Opinion
Rehearing Granted Dec. 16, 1991.
Previously published at 235 Cal.App.3d 1688
Elizabeth Bader, San Francisco, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., John R. Vance, Jr., Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
KLINE, Presiding Justice.
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,
subd. 1.) He asserts the court erroneously denied his motion to quash the search warrant and suppress the seized evidence. We shall 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 4-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 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 a PacTel 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, §§ 459-460.1.)
On October 13, 1989, appellant filed a motion to quash search warrant and suppress evidence, and on November 9 filed a 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 180 days in the county jail. Appellant was also ordered to pay restitution fines and perform 100 hours of community service.
This timely appeal followed.
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. Section 2515 contains a Appellant argues Title III absolutely precludes the use of the tape recorded conversations to support the search warrant in this case. 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.
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(1)(a)-(f).)
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 477 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 insure 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 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, 92 S.Ct. 2357, 2360-2363, 33 L.Ed.2d 179) 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." (Id.) 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 co-conspirator. 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, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973.)
As the above discussion reveals, Vest, Underhill, Traficant and Nietupski all involved conversations recorded by either the defendant or a co-conspirator. 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, 102 S.Ct. at p. 3249.) "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, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345, fn. omitted.) The wording of 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.
This conclusion is also supported by State v. Thomas (Ohio App.1989) 1989 WL 74879, 1989 Ohio App. LEXIS 2658, a case the People erroneously cite in support of their position. In Thomas, the police were informed (based on a privately--and illegally--intercepted phone conversation) that Thomas was going to violate a condition of his parole by meeting with his former girlfriend. Based on this tip an officer followed Thomas and arrested him for violating his parole. A search of Thomas' car revealed four grams of marijuana. In reviewing Thomas' conviction the court concluded the contents of his phone conversation could not be used, and stated, "the federal wiretap law, and, we assume, the Ohio statute, prohibits further disclosure of the contents regardless of whether the illegal interception was made by a state official or private individual." (1989 WL 74879, p. 5, 1989 Ohio App. LEXIS 2658, pp. 6-7, italics added.) However, the court refused to suppress the marijuana discovered during the search, erroneously concluding that with respect to the marijuana, "the intercepted conversation became irrelevant except as to how the officer initially became The People argue 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 pp. 2112, 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 [Title III'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 re-use 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 congressionally-created 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, 94 S.Ct. 1820, 1831, 40 L.Ed.2d 341 [distinguishing between the "judicially fashioned exclusionary rule" and the provisions of Title 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." (Senate Report 1097, at p. 69, italics added.) The People rely on this language as support for their claim that 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, 92 S.Ct. 2357, 2362, 33 L.Ed.2d 179, 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 proferred 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, or taped conversations that were recorded by a party to the conversation (and, in some instances, by the defendant himself.) We thus do not find them relevant or persuasive. II.
For example, in United States v. Chavez (1974) 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 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 not 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, 94 S.Ct. at 1858.)
As we previously have explained, Underhill, Traficant and Nietupski are all inapposite, since they involved recording made by the defendant or a co-conspirator. In such circumstances suppression would be inappropriate since it would lead to a result Congress clearly did not intend.
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 apply here.
Appellant also contends Officer Welch cannot claim he relied in good faith on the magistrate's determination that probable cause had been shown because the officer omitted pertinent facts from the affidavit. In particular, appellant complains the affidavit prepared by Officer Welch failed to explicitly indicate appellant's telephone conversations had been surreptitiously and illegally recorded, and did not express the officer's concern that the tape could not legitimately be used to support the warrant. The court rejected these contentions and concluded the "good faith" exception recognized in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 permitted the officer to rely on the magistrate's determination that the affidavit supported the issuance of the warrant.
In Leon, which we analyzed at some length in People v. Maestas (1988) 204 Cal.App.3d 1208, 1213-1221, 252 Cal.Rptr. 739, the Supreme Court held that suppression is not required when an officer relies in good faith on a facially legitimate warrant that is later determined to be deficient. The court reasoned that in such cases suppression is unwarranted because "[p]enalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." (468 U.S. at p. 921, 104 S.Ct. at p. 3419, fn. omitted.)
In the instant case the affidavit stated that the police received an anonymous tip regarding a planned burglary; that the tip was borne out the subsequent burglary at the location the informant indicated; that a cassette of appellant's telephone conversations concerning the burglary was provided to the police by the informant, who indicated she personally knew appellant. Appellant contends this affidavit was deficient because the officer was further obligated to reveal his own concerns (1) that the tape was illegally recorded, and (2) that such evidence could not be used to gain a search warrant. We disagree.
At the preliminary hearing Officer Welch testified that although he initially had some doubts as to the propriety of using the evidence on the cassette, by the time he prepared the affidavit he was satisfied the police could legally use the tape because the recording was made by a private party, with no police involvement. As the Supreme Court observed in Leon, " 'If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.' " (Leon, supra, 468 U.S. at p. 919, 104 S.Ct. at p. 3419 quoting United States v. Peltier (1975) 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374.) Officer Welch's testimony supports the conclusion that he prepared the affidavit believing in good faith that it was proper to rely on the cassette provided by the informant. Although we have determined the officer's legal conclusion was wrong, he cannot be faulted for failing to correctly anticipate our ruling on this question. As the Tenth Circuit Court of Appeal has noted, an officer's "appreciation for constitutional intricacies [is] not to be judged by the standards applicable to lawyers." (United States v. Cardall (10th Cir.1985) 773 F.2d 1128, 1133.)
Furthermore, so long as an affidavit sets forth the facts necessary for the magistrate to evaluate whether probable cause exists, the officer is not obligated to offer his personal opinion regarding the legal sufficiency of the affidavit. It is, after all, "the magistrate's responsibility to determine whether the officer's allegations establish probable cause...." (Leon, supra, 468 U.S. at p. 921, 104 S.Ct. at p. 3419, italics added.) Here, the magistrate was provided with the facts necessary for him
DISPOSITION
Although the warrant was improperly founded on a telephone conversation recorded in violation of Title III, the officer relied in good faith on the magistrate's erroneous determination that the recording could be used to support the search warrant. Accordingly, under United States v. Leon, supra, the warrant need not be suppressed. Appellant's conviction is therefore affirmed.
SMITH and PETERSON, JJ., concur.