People v. Ratekin

Opinion

CAMPBELL, P. J.

After appropriate waivers, the matter was submitted to the court on the transcript of the preliminary hearing and the testimony of an additional witness. The court, sitting without a jury, found the defend

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ant guilty of the offenses of conspiring to sell cocaine (Pen. Code, § 182; Health & Saf. Code, § 11352) and selling cocaine (Health & Saf. Code, § 11352). His application for probation was denied and he was sentenced to three years in state prison.

Facts

The defendant was engaged in the business of selling cocaine in the Palm Springs area. On or about April 6, 1985, his coconspirator agreed to sell four ounces of cocaine to a federal undercover narcotics agent for $8,000. The coconspirator drove to the defendant’s place of residence, obtained the cocaine from the defendant, drove to the rendezvous to meet with the agent, delivered the cocaine to the agent, obtained the purchase price from the agent and then delivered the $8,000 to the defendant at the defendant’s residence. (It was not necessary to resort to any wiretap evidence to establish any of the foregoing facts.)

During the investigation which ultimately led to the arrest and prosecution of several persons in addition to the defendant, the federal agents obtained an “Order Authorizing The Interception Of Wire Communications And Operation Of A Pen Register Or Touch Tone Decoder,” i.e., a wiretap order, from the United States District Court pursuant to section 2518, title 18, United States Code. The order authorized the tapping of the coconspirator’s telephone. (The prosecution subsequently obtained an “Order Authorizing Testimonial Use Of Wire And Oral Communications” (see 18 U.S.C. §§ 2515, 2517) from the federal court.) The federal agents tapped the coconspirator’s telephone by connecting a telephone line to the coconspirator’s telephone terminals in the telephone company’s telephone box. They attached a pen register, tape recorder and earphones to their line and were able to determine the telephone numbers called and to listen to and record any telephone calls involving the coconspirator’s telephone. For reasons not made clear from the record, and despite an abundance of non-wiretap evidence clearly establishing the defendant’s guilt, the prosecutor elected to offer clearly cumulative, and unnecessary, evidence obtained through the use of the wiretap. The defendant made a motion to suppress the wiretap evidence (Pen. Code, § 1538.5) on the grounds that such evidence is not admissible by virtue of the provisions of Penal Code section 632, subdivision (c). The court denied the motion and the evidence was admitted.