Opinion
H029861
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. JAMES HAYDEN BROWN, Defendant and Appellant.
After denial of his motion to suppress evidence (Pen. Code, § 1538.5), defendant James Hayden Brown pled guilty to transportation of narcotics (Health & Saf. Code, § 11352), admitted four prior prison commitments (§ 667.5, subd. (b)), and was sentenced to six years in state prison. On appeal, he challenges denial of the motion to suppress and the competence of defense counsel.
Further statutory references are to the Penal Code unless otherwise stated.
Defendant also received 16 months consecutively in an unrelated case for possession of narcotics, for a total of seven years, four months.
FACTS
At about 9:30 p.m. on October 10, 2004, a car displaying expired registration tags caught the eye of Marina Department of Public Safety Officer Andres Rosas, and he stopped it. Defendant was the driver and Samuel Lee Lindsey was the front seat passenger. Defendant could not produce the vehicle registration or a bill of sale from "Tony," the person defendant said he bought the car from, or a drivers license. Defendant had a California ID card and said he did not have a drivers license but was driving the car only because Lindseys leg was hurting. During the conversation, it appeared to Rosas that defendant was trying to conceal or remove something from under his jacket or under his buttocks.
The dispatcher informed Rosas that defendants drivers license was suspended and he was on probation. Rosas also learned the car was last registered to an Anthony Enders. While Rosas was obtaining this information, it appeared that defendant was reaching downward and under his buttocks as he sat in the drivers seat and he also made a call on his cell phone. Three backup officers arrived and Rosas arrested defendant for driving with a suspended drivers license and for violating probation in that he failed to obey all laws. Rosas then searched defendant. He found no contraband on his person but did seize a cell phone holster from defendants belt and a cell phone from his right pocket.
Lindsey was also removed from the car and, as he got out, one of the assisting officers, Sergeant Kennett, observed a long piece of plastic tubing with a glass tube attached to one end lying on the seat where Lindsey had been sitting. From Kennetts training and experience, he recognized it as a "crack pipe." He arrested Lindsey for possession of drug paraphernalia and started searching the car where Lindsey had been sitting. He called out to Rosas that he found a "suspected rock of crack cocaine in the passenger side door pocket . . . [and] suspected marijuana in the exposed tray of the center console." Rosas walked over to look, and, in light of his training and experience, reached the same conclusion, and collected the contraband.
Rosas continued his search of the car. He found a second piece of tubing with a glass pipe at the end under the drivers seat, and on the drivers floorboard, a blue zippered coin purse with a silver and gold colored skeleton key attached. It contained an exposed razor blade and two clear baggies containing numerous off-white colored rocks with a waxy texture and a folded piece of aluminum foil which contained more off-white colored, waxy-textured rocks. They weighed 27.7 grams total. A sample of the rocks tested presumptively positive for crack cocaine. Elsewhere in the vehicle Rosas found a brown plastic bag tied with a knot. It contained a 200 ml. bottle of Hennessy brand Cognac and a 375 ml. bottle of Grand Marnier brand liqueur. Both bottles were sealed and unopened.
While Rosas was searching the car, defendants cell phone rang. Assisting Officer Nowak answered. From his training and experience, Nowak knew that 27 grams of crack cocaine was not for personal use, and he suspected the drugs were for sale and the caller might be trying to make a purchase. The phone number listed on the caller ID was 601-3003. Nowak said, "hey, wassup" and the male caller said, "B you got my 30 g, I need it." Nowak said, "yeah, where you want it?" The caller said, "deliver it to my house." Nowak said, "wheres your house?" The caller said, "this aint B if you dont know where I live. Who dis?" Nowak identified himself as "the police" and said, "we have your 30 grams of crack." The caller hung up. (Spelling and grammar are original in Nowaks report.)
Rosas transported defendant for booking. While defendant sat in the rear of the patrol car, Rosas Mirandized him and in response to questioning, defendant told Rosas that he knew his license was suspended, he knew the crack pipe was under the drivers seat and that he had used it to smoke crack cocaine earlier that afternoon, and that he did not know who the marijuana belonged to; it was already in the car. When Rosas asked defendant to tell him about the coin purse on the drivers side floor, defendant asked, "what coin purse?" Rosas described it and defendant said he did not know what Rosas was talking about. Rosas said it contained a razor blade and crack cocaine. Defendant said, "How do I know you all didnt put it there?" Rosas said that defendant was going to be charged with possession of crack cocaine for sale and transportation of crack cocaine. Defendant continued to say he did not know who the purse belonged to and that he believed one of the officers on the scene put the coin purse in the vehicle. Defendant then said that the vehicle did not belong to him and that it belonged to Lindsey. Rosas noted that this contradicted defendants earlier statement that he had just bought the vehicle from "Tony."
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant was charged with felony transportation of narcotics (Health & Saf. Code, § 11352, count 1) and three misdemeanors: possession of drug paraphernalia (id., § 11364), driving on a suspended license (Veh. Code, § 14601.2, subd. (a)), and driving a vehicle while possessing less than an ounce of marijuana. (Id., § 23222, subd. (b).) He was also charged with suffering four prior prison commitments (§ 667.5, subd. (b)), a prior drug trafficking conviction (Health & Saf. Code, § 11370.2, subd. (a)), and a prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.12).
Defendants motion to suppress the evidence of the cell phone call which he made after preliminary hearing was denied by the trial court and defendant was sentenced as stated above. This appeal ensued.
ISSUES ON APPEAL
Defendant claims on appeal that "[t]he content of a conversation from the officer answering [defendants] cell phone without a warrant should have been suppressed because it was unreasonable under the Fourth Amendment," and that defense counsels failure to "interpose the proper ground for excluding the evidence [Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III) `limit[ing] the power of the police to listen to other peoples telephone calls] constituted ineffective assistance of counsel."
STANDARD OF REVIEW " `The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. " (People v. Maury (2003) 30 Cal.4th 342, 384.)
CONTENTS OF THE PHONE CALL
First, defendant claims that the court erred in its "belie[f] that answering the telephone was justified as a search pursuant to arrest" in reliance on People v. Sandoval (1966) 65 Cal.2d 303 (Sandoval). Defendant does not dispute that he was under lawful custodial arrest or that the phone was lawfully seized in a search incident to arrest. His complaint is that answering the phone constituted a search of the phone (the officer had to "push[] buttons and manipulat[e] [the] cell phone in order to talk with the caller") and that that search was undertaken without a warrant or exigent circumstances.
The officers interception of the call on defendants cell phone was a search of the cell phone. (People v. Ledesma (2006) 39 Cal.4th 641, 705 (Ledesma).) Because the search was without a warrant, it was presumptively unlawful. (Id. at p. 703.) In the trial court, the prosecution relied on People v. Bullock (1990) 226 Cal.App.3d 380 (Bullock) where, under circumstances like ours, Bullock was arrested after a car in which he was riding was stopped by police and a warrant check revealed that two arrest warrants had been issued for his apprehension. A search of Bullock yielded an electronic pager which beeped at least 20 times while defendant was being booked. The officer retrieved the callers numbers by pushing a button and displaying them on a screen on top of the pager. When the officer called the phone numbers, three or four of the individuals who answered requested delivery of cocaine. The pagers memory could store a maximum of four messages for retrieval at a later time. A motion to suppress was denied and the denial was affirmed by the court of appeal. The appellate court stated that exigent circumstances excused the warrant requirement. First, a danger existed that incoming telephone numbers would be lost unless quickly retrieved by the officer, and second, there was a need to return the calls in a timely manner while the callers were likely to be at the numbers they had provided. The pager could only store four messages and at least 20 had been received during the booking process. Some would have been lost had the officer not timely retrieved them.
At the hearing on the suppression motion in this case, the prosecutor stated that the officers had probable cause to seize the phone and it was the Peoples position that "the evidence sought to be obtained by answering [the ringing phone] is no different than searching a pocket, a trunk or any other evidence that would reasonably be related to the crime under investigation."
Defendant characterized the search as a warrantless search unjustified by exigent circumstances. Once the phone was out of his control and in police custody, a warrant was needed to answer it and seize any messages.
In denying the motion, the trial court relied on Sandoval, supra, 65 Cal.2d 303, and subsequent cases for the recognition that there were circumstances under which law enforcement could answer a ringing telephone and that the reasons depended on the facts of the case. As for this case, the trial court stated, "the question would be, does it fall within the probable cause determination of the law enforcement officer . . . that the incoming telephone calls were likely to constitute a part of an illegal narcotic transaction being conducted by the person who had the telephone?" The court found that to be the case.
The trial court did not abuse its discretion in denying the suppression motion. An officer with training and experience in narcotics enforcement, Rosas, lawfully seized the cell phone pursuant to a search incident to a lawful arrest. In the course of removing the passenger, Lindsey, from the car, another trained officer saw drug paraphernalia (a "crack pipe") in plain view where Lindsey had been sitting, found suspected crack cocaine in the pocket of Lindseys car door, and marijuana in the center console. He called this to Rosass attention. Rosass further search of the car yielded another "crack pipe" where defendant had been sitting and a zipper purse containing drugs and drug paraphernalia on defendants floorboard. The amount of drugs exceeded the amount for personal use. These facts provided probable cause for the officers to believe that defendant possessed the drugs for the purposes of sale. (See Ledesma, supra, 39 Cal.4th at p. 705.)
When the cell phone rang during the lawful search of the car, the officers were justified in answering the telephone based on probable cause to search (contraband in plain view justified a further search) and exigent circumstances (the need to gather and preserve further evidence that a crime (possession for the purpose of sale) was being committed in their presence). It was reasonable for the officers to believe that incoming calls would contain evidence of drug dealing. (People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163, 167.)
TITLE III
Notwithstanding, defendant now claims the interception of the telephone call constituted an illegal wiretap in violation of Title III, 18 United States Code sections 2510 through 2520. Although this issue was not raised in the trial court, defendant raises it in this court by claiming that the issue is a question of law based on facts fully developed in the trial court and that his trial counsel was ineffective for failing to raise it below.
Defendant phrases the issue thusly: "To the extent trial counsels failure to articulate Title III as grounds for suppressing the contents of the cell phone call constituted a waiver of the claim, he rendered ineffective assistance of counsel." The People respond that "by failing to raise this same theory for exclusion below, [defendant] has waived this claim on appeal." In the interest of judicial economy, we will proceed to the merits of the issue.
Title III was intended to protect the privacy of wire and oral communications (Bartnicki v. Vopper (2001) 532 U.S. 514, 523 (Bartnicki)) but since the Electronic Communications Privacy Act of 1986 with an amendment in 1994 prohibiting the interception of cordless telephone communications, it applies to the interception of conversations over both cellular and cordless phones. (Price v. Turner (9th Cir. 2001) 260 F.3d 1144, 1147 (Price); Bartnicki, supra, at p. 524.) The statute applies to state actors and evidence in state court. (People v. Otto (1992) 2 Cal.4th 1088, 1098.) A remedy for violation of the Act is the suppression of the evidence obtained. (Ibid.)
"Title 18 U.S.C. § 2511 prohibits the interception and disclosure of `wire, oral, or electronic communications. The 1990 definitions of `wire communication and `electronic communication expressly provided that such terms did `not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit. See 18 U.S.C.A. § 2510(1), (12)(A) (West 1990). [¶] When Congress amended the Wiretap Act in 1994, it simply omitted the above language excepting the radio portion of cordless phone communications. See 18 U.S.C. § 2510(1), (12) (2000)." (Price, supra, 260 F.3d at p. 1147, fn. 1.)
Unless there is a warrant or one of the parties consents, "`any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication; . . . [shall be subject to sanctions]. (18 U.S.C. § 2511(1) (1988).) `Intercept is defined in Title III as the `the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical or other device. ([18 U.S.C.] § 2510(4).)" (U.S. v. Meriwether (6th Cir. 1990) 917 F.2d 955, 959-960 (Meriwether).) However, intercepting a call is lawful when it is "by an investigative or law enforcement officer in the ordinary course of his duties" (18 U.S.C. § 2510(5)) as long as the act of answering the call is also "in the ordinary course of the officers duties, as the statute plainly says." (Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 1820.) Officers do not in the course of their business answer other peoples cell phones. (Id. at pp. 1820-1821.) To permit this practice whenever there might be cause for an investigation is to permit "any wiretap . . . if conducted with a law enforcement purpose . . . ." (Id. at p. 1823.)
The People claim that "[b]ecause the police officers action in this case occurred in the ordinary course of his investigation of narcotics duties, his answering of [defendants] cell phone fell within Title 18 United States Code section 2510(5)(a)(ii), and was not subject to prohibition under the Act."
Neither party here questions whether Nowak "intercepted" defendants phone calls. However, cases which interpret "intercept" support the opposite conclusion. In Smith v. Cincinnati Post & Times-Star (6th Cir. 1973) 475 F.2d 740, 741 (Smith), a party to a phone conversation recorded the dialogue and subsequently disclosed it to others. On review the court held that "there is no `interception or `eavesdropping [as defined by Title III] when a party to a conversation, . . . records that conversation." (Ibid.) In the Sixth Circuits Meriwether case, an agent "lawfully had possession of the paging device. By pressing the digital display button, he became a party to the communication. Thus, the agent did not `intercept appellants number when he displayed it." (Meriwether, supra, 917 F.2d at p. 960, citing Smith, supra, at p. 741.)
Meriwether continues, "Moreover, the agent did not acquire the contents of the communication by `electronic, mechanical or other device as proscribed by the definition of `intercept. (§ 2510(4).) In United States v. McLeod (7th Cir. 1974) 493 F.2d 1186, a government agent stood four feet from the defendant while she made a telephone call and he overheard conversations indicating illicit gambling activities. Since the agent in McLeod did not use any electronic, mechanical or other device in obtaining the evidence, the court held that he did not `intercept the communication within the meaning of the statute. (Id. at p. 1188.)" (Meriwether, supra, 917 F.2d at p. 960.)
In an earlier Sixth Circuit case, "an agent, armed with an arrest warrant, entered the defendants home. While there the agent answered several telephone calls for the defendant. Apparently believing that the agent was the defendant, the callers made incriminating statements about the sale of drugs. We [the Sixth Circuit] held that the Fourth Amendment does not protect a wrongdoers misplaced trust that the one intended to receive a communication will actually receive it." (Meriwether, supra, 917 F.2d at p. 959, referring to U.S. v. Passarella (6th. Cir. 1986) 788 F.2d 377, 382.) The court found even less an expectation of privacy in a pager message than in a phone conversation, "where a caller can hear a voice and decide whether to converse." (Meriwether, supra, at p. 959.)
In the instant case, Nowak did not "intercept" calls to defendants cell phone by use of any "electronic, mechanical, or other device." (18 U.S.C. § 2510(4).) " `[E]lectronic, mechanical, or other device means any device or apparatus which can be used to intercept a wire, oral, or electronic communication." (18 U.S.C. § 2510(5).) Furthermore, there was no communication, other than the phone number of the incoming call on defendants cell phone display, which officers could legally copy down (U.S. v. Parada (D.Kans. 2003) 289 F.Supp.2d 1291, 1303-1304), until Nowak became a party to it. Nowak initiated the conversation. The caller could, and did, terminate it. (Meriwether, supra, 917 F.2d at p. 959.) There was no violation of Title III. The trial court did not err in denying the motion to suppress.
In light of this conclusion, the question of defense counsels competence is irrelevant.
DISPOSITION
The judgment is affirmed.
We Concur:
Rushing, P.J.
Elia, J.