People v. Soles

Opinion

CHRISTIAN, J.

Gayle E. Soles appeals from a judgment of imprisonment which was rendered after a jury found her guilty of possession of heroin (Health & Saf. Code, § 11350).

There is no claim of trial error; the appeal is based solely on a contention that the court should have granted appellant’s pretrial motion to suppress evidence. Appellant contends that the evidence seized in the motel room occupied by appellant and her associates should have been excluded because the entry was based on information obtained by telephone eavesdropping on the part of the motel manager. Section 631 of the Penal Code, cited in appellant’s brief, has no application: it prohibits wiretapping, and here there was no wiretap; the manager listened to the conversations by staying on the line after she had connected incoming calls with the telephone in the room.

Although the possible effect of section 632 of the Penal Code (electronic eavesdropping on confidential communications) is not mentioned in appellant’s brief, the issue was argued in the trial court and will therefore be discussed briefly. The statute does not prohibit eavesdropping in general; it applies only to the use of “any electronic amplifying or recording device” to eavesdrop upon or record a confidential communication. A telephone extension, not equipped with features for amplification

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or recording, is not an “electronic amplifying or recording device.” The action of the motel manager in staying on the line was not electronic eavesdropping within the meaning of the statute.

[421]

Moreover, the telephone conversations of the tenants, in aid of criminal activity, were not confidential, within the meaning of the statute, as against the manager of the motel. She had reason to suspect that the tenants were engaged in prostitution or in selling narcotics. Her awareness of such activities might ripen into guilty knowledge, subjecting her to penalties for maintaining a place where narcotics are sold (Health & Saf. Code, § 11366) or maintaining a house of prostitution (Pen. Code, § 316). Her lawful right and duty to guard against misuse of her property for purposes of prostitution or narcotics trafficking excluded the tenants from entertaining a reasonable expectation of privacy, as against the manager. (Cf.