U.S. v. Hall, No. 73-2826

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtBefore CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, and KENNEDY; CHOY; DUNIWAY; BROWNING; KOELSCH; CHAMBERS
Citation543 F.2d 1229
Docket NumberNo. 73-2826
Decision Date31 August 1976
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Clara Bell HALL, Defendant-Appellant.

Page 1229

543 F.2d 1229
UNITED STATES of America, Plaintiff-Appellee,
v.
Clara Bell HALL, Defendant-Appellant.
No. 73-2826.
United States Court of Appeals,
Ninth Circuit.
Aug. 31, 1976.
Certiorari Denied Jan. 25, 1977.
See 97 S.Ct. 814

Page 1230

Allan B. Streller (argued), of Silver, Streller & Wells, Los Angeles, Cal., for defendant-appellant.

Jerry L. Newton, Asst. U.S. Atty. (argued), Los Angles, Cal., for plaintiff-appellee.

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, and KENNEDY, Circuit Judges.

CHOY, Circuit Judge:

Clara Bell Hall appeals from a conviction for possession of heroin in violation of 21 U.S.C. § 844(a). Her appeal presents the question of the admissibility in federal court of evidence seized pursuant to an arrest by California officers when that arrest was based on the state agents' use of information gathered by wiretaps authorized under federal law but illegal under California law. We affirm, holding such evidence to be admissible.

Page 1231

Backround

On February 6, 1973, California state officers approached an automobile driven by James Kirkpatrick Cooper, in which Hall was a passenger, after the car had stopped at a service station near Fresno. After asking the occupants to get out, one officer noticed a strong acetic acid smell coming from Hall's purse. Based on his seven years as a narcotics agent, he identified this smell with heroin. A subsequent search of the purse revealed that it contained narcotics paraphernalia and approximately 51 grams of heroin, which was seized and later admitted into evidence at Hall's trial. No warrant had been issued for the stop or the search.

The state officers approached Cooper's car because they had been informed earlier that day by federal agents in Los Angeles that an individual believed to be Cooper, together with a female who turned out to be Hall, were en route to Fresno via Highway 5 in a white and black Cadillac with a given license number, and that Cooper had placed an order for heroin and cocaine prior to leaving Los Angeles and was believed to be in possession of contraband on the trip. The information supplied the California officers was obtained from a duly authorized federal wiretap, the legality of which is not in question here, 1 and from surveillance of Cooper by federal agents prompted by the wiretap disclosures.

Prior to trial Hall moved unsuccessfully to suppress the evidence seized at the time of her arrest. She contends that the district court erred in not excluding the heroin on the ground that the arrest, search, and seizure were accomplished by state officers in violation of state law.

Hall's Argument

Hall argues that the wire interception involved here was unlawful under California Penal Code § 631, that the use by state officers of information obtained by the wiretap was also in violation of the statute, and thus that the arrest and seizure, as fruits of the wiretap, were illegal and evidence therefrom was inadmissible under California law.

It is conceded that California prohibits wiretapping and the use of any information so obtained, and such evidence is inadmissible in California state court proceedings. California Penal Code § 631, adopted in 1967, provides, in part:

(a) Prohibited acts; punishment; recidivists. Any person who . . . intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire . . . or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained . . . is punishable by a fine . . . or by imprisonment . . . or by both . . . .

(c) Evidence. Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial . . . proceeding.

The wiretapping which led to Hall's arrest was conducted by federal agents with a proper warrant under the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Nonetheless, the California courts have held that this federal statute does not entirely preempt the state prohibition. Thus, a wiretap conducted by federal officers and authorized pursuant to the federal statute has been held to be "unlawful" under California's § 631 and the evidence from it has been ruled inadmissible in California court proceedings. People v. Jones, 30 Cal.App.3d 852, 106 Cal.Rptr. 749 (1973), appeal dismissed for want of substantial federal question, 414 U.S. 804, 94 S.Ct. 163, 38 L.Ed.2d 40 (1973); see People v. Conklin, 12 Cal.3d 259, 114 Cal.Rptr. 241, 522 P.2d 1049 (1974), appeal dismissed for want of substantial federal question, 419 U.S. 1064, 95 S.Ct. 652, 42 L.Ed.2d 661 (1974); Halpin v.

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Superior Court, 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295 (1972), cert. denied, 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246 (1972).

Because of the provisions of the California law, Hall argues, the state agents acted illegally in arresting her, since the motivation and justification for doing so came from wiretap evidence which the state officers could not lawfully use. And, she contends, according to United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 310 (1948), the illegality is recognized in federal courts as well, since "in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity." Thus, she concludes, the heroin must be suppressed since it was seized without a warrant and not pursuant to a lawful arrest.

We reject the urging to apply Di Re for two reasons: we perceive Title III to represent "an applicable federal statute," and we do not believe that Di Re is meant to apply to a case such as this. In addition, we conclude that the federal court is not compelled to exclude the seized material merely because of a violation of state law. We thus affirm Hall's conviction.

Title III as an "Applicable Federal Statute"

The Di Re doctrine applies only in the absence of a relevant federal law. On the subject of wiretapping, however, federal law is not silent. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., authorizes the interception, disclosure, and admission into evidence of wire communications in certain circumstances and pursuant to several safeguards, including a requirement for a warrant. It is conceded that the interception that led to Hall's arrest was sanctioned by this federal statute. The admissibility of the contents of the intercepted communications, including the one that produced the information about Cooper, into evidence in federal court is also unquestioned. See § 2517(3). We recognize that a California court would exclude the contents and would also prohibit evidence derived therefrom as fruit from the poisonous tree of wiretapping. But under the federal statute this wiretapping is not poisonous to a federal court, so its fruits should not be poisonous, either.

It may well be true, as the California courts have held, that the federal act does not preclude the states from enacting more restrictive wiretapping statutes of their own. To the extent that there is a conflict between the state and federal legislation, though, the federal statute controls under the Supremacy Clause of the Constitution, Article VI, cl. 2. The state law cannot preempt the federal unless the federal act itself sanctions the application of state standards. That is not the case here. Federal officers are authorized to wiretap under § 2516(1), regardless of the provisions of state law; it is only wiretapping by state officers under § 2516(2) which requires further authorization by state statute. Section 2515 requires the exclusion of wiretap evidence from any court proceeding if its disclosure would violate the federal act; no mention is made of any state law. The legislative intent that federal law is to prevail in case of conflict is further indicated by § 2520, which provides:

A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law. (Emphasis added.)

With the lone exception concerning interception by state officers for state prosecutions, the federal statute does not defer to the states.

Indeed, it even appears that the federal statute affirmatively authorizes this kind of disclosure of the wiretap information to and use of it by state agents, in § 2517(1) and (2):

(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure

Page 1233

is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.

The California agents are "investigative or law enforcement officers" as that term is defined by § 2510(7).

Hall contends that the state's prohibition against the use of the wiretap evidence renders such use by its officers not "appropriate to the proper performance of (their) official duties." Assuming, without deciding, that this is an accurate reading of state law, we believe that the qualifying phrase in § 2517(1) and (2) was not intended to obliquely import state standards. Had that been the aim, Congress would have said so more clearly. 2 Instead, we view the phrase as designed to protect the public from...

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49 practice notes
  • United States v. Webster, Crim. No. Y-79-060
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 26, 1979
    ...936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Forlano, 358 F.Supp. 56, 59 (S.D.N.Y.1973). See also United States v. Hall, 543 F.2d 1229, 1232-33 (9th Cir. Given this substantial federal authority and the absence of any improper activities by state and federal authorities in se......
  • State v. Williams, No. 46795
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    • United States State Supreme Court of Washington
    • October 9, 1980
    ...of wiretap evidence in federal court even when the evidence was gathered by state peace officers (see, e.g., United States v. Hall, 543 F.2d 1229, 1234-35 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); but see United States v. Sotomayor, 592 F.2d 1219, 12......
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    • United States State Supreme Court (New Jersey)
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    ...that does not violate federal law is not "unlawfully intercepted" and is admissible in federal proceedings. See United States v. Hall, 543 F.2d 1229 (9th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977). The theory is primarily one of preemption. Note, "United Sta......
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    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • November 24, 1980
    ...States v. Jones, 545 F.2d 1112 (8th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Hall, 543 F.2d 1229 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Quintana, 457 F.2d 874 (10th Cir.), cert......
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49 cases
  • U.S. v. Sotomayor, Nos. 1031
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 2, 1979
    ...506 F.2d 1358, 1365 (7th Cir. 1974). There are probably many other authorities along similar lines. 10 In United States v. Hall, 543 F.2d 1229 (9th Cir. 1976), Cert. denied 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977), the En banc court, speaking through Judge Choy, had before it the ......
  • United States v. Webster, Crim. No. Y-79-060
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 26, 1979
    ...936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Forlano, 358 F.Supp. 56, 59 (S.D.N.Y.1973). See also United States v. Hall, 543 F.2d 1229, 1232-33 (9th Cir. Given this substantial federal authority and the absence of any improper activities by state and federal authorities in se......
  • State v. Williams, No. 46795
    • United States
    • United States State Supreme Court of Washington
    • October 9, 1980
    ...of wiretap evidence in federal court even when the evidence was gathered by state peace officers (see, e.g., United States v. Hall, 543 F.2d 1229, 1234-35 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); but see United States v. Sotomayor, 592 F.2d 1219, 12......
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    ...694 F.2d 200, 201-02 (9th Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3085, 77 L.Ed.2d 1347 (1983) (citing United States v. Hall, 543 F.2d 1229, 1234-35 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Keen, 508 F.2d 986, 989......
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