United States v. Clara Bell Hall , 543 F.2d 1229 ( 1977 )

CHOY, Circuit Judge:

Clara Bell Hall appeals from a conviction for possession of heroin in violation of 21 U.S.C. § 844(a). Her appeal presents the question of the admissibility in federal court of evidence seized pursuant to an arrest by California officers when that arrest was based on the state agents’ use of information gathered by wiretaps authorized under federal law but illegal under California law. We affirm, holding such evidence to be admissible.

Backround

On February 6, 1973, California state officers approached an automobile driven by James Kirkpatrick Cooper, in which Hall was a passenger, after the car had stopped at a service station near Fresno. After asking the occupants to get out, one officer noticed a strong acetic acid smell coming from Hall’s purse. Based on his seven years as a narcotics agent, he identified this smell with heroin. A subsequent search of the purse revealed that it contained narcotics paraphernalia and approximately 51 grams of heroin, which was seized and later admitted into evidence at Hall’s trial. No warrant had been issued for the stop or the search.

The state officers approached Cooper’s car because they had been informed earlier that day by federal agents in Los Angeles that an individual believed to be Cooper, together with a female who turned out to be Hall, were en route to Fresno via Highway 5 in a white and black Cadillac with a given license number, and that Cooper had placed an order for heroin and cocaine prior to leaving Los Angeles and was believed to be in possession of contraband on the trip. The information supplied the California officers was obtained from a duly authorized federal wiretap, the legality of which is not in question here,¹ and from surveillance of Cooper by federal agents prompted by the wiretap disclosures.

Prior to trial Hall moved unsuccessfully to suppress the evidence seized at the time of her arrest. She contends that the district court erred in not excluding the heroin on the ground that the arrest, search, and seizure were accomplished by state officers in violation of state law.

Hall’s Argument

Hall argues that the wire interception involved here was unlawful under California Penal Code § 631, that the use by state officers of information obtained by the wiretap was also in violation of the statute, and thus that the arrest and seizure, as fruits of the wiretap, were illegal and evidence therefrom was inadmissible under California law.

It is conceded that California prohibits wiretapping and the use of any information so obtained, and such evidence is inadmissible in California state court proceedings. California Penal Code § 631, adopted in 1967, provides, in part:

(a) Prohibited acts; punishment; recidivists. Any person who ... intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire ... or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained ... is punishable by a fine . . . or by imprisonment . or by both .

(c) Evidence. 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.

The wiretapping which led to Hall’s arrest was conducted by federal agents with a proper warrant under the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Nonetheless, the California courts have held that this federal statute does not entirely preempt the state prohibition. Thus, a wiretap conducted by federal officers and authorized pursuant to the federal statute has been held to be “unlawful” under California’s § 631 and the evidence from it has been ruled inadmissible in California court proceedings. People v. Jones, 30 Cal.App.3d 852, 106 Cal.Rptr. 749 (1973), appeal dismissed for want of substantial federal question, 414 U.S. 804, 94 S.Ct. 163, 38 L.Ed.2d 40 (1973); see People v. Conklin, 12 Cal.3d 259, 114 Cal.Rptr. 241, 522 P.2d 1049 (1974), appeal dismissed for want of substantial federal question, 419 U.S. 1064, 95 S.Ct. 652, 42 L.Ed.2d 661 (1974); Halpin v. Superior Court, 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295 (1972), cert. denied, 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246 (1972).

Because of the provisions of the California law, Hall argues, the state agents acted illegally in arresting her, since the motivation and justification for doing so came from wiretap evidence which the state officers could not lawfully use. And, she contends, according to United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 310 (1948), the illegality is recognized in federal courts as well, since “in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity.” Thus, she concludes, the heroin must be suppressed since it was seized without a warrant and not pursuant to a lawful arrest.

We reject the urging to apply Di Re for two reasons: we perceive Title III to represent “an applicable federal statute,” and we do not believe that Di Re is meant to apply to a case such as this. In addition, we conclude that the federal court is not compelled to exclude the seized material merely because of a violation of state law. We thus affirm Hall’s conviction.

Title III as an “Applicable Federal Statute”

The Di Re doctrine applies only in the absence of a relevant federal law. On the subject of wiretapping, however, federal law is not silent. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., authorizes the interception, disclosure, and admission into evidence of wire communications in certain circumstances and pursuant to several safeguards, including a requirement for a warrant. It is conceded that the interception that led to Hall’s arrest was sanctioned by this federal statute. The admissibility of the contents of the intercepted communications, including the one that produced the information about Cooper, into evidence in federal court is also unquestioned. See § 2517(3). We recognize that a California court would exclude the contents and would also prohibit evidence derived therefrom as fruit from the poisonous tree of wiretapping. But under the federal statute this wiretapping is not poisonous to a federal court, so its fruits should not be poisonous, either.

It may well be true, as the California courts have held, that the federal act does not preclude the states from enacting more restrictive wiretapping statutes of their own. To the extent that there is a conflict between the state and federal legislation, though, the federal statute controls under the Supremacy Clause of the Constitution, Article VI, cl. 2. The state law cannot preempt the federal unless the federal act itself sanctions the application of state standards. That is not the case here. Federal officers are authorized to wiretap under § 2516(1), regardless of the provisions of state law; it is only wiretapping by state officers under § 2516(2) which requires further authorization by state statute. Section 2515 requires the exclusion of wiretap evidence from any court proceeding if its disclosure would violate the federal act; no mention is made of any state law. The legislative intent that federal law is to prevail in case of conflict is further indicated by § 2520, which provides:

A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law. [Emphasis added.]

With the lone exception concerning interception by state officers for state prosecutions, the federal statute does not defer to the states.

Indeed, it even appears that the federal statute affirmatively authorizes this kind of disclosure of the wiretap information to and use of it by state agents, in § 2517(1) and (2):

(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.

The California agents are “investigative or law enforcement officers” as that term is defined by § 2510(7).

Hall contends that the state’s prohibition against the use of the wiretap evidence renders such use by its officers not “appropriate to the proper performance of [their] official duties.” Assuming, without deciding, that this is an accurate reading of state law, we believe that the qualifying phrase in § 2517(1) and (2) was not intended to obliquely import state standards. Had that been the aim, Congress would have said so more clearly.² Instead, we view the phrase as designed to protect the public from unnecessarily widespread dissemination of the contents of interceptions and from the wholesale use of information gleaned from a legal wiretap by an officer — state or federal — for personal or illegal purposes.

By that measure, the involvement of the state officers here was not out of bounds. Possession of heroin is both a federal offense and a felony under California law.³ California Penal Code § 836 empowers a peace officer to make an arrest without a warrant if he has “reasonable cause” to believe that the person has committed a felony, a condition met here. Since the detention of Hall and the subsequent seizure of the heroin were within the proper performance of the officers’ official duties, their use of the wiretap information was thus authorized by § 2517(2), at least in the eyes of federal courts.⁴

We conclude, therefore, that there is no occasion here to apply the Di Re doctrine of turning to state law to determine the validity of an arrest. That rule attaches only “in absence of an applicable federal statute,” and as to wiretapping — the subject of the purported illegality under California law— there is a relevant federal enactment.

The Di Re Doctrine

More fundamentally, we do not believe that the rule expressed in Di Re is even meant to apply to a case like this. The issue in Di Re concerned the quantity of evidence necessary for a warrantless arrest, not the source or admissibility of that evidence. Di Re was arrested without a warrant by a Buffalo, New York police officer, accompanied by a federal investigator who lacked the power to arrest, for a federal offense, knowing possession of counterfeit gasoline ration coupons. The evidence used to convict him — the ration coupons — was seized in a search after his arrest. The Government justified the search as having been pursuant to the arrest. The Court held that the arrest was not lawful, however, since the officer lacked the grounds necessary for making a legal arrest. Under New York law, a police officer could arrest a person without a warrant for a misdemeanor only if the offense was committed in the arresting officer’s presence and for a felony only if the officer had reasonable grounds to believe that the suspect had committed the offense. It was this state standard which the Court applied to Di Re’s arrest. In rejecting the Government’s contention that arrests for federal offenses should be tested by a uniform federal rule, the Court observed that Congress had enacted no general federal law of arrest. Thus lacking any contrary federal legislation, the Court held that the quantum of knowledge required to permit a warrantless arrest was established by the state law granting the authority to make such an arrest.⁵ No mention was made of judging the acceptability of the evidence by whether it would be admissible in the state’s courts.

The decisions since which have applied the Di Re principle have similarly concerned the act of arrest itself and not the nature of underlying evidence. Most, like Di Re, have involved the quantum of information needed to justify an arrest or a temporary detention. See United States v. Lovenguth, 514 F.2d 96, 98 (9th Cir. 1975); United States v. Walling, 486 F.2d 229, 235 (9th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974); United States v. Branch, 483 F.2d 955, 956 (9th Cir. 1973); United States v. Fisch, 474 F.2d 1071, 1075 (9th Cir.), cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973); Taylor v. Arizona, 471 F.2d 848, 851 (9th Cir. 1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 948, 35 L.Ed.2d 262 (1973); United States v. Blum, 432 F.2d 250, 252 (9th Cir. 1970); Wartson v. United States, 400 F.2d 25, 27 (9th Cir. 1968), cert. denied, 396 U.S. 892, 90 S.Ct. 184, 24 L.Ed.2d 166 (1969); Dagampat v. United States, 352 F.2d 245, 247 (9th Cir. 1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212 (1966); also Johnson v. United States, 333 U.S. 10, 15 n.5, 68 S.Ct. 367, 92 L.Ed. 436 (1948). A few have concerned the mechanics of the arrest, as whether there had actually been an arrest — see Call v. United States, 417 F.2d 462, 464 (9th Cir. 1969) — or whether there had been compliance with state requirements of announcement before entry — see United States v. Scott, 520 F.2d 697, 700 (9th Cir. 1975); also Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), at 37-41, 83 S.Ct., at 1631-1634 (opinion of Clark, J.) and 62, 83 S.Ct. 1644 (opinion of Brennan, J.); Miller v. United States, 357 U.S. 301, 305-06, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).

Hall’s objection is entirely different. She does not argue that the state agents lacked “reasonable cause” to detain her as required by California law or that they erred in the manner in which they carried out the arrest and search. Her complaint is that the state officers used impermissible evidence in forming the reasonable belief needed. It is not the state’s arrest law which she cites, but its anti-wiretapping statute. That is not what Di Re is about. That decision does not compel federal courts to defer to state law as to the acceptability of evidence used to justify a warrantless arrest. It is, therefore, not pertinent to the case at hand.

State Law and Federal Admissibility

Since Di Re is not applicable here and we are not required by it to exclude the evidence seized at the time of Hall’s arrest, the case before us narrows to a basic question: whether evidence obtained by means in apparent violation of state law must be excluded in a federal court. We hold that such evidence is not necessarily inadmissible, and further that in the immediate case the district court did not err in accepting the evidence in question.

In reaching these conclusions we follow United States v. Keen, 508 F.2d 986 (9th Cir. 1974), cert. denied, 421 U.S. 929, 95 5. Ct. 1655, 44 L.Ed.2d 86 (1975), which, though not directly on point, states the view we believe to be proper here. In Keen, as here, the appellant’s principal contention centered on the inadmissibility of wiretap evidence under state law. Without a warrant, a federal agent recorded a conversation between Keen and an informer, with only the latter’s consent. Under the relevant Washington statute, a wiretap was illegal unless consented to by both parties, and we did not find this provision to be displaced by Title III. Though obtained in violation of state law, in Keen we held the evidence to be admissible in a federal prosecution. We noted that the exclusionary rule is a remedy which is integrally bound .;p with constitutional protections, including those of the fourth amendment, and found that we were not necessarily bound to extend it to evidence tainted under state law. With citations of the relevant authorities, we concluded:

Where no constitutional right has been abused, the admissibility of evidence is governed by common law principles, not by local statute. ... At common law, evidence was admissible regardless of its illegal origins. . . . Therefore, wiretap evidence obtained in violation of neither the Constitution nor federal law is admissible in federal courts, even though obtained in violation of state law. . . . [Citations omitted.]

508 F.2d at 989.

Hall’s case presents the same situation. Her arrest and subsequent search were illegal under state law because they involved the use by state officers of material from a wiretap unlawful under state law. She concedes, however, that there was no infringement of constitutional proportions on her rights. The use of information from a duly authorized wiretap is not a violation of the fourth amendment, and the participation of state officers does not make it so. Nor, as our previous discussion has indicated, have we found exclusion of the wiretap evidence to be required by federal law. In the absence of any federal violation, therefore, we are not required to exclude the challenged material; the bounds of admissibility of evidence for federal courts are not ordinarily subject to determination by the states. We thus conclude that the district court did not err in admitting into evidence the heroin seized at the time of Hall’s arrest.⁶

Sufficiency of the Evidence

As a separate issue, Hall also challenges the sufficiency of the evidence to establish her knowing possession of the heroin. We find the evidence was sufficient. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). AFFIRMED.

1 . See United States v. Turner, 528 F.2d 143 (9th Cir. 1975). The interception which ultimately led to Hall’s arrest was one of the wiretaps reviewed in Turner.

2 . We note in contrast the clear expression in the legislative history of Congress’s intent to encourage cooperation between federal and state law enforcement officers. According to the Senate Report, for instance, § 2517(1) “envisions close Federal, State, and local cooperation in the administration of justice.” 1968 U.S. Code Cong. & Admin. News, p. 2188. Reading state restrictions into the “appropriate to the proper performance of his official duties” phrase in § 2517(1) and (2) would disrupt such cooperation and run counter to the expressed legislative intent.

3 . For the California provisions, see Cal. Health & Safety Code §§ 11054(c)(10), 11350(a). Sections 11470-11471 of that Code authorize the seizure and forfeiture of heroin without a warrant if incident to an arrest.

4 . We do not consider whether states may exclude from their own courts evidence obtained by such use.

5 . The Court was moved to turn to state law at least in part because the then-existing federal statute concerning arrests with warrants for federal offenses called for conformity with the given state’s usual mode of process. 332 U.S. at 581-82, 68 S.Ct. 367. The current version of that statute is 18 U.S.C. § 3041, and it differs markedly. The standards for warrants issued by and proceedings before federal judges and magistrates are now set by the Federal Rules of Criminal Procedure, notably Rule 4. State law continues to have relevance for the limited range of activity permitted state judges and magistrates as to the detention and release of persons for federal offenses.

6 . See also the Supreme Court’s recent decision in United States v. Janis, - U.S. -, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), where the Court refused to exclude from a federal civil proceeding evidence seized unconstitutionally, though in good faith, by state officers. This illustrates both the distinction made between “intersovereign” and “intrasovereign” use of unconstitutionally seized evidence and the Court’s reluctance to extend the exclusionary rule.