Tavernetti v. Superior Court

• Decision Date: 22 September 1978
• Citation: 22 Cal.3d 187,148 Cal.Rptr. 883,583 P.2d 737
• Court: California Supreme Court
• Parties: , 583 P.2d 737 Thomas Fredrick TAVERNETTI et al., Petitioners, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30895.

Page 883

148 Cal.Rptr. 883

22 Cal.3d 187, 583 P.2d 737

Thomas Fredrick TAVERNETTI et al., Petitioners, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 30895.

Supreme Court of California, In Bank.

Sept. 22, 1978.

Dean A. Goetz, Solana Beach, under appointment by the Supreme Court, Livingston, Grant, Stone & Kay, Laurence D. Kay, Maureen C. McGowan, San Francisco, Cronin & Cronin and Daniel J. Cronin, Escondido, for petitioners.

Glen L. Moss, Moss & Murphy, Hayward, Margaret C. Crosby, Alan L. Schlosser and Amitai Schwartz, San Francisco, as amici curiae on behalf of petitioners.

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman, D. Michael Ebert and Richard D. Huffman, Deputy Dist. Attys., for real party in interest.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Jay M. Bloom, Deputy Attys. Gen., as amici curiae on behalf of real party in interest.

MOSK, Justice.

In this petition for writ of prohibition, we must decide whether a telephone company employee's conduct in intercepting private telephone conversations or in subsequently disclosing to law enforcement authorities the contents of such conversations violated either federal or state law concerning wiretapping and eavesdropping.

The following events gave rise to this prosecution: in November 1976 the Escondido police sought a warrant to search certain premises on the basis of an officer's affidavit, the sole source of information for which was the contents of two intercepted private telephone calls. The affiant, Officer Mosemak, declared that he had been contacted by Joseph Maco, a lineman for the Pacific Telephone Company assigned to "trouble shoot" and repair line malfunctions, and informed that Maco, while testing a line for a malfunction, cut in on a conversation and heard the party calling from the telephone unit offer 100,000 "bennies" for sale at $5,000. Some time later, Maco cut in on another conversation and heard the same voice offer to sell "pharmaceutical quality type 'bennies' in the quantity of one million . . . in minimum lots of 100,000 at $5,000 per lot." Maco stated that he cut in on these conversations because, having metered the line electronically, he "was of the opinion that there was a malfunction in the line each of the two times. . . . (and) each time he cut in on the line he listened for a short time and did not monitor the entire conversation."

A warrant was issued and the subsequent search produced a quantity of capsules, seeds, "green vegetable matter," and other evidence. Following a preliminary examination at which this evidence was presented, defendants were charged by information with cultivation of marijuana (Health & Saf. Code, § 11358), possession of marijuana for sale (Health & Saf. Code, § 11359), and possession of controlled substances (Health & Saf. Code, §§ 11350, 11377).

Defendants then moved to set aside the information pursuant to Penal Code section 995 on the ground that all of the evidence adduced at the preliminary examination to establish probable cause was illegally seized and therefore should have been suppressed. They claimed the search warrant should not have been issued because the only evidence presented to support it was obtained in violation of federal law regulating wiretapping (18 U.S.C. §§ 2510-2520) and the California Invasion of Privacy Act (Pen. Code, §§ 630-637.2), both of which statutory schemes contain exclusionary provisions. Their motion was denied by the trial court, and defendants now seek relief from this ruling in the form of a writ of prohibition restraining the respondent court from conducting further proceedings against defendants in this action.

We first consider the interplay between the federal and state provisions which defendants invoke. In People v. Conklin (1974) 12 Cal.3d 259, 273, 114 Cal.Rptr. 241, 522 P.2d 1049, we concluded that the proscriptions of Penal Code section 631 the state provision upon which defendants rely are enforceable because the federal act was not intended to occupy the entire field of wire communications and electronic surveillance to the exclusion of state regulation (Id. at p. 266, 114 Cal.Rptr. 241, 522 P.2d 1049), and section 631 does not impair the attainment of federal objectives, but rather aids in fulfilling the purposes of federal law (Id. at pp. 270-272, 114 Cal.Rptr. 241, 522 P.2d 1049). Thus, if we determine that the telephone company employee's conduct violated section 631, activating the exclusionary rule contained therein as we do we need not consider whether such conduct was also in violation of the federal provisions asserted. (See also Comment, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1199-1200.)

Section 631, subdivision (a), broadly prohibits the interception of wire communications and disclosure of the contents of such intercepted communications. Defendants claim that the conduct of the telephone company employee herein fell within the proscriptions of subdivision (a), thus invoking the exclusionary rule of subdivision (c) and rendering inadmissible in any judicial or other proceeding evidence concerning the contents of the private telephone conversations overheard. The People counter by contending that the exception set forth in subdivision (b) in favor of public utilities engaged in the business of providing communication services and their employees is applicable, thus protecting the activities of this employee. ¹

It is clear that the telephone company employee whose conduct is challenged committed acts which, unless excepted by subdivision (b), are punishable by fine and imprisonment. It is undisputed, for instance, that twice he intentionally tapped a telephone wire, an act expressly proscribed in subdivision (a). The trial court, however, made certain factual findings that undercut defendants' position. The court, in denying the motion to set aside the information, impliedly found that the employee tapped the telephone wire "for the purpose of construction, maintenance, conduct or operation of the services and facilities" of the telephone company, and was thus exempted by subdivision (b)(1) from criminal liability therefor. Likewise, defendants' contention that the employee "willfully and without the consent of all parties" attempted to learn the contents of the conversations intercepted another act proscribed by subdivision (a) was rebuffed by an implied finding that the employee, once he had intentionally tapped the line in the course of his duties, attempted only to determine whether there was a malfunction in the line and then terminated the interception. Because we conclude the employee's conduct in disclosing the contents of the conversations overheard violated subdivision (a), we need not decide whether the trial court's implied findings of fact should be disturbed. ²

The People argue, alternatively, that the employee's disclosure of the contents of conversations overheard during the course of his intentional wiretaps was not violative of subdivision (a) either because disclosure of information learned during a legal interception cannot violate section 631, or because the disclosure herein protected the interests of the telephone company and thus came within the exemptive provisions of subdivision (b), as the trial court impliedly found.

We reject the assertion that disclosure of the contents of a private telephone conversation is not barred by subdivision (a) when such contents are obtained by an intentional, albeit legal, wiretap. To accept that concept would contravene the unambiguous language of section 631 and the clearly expressed purpose of the Legislature in enacting the Invasion of Privacy Act. 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. When the contents of a private wire communication, e. g., a telephone conversation, are intercepted by one not a party to the communication, disclosure is to be penalized, subject only to exemption under the terms of subdivision (b). That subdivision (b) may apply to exempt the initial interceptive conduct does not affect statutory application to subsequent disclosure, for as the Legislature has recognized, divulging the contents of an intercepted communication is an independent act that further intrudes on the privacy of the parties to the communication, beyond the intrusion occasioned by the initial interception.

To effectuate the legislative purpose expressed in section 630 "The Legislature by this chapter intends to protect the right of privacy of the people of this state" and reflected in the structure and language of section 631, we hold that disclosure of the contents of a private telephone conversation, intercepted by means of an intentional wiretap, is illegal under section 631, subdivision (a), unless within the carefully limited exemptive provisions of subdivision (b). This is the rule regardless of the original legality of the interception.

We must therefore determine whether the telephone company employee's Disclosure was "for the purpose of construction, maintenance, conduct or operation of the services and facilities" of the telephone company so as to bring such disclosure within the exemption provided in subdivision (b)(1). The People may not assert an implied finding of fact by the trial court to establish the application of subdivision (b)(1), for the ruling of the court below appears to have been based on the erroneous legal conclusion, urged by the People before this court, that disclosure for whatever purpose is not...