Opinion
10-8-1956
A. L. WIRIN, Plaintiff and Appellant, v. William H. PARKER, as Chief of Police of the City of Los Angeles, Defendant and Respondent.* Civ. 21599.
Nathan L. Schoichet, Beverly Hills, A. L. Wirin and Fred Okrand, Los Angeles, for appellant. Roger Arnebergh, City Atty., Bourke Jones, Alan G. Campbell, James A. Doherty, Asst. City Attys., Ralph J. Eubank, Deputy City Atty., Los Angeles, for respondent.
A. L. WIRIN, Plaintiff and Appellant,
v.
William H. PARKER, as Chief of Police of the City of Los Angeles, Defendant and Respondent.*
Oct. 8, 1956.
Rehearing Denied Nov. 2, 1956.
Hearing Granted Dec. 5, 1956.
Nathan L. Schoichet, Beverly Hills, A. L. Wirin and Fred Okrand, Los Angeles, for appellant.
Roger Arnebergh, City Atty., Bourke Jones, Alan G. Campbell, James A. Doherty, Asst. City Attys., Ralph J. Eubank, Deputy City Atty., Los Angeles, for respondent.
FOX, Justice.
By his amended complaint plaintiff, as a citizen and taxpayer of the city of Los Angeles, sought to permanently enjoin the Chief of Police from making any expenditure of public funds of the city for the purpose of or in connection with the installation, maintenance or use in the city of Los Angeles of any dictograph or dictographic equipment upon the property or in the home or office of any person, or in any other place of occupancy of any person, in the city except with the knowledge, consent, permission or authority of each person thus concerned. The court rendered judgment denying plaintiff any relief. Plaintiff thereupon appealed.
The case was submitted to the trial court upon a stipulated record which included various documents, the pleadings, numerous affidavits, and the depositions of the parties. No oral testimony was taken.
In seeking a reversal plaintiff contends that certain findings are improper, conflicting, conclusory and unsupported by the evidence; and that the conclusions of law and judgment are against the evidence and the law.
Plaintiff's thesis is that the police practice of surveillance by dictograph is illegal in that it violates both the federal and the state constitutional guarantees against unreasonable search and seizure. United States Constitution, Amendment IV; California Constitution, Article 1, sec. 19. As a predicate for his position plaintiff argues that finding VIII, to the effect that in one or more instances 'but not in all of them,' dictographs have been installed and used by police officers of the city under the defendant's direction in various places without the consent of the owner or occupant, is against the evidence. The record, however, does not sustain plaintiff's attack upon this finding. In defendant's answer, which was received in evidence pursuant to the stipulation re submission, he stated 'In some instances installations such as are described in this answer are made with the knowledge and consent of the owner, occupant, or lessee of the premises upon which they are made.' Captain Hamilton stated in his affidavit that 'It can be said in general that the consent of some person with access to the suspected premises is frequently obtained where the officers in charge are reasonably satisfied that the security and secrecy of the installation can be maintained.' This evidence is sufficient to support the challenged finding.
In discussing finding VIII plaintiff, in effect, contends that installation and use of dictographic equipment in places of private occupancy without the knowledge, consent or authority of the occupant or person subject to surveillance is a violation of such person's constitutional rights against unreasonable search. This states the principle against unreasonable search too broadly. There are a number of situations in which our courts have held an individual's constitutional rights were not infringed where his premises were searched by the police without his personal knowledge or consent and where the officers had no search warrant. In People v. Gorg, 45 Cal.2d 776, 291 P.2d 469, defendant occupied a room with bath in the home of Don Stevens in exchange for doing the gardening. Mr. Stevens gave the officers permission to enter and search the entire house. They searched defendant's room where they found marijuana. The court held defendant's consent was not necessary under the facts. The court pointed out, 45 Cal.2d at page 783, 291 P.2d at page 473, that 'Defendant was living in the Stevens home, and it is clear that whether he was in fact a tenant, servant, or guest, Stevens believed that he had at least joint control over his quarters and the right to enter them * * * and authorize a search thereof. Under these circumstances the officers were justified in concluding that Stevens had the authority over his home that he purported to have, and there was nothing unreasonable in their acting accordingly.' To the same effect is People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513, where permission to search defendant's room was given by the owner of the estate and her caretaker. In People v. Silva, 140 Cal.App.2d 791, 295 P.2d 942, this court held that consent given to the police to search the home by one of the joint occupants was 'adequate authority for its pursuit without the necessity of any affirmative consent of defendant * * * [140 Cal.App.2d at page 795, 295 P.2d at page 944.]' In People v. Dominguez, 144 Cal.App.2d 63, 300 P.2d 194, the wife of defendant gave the officers permission to enter and look around. The search, therefore, was not illegal. It was held in the Gorg case, 45 Cal.2d at page 781, 291 P.2d 469, that the question of consent to search was one of fact.
While surveillance invades one's privacy, it is not, as such, a violation of his constitutional guarantees against unreasonable search. In On Lee v. United States, 343 U.S. 747, at page 754, 72 S.Ct. 967, at page 972, 96 L.Ed. 1270, the court stated: 'The use of bifocals, field glasses or the telescope to magnify the object of a witness' vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions.' See to the same effect People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (where the officer looked through a window); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (searchlight beam focused on ship's deck); and McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (peeking through a transom). Nor does the use of a listening device and the surreptitious recording of what is heard constitute an unconstitutional invasion of defendant's right of privacy per se. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944--wire tapping ; People v. Malotte, 46 Cal.2d 59, 292 P.2d 517--use of an induction coil which did not require physical connection with the telephone; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322,--use of a dictaphone placed against the partition wall which enabled federal agents to hear the conversation between the defendants in their office and what one of them said over the telephone; People v. Graff, 144 Cal.App.2d 199, 300 P.2d 837, (hear. den.) where the same technique as in the Goldman case was used; On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, where the federal agent who talked with defendant in his shop had a small microphone in his pocket with an antenna running along his arm and an agent outside the shop with a receiving set picked up incriminating statements made by defendant; People v. Avas, 144 Cal.App.2d 91, 300 P.2d 695 (hear. den.), and People v. MacKenzie, 144 Cal.App.2d 100, 300 P.2d 700 (hear. den.) where the modus operandi of recording a conversation participated in by all defendants in MacKenzie's home was substantially the same as that employed in the On Lee case.
If, however, dictographic surveillance of a person is effected through trespass or unlawful entry upon his premises, then his constitutionally protected right of privacy has been violated. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, and People v. Tarantino, 45 Cal.2d 590, 290 P.2d 505.
The foregoing demonstrates that there are a variety of situations in which dictographic surveillance by the police is not a violation of constitutional rights. It is apparent that whether future acts of the police amounts to an invasion of such rights cannot be determined by rule of thumb or by a fixed formula. This is necessarily so because, as this court pointed out in People v. Coleman, 134 Cal.App.2d 594, 286 P.2d 582, it is only unreasonable search and seizure that is prohibited by our federal and state constitutional provisions. In Go Bart Importing Co. v. United States, 282 U.S. 344, at page 357, 51 S.Ct. 153, at page 158, 75 L.Ed. 374,--a search and seizure case--the court remarked: 'There is no formula for the determination of reasonableness.' In United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the court stated: 'What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably, in our discipline we have no ready litmuspaper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.' 339 U.S. at page 63, 70 S.Ct. at page 434. The Cahan decision, and what has transpired since it was rendered, is in harmony with these principles. The author of the opinion concluded with the observation that 'it opens the door to the development of workable rules governing searches and seizures and the issuance of warrants that will protect both the rights guaranteed by the constitutional provisions and the interests of society in the suppression of crime.' 44 Cal.2d at page 451, 282 P.2d at page 915. Since that time our courts have been busily engaged in developing these 'workable rules' by an examination of 'the facts and circumstances of each case' that has come before them. These principles and practices justified the trial court's refusal to grant plaintiff 'a declaratory judgment of a mandatory and directory character regardless of the particular circumstances under which the defendant may be called upon to act in the future, and regardless of what some court might hold in some future case with respect to the legality of such acts when considered in the light of the evidence which may be adduced in any such case.' We note in passing that many aspects of the subject matter here under discussion are appropriate for legislative consideration.
If it be conceded that some dictographic installation in the future will involve an infringement of the constitutional rights of some as yet unknown person the court was, nevertheless, not required to grant the relief sought for it would be detrimental to the public interest in that it would have a suffocating effect upon law enforcement, the prevention of crime, the apprehension of criminals, and the protection of property from their depredations. Such an injunction would readily lend itself to misuse and abuse by the criminal element. A bookmaking syndicate or a narcotics ring might well frustrate an effective investigation of their operations by specious contempt citations on the theory that the police had violated their constitutional guarantees against unreasonable search and seizure. While police misbehavior such as that disclosed in the Cahan and Tarantino cases cannot be condoned, it is nevertheless sound public policy that the police not be unduly hampered in tracking down crime. Effective law enforcement to the end that an ordered society may be maintained is one of the purposes of local government. That purpose should not be frustrated on the contingency that the rights of some unknown person may at some future time be violated by the police and some public funds erroneously spent in connection therewith.
Plaintiff challenges finding XI on the grounds that it is 'an argument more than * * * a finding,' that 'it conflicts with other findings,' and that it is 'replete with conclusions.' The fact that a finding is argumentative may be a proper basis for criticizing its form, but it cannot justify a reversal of the judgment. The only suggestion of a conflict between this and other findings is a parenthetical reference to finding VIII. We have examined the two findings. Without detailing their provisions, suffice it to say, we fail to find any necessary conflict between them. The conclusions about which plaintiff complaints appear to be conclusions of fact. Such conclusions are not improperly included in findings of fact. Hayward Lbr. Co. v. Construction, etc., Corp., 110 Cal.App.2d 1, 3, 241 P.2d 1054.
Plaintiff contends that findings XII and XV are 'against the evidence' and 'conclusory.' In finding XII the court declares that expenditures in connection with dictographic surveillance is 'neither large nor substantial' and that it is less expensive than other means. Examination of the record reveals ample evidence in defendant's verified answer, in an affidavit filed by him, and in his deposition (all of which were received in evidence under the stipulation re submission) to support the finding.
In finding XV the court declared that there is no threatened or actual irreparable injury to plaintiff or to any other taxpayer or to the general public by any substantial waste of public funds in connection with dictographic surveillance. The evidence amply supports this finding.
In his attack upon these findings plaintiff makes the point that the pertinent question is not the degree of expense but the legality of the practice. This argument begs the question. Whether any expenditure of public funds by defendant is illegal turns upon the basic question of whether under the particular facts and circumstances the act giving rise to the expenditure is illegal. This, of course, cannot be determined until the facts and circumstances are known. Since plaintiff is dealing with anticipated situations these, of course, cannot now be known. Hence the legality of the expenditure cannot be determined at this time. In this connection the final sentence of finding XV is particularly significant. The court found there is no impending or threatened injury to plaintiff or to any taxpayer or to the general public by reason of any future or threatened installation or use of such equipment pursuant to any authorization therefor by defendant. This finding provides additional justification for the judgment.
Plaintiff's contention that these two findings are 'conclusory' is adequately met by our observations supra relative to the same criticism of finding XI.
Plaintiff's final challenge to the findings is that findings 'XVI and XVII are against the evidence.' Finding XVI is that except as they are found to be true, each of the allegations of plaintiff's amended complaint is untrue. Finding XVII is that except as they are found to be untrue, each of the allegations of defendant's answer is true. Plaintiff has failed to indicate what particular facts he has in mind or wherein either of these findings is against the evidence. It has been held repeatedly that the mere assignment of error is not sufficient to warrant an inquiry into its merits. People v. Buenaflore, 40 Cal.App.2d 713, 719, 105 P.2d 621; Martter v. Byers, 75 Cal.App.2d 375, 379, 171 P.2d 101.
Plaintiff relies on Wirin v. Horrall, 85 Cal.App.2d 497, 193 P.2d 470. That case is not here applicable. It was an appeal from a judgment of dismissal after a demurrer sustained without leave to amend. Plaintiff sought to restrain defendants from spending funds of the city in conducting "police blockades,' that is, blocking off designated areas of the city of Los Angeles and stopping all persons and automobiles entering or leaving such areas and searching them without first obtaining search warrants.' This court held he alleged a cause of action. The allegations were such as to make the roadblock and the indiscriminate searches illegal in their entirety. No question of the legality of the search in any specific instance arose. The practice sought to be enjoined in the Horrall case was similar to the roadblock at the Mexican border, considered in People v. Gale, 46 Cal.2d 253, 294 P.2d 13. Having held it to be illegal, the court then considered the facts and circumstances of the search of the particular defendant. While the Horrall case arose on demurrer the instant matter was decided on the merits. Contrary to the allegations in Horrall, the court here, in effect, found as a fact, and the cases cited demonstrate, that dictographic surveillance is not always a violation of an individual's rights against unreasonable searth; whether such rights are invaded depends on the facts and circumstances of the particular case, United States v. Rabinowitz, supra. Hence the inapplicability of Horrall.
The conclusions of law that 'the plaintiff is not entitled to a declaration or judgment undertaking to determine the reasonableness or legality of future acts' of the defendant Chief of Police in connection with the installation and use of sound transmission equipment for purposes of surveillance, and that plaintiff is not entitled to any relief, and the judgment are in harmony with the evidence, the findings of fact and the applicable law.
It is unnecessary to pass upon other points argued by counsel.
Judgment affirmed.
MOORE, P. J., and ASHBURN, J., concur. --------------- * Opinion vacated 313 P.2d 844. 1 Section 605 of the Federal Communications Act 47 U.S.C.A. § 605 makes wiretapping illegal. It is also made illegal in California by section 640, Penal Code. 2 This quotation is from the trial judge's memorandum.