People v. Wilson

Opinion

COUGHLIN, Acting P. J. Defendant was convicted of the offense of conspiracy to transport marijuana, upon a plea of nolo contendere; was granted probation; and appeals, contending denial of his motion to suppress evidence was error requiring a reversal.

On August 3, 1967, defendant subscribed for the services provided by a telephone answering service; wanted to receive telephone messages through the answering service; did not want a telephone line for himself; but wanted one of the lines of the answering service used for this purpose. Under this system messages from persons to whom defendant gave the telephone number of the answering service assigned for this purpose were received by the answering service; were reduced to writing on a form identified as a “green slip”; and were conveyed to defendant in person when he came to the office of the answering service or over the telephone during a call initiated by him. Defendant, by choice, could not be reached by telephone. The answering service retained the green slips which noted the messages received, when they were received, and when .they were conveyed to the subscriber. Most of the messages received under the arrangement aforesaid came from Tijuana, Mexico and, in general, related information supporting the conclusion defendant was being advised when to come to Tijuana to receive merchandise.

The fee charged defendant by the answering service was payable on the third day of each month. The charge payable on October 3d was not -received. After this date defendant never came into or telephoned the answering service office again.

On October 4, 1967, a narcotics agent named McLaughlin told the answering service employees they should notify him if any calls came in for defendant. From what source McLaughlin obtained the information [601]defendant was using the answering service and the basis for his request to notify him. if any calls came for defendant, is not disclosed.

Although defendant’s written notice of motion to suppress did not specify the particular items of evidence to which it was directed, we assume defendant sought to suppress the green slips which had been introduced in evidence at a previous trial. At the hearing on the motion the parties stipulated “that Narcotics Agent Mr. McLaughlin, who got the message, who obtained the information, what the message said, had neither a search warrant nor a subpoena.” Premised on this stipulation, we infer McLaughlin obtained the green slips from the answering service.