People v. Jones

California Court of Appeal Feb 26, 1973 No. Crim. 5127Published

Before: Brown (Gerald)

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Holding. The court held that wiretap evidence obtained without the consent of the telephone subscriber is inadmissible in California courts under Penal Code section 631, even if obtained under federal authorization. California's more stringent privacy protections are not preempted by federal law because they do not conflict with federal standards.

Issues

Whether wiretap evidence obtained under federal authorization is admissible in California courts despite Penal Code section 631.
Whether California's exclusionary rule for wiretap evidence is preempted by the federal Omnibus Crime Control and Safe Streets Act of 1968.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence in question, obtained without the required authorization, was unlawfully obtained under section 631, and was therefore properly excluded.”

“Penal Code section 631 adopts a standard for protection of privacy more stringent than the requirements of federal law, and thus will be preempted only where a conflict exists.”

“The California law requiring exclusion of evidence does not conflict with these provisions of the federal law.”

Opinion

BROWN (Gerald), P. J.

The People an order an indictment (Pen. Code, § 1385), following the superior court’s order suppressing evidence (Pen. Code, § 1538.5).

A confidential informant told F.B.I. special agents that Mary Jones [defendant] was illegally bookmaking. In June 1971, upon application by an assistant United States attorney and a special agent, the United States District Court authorized a 20-day tap of Jones’ telephone (18 U.S.C. § 2510(7)). Twenty original tape recordings of monitored telephone conversations were given to the San Diego County District Attorney and were introduced into evidence in a grand jury proceeding. The grand jury indicted Jones and other defendants with conspiracy to commit bookmaking (Pen. Code, §§ 337a, 182, subd. 1), and other related crimes. The court held the

[854]

wiretap evidence was legally obtained under the United States statute, but suppressed it, reasoning the evidence is inadmissible in California under Penal Code section 631.

Penal Code section 631 states: “Any person who . . . intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire ... is punishable by a fine ... or by imprisonment . . . or both ....

“Except as proof in an action, or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial . . . proceeding.”

Penal Code section 633 qualifies section 631: “Nothing in Section 631 . . . shall be construed as rendering inadmissible any evidence obtained by the above-named persons (law enforcement and police officers) . . . which they could lawfully overhear or record prior to the effective date of this chapter.”

Before Penal Code section 631 was enacted, old Penal Code section 640 prohibited wiretapping. Section 640 did not provide specifically for excluding illegally obtained evidence; evidence obtained in violation of section 640 would not necessarily have been inadmissible unless a constitutional right was also violated. Penal Code section 631 specifically makes inadmissible any evidence obtained in violation of it. The exception provided by section 633 makes admissible any evidence which would have been lawfully

People v. Jones

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