Petition for Writ of Certiorari — California v. Halpin

Supreme Court brief1972

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i eed s

AUG 21 1972

Court of the { ted iat.

Ore 1972

No 2-290

Petitioner,

STATE OF CALIFORNIA,

TaoMas HALPIN, REBECCA HALPIN, and MARTIN SILVA,

Respondents.

On Writ of Certiorari to the Supreme Court

of the State of California

PETITION FOR WRIT OF CERTIORARI

EVELLE J. YOUNGER,

Attorney General of the State

of California,

Caradon

Assistant Attorney General—

Criminal Division

DORIS H.

Assistant Attorney General—

Writs Section,

= 5 S. CLARK MOORE,

e Assistant Attorney General,

RUSSELL IUNGERICH, |

Deputy Attorney General,

600 State

217 West First

Los Calif. 90012,

(213) 620-2782,

& Son, Inc., Law Printers, Los Angeles. Phone 724-6622

be es

-—

SUBJECT INDEX

Page

I sini setninie hatepdoncSissctvcaenoctiiecccavaininanciston ]

| I a a intense. oiioes 2

| ee Tee 2

: Constitutional Provisions Involved ___.... Ah acl 3

I icin cheer ci acinensenonitcwes cenininenes 4

er rr eee 4

A. Procedural Background ...........0...00...0......... oe

» See rae... 6

C. How the Federal Questions Arose ............. 10

Reasons Why a Writ of Certiorari Should Be

Granted

This Case Presents an Important Constitutional

Question With Respect to the Use of Inform-

: ants’ Tips in Determining Probable Cause for

3 the Issuance of Search Warrants .............. 13

: I.

3 This Case Presents an Important Question as to

: Whether the Wire Communications Provisions

; of Title III of the Omnibus Crime Control and

. Safe Streets Act of 1968 Preempt State Legis-

: lation in the Field of Wiretapping .................... 18

x If.

3 A Third Question of Importance Is Presented as

Pl to Whether an Application of Title III to This

4 Case Would Involve an Unconstitutional In-

: fringement of California’s Right to Preserve the

| Security of Its Penal Institutions —................ 20

i Ce en Tae gi Sets Se A ah ie ee ie

IV. Page

There Is a Fourth and Final Question of Impor-

tance as to the Proper Construction of the

Party Consent Exception to the 1968 Crime

Control Act .............-------.--------eccssseeseeenecceeseees 22

COOMCMAIOR q...-2n.s2.-cscsiesnnn ao nennnnnnesi-nnnweeeesonnannaencnsenes 24

Appendix A. Opinion of California Supreme

I ices stn tnensnvcccionesnioscciscemnnensnnnninnanone 1

Appendix B. Order of California Supreme Court \

Denying Petition for Rehearing ..............-.------------ 24 :

Appendix C. Opinion of California Court of Ap- 4

Peal ...n.nn.n.enencecessceesereeeseeeesssenssrseensesetnsnesssetensees 23 &

Appendix D. Statutes Involved ............-..------------ 33 4

‘

PEPE LETTE STORIE ET Fo ORT oie

a —

TABLE OF AUTHORITIES CITED

Cases Page

Aguilar v. Texas, 378 U.S. 108 (1964) ...... 5, 13, 14,

<shnsrpye ie Aten ceeieoantsesteeenimmbaiioadiabcoinbaseaisauass , 86, 17

Benanti v. United States, 355 U.S. 96 (1957) _...... 19

Berger v. New York, 388 U.S. 41 (1967) 18

Brinkerhoff-Faris Trust Co. v. Hill, 281 US. 673

cg a AD Lal pa mh cade Eel le 12

Davis v. Superior Court, 175 Cal. App. 2d 8, 345

Dee ee I eh ema cy 21

Draper v. United States, 358 U.S. 307 (1959)

Sansa den ous aebesno iol Solan olocoe 15, 16, 17, 18

Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824).. 21

Halpin v. Superior Court, 6 Cal. 3d 885, 101 Cal.

Rptr. 375, 495 P.2d 1295 (1972) ....1, 11, 13, 18

Halpin v. Superior Court, 97 Cal. Rptr. 402 (1972)

pallnenstaresiastdneeiscehipdiasinemiabimandiepblancoed aehadk oven coca nG x 3

Johnson v. Avery, 393 U.S. 483 ¢_) nee 20

Katzenbach v. McClung, 379 U.S. 294 (1964) ...... 21

Lanza v. New York, 370 U.S. 139 ( RE 20

Madruga v. Superior Court, 346 U.S. 556 ( 1954)... 2

Raley v. Ohio, 360 U.S. 423 (1959) 1]

Spinelli v. United States, 393 U.S. 410 (1969)

litle stcidllnsiiedicaniee geet nk 13, 14, 15, 16, 17, 18

United Auto Workers v. Wisconsin Emp. Rel. Bd.,

oe ae ae tee 22

cng eae EELS NEG an eae AIEEN IO TAG Sa aC 16

United States v. Ventresca, 380 U.S. 102 (1965) .. 17

iv.

Constitutional Provisions

Page

United States Constitution, Fourth Amendment 3, 20

United States Constitution, Tenth Amendment ....3, 21

United States Constitution, Fourteenth Amendment

Dee E ASSP LT RD ES OE OE Re ST eT TO 3

Statutes

Title II] of the Omnibus Crime Control and Safe

Streets Act of 1968 (18 U.S.C. §§ 2510-20)

ea A 2, 3, 5, 11, 12, 18, 19, 20, 21, 23, 24

~— . 2 ee | aaa ae es

Te ROM e eRe eeN 22

a ni elect 2

47 U. S. C. § 605 (1934) as amended by Pub.

L. 90-351, Title III, § 803 (June 19, 1968), 82

i See eee eee 19, 20

Cal. Health & Saf. Code § 11530.5 .........-.--------------- 4

Cal. Health & Saf. Code § 11531 ..............------------ 4

Cal. Pen. Code § 182, subd. 1 ...........-------------------++ 4

Cal. Pen. Code §§ 630-637.2 ..........--------:------00000+- 18

Cal. Pen. Code § 851.5 .........-....---ee----eeeeee02 4, 23, 24

Cal. Pen. Code § 1526, subd. (b) ..........-----------+- 6

Cal. Pen. Code § 1538.5(1) ...-..--------::--:ccseeceeseeeees 4

Articles

Comment, Electronic Surveillance in California: A

Study in State Legislative Control, 57 Cal. L

Rev. 1182 (1969) .................--..-s---seeccecensnnnenenees 19

The Supreme Court, 1968 Term, 83 Harv. L. Rev. 7

(19GD) ..2-n2-00.--ecensceencsecscenoerecssnccensnensconsnsnesnncoeoes 17

Note, 45 N.Y.U. L. Rev. 908 n. 8 (1970) ........-.-. 17

ER Sr ee ons. «J pcbeheee

—_

Vv.

Miscellaneous

Page

ABA Project on Minimum Standards for Criminal

Justice, Standards Relating to Electronic Sur-

veillance, pp. 19-21 Approved Draft ( PPE ccs 19

2 U.S. Code Cong. & Ad. News 2112 (1968) .... 23

IN THE

Supreme Court of the United States

Octob-> Term, 1972

I: cchatvawcoes

STATE OF CALIFORNIA,

Petitioner,

VS.

THOMAS HALPIN, REBECCA HALPIN, and MARTIN SILVA,

Respondents.

On Writ of Certiorari to the Supreme Court

of the State of California

PETITION FOR WRIT OF CERTIORARI

Petitioner State of California respectfully prays that

a writ of certiorari issue to review the judgment (per-

emptory writ of mandate) of the Supreme Court of the

State of California entered in this proceeding on April

24, 1972, rehearing denied May 23, 1972.

Opinions Below

The opinion of the California Supreme Court is re-

ported as Halpin v. Superior Court, 6 Cal. 3d 885,

101 Cal. Rptr. 375, 495 P.2d 1295 (1972), and a

copy of that opinion is set forth as Appendix A to

this petition. A copy of the order of the California

Supreme Court, denying petitioner’s petition for a

rehearing, is set forth as Appendix B. The prior opin-

| ion of the California Court of Appeal, Fourth Appellate

_——

District, Division Two, is reported as Halpin v. Su-

perior Court, 97 Cal. Rptr. 402 (1972) (vacated),

and a copy of that opinion is attached as Appendix C

to this petition. Pursuant to California practice, the

opinion of the California Court of Appeal was vacated

upon the grant of a hearing by the California Supreme

Court.

Jurisdiction

The judgment of the California Supreme Court was

entered on April 24, 1972. A timely petition for re-

hearing was denied on May 23, 1972, and this peti-

tion for certiorari was filed within ninety days of that

dste. This Court's jurisdiction is invoked under 28

U.S.C. § 1257(3).

A state court judgment finally disposing of a writ of

prohibition is a final judgment reviewable under 28

U.S.C. § 1257. Madruga v. Superior Court, 346 US.

556, 557 n. 1 (1954). This rule should logically ex-

tend to a state court judgment finally disposing of a

writ of mandate (mandamus) as well.

Questions Presented

1. In search warrant proceedings, can a magistrate

reasonably infer that an informant has the requisite

personal knowledge of the commission of the crime

from numerous factual details supplied by the inform-

ant and corroborated by a police investigation in vir-

tually every particular except the actual presence of

narcotics in the place where the informant had said

they would be?

2. Did Congress intend by the enactment of the

wire communications provisions of Title III of the

Omnibus Crime Control and Safe Streets Act of 1968

(18 U.S.C. $§ 2510-2520) to preempt state legislation

aie:

authorizing jailers and prison officials to monitor in-

mate telepone calls?

3. If Title Ill of the 1968 Crime Control Act

supersedes state legislation authorizing jailers and pris-

on officials to monitor inmate telephone calls, is Title

Ii] unconstitutional as thus applied because it unrea-

sonably infringes California’s exercise of the power,

reserved to it by the Tenth Amendment, to regulate

and administer the internal affairs of its penal institu-

tions?

4. Did the monitoring of the telephone conversa-

tion between respondents Thomas and Rebecca Hal-

pin come within the party consent exception found in

18 U.S.C. § 2511, subsection 2(c)?

Constitutional Provisions Involved

United States Constitution, Amendment IV:

“The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no warrants shall issue, but upon prob-

able cause, supported by oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.”

United States Constitution, Amendment X:

“The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

to the people.”

United States Constitution, Amendment XIV, section

1, in relevant part:

“No State shall make or enforce any law which

Shall abridge the privileges or immunities of cit-

— ~ PK EM eT

—4

izens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of

the laws.”

Statutes Involved

The statutes involved in this case are set forth in

Appendix D to this petition.

Statement of the Case

A. Procedural Background

Respondents Thomas Halpin, Rebecca Halpin and

Martin Silva were indicted by the San Bernardino

County Grand Jury on three felony counts: (1) con-

spiracy to transport marijuana (Cal. Pen. Code § 182,

subd. 1; Cal. Health & Saf. Code § 11531), (2) trans-

portation of marijuana (Cal. Health & Saf. Code

§ 11531), and (3) possession of marijuana for sale

(Cal. Health & Saf. Code § 11530.5).

In the Superior Court of the State of California for

the County of San Bernardino, respondents moved to

dismiss the indictment and to suppress evidence consist-

ing of 500 pounds of marijuana and an incriminatory

tape recording of a telephone conversation initiated by

respondent Thomas Halpin to respondent Rebecca Hal-

pin, his wife, from a telephone located within a San

Bernardino County jail facility." The superior court

denied both motions.

Thereafter respondents sought a statutory writ of

mandate (Cal. Pen. Code § 1538.5(i)), to compel

the trial court to suppress the challenged evidence. The

onfiun

California Court of Appeal, Fourth Appellate District,

Division Two summarily denied the petition for the

writ. The California Supreme Court granted a hearing

and retransferred the matter to the Court of Appeal

with instructions to issue an alternative writ of man-

date.

Upon reconsideration of the petition for writ of man-

date, the California Court of Appeal again denied the

petition. Halpin v. Superior Court, 97 Cal. Rptr. 402

(1972) (vacated). A copy of this opinion is at-

tached as Appendix C. Respondents again petitioned

for a hearing in the California Supreme Court, which

hearing was granted.

The California Supreme Court granted the peremptory

writ of mandate sought by the respondents. It held that

the search warrant issued in connection with the search

which resulted in the seizure of the 500 pounds of

marijuana was invalid because the oral testimony in

support of the search warrant failed to satisfy the re-

quirements set forth in Aguilar v. Texas, 378 U.S. 108

(1964). (6 Cal. 3d at 885-96, 101 Cal. Rptr. at 376-

82, 495 P.2d at 1296-1302). The California Supreme

Court also held that the tape recorded conversation

between respondents Thomas and Rebecca Halpin was

intercepted in violation of Title II] of the Omnibus

Crime Control and Safe Streets Act of 1968 (18

US.C. §§ 2510-20), which the Court held to have

preempted the field of wiretapping and electronic sur-

veillance. (6 Cal. 3d at 896-900, 101 Cal. Rptr. at

382-86, 495 P.2d 1302-06.)

On May 9, 1972, petitioner filed a petition for re-

hearing in the California Supreme Court. Thereafter

on May 16, 1972, petitioner made application to the

California Supreme Court for a stay of the issuance of

—_——e

colitis

the peremptory writ of mandate pending certiorari

proceedings within this Court. On May 23, 1972, the

California Supreme Court denied both the petition for

rehearing and the application for stay. (Appendix B.)

On June 16, 1972, Justice William O. Douglas of

this Court ordered the commencement of trial in this

case stayed pending the timely filing of the instant pe-

tition for a writ of certiorari.

B. Statement of Facts’

Between 2:30 and 3:00 p.m. on December 14,

1970, Detective Cole of the Ontario Police Department

and other police officers stopped a white and green

1971 Ford Sport Custom camper truck in the City of

Ontario. The officers had had this camper under sur-

veillance at the Havasu Camper Company in Ontario

because Detective Cole had previously received in-

2This statement of facts is based upon the transcript of oral

i December 14, 1970, before Judge Roland C. Rut-

of San Bernardino County Judicial Court District, and

the reporter’s transcript of proceedings before the 1971 San Ber-

i County Grand Jury in support of the indictment returned

February 3, 1971 against ts herein.

The oral testimony received by Judge Rutledge, sitting O%

magistrate the

submitted in support of the oral application for a search warrant

made in this case. California Penal Code section 1526, subdt

sea

statement shall be deemed an affidavit for purposes of this chap-

ter.”

The transcript of oral proceedings before Judge Rutledge will

be denominated herein as “Mag. Tr.” All subsequent references to

a search warrant affidavit in this case are references to this

transcript.

The reporter's transcript of grand jury proceedings in support

of the indictment returned on February 3, 1971, will be denom-

inated as “Gr. J. Tr.”

. — =

formation that a camper of this description contained

a large quantity of marijuana. Respondent Thomas

Halpin was the driver of the truck. (Gr. J. Tr. pp.

7-10.)

After the camper came to a stop at the curb, re-

spondent Thomas Halpin immediately left the vehicle

from the driver’s door. He closed the door very quickly

behind him and locked it. (Gr. J. Tr. p. 10.) The

police officers asked respondent Thomas Halpin to

identify himself, which he did by producing a driver’s

license. The officers advised him that they had in-

formation that the camper contained a large quanti-

ty of marijuana. They asked for permission to search

the vehicle, which he refused to give. Respondent

Thomas Halpin was placed under arrest, and Detectives

Cole and Bowlin left the scene of the arrest to obtain

a search warrant. Other officers remained with re-

spondent Thomas Halpin and the camper truck. (Mag.

Tr. p. 11; Gr. J. Tr. p. 11.)

At 3:00 p.m. on December 14, Detective Cole ap-

peared before Judge Roland C. Rutledge, sitting as a

magistrate, to testify in support cf an oral application

for a search warrant. (Mag. Tr. pp. 1-2.) Detective

Cole testified that, at approximately 8:05 a.m. on

December 14, 1970, Captain Mooney of the Pomona

Police Department “. . . called me, informing me that

at a Havasu Trailer Company at 1515 West Holt I

would find a 1971 Ford Sport Custom truck, white

color with a dark green roof, and on this truck would

be a 10% foot Havasu camper cream color with a

darker wood—simulated wood—panel. He informed

me that the truck would have a temporary license in

the rear window, giving me a number of 1291208. He

stated that this camper body would be a false type

olin

body and contained approximately $100,000 of mari-

juana. He stated that a white male known to him

only as Tom [who apparently would be driving the

camper} would be arriving in San Bernardino on a

flight from San Diego. He described this male as ap-

proximately six foot and weighing 160 to 170 pounds.

He stated that he had sandy hair, a moustache and

wore horn-rimmed glasses.” (Mag. Tr. pp. 4-5.) Cap-

tain Mooney also related that the camper truck would

be parked next to a blue Chevrolet. Detective Cole then

related that “I asked [Captain Mooney] about [the

informant’s] reliability, and he stated that on Novem-

ber 30 he had received similar information from this

informant which he gave to the San Francisco Police

Department, which resulted in an arrest. At this time

a Havasu camper was loaded similar to the one he

described here and contained [a very large haul of]

marijuana.” (Mag. Tr. p. 5.)

Detective Cole further testified before the magis-

trate that after receiving this information he drove to

the Havasu Trailer Company and, that about 8:40

a.m., he observed the truck described by Captain

Mooney in the company’s lot. (Mag. Tr. pp. 4, 5-6.)

The camper was parked next to a blue Chevrolet. After

discovering the camper described by Captain Mooney’s

informant, Detective Cole called the Sheriff's Narcotics

Division for assistance. The truck was placed under

surveillance. (Mag. Tr. p. 6.) At 11:30 a.m., a Volks-

wagen automobile drove into the camper lot. The

frame around the license plate bore the name of a San

| adiine

Diego car dealer and the man in the car [respondent

Thomas Halpin] fit the description earlier given to

Detective Cole. A female [apparently respondent

Rebecca Halpin} and an infant were passengers in the

Volkswagen. Once inside the camper lot, respondent

Thomas Halpin left the automobile and went into

the trailer company office. Shortly thereafter he re-

turned to the Volkswagen and drove away. The police

officers followed Halpin’s Volkswagen for the next two

hours but discontinued the surveillance when respond-

ent Thomas Halpin took actions to determine whether

someone was following him. The officers abandoned

the vehicular surveillance and returned to their posi-

tions near the Havasu Trailer Company. (Mag. Tr.

pp. 7-10.)

At about 2:30 p.m., the Volkswagen returned to the

camper lot. Respondent Thomas Halpin got out of the

car and went into the trailer company. About eight

minutes later, respondent Thomas Halpin came out of

the office, got into the trailer, and drove off. (Mag.

Tr. pp. 6-7, 10.) Detective Cole and the other officers

followed for a short distance. The officers then pulled

up along side of the truck. Detective Cole showed re-

spondent Thomas Halpin his badge and pointed to-

ward the curb. (Mag. Tr. p. 10.)

On the basis of Detective Cole’s testimony, the

magistrate issued a warrant authorizing a search of the

camper. A subsequent search of the camper led to

the seizure of 240 kilograms (over 500 pounds) of

marijuana. (Gr. J. Tr. pp. 11-12.) The marijuana was

—

concealed in a secret compartment within the camper.

(Gr. J. Tr. pp. 13-17.)

On December 14, 1970, Deputy Sheriff Warren

Hockanson was the booking officer at the West End

Jail in Ontario. (Gr. J. Tr. pp. 34-35.) After respondent

Thomas Halpin had been booked and while he was still

in custody, Deputy Hockanson placed a collect call

through the operator for him. Prior to the call, re-

spondent Halpin informed Deputy Hockanson of the

number—but not the name—of the party he wished to

call. The call was made from a jail telephone equipped

with a recording device. The recording device was

activated when Deputy Hockanson pushed a button

while placing the telephone call for respondent Thomas

Halpin. (Gr. J. Tr. pp. 35-37.) The transcript of tape-

recorded conversation was played for the grand jury

which indicted the respondents. (Gr. J. Tr. pp. 38-44.)

A woman who responded to the name “Becky” [re-

spondent Rebecca Halpin] accepted charges for the call.

(Gr. J. Tr. pp. 38-39.) During the telephone call, re-

spondent Thomas Halpin instructed her to have some-

one named Mike “. . . get rid of everything that’s

around there.” (Gr. J. Tr. p. 39.) Also during the tele-

phone conversation, respondent Thomas Halpin made

further incriminating statements indicating that he felt

that he had been “fingered” and that he had felt that

he had been followed when he and his wife had left

the Havasu Trailer Company on the morning of De-

cember 14. (Gr. J. Tr. pp. 40-41.)

C. How the Federal Questions Arose

Each of the first three questions presented in this

petition was considered on the merits by the Califor-

nia Supreme Court in the opinion filed by that court.

a FRET NCI

Since these claims were passed upon California’s highest

court, there is no preliminary issue as to the proper

presentation of the federal claims in the California

courts. See Raley v. Ohio, 360 U.S. 423, 436 (1959).

The California Supreme Court’s opinion demon-

strates quite clearly that the first question raised in this

petition was both considered and decided:

“. . . Petitioners thus argue that the testimony

[offered in support of the search warrant] failed

to satisfy the test which the Supreme Court an-

nounced in Aguilar v. Texas, supra, 378 U.S.

108, 114 [12 L.Ed.2d 723, 728-729], for the de-

termination of the sufficiency of affidavits based

upon the hearsay statements of an informant.

We agree.” Halpin v. Superior Court, 6 Cal. 3d

885, 892, 101 Cal. Rptr. 375, 379, 495 P.2d 1295,

1299 (1972).

—

With respect to the second question presented in this

petition, the court below expressly held that Title III

of the Omnibus Crime Control and Safe Streets Act of

1968 preempted state legislation in the field of wire-

tapping and electronic surveillance. Jd. at 900, 101

Cal. Rptr. at 385, 495 P.2d at 1305. In passing

upon this second question, the California Supreme

Court also considered the third question presented here

by stating that: .

“. . . We reject the People’s contention that it

[Title III] is unconstitutional as applied because

it infringes upon the police power of the state,

reserved to it by the Tenth Amendment, to

regulate the internal discipline of its penal in-

Stitutions. . . .” Id. at 899, 101 Cal. Rptr. at

385, 495 P.2d at 1305.

—

anfiine

With regard to the fourth question presented here,

the California Supreme Court implicitly held that none

of the exceptions in 18 U.S.C. § 2511 were applicable

to this case when it held that the contents of the Hal-

pins’ telephone conversation were rendered inadmissible

by Title III of the 1968 Act. See id. at 900, 101 Cal.

Rptr. at 385, 495 P.2d at 1305. This question was

raised in a timely petition for rehearing in the Califor-

nia Supreme Court. (Petn. for Rehearing, pp. 7-9.)

Since petitioner could not reasonably anticipate on

the basis of precedent that the California Supreme

Court would hold Title III of the 1968 Crime Con-

trol Act applicable to the factual situation presented in

this case, this issue was properly raised in the petition

for rehearing. Where a question is created by an unex-

pected decision of the highest state court, giving the

litigant no prior opportunity to anticipate or assert the

particular federal question, this Court has held that

the assertion of the question for the first time on a peti-

tion for rehearing will support the exercise of this

Court’s jurisdiction. Brinkerhoff-Faris Trust Co. v. Hill,

281 U.S. 673, 677-78 (1930).

REASONS WHY A WRIT OF CERTIORARI

i SHOULD BE GRANTED

This Case Presents an Important Constitutional Question

With Respect to the Use of Informants’ Tips in

Determining Probable Cause for the Issuance of

Search Warrants

In Aguilar v. Texas, 378 U.S. 108, 114 (1964),

this Court set forth the following requirements for a

sufficient search warrant affidavit:

“Although an affidavit may be based on hear-

say information and need not reflect the direct

personal observations of the affiant, Jones v.

United States, 362 U.S. 257, the magistrate must

be informed of [1] some of the underlying cir-

cumstances from which the informant concluded

that the narcotics were where he claimed they

were, and [2] some of the underlying circum-

stances from which the officer concluded that the

informant, whose identity need not be disclosed,

see Rugendorf v. United States, 376 U.S. 528,

was ‘credible’ or his information ‘reliable.’ ”

(Footnote omitted; bracketed numerals added.)*

In the instant case, the California Supreme Court

held that “. . . the affidavit consisting of the trans-

scription of Cole’s testimony before the magistrate fails

to satisfy the first prong of the Aguilar test, . . .” Hal-

pin v. Superior Court, 6 Cal. 3d 885, 896, 101 Cal.

Rptr. 375, 382, 496 P.2d 1295, 1302 (1972). In so

holding, the California Supreme Court concluded that

8Mr. Justice Harlan’s opinion for the Court in Spinelli v. United

States, 393 U.S. 410, 413 (1969), referred to this language as

the “two-pronged test” of Aguilar.

the affidavit failed to set forth any of the “underlying

circumstances” necessary to enable the magistrate to ex-

ercise independent judgment as to the validity of the in-

formant’s conclusion that the narcotics were where he

said they were.

a )

This case thus presents an important question as to

the proper interpretation of the first prong of Aguilar

v, Texas. The California Supreme Court’s decision in

this case requires that the search warrant affidavit

set forth facts showing how the informant arrived at

his conclusion as to where the narcotics were located.

In Spinelli v. United States, supra, 393 U.S. 410

(1969), this Court indicated that a factual showing

as to how the informer concluded that the narcotics

were located in the place to be searched was not

necessary to satisfy the first prong of Aguilar so long

as the information was sufficiently detailed to permit

a reasonable inference that the informant gained his

information in a reliable way. Referring to the first

prong of Aguilar, the Spinelli opinion states:

“The detail provided by the informant in

Draper v. United States, 358 U.S. 307 (1959),

provides a suitable benchmark. While Hereford,

the Government’s informer in that case did not

state the way in which he had obtained his in-

formation, he reported that Draper had gone to

Chicago the day before by train and that he would

return to Denver by train with three ounces of

heroin on one of two specified mornings. More-

over, Hereford went on to describe, with minute

particularity, the clothes that Draper would be

wearing upon his arrival at the Denver station. A

magistrate, when confronted with such detail,

could reasonably infer that the informant had

—

gained his information in a reliable way. . . .”

Spinelli v. United States, supra, 393 U.S. at 416-

417. (Footnote omitted. )

In the instant case, the magistrate was similarly con-

fronted with such detail that he could reasonably infer

that the informant had gained his information in a re-

liable way and was relying “. . . on something more

substantial than a casual rumor circulating in the un-

derworld or an accusation based merely on an indi-

vidual’s general reputation.” Spinelli v. United States,

supra, 393 U.S. at 416. The detail furnished by the in-

formant in this case rivals in particularity the detail

furnished by the Government’s informant in Draper.

The informant here had informed the Pomona police

that a 1971 Ford Sport Custom truck, white in color

with a dark green roof, would be parked at the Havasu

Trailer Company, 1515 West Holt in Ontario, and

that on this truck would be a ten and one-half foot

Havasu camper cream color with dark simulated wood

panel. The truck would carry temporary license number

1291208 and would be parked next to a blue Chevro-

let automobile. The camper would have a false body

in which approximately $100,000 worth of marijuana

would be secreted. The informant also advised that an

individual named “Tom,” 6’ tall, 160-170 pounds,

sandy hair, moustache and rimmed glasses would arrive

by air from San Diego to pick up the truck.

Thus, the detail furnished by the informant in this

case equals the detail supplied by the informant in

Draper. Insofar as the Spinelli opinion holds that

Draper is the benchmark for measuring the sufficiency

of search warrant affidavits under the first prong of

the Aguilar test, then the California Supreme Court's

——— Se ny ant a

—1l6—

decision in this case conflicts with both Draper and

Spinelli.

It should be noted, however, that the Court's opin-

ion in Spinelli was a plurality opinion with a separate

concurring opinion by Mr. Justice White. Mr. Justice

White did not join in the plurality opinion precisely

because of his reservations about the plurality’s inter-

pretation of Draper. In his concurring opinion, Mr.

Justice White indicated that the Spinelli decision left

open the possibility of future reconsideration of either

the Draper or the Aguilar decision. He stated:

“ _. The Draper approach would reasonably jus-

tify the issuance of a warrant in this case, particu-

larly since the police had some awareness of

Spinelli's past activities. The majority, however,

while seemingly embracing Draper, confines that

case to its own facts. Pending full-scale reconsider-

ation of that case, on the one hand, or of the

Nathanson-Aguilar cases on the other, I join the

opinion of the Court and the judgment of reversal,

especially since a vote to affirm would produce an

equally divided court.” Spinelli v. United States,

supra, 393 U.S. at 428-29.

Presenting a factual situation which closely parallels

the facts of Draper, the instant case affords an oppor-

tunity for this Court to reconcile the two competing

lines of authority discussed in Mr. Justice White's con-

currence. The importance of such a reconcilation was

underscored in United States v. Mitchell, 425 F.2d

1353 (8th Cir.) (per then Circuit Judge Blackmun),

cert. denied, 400 U.S. 853 (1970). In that case, Mr.

Justice Blackmun observed that “It is perhaps not the

easiest task for a lower court to walk the logical tight-

PST A. OTERO 5 ee

rope of Draper-Aguilar-Spinelli, . . .” /d. at 1360. Re-

ferring to Mr. Justice White's concurring opinion in

Spinelli, Mr. Justice Blackmun stated:

“Mr. Justice White’s distress does not, of

course, solve the present case for us, for, as an

inferior federal court, we remain confronted with

any ‘tension’ which exists between Draper, Agui-

lar, and Spinelli. However, so long as Draper re-

mains on the books, so long as the Supreme Court

majority chooses not to overrule it but to uphold

it on its facts, and so long as it continues to be

cited by the Supreme Court . . ., it must stand

for us as good law for prearrest facts which

paralleled the Draper facts. . . .” Jd. at 1361. (Ci-

tations omitted. )

The Eighth Circuit is not the only court to have

experienced confusion in reconciling Draper and Spinel-

li with the two-pronged test enunciated in Aguilar.

Other circuits have also had difficulty in applying these

cases in a consistent manner. See cases collected in

Note, 45 N.Y.U. L.Rev. 908, 909 n.8 (1970). See

also The Supreme Court, 1968 Term, 83 Harv. L.Rev.

7, 180 (1969). A grant of certiorari is clearly appro-

priate to eliminate the confusion engendered by the two

competing lines of authority which have developed in

the past decisions of this Court.

Moreover, a grant of certiorari on this issue is of

vital importance to society and to criminal suspects as

well as to law enforcement so that the rules governing

the sufficiency of search warrant affidavits may be

spelled out as clearly as possible. In United States v.

Ventresca, 380 U.S. 102, 108 (1965), this Court ad-

monished that “. . . A grudging or negative attitude

oxfiiies

by reviewing courts toward warrants will tend to dis-

courage police officers from submitting their evidence

to a judicial officer before acting.” Since the California

Supreme Court's decision in this case is a more re-

strictive interpretation of the Federal Constitution than

either Draper or Spinelli, the net result may be a

frustration of the policy favoring the use of search war-

rants within this most populous State of the Union. For

this reason also, this issue is an important question

appropriate for review on certiorari.

This Case Presents an l:nportant Question as to Whether

the Wire Communications Provisions of Title Il

of the Omnibus Crime Control and Safe Streets

Act of 1968 Preempt State Legislation in the Field

of Wiretapping

In this case, the California Supreme Court has held

that Title III of the Omnibus Crime Control and Safe

Streets Act of 1968 (18 U.S.C. §§ 2510-20) pre-

empted state legislation in the field of wiretapping and

electronic eavesdropping. Halpin v. Superior Court, 6

Cal. 3d 885, 896-900, 101 Cal. Rptr. 375, 382-85,

495 P.2d 1295, 1302-05. This Court has not previous-

ly decided this question.

An early and authoritative resolution of this

question by this Court is imperative to settle the

status of state wiretapping legislation in light of the

passage of the 1968 Act. In Berger v. New York, 388

USS. 41, 47-48 nn. 4, 5 (1967), this Court noted that

some 36 States had statutes prohibiting wiretapping.

The California Invasion of Privacy Act (Cal. Pen.

Code §§ 630-637.2). which the court below has held

to have been preempted by Title III of the 1968 fed-

57 Calif. L. Rev. 1182, 1183 (1969). See also ABA

Project on Minimum Standards for Criminal Justice,

the coverage of that section. See Pub. L. 90-351, Title

Ill, § 803 (June 19, 1968), 82 Stat. 223. Interpreting

that policy. (Citations and footnotes omitted.)”

Benanti v. United States, 355 U.S. 96, 105-06

The considerations which impelled this Court to

grant certiorari in Benanti warrant similar action in

this case to decide whether the preceden'’s established

wiles

under section 605 prior to its amendment apply with

equal force to the wiretapping provisions of the 1968

Act.

Ill

A Third Question of Importance Is Presented as to

Whether an Application of Title III to This Case

Would Involve an Unconstitutional Infringement

of California’s Right to Preserve the Security of

Its Penal Institutions

In the event that Title Ill of the 1968 Crime Con-

trol Act were held to preempt California’s Invasion

of Privacy Act, a subsidiary question of considerable

importance would remain for decision by this Court.

Petitioner submits that the application of Title III to

bar monitoring inmate telephone calls represents a

serious threat to the security of county jails and state

prisons and involves an important question of consti-

tutional dimensions as to whether Congress may dis-

place legitimate state interests in this vital area.

In Lanza v. New York, 370 U.S. 139, 142-44

(1962), this Court held that the monitoring of con-

versations within a jail did not contravene the Fourth

Amendment because official surveillance had tradition-

ally been the order of the day in such institutions. More

recently in Johnson v. Avery, 393 U.S. 483, 486

(1969), this Court stated:

“. . There is no doubt that discipline and ad-

ministration of state detention facilities are state

functions. They are subject to federal authority

only where paramount federal constitutional or

statutory rights supervene. . . .”

It is clear that there are certain activities that are

beyond the reach of Congress in the enactment of

we!

federal legislation. These activities are “those which

are completely within a particular state, which do not

affect other states, and with which it is not necessary

to interfere, for the purpose of executing some of the

“general powers of the government. . . .” Gibbons v.

Ogden, 9 Wheat. 1, 195, 6 L.Ed. 23 (1824). Mr.

Justice Clark observed in Katzenbach v. McClung,

379 U.S. 294, 302 (1964), that “This rule is as good

today as it was when Chief Justice Marshall laid it

down almost a century and a half ago.”

Interference with the administration of state penal

institutions is hardly necessary to execute the general

powers of government which Congress sought to ef-

fect by passage of the Title III of the 1968 Act. If

a line is to be drawn marking the limit of federal au-

thority and the beginning of exclusive state juris-

diction reserved by the Tenth Amendment, that line

must be drawn somewhere short of the jailhouse door.

One cannot conceive of an activity more exclusively

intrastate than the monitoring of an intrastate tele-

phone call made from within a county jail. Since the

placement of such telephone calls is supervised by jail

officials, there is no possibility of monitoring inter-

state telephones by mistake.

In this case, the monitoring of the Halpins’ tele-

phone conversation was a legitimate exercise of the

police power reserved to California by the Tenth

Amendment. The requirements of prison discipline and

security necessitate such monitoring. This type of se-

curity measure serves to prevent escapes. See Davis

v. Superior Court, 175 Cal. App. 2d 8, 20, 345 P.2d

513 (1959). Such monitoring also serves to prevent

recently arrested suspects from warning accomplices to

flee or destroy evidence. In this case. respondent

=_= =

Thomas Halpin instructed his wife to have a third

party “. . . get rid of everything that’s around there.”

(Gr. J. Tr., p. 39.) In United Auto Workers v. Wis-

consin Emp. Rel. Bd., 351 U.S. 266, 274-75 (1956),

this Court stated:

“The States are the natural guardians of the

public against violence. It is the local communi-

ties that suffer most from the fear and loss oc-

casioned by coercion and destruction. We would

not interpret an act of Congress to leave them

powerless to avert such emergencies without com-

pelling directions to that effect.”

The importance of the federal question involved

here is underscored by recent events at Attica prison

in New York and San Quentin in California. Moreover,

thousands of local jail and state prison employees are

threatened with civil and criminal penalties under

the 1968 Act if they continue traditional monitoring

to preserve the security of their institutions. See 18

U.S.C. §§ 2511(1), 2520. All of these factors militate

in favor o: a grant of certiorari on this issue.

There Is a Fourth and Final Question of Importance

as to the Proper Construction of the Party Consent

Exception to the 1968 Crime Control Act

An additional question is also presented as to

whether the tape recording in this case came within

an exception to the provisions of Title III of the 1968

Crime Control Act. 18 U.S.C. § 2511, subsection 2(c)

“It shall not be unlawful under this chapter for

a person acting under color of law to intercept a

wire or oral communication, where such person

ELE TE ee we

is a party to the communication or one of the

parties has given prior consent to such inter-

ception.”

Under California law, the jailer is a necessary party

to the two telephone calls which an arrested person

has the right to make immediately after booking. Cali-

fornia Penal Code section 851.5 provides that these

two telephone calls must be made “in the presence of

a public officer or employee.” No court has yet passed

upon the question of whether a public officer, under

these circumstances, is a party to the wire communi-

cation for the purposes of 18 U.S.C. § 2511, subsec-

tion 2(c).

Moreover, even if the jail in this case were not a

party to the telephone conversation per se, the requir-

ment of a public officer’s presence in California Penal

Code section 851.5 provides a basis for implied con-

sent as a condition of the right to make the statutory

telephone calls. The Report of the Senate Judiciary

Committee which accompanied the passage of the

1968 Crime Control Act recognized that:

“. . . Consent may be expressed or implied.

Surveillance devices in banks or apartment houses

for institutional or personal protection would be

impliedly consented to. . . .” S.Rep. No. 1097,

90th Cong., 2d Sess., reprinted in 2 U.S. Code

Cong. & Ad. News 2112, 2182 (1968). _

Petitioner submits that this question of statutory con-

struction is also appropriate for consideration of this

Court in the event of a grant of certiorari on the other

issues set forth in the petition. This question is closely

connected to the other involved herein. Resolution of

this issue will provide guidance to California and other

—24—

States as to whether the enactment of the statutes

containing language similar to California Penal Code

secton 851.5 will except the monitoring of inmate

telephone calls from the proscriptions of Title III of

the 1968 Crime Control Act.

Conclusion

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the California

Supreme Court.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General of the State of

California,

Epwarp A. HINz, JR.,

Chief Assistant Attorney General

—Criminal Division,

Doris H. MAIER,

Assistant Attorney General,

—wWrits Section,

S. CLARK Moore,

Assistant Attorney General,

RUSSELL IUNGERICH,

Deputy Attorney General,

LOWELL E. LATHROP,

District Attorney, County of San

Bernardino,

JosEPH D. CANTY, JR.,

Deputy District Attorney,

Attorneys for Petitioner.

APPENDIX A

Opinion of the Supreme Court of the State of California

In the Supreme Court of the State of California, in

Bank.

Thomas Halpin et al., Petitioners, v. The Superior

Court of San Bernardino County, Respondent; The

People, Real Party in Interest. L.A. 29949 (Superior

Ct. No. CRW-2028).

Filed: April 24, 1972.

On February 3, 1971, petitioners Thomas and Re-

becca Halpin, husband and wife, and Martin Silva

were charged by indictment with conspiracy to trans-

port marijuana (Pen. Code, § 182, subd. 1; Health

& Saf. Code, § 11531), transportation of marijuana

(Health & Saf. Code, § 11531) and possession of ma-

rijuana for sale (Health & Saf. Code, § 11530.5). The

trial court denied their motions to set aside the indict-

ment (Pen. Code, § 995) and to suppress evidence (Pen.

Code, § 1538.5) which consisted of over 500 pounds

of marijuana seized pursuant to an allegedly invalid

search warrant and an incriminating tape recording

made by police officers who eavesdropped on a con-

versation initiated by Halpin to his wife from a tele-

phone located within the jail facility. Petitioners now

seek a statutory writ of mandate (Pen. Code, § 1538.5,

subd. (i)) to compel the trial court to suppress the

aforementioned evidence. For reasons hereinafter set

forth, we hold that the marijuana and the tape record-

ing must be suppressed as evidence and that a peremp-

tory writ of mandate must issue.

At the outset we deem it appropriate to state that we

are compelled to declare invalid the warrant which

—

was issued in connection with the search of the vehicle

and the subsequent seizure of the marijuana since the

magistrate failed to follow the basic requirements for

the issuance of such a warrant enunciated in 1964 by

the Supreme Court in Aguilar v. Texas, 378 U.S. 108.

The two-pronged test spelled out in that decision is not

difficult to comprehend or follow.’ Magistrates and

law enforcement agencies, however, continue to mani-

fest confusion. Some, while expressing a_ threshold

knowledge of the requirements of Aguilar, treat them

with unwarranted perfunctoriness. An example of such

is illustrated by the colloquy between the magistrate

who issued the search warrant and the deputy district

attorney in the instant case.’

4In Aguilar v. Texas (1964) 378 U.S. 108, the Supreme

Court stated that “an affidavit [in support of a search warrant]

may be based on hearsay information and need not reflect the

direct personal observations of the affiant . . . [but] the

magistrate must be informed of [1] some of the underlying cir-

cumstances from which the informant concluded that the nar-

cotics were where he claimed they were, and [2] some of the

underlying circumstances from which the officer concluded that

the informant, whose identity need not be disclosed . . . was

‘credible’ or his information ‘reliable’.” (Jd. at p. 114.)

*After Detective Cole of the Ontario Police Department testi-

fied in support of the search warrant (Pen. Code, § 1526, subd.

(b)) the deputy district attorney and the magistrate engaged in

the following conversation:

“THE COURT: I am satisfied with the search warrant if you

are satisfied that you have completely complied in the follow-

ing respects, sir: We have in the law several cases where

the officér received information by radio by the dispatcher or an-

other officer, which imparts information that then gives probable

cause. Are you prepared to call the officer who Ganmnhind the

information to him to supplement your probable cause? In other

words, how did that man who sent the information over the radio

get his information, and is that reliable? If you are satisfied on

that aspect I will go along with this.

“MR. [Deputy District Attorney]: I believe, your Honor,

the state of the record before the Court is that information from

a reliable source, the Captain of the Pomona Police Depart-

ment, was furnished to the Ontario Police Department, that this

aaeliliicen

Courts do not require that an affidavit in support

of a search warrant be drafted with the precision of a

model legal instrument nor interpreted in a hypertechni-

particular office in Pomona had prior experience with this

particular defendant—

“THE COURT: That could be hearsay.

“MR. [Deputy District Attorney]: —and that the informa-

tion furnished by the Pomona Police Captain in every particu-

larity, and the information furnished by the informant to the

police captain, and then to the Ontario Police Department, was

found to be true. And under these circumstances I believe there

was a basis for showing through the conduct and information fur-

nished by the reliable informant there is a basis for the search of

the truck presently in custody and under the control of the

officials—

“THE COURT: This will almost beyond a doubt be con-

tested. Now, let me ask you this, sir, are you allowed in any-

way to supplement the showing up at this point on 1538.5 motion

or a motion to suppress or any of the numerous ways it could

be attacked by bringing in Captain Mooney to testify directly?

“MR. [Deputy District Attorney]: I suppose this should be

off the record. I don’t think there would be anything further to

add to the record unless the Court has anything particular in

mind.

“THE COURT: No, I have nothing in mind, except I just

wondered if you could present additional testimony if you deemed

it advisable at the time of a hearing on a 1538.5 and supple-

menting what you have on the record so far.

“MR. [Deputy District Attorney]: As a general state of law,

I believe there are two ways such additional information could

be presented, and if the Court feels there is need for it I will

bring those people here now.

“THE COURT: I would rather not cause any delay here un-

less it is absolutely essential because that truck is under surveil-

lance. Anything can happen out here, and the quicker you get

there with a search warrant I think the quicker the interests of

justice can be served.

“MR. [Deputy District Attorney]: I assume from that the

Court is satisfied with the People’s showing of—

“THE COURT: I am satisfied. I can see trouble coming up

on that point at the hands of a skillful defense attorney who is

now going to strike at the very vitality of the information over

the radio and how Captain Mooney had his probable cause and

(This footnote is continued on next page)

ax@u»

cal manner." However, once it is determined that a

search without a warrant cannot be conducted under

any of the well-recognized exceptions, Aguilar must be

followed. “|The court must still insist that the magis-

trate perform his ‘neutral and detached’ function and

not serve merely as a rubber stamp for the police.”

( Aguilar v. Texas, supra, 378 U.S. 108, 111.)

On December 14, 1970, between 2:30 and 3 p.m.,

police officers, including Detective Cole of the Ontario

Police Department, stopped a white and green 1971

Ford Sport Custom camper truck in the City of On-

tario. Previously Cole had received information that a

camper of the same description contained marijuana

reputedly worth $100,000. After the truck pulled over

curb the driver “jumped out of the truck, and

did so he locked [it].” He was immediately

under arrest and a search of his person pro-

s license bearing the name of “Thomas

iit

;

his information. That is why I raised the query,

. [Deputy Ty-Y course Court is

an tee than t bom Oo with on the record, that is,

you personally satisfied with the probable cause shown here

: can

afjun

the magistrate that “Captain Mooney [of the Pomona

Police Department] called me | at 8:05 a.m. this morn-

ing}, informing me that at a Havasu Trailer Company

at 1515 West Holt I would find a 1971 Ford Sport

Custom truck, white color with a dark green roof,

and on this truck would be a ten and a half foot

Havasu camper, cream color, with a darker wood—

would have a temporary license in the rear window,

giving me a number of 1291208. He stated that this

camper body would have a false type body and con-

tained approximately $100,000 worth of marijuana.

He stated that a white male known to him only as Tom

[who apparently would be driving the camper! would

be arriving in San Bernardino on a flight from San

Diego. He described this male as being approximately

six foot and weighing 160 to 170 pounds. He stated

he had sandy hair, a mustache and wore horn-rimmed

glasses. . . . At this time he did state that this truck

would be parked next to a blue Chevrolet. . . . I

asked him about [the informant's| reliability, and he

stated that on November 30 he had received similar in-

formation from this informant which he gave to the San

Francisco Police Department, which resulted in an ar-

rest. At this time a Havasu camper was loaded similar

to the one he described here and contained [a very

large haul] of marijuana.”

Cole further testified before the magistrate that after

receiving this information he drove to the Havasu Trail-

er Company and, about 8:40 a.m., observed in the

company’s lot the truck which Captain Mooney had de-

dy phy phe yt Ey Fe FR

transcribed. The transcribed statement shall be deemed to be

an affidavit for the purposes of this chapter.”

_—

scribed to him. Cole called the sheriff's narcotic division

for assistance and the officers began a surveillance of

the truck about 9:30 am. At 11:30 a Volkswagen

automobile drove into the parking lot. The frame

around the license plate bore the name of a San Diego

car dealer and the man (petitioner Halpin) in the car

fit the description earlier given to Cole. Halpin left the

automobile and went into the trailer company office.

He remained there a short while then returned to the

Volkswagen and drove away. Officers followed Halpin

for a while but determined that if they continued they

might breach the integrity of their surveillance and they

thereupon returned to their positions near the Havasu

Trailer Company. About 2:30 p.m. the Volkswagen

returned to the camper lot. Halpin went into the com-

pany office, remained there a short while, and there-

after entered the camper and drove off. Cole and other

officers followed for a short distance before Cole pulled

up alongside, showed Halpin his badge and motioned to

him to pull over to the curb.

The search warrant was issued solely on the fore-

going testimony. The subsequent search of the camper

produced over 500 pounds of marijuana.

Halpin was removed to the San Bernardino County

jail and, after being booked, was granted permission to

make a telephone call using the telephone within the

Warren Hockanson of the number—but not of the

name—of the party he wished to call, and Hockanson

dialed it for him. (It was later determined that Halpin

was calling his wife in San Diego.) Hockanson ap

parently left the room shortly after the conversation

began and before incriminating statements were made

2 SUE er

82s

Anti!

which he

thus

the informant was

the

and that

aie

failed to satisfy

which the

the

Aguilar

Texas, supra,

US. sum, $04, ter eo Gammutinden of tho etiam

of affidavits based upon the hearsay statements of an

informant. We agree.

announced

The first of Aguilar’s two-pronged test requires that

the magistrate be informed of some of the underlying

aire. aoa aes an

£2

uf fe

_ ie

were. In accordance with Aguilar, this court in People

vy. Hamilton (1969) 71 Cal.2d 176, 179-180 required

that “the affidavit . . . allege the informants state-

ment in language that is factual rather than conclu-

sionary and must establish that the informant spoke

with personal knowledge of the matters contained

in such statement.”

In Hamilton the affidavit offered in support of the

search warrant contained in relevant part the follow-

ing allegations: “That said affiant was informed on

July 13, 1967, by confidential reliable informant that

Jane Doe Nora also known as Nora Mae Hamilton and

John Doe Tony have in their possession at a white

single story, one family dwelling located at 822 W.

Alpine Street, Upland, Calif. approximately three hun-

dred (300) rolls of dangerous drugs wrapped in tin

foil in groups of ten pills per roll. [4] That further

your affiant reviewed San Bernardino County Sheriff

Office report No. D.R. 112302 which indicated Nora

Mae Hamilton and Raymond David Padilla were arrest-

ed at 822 W. Alpine Street, Upland, California, on April

14, 1967 for Possession of Marijuana and Possession of

dangerous drugs found there. The pills found in the

April 14, 1967 arrest were amphetamine, wrapped in

tin foil in groups of 10. [€] That said confidential

reliable informant has furnished information in the past

which has lead [sic] to eight (8) arrest{[s] and con-

victions for narcotic and dangerous drug offenses.”

(People v. Hamilton, supra, 71 Cal.2d at p. 179.) We

held that the affidavit failed to set forth allegations

sufficient to enable the issuing magistrate to determine

whether the informant had personal knowledge of the

circumstances which he described. Moreover, we con-

cluded that the information so provided was not suf-

_———

uijun

ficiently detailed to permit even the inference that the

informant had personal knowledge.* (People v. Ham-

ilton, supra, 71 Cal.2d at p. 181.)

The testimony offered in support of the search war-

rant, in the instant case contains information of a gen-

eral nature similar to that in the affidavit in Hamilton.

The tip in this case merely indicated that Cole would

find a certain, well-described truck containing mari-

juana at a particular location and that a person de-

scribed with particularity would take possession of it.

The magistrate was not provided with a sufficient

statement of the underlying circumstances from which

he could evaluate the validity of the informer’s con-

clusion that “Tom” was handling, transporting or sell-

ing marijuana. For example, it is not alleged that the

informant personally observed Halpin or others han-

dling or transporting the marijuana, or that the in-

formant had had dealings with “Tom” or any other

person in connection with the camper, and it cannot

be inferred that the informant gained his knowldge

in any reliable way. (Spinelli v. United States (1969)

393 U.S. at p. 417.) It is thus apparent that Mooney’s

informant could as likely have obtained the information

from an “offhand remark heard at a neighborhood

bar,” as from personal observations or some other

reliable source.’ (/d.)

*We did not reject the possibility that sufficiently detailed

information by an informant in the absence of “factual

siegatioas of Be own cxperience™ could warrant such an inference

in a proper case. (People v. Hamilton (1969) 71 Cal.2d 176,

181; see also i v. United States (1969) 393 U.S. 410,

417; id. at pp. 425-426 (White, J. concurring).)

"It should be noted that merely because sufficient

to satisfy Aguilar’s first prong is gained in a reli way does

not automatically mean such information satisfies Aguilar’s second

(This footnote is continued on next page)

“In the absence of a statement detailing the manner

in which the information was gathered, it is especially

important that the tip describe the accused’s criminal

activity in sufficient detail that the magistrate may

know that he is relying on something more substantial

than a casual rumor circulating in the underworld or

an accusation based merely on an individual's general

reputation.” (Spinelli v. United States, supra, 393 U.S.

410, 416.) Although the camper and Halpin were de-

scribed in detail, the circumstances related by Cole did

not describe any activity by Halpin or others which

might be deemed as sufficiently criminal to warrant a

belief on the part of the magistrate that Mooncy’s in-

formant relied “on something more substantial than a

casual rumor circulating in the underworld or an ac-

cusation based merely on an individual's general repu-

tation.”

Citing People v. Benjamin (1969) 71 Cal.2d 296,

302-303, the People alternatively argue that even if

the hearsay statements of Mooncy’s informant were not

sufficient in themselves to justify the issuance of the

warrant, when combined with the officers’ observations

the issuing magistrate could reasonably be led to be-

juana.

The affidavit in support of the warrant in Benjamin

was “quite extensive and reflected an investigation of

defendant's activities which had taken place over a

period of more than two months.” (People v. Benjamin,

supra, 71 Cal.2d at p. 299.) The information there

provided by the informant, which appeared in the af-

pare Go casas supra; Spinelli v. United States, supra, 393

10, 417 425-426 (White, J. concurring).) Aguilar’s

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concluded “without hesitation that the hearsay state-

ments of the informant were not sufficient in them-

selves to justify issuance of the warrant,” we held that

“the combination of that information with the officers’

own observations produced a state of facts sufficient

to lead the magistrate, as one of ordinary caution or

prudence, to believe and conscientiously entertain a

strong suspicion that defendant was engaged in [illegal

activities].” (People v. Benjamin, supra, 71 Cal.2d

296, 301, 303 (italics in original); see also Spinelli

v. United States, supra, 393 U.S. 410, 415.)

In the instant case, Cole’s observations were not of

the same character as those of the officers in Benjamin.

Those officers already had knowledge of some of the

illegal bookmaking activity described by their inform-

ant, and their investigation and observations there-

after continued over a period of more than two months.

During that period of time they kept the suspected lo-

cation under surveillance, saw the defendant meet with

known bettors and conduct transactions from which

the experienced officers could conclude that bookmak-

ing activities were being carried on. (People v. Benja-

min, supra, 71 Cal.2d at pp. 299-300.) Here, Cole

observed only the seemingly innocent activity of Halpin

as he entered and left the Havasu Trailer Company

office and subsequently drove the camper away. (Cf.

People v. Madden (1970) 2 Cal.3d 1017, 1023-1024;

Price v. Superior Court (1970) 1 Cal.3d 836, 842.)

Unquestionably, the inferences to be drawn from the ac-

count of the observations presented to the issuing mag-

istrate in Benjamin were significantly conclusive of

illegal activity. The account of the observations pre-

sented to the issuing magistrate in the instant case in-

stead of corrobrating claims of illegal activity sug-

Ot PRT ey Serre

gested no criminal activity whatsoever and were entirely

consistent with innocent conduct.

It should also be noted that although Cole testified

that on November 30 Mooney had received similar in-

formation from the same informant which resulted in

an arrest, such information is relevant only for purposes

of Aguilar’s second prong. (See fns. 1, 7, supra.)

Since we conclude that the affidavit consisting of the

transcription of Cole’s testimony before the magistrate

fails to satisfy the first prong of the Aguilar test, we

need not reach the issue whether the informant, by

virtue of the information he previously supplied to

Mooney, could be deemed reliable within the meaning

of the second prong of that test.

II. The Electronic Surveillance

Petitioners contend that the electronically monitored

and tape-recorded conversation between Halpin and his

wife is inadmissible because it violated their rights un-

der title III of the Omnibus Crime Control and Safe

Streets Act of 1968 (18 U.S.C. §§ 2510-2520), the

Fourth Amendment to the Constitution of the United

States and the California Invasion of Privacy Act.

(Pen. Code, §§ 630-637.2).

Petitioners argue that Congress, in enacting title III,

intended to preempt state legislation in the field of

wiretapping and electronic surveillance and that since

prior judicial approval was thus required but was not

obtained for the tap, the telephone conversation be-

tween Halpin and his wife is inadmissible. The People

maintain that title III is unconstitutional as applied

because it constitutes an unreasonable infringement

upon California’s right, reserved to it by the Tenth

Amendment, to regulate and administer the internal

affairs of its penal institutions.°

Section 2511 of title 18 of the United States Code

makes it a crime, subject to the exceptions contained

in subdivisions (2)(a) through (3) of that section, to

wilfully intercept or disclose any wire or oral communi-

cation."” “Wire communication” is defined by section

°Title III has been held constitutional. (See, e.g., United

States v. Perillo (D. Del. 1971) 333 F.Supp. 914 (title III con-

forms to Berger and Katz); United States v. Leta (M.D.Pa. 1971)

332 F.Supp. 1357 (title III constitutional on its face); United

States v. (D.D.C. 1971) 331 F.Supp. 233 (Title III con-

stitutional on its face); United States v. Cantor (E.D.Pa. 1971)

328 F.Supp. 561 (title III “sufficiently circumscribed” to protect

rights of the individual guaranteed by the Fourth Amendment);

United States v. Sklaroff (S.D. Fla. 1971) 323 F.Supp. 296

(title III not unconstitutional on invasion of privacy grounds);

United States v. Escandar (S.D.Fla. 1970) 319 F.Supp. 295 (title

III not unconstitutional on its face); see also United States v.

Cox (10th Cir. 1971) 449 F.2d 679. But see, e.g., Schwartz,

The Legitimation of Electronic Eavesdropping: The Politics of

“Law and Order” (1969) 67 Mich. L. Rev. 455; Comment,

Electronic Surveillance by Law Enforcement Officers (1969) 64

Nw. U. L. Rev. 63; Note, Wiretapping and Electronic Surveil-

lance—Title 111 of The Crime Control Act of 1968 (1969) 23

Rutgers L. Rev. 319.)

Section 2511 provides in subdivision (1):

“Except as otherwise specifically provided in this chapter any

who—

“(a) willfully intercepts . . . any wire or oral communication;

“(b) willfully uses . . . any electronic, mechanical, or other

device to intercept any oral communication . . .;

“(c) willfully discloses to any other person the contents of

any wire or oral communication, knowing or having reason to

know that the information was obtained through the interception

of a wire or oral communication in violation of this subsection; or

“(d) willfully uses . . . the contents of any wire or oral com-

munication, knowing or having reason to know that the informa-

tion was obtained through the interception of a wire or oral com-

munication in violation of this subsection; shall be fined not

more than $10,000 or imprisoned not more than five years, or

In the Senate Report on the Omnibus Crime Control and Safe

Streets Act of 1968 (Sen. Comm. on the Judiciary, Omnibus

Crime Control and Safe Streets Act of 1968, Sen. Rep. No. 1097,

2510(1) as “any communication made .. . through

the use of facilities for the transmission of communica-

tions by the aid of wire . . . or other like connection

between the point of origin and the point of reception

furnished or operated by any person engaged as a com-

mon carrier in providing or operating such facilities

for the transmission of interstate or foreign communi-

cations.”""- “Oral communication” is defined by sec-

tion 2510(2) as “any oral communication uttered by

a person exhibiting an expectation that such communi-

cation is not subject to interception under circumstances

justifying such expectation.” Section 2515 makes inad-

missible any evidence, and the fruits thereof, obtained

in violation of sections 2510-2520." The other sec-

tions are not here relevant.

90th Cong., Second Sess. (1968) [hereinafter cited as Senate Re-

port] ) section 2511 was explained in part as follows:

“Section 2511 of the new chapter prohibits, except as otherwise

specifically provided in the chapter itself, the interception and

disclosure of all wire or oral communications. Paragraph (1) sets

out several prohibitions. Subparagraph (a) prohibits the intercep-

tion itself. This eliminates the requirement under existing law that

an ‘interception’ and a ‘divulgence’ must take place. See Massicot

v. United States [(5th Cir. 1958) 254 F.2d 58, cert. denied

(1958) 358 U.S. 816]; Benanti v. United States [(1957) 355

U.S. 96, 102 n. 10).

“Subparagraph (a) establishes a blanket prohibition against

the interception of any wire communication. Since the facilities

used to transmit wire communications form part of the interstate

or foreign communications network, Congress has plenary power

under the commerce clause to prohibit all interception of such

communications, whether by wiretapping or otherwise. (Weiss v.

United States [(1939) 308 U.S. 321].)” (Sen. Rep., supra, at

pp. 91-92.)

*1In the Senate Report “wire communication” was defined “to

include all communications carried by a common carrier, in

whole or in part, through our Nation’s communications network.

The coverage is intended to be comprehensive.” (Sen. Rep.,

supra, at p. 89.)

Section 2515 provides: “Whenever any wire or oral com-

munication has been intercepted, no part of the contents of

(This footnote is continued on next page)

.— IO:

—i6—

Sections 2510-2520 were drafted to meet the stand-

ards of Berger v. New York (1967) 388 U.S. 41 and

Katz v. United States (1967) 389 U.S. 347." (Sen.

Rep., supra, at p. 66.)"* The legislation “has as its

dual purpose (1) protecting the privacy of wire and

oral communications, and (2) delineating on a uni-

form basis the circumstances and conditions under

which the interception of wire and oral communications

may be authorized.” (Sen. Rep., supra, at p. 66.)

An intent to have certain provisions of the law com-

pletely occupy the field of wire-tapping and electronic

surveillance is evidenced by their plain and all-inclu-

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.” (See also Sen. Rep., supra, at p. 96.)

13But see, e.g., Schwartz, supra, 67 Mich. L. Rev. 455; Com-

ment, supra, 64 Nw. U. L. Rev. 63; Note, supra, 23 Rutgers

L. Rev. 319.

4The House Committee on the Judiciary also made a similar

report (No. 488, July 17, 1967). The House bill was passed in

lieu of the Senate bill after the text of the Senate bill was sub-

stituted for that of the House bill. (2 U.S. Code Cong. &

Admin. News 2112 (90th Cong., Second Sess. (1968) ).)

15The comments in the Senate Report concerning the p’

of title III are as follows: “[{] Because of the complexity in the

area of wiretapping and electronic surveillance, the committee be-

lieves that a comprehensive and in-depth analysis of title III

would be appropriate in order to make explicit congressional in-

tent in this area. [§] Section 801.—Section 801 [Pub. L. 90-351]

contains the findings relating to the conditions with which the

proposed legislation is designed to deal, and of the actions neces-

sary to cope with those conditions. . . . Paragraph (b) recognizes

that to protect the privacy of wire and oral communications, to

protect the integrity of court and administrative proceeding(s]

and to prevent the obstruction of interstate commerce, it is neces-

sary for Congress to define on a uniform basis the circumstances

and conditions under which the interception of wire or oral com-

munications may be authorized. It also finds that all unav-

thorized interception of such communications should be pro-

hibited, as well as the use of the contents of unauthorized inter-

ceptions as evidence in courts and administrative hearings.” (Sen.

Rep., supra, at pp. 88-89.)

yee ee

PLEO LOOT MELE Y IT LI NE ER ES

_———

—, =

sive wording. (See Allen v. Dumont Laboratories v.

Carroll (3d Cir. 1950) 184 F.2q 153, 155.) For

example, section 2511(1)(a) provides penal sanctions

for “any person who willfully intercepts . . . any wire

or oral communication,” and section 2510(1) defines

“wire communication” as “any communication made

... through the use of facilities . . . furnished or oper-

ated by . . . a common carrier . . . for the transmission

of interstate or foreign communications.” (Italics

added.) That Congress intended to enact comprehen-

sive national legislation, against which all then existing

federal and state legislation was to be measured, is also

illustrated by the comments of the Senate Committee

on the Judiciary."* At the same time, however, Con-

gress left room for the states to supplement the law in

certain areas,’’ provided the regulations are not more

permissive. (See, e.g., Sen. Rep., ‘supra, at pp. 98-99. )

The following comments in the Senate Report indicate that

intent: “Both proponents and opponents of wiretapping and

electronic surveillance agree that the present state of the law in

this area is extremely unsatisfactory and that the Congress should

act to clarify the resulting confusion.” (Sen. Rep., supra, at

p. 67.) “On the State level, there is little uniformity. . . . Only

a few States have enacted statutes dealing with other forms of

electronic surveillance. . . . Even those existing statutes, how-

ever, must now be reformed in light of the standards for con-

stitutional electronic surveillance laid down by the Supreme Court

in Berger v. New York [( 1967) 388 U.S. 41] and Katz v.

United States [(1967) 389 US. 347].” (It should be noted at

this point that the California Invasion of Privacy Act became ef-

fective on November 7, 1967: Berger was decided on June 6,

1967 and Katz was decided on December 18, 1967.) “[q] ...

The need for comprehensive, fair and effective reform setting

uniform standards is obvious. New Protections for privacy must

be enacted. Guidance and supervision must be given to State and

Federal law enforcement officers. This can only be accomplished

through national legislation.” (Sen. Rep., supra, at p. 69.) See

also Comment, Electronic Surveillance in California: A Study in

rp Legislative Control (1969) 57 Cal. L. Rev. 1182, 1197,

9-1200.

“The Senate Report specifically indicates areas in which the

Congress did not intend to preempt state legislation; for ex-

(This footnote is continued on next page)

—18—

Congress’ authority in enacting legislation to accom-

plish its asserted purpose is said to emanate from its

plenary power under the commerce clause (see, ¢.g.,

Prudential Insurance Company v. Benjamin (1946)

328 U.S. 408, 423; see also Heart of Atlanta Motel v.

United States (1964) 379 U.S. 241; Weiss v. United

States (1939) 308 U.S. 321, cf. American Power &

Light Company v. Securities & Exchange Commission

(1946) 329 U.S. 90) to regulate telegraph and tele-

phone lines as instrumentalities of interstate commerce

(Western Union Telegraph Company v. Lenroot

(1945) 323 U.S. 490, 502)" and the right of privacy

“arising under certain provisions of the Bill of Rights

and the due process clause of the Fourteenth Amend-

ment.” Since title III is a valid exercise of Con-

18Section 605 of the Communications Act of 1934—the prede-

cessor of title IIT (Sen. Rep., supra, at p. 107) was a

sive scheme for - + bry-? p (Benanti v.

United States (1957) 355 U.S. 96, 105.)

See Senate Report, supra, at page 92.

penal institutions. “{T)he {Tenth} amendment has

been construed as not depriving the national govern-

ment of authority to resort to all means for the exer-

cise of a granted power which are appropriate and

plainly adapted to the permitted end.” (United States

v. Darby (1941) 312 U.S. 100, 124.) “It is no objec-

tion to the assertion of the power to regulate interstate

commerce that its exercise is attended by the same

incidents which attend the exercise of the police

power of the states.” (Jd. at p. 114; cf. Benanti v.

United States (1957) 355 U.S. 96, 104.)

Unquestionably the conversation between Halpin

and his wife was a wire communication within the

meaning of section 2510(1) since it was carried over

wires between Ontario and San Diego and operated by

a common carrier engaged in interstate communica-

tions. Moreover, the conversation was intercepted with-

in the meaning of section 2510(4)” and was not

authorized in accordance with section 2516. The con-

tents of the conversation are therefore inadmissible.

(§ 2515.)

Since we hold that title III has preempted particular

fields of wiretapping and electronic surveillance, we

need not reach the issue whether the Halpins’ right of

privacy was invaded by monitoring and tape recording

the phone call."

reasonable ¢ of pri . See Pen. Code,

§§851.5, 4570: v. Lopez (1963) Cal.2d 223; In re

Ferguson (1961) 55 Cal.2d 663; People v. Califano (1970) §

Cal.App.3d 476: People v. Blair (1969) 2 Cal.App.3d 249:

(This footnote is continued on next Page )

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— =

CONCURRING OPINION BY MOSK, J.

I concur.

I agree completely with the court's opinion on fed-

eral preemption of electronic surveillance. On the sub-

ject of the search warrant, however, I concur under

compulsion of People v. Hamilton (1969) 71 Cal.2d

176.

The admonition to magistrates on the improvident

issuance of search warrants, and on the two-pronged

requirements of Aguilar v. Texas (1964) 378 US.

108, is well advised. With relatively simple effort and

a minimum of cerebration, issuing judges can prevent

the embarrassment that is theirs, and the potential in-

justice to society, when a faulty warrant prevents evi-

dence from being introduced at a trial.

Suggests the documents will seldom be drafted with

consummate legal skill.’

The manner in which warrants should be interpreted

has divided courts from Draper v. United States

(1959) 358 U.S. 307, through Aguilar and its progeny

down to United States v. Harris (1971) 403 U.S. 573.

Often as a last refuge, reliance upon an illusory test of

“common sense” has been employed in a wide variety

‘Here more expertise could have been expected. since a deputy

oitiiu

of search and seizure contexts. For example, in United

States v. Ventresca (1965) 380 U.S. 102, 109, Justice

Goldberg wrote that the affidavit should be “read in a

commonsense way.” In the same opinion he insisted

that “affidavits for search warrants, such as the one in-

volved here, must be tested and interpreted by magis-

trates and courts in a commonsense and relistic fash-

ion.” Justice Black, dissenting in Katz v. United States

(1967) 389 U.S. 347, 366, stated that “common sense

requires . . . a liberal construction.” Conflicting views

in Spinelli v. United States (1969) 393 U.S. 410, in-

voked the same doctrine: Justice Harlan, for the major-

ity, wrote, “[I]ssuing magistrates are not to be confined

. . . by restrictions on the use of their common sense”

(id. at p. 419); Justice Fortas, disagreeing in the same

case, maintained that “a policeman’s affidavit is entitled

to common-sense evaluation.” (Jd. at p. 439.) Justice

Black, dissenting in Vale v. Louisiana (1970) 399 U.S.

30, 36, repeated his earlier opinion for the majority in

Preston v. United States (1964) 376 U.S. 364, that

“common sense dictates that reasonableness varies with

the circumstances of the search.” In United States v.

Harris, supra, at page 583, Chief Justice Burger wrote

that “Commonsense . . . would induce a prudent and

disinterested observer to credit these statements.” And

even a majority of this court spoke of “a common-

sense interpretation” in People v. Superior Court

(Johnson et al.) (1972) 6 Cal.3d 704, 711.

Whatever may be the appropriate test, I have urged

numerous times that this court must give law enforce-

ment officers every encouragement to seek warrants,

rather than to compel them to depend upon their hasty

and competitive judgment in the field. (See my dissents

in People v. Scoma (1969) 71 Cal.2d 332, 340; People

v. Hamilton, supra, at p. 183; People v. Sesslin (1968)

68 Cal.2d 418, 431.) An excessively restrictive inter-

pretation of affidavits, or as the high court in Ventresca,

supra, put it, a “grudging or negative attitude by re-

viewing courts toward warrants” will in the long run

“tend to discourage police officers from submitting their

evidence to a judicial officer before acting.” (380

US. at p. 108.)

It is of vital importance to society, to suspects, and

for the protection of law enforcement officers them-

selves, that probable cause be determined by a “neutral

and detached magistrate.” (Johnson v. United States

(1948) 333 U.S. 10, 14.) To this end “it obviously

is not desirable to place unnecessary burdens” upon

the use of warrants. (People v. Keener (1961) 55

Cal.2d 714, 723.)

Were it not for Hamilton and if we were writing on

a clean slate, I would be inclined to treat the instant

warrant—though certainly it is no model—somewhat

more tolerantly, and to find it does not offend the

Fourth Amendment, or article I, section 19, of the Con-

stitution of California.

Mosk, J.

onfiius

APPENDIX B

Order Denying Rehearing

In the Supreme Court of the State of California, in

Bank. L.A. No. 29949.

Halpin et al., Petitioners; v. The Superior Court of

San Bernardino County, Respondent; The People, Real

Party in Interest.

Order Due May 24, 1972.

Filed May 23, 1972.

Petition of Real Party in Interest for rehearing

DENIED.

Application for stay of the issuance of peremptory

writ of mandamus is denied.

Wright

Chief Justice

a _

APPENDIX C

Opinion of the Court of Appeal

The Court of Appeal, Fourth District, Division Two,

State of California.

Thomas Halpin, et al., Petitioners, v. Superior Court,

et al., Respondents, People of the State of California,

By their Attorney, Lowell E. Lathrop, District Attorney

for the County of San Bernardino, Real Party Interest.

4 Civil 11542, (Sup.Ct.No. CRW-2028).

Filed September 22, 1971.

PETITION for writ of mandamus. Petition denied.

Miller, Glassman & Browning, Friedman, Sloan &

Bresee, by Paul G. Sloan, for Petitioners.

Lowell E. Lathrop, District Attorney, and Joseph

D. Canty, Jr., Deputy District Attorney, for Real Party

in Interest.

No appearance for Respondents.

Petitioners Thomas Halpin, Rebecca Halpin and

Martin Silva were indicted by a grand jury for con-

spiracy to transport marijuana, transportation of mari-

juana, and possession of marijuana for sale. Their

motions to suppress evidence and to dismiss the in-

dictment were denied, and they seek a writ of mandate

ordering the superior court to suppress the evidence.

Detective Cole of the Ontario Police Department

orally testified before a magistrate in support of a search

warrant as follows: A Pomona police officer told him

that an informant—who had two weeks before given

similar information to the Pomona police, who had re-

layed it to San Francisco, where an arrest was made

and a vehicle similar to the one described below seized

with a large amount of marijuana—had informed him

———

<tih~

that at the Havasu Camper Company, 1515 West Holt

in Ontario, a 1971 Fort Sport Custom truck, white in

color with a dark green roof, would be parked and on

this truck would be a 10% foot Havasu camper,

cream color with a dark simulated wood panel. The

truck would carry a temporary license No. 1291208

and it would be parked next to a Slue Chevrolet auto-

mobile. The camper would have a false body in which

approximately $100,000.00 worth of marijuana would

be secreted. Officer Cole went to the described location

and found a truck and camper which met this de-

scription, including the license number. The truck and

camper were parked next to a blue Chevrolet. Officer

Cole also was advised that an individual named

“Tom,” 6 feet tall, 160 to 170 pounds, sandy hair,

mustache and horn-rimmed glasses would arrive by air

from San Diego to pick up the truck. Sure enough, a

man 6 feet tall, 160 to 170 pounds, sandy hair, mus-

tache and horn-rimmed glasses, arrived. He did not

arrive by air, but drove a car with the name of a San

Diego dealer on the license plate frame. He arrived,

then left and went to the mountains with his wife and

child. He returned to pick up the truck and the police

pulled him over. As they did so and identified them-

selves, he jumped out and locked the truck. His driver's

license indicated that his first name was “Tom,” and

his full name, Thomas Halpin. He refused to consent

to a search, whereupon the officers proceeded to the

magistrate’s office and related the above facts. Upon

hearing this testimony, the magistrate observed that he

was satisfied with the presentation and ordered the issu-

ance of the warrant. There was some general discussion

about getting additional information, but the magistrate

observed reasonably that he “would rather not cause

-—

any delay here unless it is absolutely essential be-

cause that truck is under surveillance. Anything

can happen out there, and the quicker you get there

with the search warrant I think the quicker the interests

of justice can be served.”

Armed with the search warrant, the officer searched

the vehicle and found secreted within it over 500

pounds of marijuana. Thomas Halpin was arrested and

taken to a branch of the San Bernardino County Jail

from which he made a phone call to his wife, moni-

tored by the sheriff's office, in which both he and his

wife made incriminating statements involving them-

selves and a third party, Martin Silva.

A transcript of the recorded phone conversation was

read to the grand jury; it forms a substantial part of

the evidence on which the indictment was based. Peti-

tioners attack the admissibility of this evidence on two

grounds, but we have determined it was properly ad-

mitted.

Petitioners first attack the validity of the search

warrant.

= =

By every standard established in Spinelli v. United

States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637;

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12

L.Ed.2d 723; People v. Benjamin, 71 Cal.2d 296, 78

Cal.Rptr. 510, 455 P.2d 438: and People v. Hamilton,

71 Cal.2d 176, 77 Cal.Rptr. 785, 454 P.2d 681; the

evidence set forth above is constitutionally sufficient to

support the issuance of the warrant. Here we have the

amazingly detailed information of the informant, plus

evidence of his previous reliability. Although the

testimony did not include the allegation that the inform-

ant spoke from personal knowledge, the detail of the

description was so great the magistrate could infer this

personal knowledge. The facts presented to the magis-

trate are, under those authorities, an adequate compli-

ance with the so-called two-pronged test of Aguilar that

the magistrate must be informed of some of the under-

lying circumstances from which the informant con-

cludes that the contraband is where he claims it to be

and some of the underlying circumstances from which

the officer concludes that the informant was credible

or his information is reliable. The facts presented to

the magistrate would lead him as a man of ordinary

caution and prudence to conscientiously entertain a

strong suspicion that the truck contained marijuana.

People v. Fein, 4 Cal.3d 747, 94 Cal.Rptr. 607, 484

P.2d 583, relied on by petitioners, involved a search

without a warrant based on information given by un-

tested informants. The magistrate here knew that this

informant had previously given accurate information

about a similar camper body; there was no need for

corroborating facts pertaining to criminal activity. The

testimony gave the magistrate proper grounds to issue

a warrant.

THE KATZ CONTENTION.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,

19 L.Ed.2d 576, the court denied admission into evi-

dence of a tapped phone call made from a public

phone booth, declaring that the defendant had a con-

stitutionally protected, reasonable expectation of pri-

vacy in making the call. However, the law provides that

a phone call from jail be made in the presence of an

—

officer. (Penal Code, § 851.5.) Thus, the prisoner has

no expectation of privacy, reasonable or otherwise,

when an officer may be standing with him. Neither

does anyone receiving a call from a jail or a peniten-

tiary have a reasonable expectation of privacy. Such

calls are monitored for the security of the jail just

as mail is censored and visitors’ conversations within

jail are monitored. Jails and prisons are not Brownie

camps. They contain among their clientele a number

of anti-social, irresponsible and sometimes vicious and

dangerous people who would like to leave and who

care not about the niceties of due process of law in so

doing. Every jail and prison has a serious security

problem. It is essential that those in charge of those

institutions have certain controls over their involun-

tary guests which are simply not available to the state

in dealing with the unincarcerated individual. “The

courts are and should be reluctant to interfere with

or to hamper the discipline and control that must

exist in a prison * * * These prisoners include many

violent and unscrupulous men who are ever alert to

set law and order at defiance within or without the

prison walls.” (In re Riddle, 57 Cal.2d 848, 852, 22

Cal.Rptr. 472, 474, 372 P.2d 304, 306.)

While many attempted escapes arise completely

within the institution, history, some of it uncomfort-

ably current, records an alarming number of escapes or

attempted escapes in which outside help was or may

have been solicited. Thus, the law has given certain

powers of censorship and control over communications

with those incarcerated in jails and prisons. (See Penal

Code, § 4570; Penal Code, § 631(b)(3); Penal Code

§ 632(e)(3); People v. Lopez, 60 Cal.2d 223, 32 Cal.

Rptr. 424, 384 P.2d 16; People v. Califano, 5 Cal.

App.3d 476, 85 Cal.Rptr. 292; People v. Blair, 2 Cal.

App.3d: 249, 82 Cal.Rptr. 673; People v. Apodaca,

252 Cal.App.2d 656, 60 Cal.Rptr. 782.) “To censor

and in certain instances to forbid communication to

and from a prison is inherent in its administration.

Such authority is necessary to protect against escape.”

(Davis v. Superior Court, 175 Cal.App.2d 8, 20, 345

P.2d 513, 521.) “A man detained in jail cannot rea-

sonably expect to enjoy the privacy afforded to a per-

son in free society. His lack of privacy is a necessary

adjunct to his imprisonment.” (People v. Morgan, 197

Cal.App.2d 90, 93, 16 Cal.Rptr. 838, 840.)

Thus, neither an incarcerated prisoner nor the recip-

ient of a call from him has a reasonable ex-

pectation of privacy and the rationale of Katz simply

does not apply to this situation. An exception might

be a call to an attorney in which the facts of the case

or possible defenses are discussed. The attorney has a

reasonable expectation of privacy; however, a call to

an attorney is not involved in this case.

II.

THE OMNIBUS CRIME CONTROL AND SAFE

STREETS ACT CONTENTION.

18 U.S.C. 2515 contains a comprehensive exclusion-

ary rule for evidence obtained in violation of that

chapter which is applicable to courts and grand juries

of states as well as to the federal government. We

note that none of the express exceptions in section 2511

or in the rest of the chapter operate to permit the type

PMT TAI SOE I BIT IT EE ea i

of a tap involved in this case. And the chapter (i.e.,

18 U.S.C., sections 2510-2520), since it raises serious

constitutional questions, may not be interpreted to per-

mit activities not expressly authorized in its compre-

hensive provisions. (See Application of United States,

9 Cir., 427 F.2d 639, 643.)

However, the legislative history suggests that the act

is intended to apply only where the conversations are

actually private. The congressional findings supporting

the act are replete with references to privacy.

Public Law 90-351, § 801:

“(a) * * * Electronic, mechanical, and other in-

tercepting devices are being used to overhear oral con-

versations made in private * * *

“(b) In order to protect effectively the privacy of

wire and oral communications * * *

“(d) To safeguard the privacy of innocent persons.

* * *”

The Senate report accompanying the legislation

states “privacy of communication” is the value to be

preserved by the chapter. (Senate Report No. 1097,

90th Cong., 2d Sess. (1968); reprinted in U.S. Code

Cong. and Admin.News, (1968), p. 2112, at 2154.)

The justification above described for eavesdropping

on individuals in jaiis and penitentiaries negates any

expectation of privacy in those situations. Thus, it is

clear that petitioner Thomas Halpin, in jail, had no

right to speak privately. As indicated, Penal Code, §

851.5, expressly permits an officer to be present during

the phone call. The record shows that an officer was

there for part of the time. As we stated in our discus-

sion under the Katz contention, the recipient of a call

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APPENDIX D

Statutes Involved

Title Ill of the Omnibus Crime Control and Safe

Streets Act of 1968 (18 U.S.C. §§ 2510-20), in rele-

vant part:

18 USC. § 2510. Definitions

As used in this chapter—

(1) “wire communication” means any communica-

tion made in whole or in part through the use of fa-

cilities for the transmission of communications by the

aid of wire, cable, or other like connection between

the point of origin and the point of reception furnished

or operated by any person engaged as a common car-

rier in providing or operating such facilities for the

tesion of in or font ications:

(3) “State” means any State of the Uniced States.

the District of Columbia, the Commonwealth of Puerto

Rico, and any territory or possession of the United

States;

(4) “intercept” means the aural acquisition of the

contents of any wire or oral communication through the

use of any electronic, mechanical, or other device.

(5) “electronic, mechanical, or other device” means

any device or apparatus which can be used to intercept

a wire or oral communication other than—

(a) any telephone or telegraph instrument.

equipment or facility, or any component thereof.

(i) furnished to the subscriber or user by a com-

afiGes

munications common carrier in the ordinary

course of its business and being used by the sub-

scriber or user in the ordinary course of its busi-

ness; or (ii) being used by a communications com-

mon carrier in the ordinary course of its business,

or by an investigative or law enforcement officer

in the ordinary course of his duties;

(b) a hearing aid or similar device being used

to correct subnormal hearing to not better than

normal;

(6) “person” means any employee, or agent of the

United States or any State or political subdivision there-

of, and any individual, partnership, association, joint

stock company, trust, or corporation;

(7) “Investigative or law enforcement officer” means

any officer of the United States or of a State or political

subdivision thereof, who is empowered by law to con-

duct investigations of or to make arrests for offenses

enumerated in this chapter, and any attorney authorized

by law to prosecute or participate in the prosecution of

such offenses;

(8) “contents”, when used with respect to any wire

or oral communication, includes any information con-

cerning the identity of the parties to such communica-

tion or the existence, substance, purport, or meaning of

that communication;

(9) “Judge of competent jurisdiction” means—

(a) a judge of a United States district court or

a United States court of appeals; and

(b) a judge of any court of general criminal

jurisdiction of a State who is authorized by a

statute of that State to enter orders authorizing

interceptions of wire or oral communications:

Pe ry rn

=_ =

(10) “communication common carrier” shall have

the same meaning which is given the term “common

carrier” by section 153(h) of title 47 of the United

States Code; and

(11) “aggrieved person” means a person who was

a@ party to any intercepted wire or oral communication

of @ person against whom the interception was di-

rected.

(a) willfully intercepts, endeavors to inter-

cept, OF procures any other person to intercept

or endeavor to intercept, any wire or oral com-

ication:

(b) willfully uses, endeavors to use, or pro-

cures any other person to use or endeavor to

(ii) such device transmits communications

by radio, or interferes with the transmission

of such communication: or

_—/=

(iv) such use or endeavor to use (A)

takes place on the premises of any business

or other commercial establishment the

operations of which affect interstate

or foreign commerce; or (B) obtains

or is for the purpose of obtaining informa-

tion relating to the operations of any business

or other commercial establishment the opera-

tions of which affect interstate or foreign

commerce; or

(v) such person acts in the District of

Columbia, the Commonwealth of Puerto

Rico, or any territory or possession of the

United States;

to any other person the contents of any wire or

oral communication, knowing or having reason to

know that the information was obtained through

the interception of a wire or oral communication

in violation of this subsection; or

(d) willfully uses, or endeavors to use, the con-

tents of any wire or oral communication, knowing

or having reason to know that the information

was obtained through the interception of a wire

or oral communication in violation of this subsec-

tion; shall be fined not more than $10,000 or

imprisoned not more than five years, or both.

(2) (a) It shall not be unlawful under this

chapter for an operator of a switchboard, or an

officer, employee, or agent of any communica-

tion common carrier, whose facilities are used in

the transmission of a wire communication, to in-

tercept, disclose, or use that communication in the

— =

normal course of his employment while engaged in

any activity which is a necessary incident to the

rendition of his service or to the protection of the

rights or property of the carrier of such com-

munication: Provided, That said communication

common carriers shall not utilize service observing

or random monitoring except for mechanical or

service quality control checks.

(b) It shall not be unlawful under this chapter

for an officer, employee, or agent of the Federal

Communications Commission, in the normal

course of his employment and in discharge of the

monitoring responsibilities exercised by the Com-

mission in the enforcement of chapter 5 of title 47

of the United States Code, to intercept a wire com-

munication, or oral communication transmitted

by radio, or to disclose or use the information

thereby obtained.

for a person acting under color of law to intercept

a wire or oral communication, where such person

is a party to the communication or one of the

parties to the communication has given prior

consent to such interception.

(d) It shall not be unlawful under this chapter

for a person not acting under color of law to inter-

cept a wire or oral communication where such

person is a party to the communication or where

one of the parties to the communication has given

prior consent to such interception unless such

communication is intercepted for the purpose of

committing any criminal or tortious act in viola-

tion of the Constitution or laws of the United States

—{6—

or of any State or for the purpose of committing

(3) Nothing contained in this chapter or in

section 605 of the Communications Act of 1934

(48 Stat. 1143; 47 U.S.C. 605) shall limit the

constitutional power of the President to take such

measures as he deems necessary to protect the

Nation against actual or potential attack or other

hostile acts of a foreign power, to obtain foreign

intelligence information deemed essential to the

security of the United States, or to protect nation-

al security information against foreign intelligence

chapter be deemed to limit the constitutional

power of the President to take such measures as

he deems necessary to protect the United States

against the overthrow of the Government by force

or other unlawful means, or against any other

clear and present danger to the structure or exist-

ence of the Government. The contents of any

wire or oral communication intercepted by author-

ity of the President in the exercise of the foregoing

powers may be received in evidence in any trial

hearing, or other proceeding only where such in-

terception was reasonable. and shall not be other-

wise used or disclosed except as is necessary to

implement that power.

18 U.S.C § 2515. Prohibition of use as evidence of

intercepted wire or oral communications

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communi-

cation and no evidence derived therefrom may be re-

ceived in evidence in any trial, hearing, or other pro-

= =

ceeding 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 in-

formation would be in violation of this chapter.

THE CALIFORNIA INVASION OF PRIVACY

ACT (California Penal Code §§ 630-637.2)

Cal. Pen. Code § 630. Legislative finding and intent

The Legislature hereby declares that advances in

science and technology have led to the development of

new devices and techniques for the purpose of eaves-

dropping upon private communications and that the

invasion of privacy resulting from the continual and

increasing use of such devices and techniques has

created a serious threat to the free exercise of personal

liberties and cannot be tolerated in a free and civilized

society.

The Legislature by this chapter intends to protect the

right of privacy of the people of this state.

The Legislature recognizes that law enforcement

agencies have a legitimate need to employ modern lis-

tening devices and techniques in the investigation of

criminal conduct and the apprehension of lawbreakers.

Therefore, it is not the intent of the Legislature to place

greater restraints on the use of listening devices and

techniques by law enforcement agencies than existed

Prior to the effective date of this chapter.

Cal. Pen. Code § 631. Wiretapping

(a) Prohibited acts; punishment; recidivists. Any

person who, by means of any machine, instrument,

or contrivance, or in any other manner, intentionally

taps, or makes any unauthorized connection, whether

physically, electrically, acoustically, inductively, or

wefiiien

otherwise, with any telegraph or telephone wire, line,

cable, or instrument, including the wire, line, cable, or

instrument of any internal telephonic communication

system, or who willfully and without the consent of all

parties to the communication, or in any unauthorized

manner, reads, or attempts to read, or to learn the

contents or meaning of any message, report, or com-

munication while the same is in transit or passing over

any such wire, line, or cable, or is being sent from, or

received at any place within this state; or who uses, or

attempts to use, in amy manner, or for any purpose,

or to communicate in any way, any information so

obtained, or who aids, agrees with, employs, or con-

spires with any person or persons to unlawfully do, or

permit, or cause to be done any of the acts or things

mentioned above in this section, is punishable by a

fine not exceeding two thousand five hundred dollars

($2,500), or by imprisonment in the county jail not

exceeding one year, or by imprisonment in the state

prison not exceeding three years, or by both such fine

and imprisonment in the county jail or in the state

prison. If such person has previously been convicted of

a violation of this section or Section 632 or 636, he

is punishable by fine not exceeding ten thousand dol-

lars ($10,000), or by imprisonment in the county jail

not exceeding one year, or by imprisonment in the state

prison not exceeding five years, or by both such fine

and imprisonment in the county jail or in the state

prison.

(b) Exceptions. This section shall not apply (1)

to any public utility engaged in the business of provid-

ing communications services and facilities, or to the

officers, employees or agents thereof, where the acts

otherwise prohibited herein are for the purpose of con-

=_-_

—_

struction, maintenance, conduct or operation of the

services and facilities of such public utility, or (2) to

the use of any instrument, equipment, facility, or service

furnished and used pursuant to the tariffs of such a

public utility, or (3) to any telephonic communication

system used for communication exclusively within a

state, county, city and county, or city correctional fa-

cility.

cution for violation of this section, no evidence ob-

tained in violation of this section shall be admissible in

any judicial, administrative, legislative or other pro-

ceeding.

Cal. Pen. Code § 632. Eavesdropping on or record-

ing confidential communications

(a) Prohibited acts; punishment; recidivists. Every

person who, intentionally and without the consent of

all parties to a confidential communication, by means

of any electronic amplifying or recording device, eaves-

drops upon or records such confidential communication,

whether such communication is carried on among such

parties in the presence of one another or by means of

a telegraph, telephone or other device, except a radio,

shall be punishable by fine not exceeding two thousand

five hundred dollars ($2,500), or by imprisonment in

the county jail not exceeding one year, or by imprison-

ment in the state prison not exceeding three years, or

by both such fine and imprisonment in the county jail

or in the state prison. If such person has previously

been convicted of a violation of this section or Section

631 or 636, he is punishable by fine not exceeding

ten thousand dollars ($10,000), or by imprisonment

in the county jail not exceeding one year, or by im-

prisonment in the state prison not exceeding five years,

i... ALIN PELE ITI

autitinn

or by both such fine and imprisonment in the county

jail or in the state prison.

(b) Person. The term “person” includes an indi-

vidual, business association, partnership, corporation,

or other legal entity, and an individual acting or pur-

porting to act for or on behalf of any government

or subdivision thereof, whether federal, state, or local,

but excludes an individual known by all parties to a

confidential communication to be overhearing or re-

cording such communication.

dential communication” includes any communication

carried on in such circumstances as may reasonably

indicate that any party to such communication desires

it to be confined to such parties, but excludes a com-

munication made in a public gathering or in any legis-

lative, judicial, executive or administrative proceeding

open to the public, or in any other circumstance in

which the parties to the communication may reasonably

expect that the communication may be overheard or

recorded.

(d) Evidence. Except as proof in an action or prose-

cution for violation of this section, no evidence obtained

as a result of eavesdropping upon or recording a con-

fidential communication in violation of this section

shall be admissible in any judicial, administrative, legis-

lative or other proceeding.

(e) Exceptions. This section shall not apply (1) to

any public utility engaged in the business of providing

communications services and facilities, or to the offi-

cers, employees or agents thereof, where the acts other-

wise prohibited herein are for the purpose of construc-

tion, maintenance, conduct or operation of the services

nian ate awbioaieaiok dni: silncs Goad achat eid aan Sa Lee Raa

and facilities of such public utility, or (2) to the use

of any instrument, equipment, facility, or service fur-

nished and used pursuant to the tariffs of such a public

utility, or (3) to any telephonic communication system

used for communication exclusively within a State,

county, city and county, or city correctional facility.

(f) Hearing aids. This section does not apply to the

use Of hearing aids and similar devices, by persons

afflicted with impaired hearing, for the purpose of over-

coming the impairment to permit the hearing of sounds

ordinarily audible to the human ear.

Cal. Pen. Code § 633. Law enforcement officers;

authorized use of electronic, etc., equipment

Nothing in Section 631 or 632 shall be construed

as prohibiting the Attorney General, any district attor-

ney, or any assistant, deputy, or investigator of the

Attorney General or any district attorney, or any officer

of the California Highway Patrol, or any chief of police,

assistant chief of police, or policeman of a city or

city and county, or any sheriff, under sheriff, or deputy

sheriff regularly employed and paid as such of a coun-

ty, Or any person acting pursuant to the direction of

one of the above-named law enforcement officers act-

ing within the scope of his authority, from overhear-

ing or recording any communication which they could

lawfully overhear or record prior to the effective date

of this chapter.

Nothing in Section 631 or 632 shall be construed

as rendering inadmissible any evidence obtained by the

above-named persons by means of overhearing or re-

cording any communication which they could lawful-

ly overhear or record prior to the effective date of this

chapter.

—44—

Cal. Pen. Code § 633.5 Recording communications

relating to commission of extortion, kidnapping, brib-

ery, felony involving violence against the person, or

violation of § 653m

Nothing in Section 631 or 632 shall be construed

as prohibiting one party to a confidential communica-

tion from recording such communication for the pur-

pose of obtaining evidence reasonably believed to re-

late to the commission by another party to such com-

munication of the crime of extortion, kidnapping, brib-

ery, any felony involving violence against the person,

or a violation of Section 653m, and nothing in Section

631 or 632 shall be construed as rendering inadmis-

sible in a prosecution for extortion, kidnapping, brib-

ery, any felony involving violence against the person,

or a violation of Section 653m, or any crime in con-

nection therewith, any evidence so obtained.

Cal. Pen. Code § 634. Trespass for purpose of com-

mitting prohibited acts; punishment

Any person who trespasses on property for the pur-

pose of committing any act, or attempting to commit

any act, in violation of Section 631, 632 or 636

shall be punishable by fine not exceeding two thousand

five hundred dollars ($2,500), or by imprisonment

in the county jail not exceeding one year, or by im-

prisonment in the state prison not exceeding three

years, or by both such fine and imprisonment in the

county jail or in the state prison. If such person has pre-

viously been convicted of a violation of this section or

Section 631, 632 or 636, he is punishable by fine not

exceeding ten thousand dollars ($10,000), or by im-

prisonment in the county jail not exceeding one year, or

by imprisonment in the state prison not exceeding five

PORT TRC MPR HERA HA CDINNY LONER RE OM IY gape

years, or by both such fine and imprisonment in the

county jail or in the state prison.

Cal. Pen. Code § 635. Manufacture, sale and pos-

session of eavesdropping devices; punishment; recidi-

vists; exceptions

—45—

(a) Every person who manufacturers, assembles,

sells, offers for sale, advertises for sale, possesses,

transports, imports, or furnishes to another any device

which is primarily or exclusively designed or intended

for eavesdropping upon the communication of an-

other is punishable by fine not exceeding two thou-

sand five hundred dollars ($2,500), or by imprison-

ment in the county jail not exceeding one year, or by

imprisonment in the state prison not exceeding three

years, or by both such fine and imprisonment in the

county jail or in the state prison. If such person has

previously been convicted of a violation of this section,

he is punishable by a fine not exceeding ten thou-

sand dollars ($10,000), or by imprisonment in the

county jail not exceeding one year, or by imprisonment

in the state prison not exceeding five years, or by both

such fine and imprisonment in the county jail or in

the state prison.

(b) This section shall not apply to

(1) An act otherwise prohibited herein when per-

formed by (i) a communication utility or an officer,

employee or agent thereof for the purpose of construc-

tion, maintenance, conduct or operation of, or other-

wise incident to the use of, the services or facilities of

the utility, or (ii) a state, county or municipal law en-

forcement agency or an agency of the federal govern-

ment, or (iii) a person engaged in selling such devices

for use by, or resale to, agencies of a foreign govern-

—

ment under terms approved by the federal government,

communication utilities, state, county or municipal law

enforcement agencies, or agencies of the federal gov-

ernment, or

(2) Possession by a subscriber to communication

utility service of such a device furnished by such utility

pursuant to its tariffs.

Cal. Pen. Code § 636. Eavesdropping or recording

conversation between prisoner and his attorney, clergy-

man or physician; offense; exception

Every person, who, without permission from all par-

ties to the conversation, eavesdrops on or records by

means of an electronic or other device, a conversation.

or any portion thereof, between a person who is in the

physical custody of a law enforcement officer or other

public officer, or who is on the property of a law

enforcement agency or other public agency, and such

person’s attorney, religious advisor, or licensed physi-

cian, is guilty of a felony; provided, however, the pro-

visions of this section shall not apply to any employee

of a public utility engaged in the business of providing

service and facilities for telephone or telegraph com-

munications while engaged in the construction, main-

tenance, conduct or operation of the service or facilities

of such public utility who listens in to such conversa-

tions for the limited purpose of testing or servicing such

equipment.

Cal. Pen. Code § 637. Disclosure of telegraphic or

telephonic message; punishment; exception

Every person not a party to a telegraphic or tele-

phonic communication who willfully discloses the con-

tents of a telegraphic or telephonic message, or any

—_— =

part thereof, addressed to another person, without the

permission of such person, unless directed so to do by

the lawful order of a court, is punishable by imprison-

ment in the state prison not exceeding five years, or in

the county jail not exceeding one year, or by fine not

exceeding five thousand dollars ($5,000), or by both

fine and imprisonment.

Cal. Pen. Code § 637.1. Telegraphic or telephonic

message; Opening or procuring improper delivery;

punishment

Every person not connected with any telegraph or

telephone office who, without the authority or consent

of the person to whom the same may be directed, will-

fully opens any sealed envelope enclosing a telegraphic

or telephonic message, addressed to another person,

with the purpose of learning the contents of such

message, or who fraudulently represents another per-

son and thereby procures to be delivered to himself

any telegraphic or telephonic message addressed to

such other person, with. the intent to use, destroy, or

detain the same from the person entitled to receive

such message, is punishable as provided in Section 637.

Cal. Pen. Code § 637.2. Civil action by person in-

jured; injunction

(a) Any person who has been injured by a viola-

tion of this chapter may bring an action against the

person who committed the violation for the greater of

the following amounts:

(1) Three thousand dollars ($3,000).

(2) Three times the amount of actual damages, if

any, sustained by the plaintiff.

pursuant to this section that the plaintiff has suffered,

or be threatened with, actual damages.

*> +f

Cal. Pen. Code § 851.5. Right of person arrested

to make telephone call

(a) Any person arrested has, immediately after he is

booked, and, except where physically impossible, no

later than three hours after his arrest, the right to

make, at his own expense, in the presence of a public

officer or employee, at least two telephone calls from

the police station or other place at which he is booked,

one completed to the person called, who may be his at-

torney, employer, or a relative, the other completed to

a bail bondsman.

(b) Any public officer or employee who deprives

an arrested person of the rights granted by this section

is guilty of a misdemeanor.

eee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.