People v. Kelley

CARTER, J.

I dissent. The majority opinion misconstrues the provisions of the Federal Communications Act, and the authorities upon which it relies in support of its interpretation of said act clearly hold that evidence of the character here involved is inadmissible because obtained in violation of the provisions of said act.

*177 The defendant was convicted of occupying an apartment for the purpose of bookmaking upon evidence received in violation of the Federal Communications Act. (47 U.S.C.A. 605.) Police officers were admitted to the apartment occupied by defendant. The telephone in the apartment rang many times while the officers were there. Evidence was admitted showing that while the defendant was seated about eight feet from the telephone the officers answered the telephone on many occasions when it rang. One one of such occasions the voice on the phone inquired if it was Jimmy, to which the officer replied, “Yes.” On other occasions the communicants stated wagers they desired to make.

The Federal Communications Act provides:

“. . . and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the'benefit of another not entitled thereto; and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; ...” (Emphasis added.) (47 U.S.C.A. 605.)

At the outset it should be observed that the rule with reference to the admissibility of evidence obtained in violation of the constitutional prohibition against unlawful searches and seizures considered in People v. Gonzales, 20 Cal.2d 165 [ 124 P.2d 44 ], is not here involved. That constitutional guarantee does not make it a crime to give testimony obtained in violation thereof. The chief -basis of such evidence not being admissible is to prevent a violation of that constitutional guarantee; if such evidence is admissible it would encourage violations. However, under the Federal Communications Act it is made a crime and punishable as such to divulge or suffer to be divulged the information obtained in violation of the act. Section 501 reads:

*178 “Any person who willfully and knowingly does or causes or suffers to be done any act, matter, or thing, in this chapter prohibited or declared to be unlawful, or who willfully and knowingly omits or fails to do any act, matter, or thing in this chapter required to be done, or willfully and knowingly causes or suffers such omission or failure, shall, upon conviction thereof, be punished for such offense, for which no penalty (other than a forfeiture) is provided herein, by a fine of not more than $10,000 or by imprisonment for a term of not more than two years, or both.” (47 U.S.C.A. 501.) The giving of evidence as to the nature and substance of a communication obtained contrary to the act would be a divulgence thereof and would be a crime committed in the actual presence of the court at the trial, a situation that should not be tolerated under any circumstances.

The question is, therefore, whether section 605 was violated in the instant ease. The majority opinion, holding that there was no violation, is based upon two propositions (consideration to which will be hereinafter given); that is, that the act was only for the protection of the sender and that there was no interception of the telephone message. But even if those propositions are accepted there still remains the second separate and independent clause in the foregoing quotation from section 605 which declares unlawful the receipt and use by a person not entitled thereto of a communication. Repeating, that clause reads: “. . . no person not being entitled thereto shall receive . . . any communication . . . and use the same . . . for the benefit of another not entitled thereto; , . .” Hence, the intended recipient of the communication is protected against unauthorized persons receiving his message. It thus becomes immaterial whether the sender only is protected by the preceding clause appearing in the section as heretofore quoted or whether there has been an interception within the meaning of that clause, because the clause here in question unequivocally protects the recipient of the message and interception is not required, if that term be limited to mean listening to the message before it reaches the mouthpiece of the receiving telephone as held in the majority opinion. The wording of the clause now discussed clearly applies to the facts in the instant case. The officers received the messages over the telephone. They were not entitled to do so under the Federal Communications Act, the message being intended for defendant. Defendant did not authorize them to receive it. The message was used by the officers when they testified at *179 the trial. They used it for the benefit of another, namely, the State. The State was not entitled to it. Therefore, the giving of the testimony at the trial constituted a crime.

The statement apparently contrary to the foregoing views in Sablowsky v. United States, 101 F.2d 183 , was made merely in passing. It was there said that the clause in question “obviously refers again to employees of communication agencies.” It does not necessarily exclude the possibility that other persons may be included.

It has been held that all of the clauses in section 605 apply to communications in intrastate as well as interstate commerce (Weiss v. United States, 308 U.S. 321 [ 60 S.Ct. 269 , 84 L.Ed. 298 ]); therefore, the clause here discussed applies in the instant case. The case of Goldstein v. United States, 316 U.S. 114 [ 62 S.Ct. 1000 , 86 L.Ed. 1312 ], expressly reserves for future determination the question of the scope of the clause above discussed.

If it be assumed that the clause heretofore discussed is not applicable to the instant case, the first clause appearing in the above-quoted portion of section 605 is clearly available. It is there provided that no person not authorized by the sender shall divulge a telephonic communication. The United States Supreme Court has stated in Goldstein v. United States, supra, that the clause is designed only for the protection of the sender, but that statement is dictum inasmuch as in that case defendant was neither the sender nor the recipient of the message; he was not a party to it. The court stated the question involved at page 1004:

“The question now to be decided is whether we shall extend the the sanction for violation of the Communications Act so as to make available to one not a party to the intercepted communication the objection that its use outside the courtroom, and prior to the trial, induced evidence which, except for that use, would be admissible.” (Emphasis added.) And in conclusion at the same page:

“We are of the opinion that even though the use made of the communications by the prosecuting officers to induce the parties to them to testify were held a violation of the statute, this would not render the testimony so procured inadmissible against a person not a party to the message. This is the settled common-law rule. There was no use at the trial of the intercepted communications, or of any information they contained as such. If such use as occurred here is a *180 violation of the act, the statute itself imposes a sanction.” (Emphasis added.) In the case at bar the defendant was a party to the conversation and invokes the statute. True, the officers rather than defendant answered the telephone, but the communication was intended for him and he was the only party entitled thereto. The presence of the officers prevented him from receiving the message. If it were not intended for him as the occupant of the apartment, the evidence would be of no value or aid on the issue of defendant’s guilt. Furthermore, the Goldstein case cites with approval United States v. Polakoff, 112 F.2d 888, 889 , where it is said:

“The word, ‘sender,’ in section 605 is less apt for a telephone talk than for a telegram, as applied to which there can be no doubt of its meaning. If a man sends a telegram, he may consent to its interception even though that prejudice the addressee, as conceivably it might; but if the addressee answers by telegram, he' alone can give a valid consent to the interception of the answer. He has a privilege like the sender, which is as immune from surrender by the sender’s consent, as the sender’s privilege as to. the first message was from surrender by his consent. So far there can be no reasonable dispute. Every telephone talk, like any other talk, is antiphonal; each party is alternately' sender and receiver and it would deny all significance to the privilege created by section 605 to hold that because one party originated the call he had power to surrender the other’s privilege. There cannot be the least doubt of this as to the answers of the party called up; and while it might indeed be pedantically argued that each party had the power to consent to the interception of at least so much as he said, that would be extremely unreal, for in the interchange each answer may, and often does, imply by reference some part of that to which it responds. It is impossible satisfactorily so to dissect a conversation, and the privilege is mutual; both must consent to the interception of any part of the talk.” (Emphasis added.) While it is true in the instant case that there were no answers by defendant inasmuch as the officers answered the telephone calls, he was the intended recipient and the calls would have no relevancy unless they were intended for him as an occupant of the apartment.

It is equally clear that the message was intercepted by the officers. It is fantastic to argue that there is no interception where the communication has reached the receiving telephone. It had not completed its course until it reached de *181 fendant, the person for whom it was intended. If the officers had not answered the calls, defendant presumably would have done so. It may not be said with any realism that tapping a wire 1/100 of an inch before it reaches the telephone receiver is an interception, but actually listening to the conversation on the receiver without the consent of the intended recipient is not. The language in United States v. Gruber, 123 F.2d 307, 309 , is pertinent:

“A hearer not contemplated by the parties to the conversation was introduced without their consent. It can make no difference that the person divulging did not know the contents of the message. Whether he was never engaged in listening or could not understand the communication, so long as he caused it to be transmitted to a third party without the consent of the sender, he intercepted and divulged the communication and violated the statute as surely as though he had abstracted a telegram, from a Western Union Office and delivered it to some third party.” (Emphasis added.) In the instant case the officers abstracted the communication from the receiver and divulged it in court.

The view that the officers intercepted the communication in the instant case is borne out by Goldman v. United States, 316 U.S. 129 [ 62 S.Ct. 993 , 86 L.Ed. 1322 ], Although it was there held that the act did not extend to an eavesdropper listening.to the one sending the message, the court, in discussing the meaning of the term interception, said at page 995:

“It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of the intended receiver. The listening in the next room to the words of Shulman as he talked into the telephone receiver was no more the interception of a wire communication, within the meaning of the act, than would have been the overhearing of the conversation by one sitting in the same room.” (Emphasis added.) Here the message had not come into the possession of defendant, the intended receiver. It was intercepted by the officers. The act of the officers was an interference with the instrumentality, the telephone receiver, in using it to receive a message to which they were not entitled. In the Goldman case there was no such interference with the instrumentality, the telephone receiver, in using it to receive a message to which they were not entitled. In the Goldman case there was no such inter *182 ference with the instrumentality, and the eavesdropping perpetrated therein did not constitute a violation of the Federal Communications Act.

We are not here concerned with the legislative policy which prompted the enactment of the Federal Communications Act, but only with its interpretation as applied to the facts of this case. In my opinion, the construction placed on the quoted provisions of the act by the majority opinion is clearly contrary not only to the plain and unambiguous language contained in the act as interpreted by the decisions of the Supreme Court of the United States, but also the object and purpose to be accomplished thereby. It is not a sufficient answer to say that the act was not intended to protect persons against prosecution who are engaged in unlawful pursuits, as Congress could have provided an exception in those cases if it had been disposed to do so.

The obvious purpose in adopting the statute was to guarantee protection to persons sending and receiving communications against meddlers, snoopers and inquisitors, regardless of the motive or purpose of those seeking to intercept communications intended for another. To say that the act does not apply to the factual situation in the case at bar is to ignore the plain language in the act and place a strained construction upon the statute as a whole.

In my opinion, the evidence relating to telephonic communications was clearly inadmissible, and the judgment should therefore be reversed.

Peters, J. pro tern., concurred.

Appellant’s petition for a rehearing was denied June 1, 1943. Carter, J., and Schauer, J., voted for a rehearing.