether a telephone company employee's conduct in intercepting a private phone conversation and then disclosing its contents to law enforcement officers violated section 631. The court stated: "Section 631, subdivision (a), broadly prohibits the Interception of wire communications and disclosure of the contents of such intercepted communications " (p. 190, 148 Cal.Rptr. p. 885, 583 P.2d p. 739, emphasis added). The court then stated: "Subdivision (a) of section 631 prescribes criminal penalties for three distinct and mutually independent patterns of conduct: intentional wiretapping, wilfully attempting to learn the contents or meaning of a communication in transit over a wire, and attempting to use or communicate information obtained as a result of engaging in either of the previous two activities" (p. 192, 148 Cal.Rptr. p. 887, 583 P.2d p. 741).
The scope of section 631, subdivision (a) was also discussed in People v. Conklin, supra, 12 Cal.3d 259, 114 Cal.Rptr. 241, 522 P.2d 1049, where the court considered whether regulation of wiretapping was preempted by federal law. The court stated: "The state Invasion of Privacy Act ( §§ 630-637.2) forbids wiretapping ( § 631) and electronic eavesdropping ( § 632) except by law enforcement officers where such activity was permitted prior to enactment of the state act ( § 633) and with other limited exceptions (see, e. g., § 633.5)" (p. 263, 114 Cal.Rptr. p. 243, 522 P.2d p. 1051).
Trapping of the police emergency lines here neither intercepted nor revealed the content of any communication, but instead only disclosed the telephone numbers of the callers.
Appellant then relies on section 630, a legislative declaration of policy, to argue that section 631 must be interpreted broadly to prohibit trapping as a new method of electronic surveillance not in existence at the time of its passage. 2 However, section 630 does not support appellant's argument; instead, that section strongly reinforces the conclusion that the Legislature's concern was to prevent secretly listening to the Contents of private conversations, or eavesdropping. Trapping is not eavesdropping.
Appellant also contends that the trapping violated California's constitutional prohibitions on unreasonable search and seizure, because no warrant was obtained before the trap was initiated. Appellant's contention evidences a fundamental misunderstanding of the constitutional principles involved.
Under certain circumstances, the warrantless seizure of telephone company records of calls made to and from an individual's home, office, or hotel room may violate article I, section 13 of the California Constitution. 3 Whether a caller is at home, in his office, or in a hotel room, he has a reasonable expectation that records of the Private calls he makes will be utilized only for accounting and billing purposes. 4 (People v. Blair (1979) 25 Cal.3d 640, 654-655, 159 Cal.Rptr. 818, 602 P.2d 738; People v. McKunes (1975) 51 Cal.App.3d 487, 492, 124 Cal.Rptr. 126.) "(T)he critical issue is whether there is an expectation of privacy in the information sought." (Blair, 25 Cal.3d at p. 654, 159 Cal.Rptr. at p. 827, 602 P.2d at p. 747.)
Appellant's reliance on these cases is sorely misplaced....
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