People v. Murtha

14 Cal. App. 4th 1112, 18 Cal. Rptr. 2d 324, 93 Daily Journal DAR 4257, 93 Cal. Daily Op. Serv. 2484, 1993 Cal. App. LEXIS 356

• Court: California Court of Appeal
• Decided: April 1, 1993
• Docket: A049473
• Status: Published

Opinions

Opinion

KLINE, P. J.

Appellant John Francis Murtha appeals following his conviction, based upon a plea of nolo contendere, to a charge of residential burglary. (Pen. Code, §§459-460, former subd. 1.) He asserts the court erroneously denied his motion to quash the search warrant and suppress the seized evidence. We affirm.

Statement of the Facts

On September 12,1989, Officer Anthony Welch of the Suisun City Police Department received a telephone call from Sergeant Cimino of the Fairfield Department of Public Safety. Cimino told Welch he had received an anonymous tip that appellant and Anthony Moraga were going to commit a burglary in Suisun City. The informant reported that appellant and Moraga were going to meet at a Round Table Pizza restaurant in Fairfield, and were then going to burglarize a white house with green trim on Buena Vista Avenue in Suisun City. The informant could not provide the address, but indicated that a blue four-wheel drive vehicle would be parked in front of the house.

Officers Welch and Rowe drove to Buena Vista Avenue and determined that the house at 52 Buena Vista matched the informant’s description. The officers performed a security check on the home, and found the rear sliding glass door closed, but unlocked. There were no signs of forced entry and the interior of the home appeared undisturbed. Officer Welch left a business card on the door, requesting the owners to contact him.

Later that day, Officer Smothers of the Suisun Police Department was dispatched to 52 Buena Vista to investigate a residential burglary. The victim, Richard Reed, reported that a pager, a wedding ring and tools were taken from his home.

On September 14 Officer Smothers told Welch a confidential informant had given him a tape cassette containing a conversation between appellant and Moraga in which they discuss robbing a house in the informant’s neighborhood. The informant stated that he or she has known both appellant and Moraga for a long period of time.

The tape contained two conversations between appellant and Moraga. In the first conversation they discuss a “job to do," and note that there are guns and money at Tom’s house. The two agree to meet at Round Table Pizza in Fairfield to discuss the “job.” In the second conversation the men say they are ready and agree to meet by a fence “right now.”

At the preliminary hearing Officer Welch stated he knew it was illegal to surreptitiously tape-record other parties’ telephone conversations. He nonetheless included the information gathered from the tape in the affidavit he prepared in support of the search warrant because he believed that so long as the tape was made by a private citizen, and not a police officer, it could be used as evidence. Welch testified he discussed the use of the tape with his supervisor, who told him he could include the information from the telephone conversation in the affidavit. Finally, Officer Welch admitted he had not disclosed in his affidavit that the tape of the suspects’ conversation was illegally recorded.

Officer Welch obtained a search warrant and searched Moraga’s home on September 15. During the search aPacTel pager was discovered in Moraga’s bedroom and Moraga was placed under arrest. Subsequently, appellant’s home was searched and he too was arrested for the burglary. Moraga initially claimed he committed the burglary alone; however, after he listened to the tape-recorded conversations, he admitted appellant had helped him.

Statement of the Case

On September 19, 1989, a complaint was filed in Solano County Municipal Court charging appellant with residential burglary. (Pen. Code, §§ 459-460, former subd. 1.)

On October 13,1989, appellant filed a motion to quash search warrant and suppress evidence, and on November 9 filed supplemental points and authorities in support of the motion. The district attorney filed opposition papers on November 27. On November 30, following a hearing on the matter, the magistrate denied the motion, concluding (1) the information on the tape was properly included in the affidavit; and (2) Officer Welch had not recklessly omitted information from the affidavit. On December 15 appellant was arraigned in Superior Court on an information filed December 14, 1989.

On January 25,1990, appellant filed a motion to traverse and quash search warrant and suppress evidence in the superior court; this was denied on February 21, 1990.

On March 1, 1990, appellant entered a plea of nolo contendere. He was thereafter placed on probation for three years, and was ordered to serve a concurrent sentence of one hundred eighty days in the county jail. Appellant was also ordered to pay restitution fines and perform 100 hours of community service.

This timely appeal followed. In November 1991, we issued an opinion affirming the conviction. We subsequently granted appellant’s petition for rehearing.¹

Discussion

I.

Appellant contends the court erred in denying his motion to quash the search warrant because the affidavit included evidence that was illegally obtained.

In 1968 the United States Congress enacted the Omnibus Crime Control and Safe Streets Act. (18 U.S.C. § 2510 et seq., the Act.) Title III of the Act makes it a crime for any person to surreptitiously intercept others’ wire or oral communications unless prior authorization for the interception is obtained in accordance with the provisions of the Act.² Title 18 United States Code section 2515 contains a broad suppression provision that guards against the use of any illegally intercepted evidence: “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” As appellant correctly notes, the Act applies to private parties, since section 2511 forbids interception by “any person,” and a “person” is defined as “any employee, or agent of the United States or of a State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation.” (18 U.S.C. § 2510(6), italics added.)

The parties agree that the taped conversations given the police were surreptitiously intercepted.³ Appellant argues title III therefore absolutely precludes the use of the tape to support the search warrant. In response, the People maintain the Act does not apply here because the tape was made by a private party and the police were not involved in any wrongdoing.

Several federal cases have examined the application of title III where the tape recording is made by a private party, rather than the government. In U.S. v. Vest (1st Cir. 1987) 813 F.2d All the defendant, a police detective, was indicted for making false statements before a grand jury. He moved to suppress a privately made recording of a transaction proving (contrary to his statements under oath) that he accepted payments on behalf of another detective to ensure police efforts to protect an accused man from imprisonment. The accused man, Waters, testified at the suppression hearing that he made the tape to create a record in the event the officers denied that payment had been made.

The government claimed the exclusionary rule of title 18 United States Code section 2515 was inapplicable because it was the “innocent recipient, rather than the procurer,” of the illegally intercepted communication. (813 F.2d at p. 480.) The government argued, as the People do in this appeal, that because the purpose of section 2515 was to deter further violations of the Act, the statutory objectives would not be served by applying the exclusionary rule against the government where it is merely the innocent recipient of the recording.

The court in Vest rejected this argument, concluding section 2515 was not solely intended to deter violations of the Act. The court noted that “the protection of privacy was an overriding congressional concern” when title III was passed (813 F.2d at p. 481, quoting Gelbard v. United States (1972) 408 U.S. 41, 47-52 [33 L.Ed.2d 179, 186-189, 92 S.Ct. 2357]) and observed that “an invasion of privacy is not over when an interception occurs, but is compounded by disclosure in court or elsewhere. The impact of this second invasion is not lessened by the circumstance that the disclosing party (here, the government) is merely the innocent recipient of a communication illegally intercepted by the guilty interceptor . . . .” (813 F.2d at p. 481.)

The court in U.S. v. Underhill (6th Cir. 1987) 813 F.2d 105 reached the opposite conclusion on similar facts. In that case, the defendants, participants in an illegal gambling enterprise, sought to suppress recordings of telephone conversations some of them had made in the course of running their gambling operation. The court refused to suppress the evidence on two grounds. First, the court concluded “Congress did not intend for § 2515 to shield the very people who committed the unlawful interceptions from the consequences of their wrongdoing.” (813 F.2d at p. 112.) The court also reasoned that Underhill waived his right of privacy with respect to these conversations by “[his] deliberate act of causing them to be recorded.” (Ibid.)

Similarly, in Traficant v. C.I.R. (6th Cir. 1989) 884 F.2d 258, a member of Congress charged with failure to report bribes sought to suppress a recording surreptitiously made by one of his bribers. The court refused to suppress the recording, concluding title III was not intended “to protect wrongdoers whose criminal activity is tape recorded by their own confederates.” (884 F.2d at p. 266.)

Finally, in U.S. v. Nietupski (C.D.Ill. 1990) 731 F.Supp. 881, the defendant sought to suppress tapes of drug dealing activities surreptitiously made by a coconspirator. The court refused to suppress the recordings and expressly disagreed with the analysis in Vest, concluding that the legislators who voted in favor of the Act never intended, in the interest of privacy, to exclude “criminal communications recorded by criminals for criminal purposes.” (731 F.Supp. at p. 886.) While this result is contrary to the literal words of the statute, the court reasoned that a result contrary to the literal interpretation is justified when “ ‘the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters. . . .’ ” (Id., at p. 884, quoting Griffin v. Oceanic Contractors, Inc. (1982) 458 U.S. 564, 571 [73 L.Ed.2d 973, 980, 102 S.Ct. 3245].)

As the above discussion reveals, Vest, Underhill, Traficant, and Nietupski all involved conversations recorded by either the defendant or a coconspirator. The facts in the instant case are patently distinguishable because the confidential informant was (so far as the record reveals) a third party who was not involved in appellant’s criminal venture.

Our analysis of the statute begins with the words of the provision. “It is the duty of a court in construing a federal statute to discover and carry out the intent of Congress, When the intent of Congress is expressed in ‘reasonably plain terms,’ a court must ordinarily treat that language as conclusive.” (U.S. v. Underhill, supra, at p. 111, quoting Griffin, supra, 458 U.S. at p. 570 [73 L.Ed.2d at p. 980].) “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning.” (U.S. v. Amer. Trucking Ass’ns. (1940) 310 U.S. 534, 543 [84 L.Ed. 1345, 1350, 60 S.Ct. 1059], fn. omitted.) The wording of title 18 United States Code section 2515, which bars the use in any court of the contents of any illegally intercepted wire communication, or any evidence derived therefrom, provides no room for an interpretation that would permit the use in this case of the admittedly illegal recordings of appellant’s telephone conversations. Furthermore, there is no reason in this case to deviate from the plain meaning of the words Congress chose, as a literal interpretation of the statutory language clearly and directly promotes the privacy interests Congress sought to protect. Accordingly, we conclude that under title III the recorded conversations could not properly be used to support the search warrant herein.

The People argue title 18 United States Code section 2515 should be interpreted consistent with the Fourth Amendment exclusionary rule, which does not apply, to evidence obtained by an illegal search and seizure conducted by a private party. They assert such a limitation is in accord with the statute’s purpose and the congressional intention not to “press the scope of the suppression [rule] beyond present search and seizure law.” (1968 U.S. Code Cong. & Admin. News at p. 2185.) This argument is unavailing. First, permitting the use of the recorded conversations in this case would be directly inconsistent with the statutory objective to guard against invasions to personal privacy, an invasion that is exacerbated every time the intercepted communication is used. Second, as the Attorney General acknowledges, section 2515 was never intended to be co-extensive with the Fourth Amendment exclusionary rule. (United States v. Dorfman (7th Cir. 1982) 690 F.2d 1217, 1227 [tit. Ill’s suppression provision has “roots in the Fourth Amendment exclusionary rule,” but is not co-extensive with that rule].) The Fourth Amendment exclusionary rule is intended to deter future constitutional violations, an objective that would not be furthered by penalizing the police for a private violation. In contrast, suppression under title III is necessary not only to guard against future violations, but also to minimize the invasion of privacy inherent in each reuse of the intercepted material. As the First Circuit has observed, “the fourth amendment exclusionary rule is a judicially-fashioned rule serving different purposes than the congressionallycreated rule of section 2515 . . . .” (U.S. v. Vest, supra, 813 F.2d at p. 481; accord, United States v. Giordano (1974) 416 U.S. 505, 524 [40 L.Ed.2d 341, 358, 94 S.Ct. 1820] [distinguishing between the “judicially-fashioned exclusionary rule” and the provisions of tit. III].)

In a related argument, the Attorney General emphasizes that the legislative history of the Act provides that in order to compel compliance with the statute, “the perpetrator must be denied the fruits of his unlawful actions in civil and criminal proceedings.” (Sen. Rep. No. 1097, 90th Cong., 2d Sess., p. 69 (1968), italics added.) The People rely on this language as support for their claim that title 18 United States Code section 2515 was designed to punish those who defy the law and to deter future violations of the Act, objectives that would not be advanced by denying an innocent party’s use of the tape. We cannot accept this interpretation of the congressional intent. As the Supreme Court has acknowledged, “[section] 2515 serves not only to protect the privacy of communications, but also to ensure that the courts do not become partners to illegal conduct . . . .” (Gelbard v. United States, supra, 408 U.S. 41, 51 [33 L.Ed.2d 179, 188-189], italics added, fn. omitted.) Clearly, if the courts are to avoid becoming “partners to illegal conduct,” they may not countenance the use of illegally obtained information even when the information is proffered by an innocent party.

The cases cited by the People that have allowed the use of illegally intercepted communications have involved either petty violations of the Act that did not substantially affect congressional objectives,⁴ or taped conversations that were recorded by a party to the conversation (and, in some instances, by the defendant himself.)⁵ We thus do not find them relevant or persuasive.⁶

II.

Although we have determined the recorded telephone conversation could not legitimately be used to support issuance of the search warrant in this case, we have concluded the search warrant need not be quashed because even without the objectionable information, the supporting affidavit provided probable cause to search.

Appellant argues that, stripped of the recording’s information, the affidavit “presents nothing more than an uncorroborated, undetailed tip from an anonymous tipster.” We disagree.

The United States Supreme Court has explained that “[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317].)

In this case—wholly apart from the recorded telephone conversation—the informant told the police (1) appellant and Moraga were going to commit a burglary; (2) they were planning to meet at a specific restaurant at a particular time; and (3) the site of the intended burglary was a white house with green trim on Buena Vista Avenue. After receiving this tip the investigating officers went to the described location and found a house fitting the informant’s description. While the informant’s reliability cannot be established based solely on his knowledge of “easily obtained facts” (see Illinois v. Gates, supra, 462 U.S. at p. 245 [76 L.Ed.2d at p. 552]; Alabama v. White (1990) 496 U.S. 325, 332 [110 L.Ed.2d 301, 310, 110 S.Ct. 2412] [distinguishing between informant’s knowledge of “easily obtained facts” and accurate predictions of future behavior]), appellant underestimates the value of the single piece of corroborating information that is crucial to this case: i.e., the fact that after the police received the tip the burglary occurred exactly as the informant predicted. As the Supreme Court recognized in White, “[w]hat was important was the caller’s ability to predict [the accused’s] future behavior, because it demonstrated inside information—a special familiarity with [the accused’s] affairs. . . . Because only a small number of people are generally privy to an individual’s [planned activities], it is reasonable for police to believe that a person with access to such information is likely also to have access to reliable information about that individual’s illegal activities.” (496 U.S at p. 332 [110 L.Ed.2d at p. 310].)

In Gates, an anonymous informant advised police of the Gateses’ travel plans to Florida and their intent to bring a large supply of drugs back in the trunk of their car. The Supreme Court concluded that once police verified the informant properly had predicted the couple’s travel plans, the informant’s tip provided probable cause to search their home. (462 U.S. at p. 246 [76 L.Ed.2d at p. 553].) As the Attorney General has noted, the evidence here is even stronger, since the police not only corroborated innocent activity; they determined a burglary had been committed at the home pinpointed by the caller. We are satisfied that this evidence provided sufficient basis for the magistrate to make the “practical decision” that there was probable cause to issue the warrant without relying on information subject to suppression under title III.

Finally, appellant argues the oral tip provided by the informant was “inextricably linked” to the illegal tape, and thus cannot be used to support the search warrant. This claim must fail because the record shows appellant failed to raise this claim below, even when he had the opportunity to do so. At the hearing on the motion to quash the warrant the court and counsel discussed whether, excluding all references to the tape, the affidavit established probable cause. Defense counsel never once questioned whether the tip itself was tainted as being derived from the taped conversation. Having failed to raise this claim in the trial court, appellant is precluded from raising it for the first time on appeal.

In light of our conclusion that after redacting the tainted references to the taped confessions the search warrant still provided probable cause to conduct the search, we do not feel it necessary to inquire whether the good faith exception applies. Because Justice Peterson’s concurring opinion is almost entirely devoted to this issue, however, we are constrained to note that at least two federal courts have explicitly refused to apply the good faith exception to allow the use of evidence gathered in violation of title III. (United States v. Orozco (S.D.Cal. 1986) 630 F.Supp. 1418, 1521-1522; County of Oakland By Kuhn v. City of Detroit (D.C. Mich. 1984) 610 F.Supp. 364, 369, fn. 10; see also, United States v. Spadaccino (2d Cir. 1986) 800 F.2d 292, 296 [holding good faith exception inapplicable to Connecticut wiretap law] and State v. Garcia (Fla. 1989) 547 So.2d 628 [Florida law].) These courts have reasoned that the judicially fashioned good faith exception cannot be grafted onto a congressionally mandated suppression remedy that allows for no such exception without an unwarranted judicial limitation of the power of the legislative branch. Nor do these courts believe anything in Leon suggests the Supreme Court would attempt to create an exception to a statutorily imposed suppression rule. (United States v. Orozco, supra, 630 F.Supp. at p. 1522.) Finally, even indulging the questionable assumption that the good faith exception is even applicable, it is debatable whether an officer who harbors serious doubts about the legality of evidence relied upon in his affidavit but does not reveal those doubts to the magistrate, or at least clearly present the question, can be said to have acted in good faith.

Disposition

For the foregoing reasons, the judgment is affirmed.

1 Although we initially granted rehearing to consider the applicability to this case of the “good faith” exception recognized in United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405] our reevaluation of the case makes it unnecessary to reach this issue.

2 The Act allows certain federal agencies to obtain an order for a legal wiretap to aid in the investigation or prevention of certain specified types of serious crimes. Under 18 United States Code section 2516 the United States Attorney General or any Assistant Attorney General specially designated by the Attorney General may authorize an application to a federal judge for the FBI or other appropriate federal investigatory agency to legally intercept wire or oral communications. The application must contain details of the suspected offenses and reasons as to why other investigative procedures have not been or are not being used. (18 U.S.C. § 2518(l)(a)-(f).)

3 At the hearing on the motion to suppress, Officer Welch testified that he realized the parties to the taped conversations were not aware that they were being recorded. He stated that he knew it would have been illegal for law enforcement officers to secretly make such a tape, but thought “that a citizen could do it legally.” The district attorney also conceded that the parties to the conversations never consented to the tape, and the magistrate agreed, referring to it as “an illegal wiretap."

4 For example, in United States v. Chavez (1974) 416 U.S. 562 [40 L.Ed.2d 380, 94 S.Ct. 1849] the court permitted the use of information gathered through the use of a wiretap despite a technical violation of the Act. In that case, the application for the wiretap erroneously indicated the Assistant Attorney General had authorized the intercept, when in fact the Attorney General had done so. The court held suppression was unnecessary because a statutorily eligible person had in fact authorized the wiretap application. (416 U.S. at pp. 579-580 [40 L.Ed.2d at pp. 394-395].)

5 As we previously have explained, Underhill, Traficant, and Nietupski are all inapposite, since they involved recordings made by the defendant or a coconspirator. In such circumstances suppression would be inappropriate since it would lead to a result Congress clearly did not intend.

6 Exceptions to the rule requiring suppression have been recognized where the information is used in prosecutions for violations of the Act (United States v. Liddy (D.C.Cir. 1973) 354 F.Supp. 217, 221) and for purposes of impeachment (United States v. Grubbs (5th Cir. 1985) 776 F.2d 1281, 1286; United States v. Winter (1st Cir. 1981) 663 F.2d 1120, 1154.) Neither of those exceptions applies here.