People v. Murtha ( 1993 )

PETERSON, J.,^* Concurring and Dissenting.

I concur in the judgment of

affirmance.

A. The Redacted Affidavit for Search Warrant Established Probable Cause for Its Issuance

Assuming arguendo, as Justice Kline’s lead opinion indicates, that the tape recording was made in violation of title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.¹ § 2510 et seq.) (hereafter the Act or Title III), after excision of all reference to it from the affidavit for search warrant, the remaining content of that affidavit furnished probable cause for issuance of the warrant and the searches made thereon. The trial court explicitly found that if the references to that tape-recorded conversation were stricken from the affidavit there was, nonetheless, “information [the informant’s telephone call] obtained other than on the tape . . . that a burglary was going to occur at a certain residence that was described .... Six hours later, the burglary occurs. The burglary is corroboration of the information by the informant.” (Italics added.) This finding, after consideration of the redacted affidavit, fully supports the trial court’s order denying appellant’s suppression motion based on the remaining averments of the affidavit free of any alleged taint of the tape recording. (United States v. Veillette (1st Cir. 1985) 778 F.2d 899, 904.) “If lawfully obtained information in a search warrant affidavit supports probable cause for issuance of a warrant, the warrant will be upheld even if additional, illegally obtained, information is also contained in the warrant affidavit.” (People v. Angulo (1988) 199 Cal.App.3d 370, 375 [244 Cal.Rptr. 819].) The lower court’s statement above quoted was the functional equivalent of an explicit finding by the trial court that the magistrate would have issued the warrant “even if the [allegedly] illegally obtained [tape-recorded] information had not been included in the affidavit.” (People v. Koch (1989) 209 Cal.App.3d 770, 787-788, fn. 5 [257 Cal.Rptr. 483], analyzing Murray v. United States (1988) 487 U.S. 533 [101 L.Ed.2d 450, 108 S.Ct. 2529]; Franks v. Delaware (1978) 438 U.S. 154, 156 [57 L.Ed.2d 667, 672, 98 S.Ct. 2674]; People v. Luttenberger (1990) 50 Cal.3d 1, 10 [265 Cal.Rptr. 690, 784 P.2d 633]; see People v. Torres (1992) 6 Cal.App.4th 1324, 1334 [8 Cal.Rptr.2d 332] [Per Smith, J., “the observations [in the affidavit] gained [from illegally obtained evidence] mus t be stricken and the affidavit retested for probable cause.”].)

B. The Affidavit for Search Warrant Clearly Indicated the Home of Appellant’s Accomplice Was Lawfully Searched Even if No Warrant Therefor Had Issued

Officer Welch’s affidavit further discloses an independent reason for denial of appellant’s suppression motion. The search of the house of Moraga, appellant’s accomplice, required no search warrant at all. The affidavit disclosed without dispute that Welch had authoritatively determined Moraga, convicted of a prior burglary, was admitted to probation on November 14, 1988, and was on probation when his house was searched; a condition of his probation was that he submit to search and seizure on demand of a peace officer. As such, the search of Moraga’s home, in which the loot from the burglary was seized, was justified without a warrant; and Moraga had no grounds to challenge the validity of the search. (See People v. Fierro (1991) 1 Cal.4th 173, 217-218 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) Even if that were not so, appellant has no standing to object to the search of Moraga’s home, even though such search revealed evidence which ultimately implicated or aided in the implication of appellant.

Since at least 1978, the federal rule has denied such standing to one seeking exclusion of evidence obtained in violation of the constitutional rights of another. (Rakas v. Illinois (1978) 439 U.S. 128, 148 [58 L.Ed.2d 387, 404, 99 S.Ct. 421], rehg. den. (1979) 439 U.S. 1122 [59 L.Ed.2d 83, 99 S.Ct. 1035]; In re Lance W. (1985) 37 Cal.3d 873, 882 [210 Cal.Rptr. 631, 694 P.2d 744].) In Lance W., our Supreme Court interpreted Proposition 8 as eliminating judicially created remedies for violation of the search and seizure provisions of federal or state constitutions by exclusion of evidence thus obtained, “except to the extent that exclusion remains federally compelled.” (Pp. 886-887.)

Our decision should simply rest on either or both of these grounds.

I write separately to make it clear that I respectfully disagree with that portion of the lead opinion which unnecessarily discusses the application of Title III² to this case and errs in that analysis.

The discussion is unnecessary because both the trial court’s ruling on appellant’s Penal Code section 995 motion, and the lead opinion moot it. Each determines the sufficiency of the affidavit for search warrant after redacting all references therein to the tape recording.

The lead opinion’s discussion is erroneous for two reasons. It ignores and conflicts with applicable federal law, thereby misinterpreting the so-called “plain meaning” of Title III (lead opn., ante, p. 1120); and if literally applied, it would wrongly proscribe judicial consideration of the application of the “good faith” exception of United States v. Leon (1984) 468 U.S. 897 [882 L.Ed.2d 677, 104 S.Ct. 3405] to the fruits of a search warrant if the affidavit therefor discloses a Title III violation by private citizens acting independently of police authorities, an issue the lead opinion disclaims any intention to reach. (Lead opn., ante, p. 1118, fn. I.)³

1. The “[P]lain [MJeaning” the Lead Opinion Ascribes to Section 2515 Is an Oxymoron

The “plain meaning” the lead opinion ascribes to section 2515—that it bars introduction of offending evidence absolutely, with essentially no exceptions—is shredded by an examination of authority, some of it still in conflict. Literally read, section 2515 precludes the use in any court of the contents or evidence derived therefrom of any illegally intercepted wire communication. In at least five different legal circumstances, however, courts applying section 2515 have held that it does not mean what this literal reading would imply. Some relevant authorities are summarized as follows:

a. Coconspirator Recordings

A striking diversity of views exists, between the federal Courts of Appeals for the First and Sixth Circuits, as to whether section 2515 bars admission of recordings illegally made by the coconspirators of an accused.

The First Circuit held that Title III wholly precluded use of a recording made by a conspirator of a conversation with his coconspirator without the latter’s knowledge, rationalizing this result by an alleged “ ‘overriding’ ” congressional concern to protect privacy by enacting Title III. (U.S. v. Vest (1st Cir. 1987) 813 F.2d 477, 481 (Vest I).)

The Sixth Circuit, conversely, refused suppression of recordings made by a defendant himself or a coconspirator on the ground, inter alia, that Congress had no intent in enacting Title III to shield those committing such unlawful interception “from the consequences of their wrongdoing.” (U.S. v. Underhill (6th Cir. 1987) 813 F.2d 105, 112, cert. den. (1987) 483 U.S. 1022 [97 L.Ed.2d 766, 107 S.Ct. 3268]; accord, Traficant v. C.I.R., supra, 884 F.2d at p. 266; U.S. v. Nietupski (C.D.Ill. 1990) 731 F.Supp. 881, 884; United States v. Traficant (N.D.Ohio 1983) 558 F.Supp. 993, 1002.)

b. Impeachment

Since our Supreme Court decided People v. May (1988) 44 Cal.3d 309, 315 [243 Cal.Rptr. 369, 748 P.2d 307], it has been clear that illegally obtained evidence can be used to impeach a defendant who testifies contrary to that evidence. A number of federal cases similarly allow the fruits of an illegal interception of a communication to be used for impeachment. (United States v. Grubbs (5th Cir. 1985) 776 F.2d 1281, 1286; United States v. Winter (1st Cir. 1981) 663 F.2d 1120, 1154.)

Appellant erroneously claimed that the mere playing of the tape recording to Moraga, after Moraga falsely claimed, following an appropriate Miranda warning (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]), that he acted alone in the burglary, vitiates Moraga’s subsequent recantation of that falsehood and his implication of appellant as his accomplice, because the recording was allegedly made in violation of Title III.

While section 2511 literally forbids interception of wire or oral communication by “any person,” the suppression provisions of section 2515 preclude the receipt “in evidence” of such communication and evidence derived therefrom “in any trial, hearing, or other proceeding in or before any court . . . (Italics added.) A “proceeding” has been generally described as “the form and manner of conducting juridical business before a court or judicial officer. . . .” (Black’s Law Diet. (6th ed. 1990) p. 1204, col. 1; see also Post v. United States (1896) 161 U.S. 583, 587 [40 L.Ed. 816, 817] [“Criminal proceedings cannot be said to be brought or instituted until a formal charge is openly made against the accused . . . .”].)

A police interrogation of a possible suspect obviously constitutes neither a trial, hearing, nor proceeding within the meaning of section 2515. At such interrogations, to which both Moraga and appellant consented after being given the warning required by Miranda, the taped conversation was not proposed for receipt “in evidence” by anyone; and its use in that interrogation, to which both Moraga and appellant voluntarily submitted, was, thus, not statutorily proscribed by section 2515.

California courts, since the passage of Proposition 8, have allowed the admission for impeachment purposes of a defendant’s extrajudicial statements elicited in violation of Miranda. (People v. May, supra, 44 Cal.3d at p. 315.) More importantly, federal courts have routinely allowed the impeachment use of illegally seized wiretap conversations. (United States v. Grubbs, supra, 776 F.2d at p. 1286; United States v. Winter, supra, 663 F.2d at p. 1154; see also United States v. Liddy (D.D.C. 1973) 354 F.Supp. 217, 220-221, affd.; United States v. Liddy (D.C. Cir. 1974) 509 F.2d 428, 446, cert. den. (1975) 420 U.S. 911 [43 L.Ed.2d 661, 95 S.Ct. 1408].)

Thus, even had Moraga been testifying in a “proceeding” under oath, falsely making a claim which such a recording belied, the law is well settled that such recording can be used to confront the witness for impeachment purposes, even if made or obtained in violation of Title III.

The recording was played here by the investigative officer for the same functional purpose, disclosure of a false story told in the course of a legitimate police interrogation to which Moraga voluntarily submitted. No one compelled him to say anything after he heard the recording. No dispute is raised that Moraga was not appropriately advised of his rights under Miranda. He then voluntarily implicated appellant. If a concededly illegal tape recording can be used to impeach a witness who has testified under oath, its use a fortiori should clearly be allowed to point up the contradictions in a story told by one being voluntarily interrogated by the police, with full advice of his constitutional rights, in the course of an official criminal investigation.

Put another way, it was not the tape recording which implicated appellant here. It was the independent statement of his accomplice delivered after hearing the recording which patently demonstrated the falsity of that accomplice’s prior statement, which he then recanted. Appellant himself was not interrogated, following a Miranda admonition by the investigating officer, until after he had been so implicated by Moraga; and appellant, like Moraga and for the same reasons, was properly interrogated through the use, inter alia, of the taped conversation to demonstrate the falsity of his denial of implication in the underlying burglary. Use of the tape recording in questioning suspects Moraga and appellant, both of whom lied initially in a police interview, after a properly administered Miranda warning, did not violate the provisions of Title III.

c. Recording by One Spouse of Another’s Conversation in the Family Home

Simpson v. Simpson (5th Cir. 1974) 490 F.2d 803 (cert. den. (1974) 419 U.S. 897 [42 L.Ed.2d 141, 95 S.Ct. 176])⁴ refused to suppress such recording, while extensively commenting on the paucity of evidence of congressional intent in passing Title III as to prohibitions of the use of marital conversations intercepted by private persons. “ ‘The major purpose of title III is to combat organized crime.’ [Citation.]” (490 F.2d at p. 806, italics added; accord, In re Marriage of Lopp (1978) 268 Ind. 690 [378 N.E.2d 414, 422]; Anonymous v. Anonymous (2d Cir. 1977) 558 F.2d 677, 679; London v. London (S.D.N.Y. 1976) 420 F.Supp. 944, 946.) The Fourth and Sixth Circuit Courts of Appeals, by contrast, have excluded all such recordings. (Pritchard v. Pritchard (4th Cir. 1984) 732 F.2d 372, 374; United States v. Jones (6th Cir. 1976) 542 F.2d 661, 670.)

d. Improper Authorization

Where recordings are made in violation of Title Ill’s literal requirement of wiretap approval by a specified official of the Department of Justice, suppression is denied. (United States v. Chavez (1974) 416 U.S. 562, 579-580 [40 L.Ed.2d 380, 394-395, 94 S.Ct. 1849].)

e. Foreign Government Actions

Recordings made by a foreign government of conversations, although originating in the United States, are not excludable, despite the literal provisions of Title III. (United States v. Cotroni (2d Cir. 1975) 527 F.2d 708, 711.)

It is, thus, initially evident that an examination of the foregoing authorities, and in some cases the clear conflict between circuits regarding the literal meaning and application of section 2515, precludes strict adherence to the lead opinion’s general pronouncement that “courts ... to avoid becoming ‘partners to illegal conduct’ . . . may not countenance the use of illegally obtained information . . . proffered by an innocent [sic] party.” (Lead opn., ante, p. 1121.)

Courts of the United States have countenanced the use of such evidence in a variety of situations, and for good and sufficient reason—a recognition, inter alia, that a major and principal purpose of Congress in enacting Title III was to combat organized crime. (U.S. v. Nietupski, supra, 731 F.Supp. at p. 884; United States v. Traficant, supra, 558 F.Supp. at p. 1001; Simpson v. Simpson, supra, 490 F.2d at p. 806; Sen.Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News, at pp. 2153, 2157.)

2. The Lead Opinion Implicitly Eliminates Application of the Good Faith Exception of Leon to This and Similar Cases, While Disclaiming It Reaches That Issue

In Leon, the federal Supreme Court, while acknowledging the exclusionary rule to be a judicially fashioned remedy safeguarding the rights of citizen’s under the Fourth Amendment through its deterrent effect, adopted a “good faith” exception thereto: If police obtain evidence on execution of a defective search warrant, the evidence is nonetheless admissible if the police reliance on the defective warrant was objectively reasonable. “Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” (United States v. Leon, supra, 468 U.S. at p. 921 [82 L.Ed.2d at p. 697].)

The lead opinion disclaims reaching the issue of the application of Leon's good faith exception in this case. (Lead opn., ante, p. 1117, fn. 1.) It seems without exception, however, to require unconditional suppression of any evidence connected to or “tainted” by a tape recording made by independent third parties in violation of Title III. Such total and unconditional proscription of all such evidence, as a matter of law, would obviously leave no basis for its use, even though police in good faith sought and obtained a search warrant producing such evidence based upon such a tape recording as disclosed to the magistrate issuing the warrant and obtained under the circumstances of this case.

Having implicitly so eliminated judicial consideration of the Leon exception, the lead opinion’s disclaimer of reaching that issue is meaningless. A commitment to refrain from discussing its future use has never resurrected a dead horse.

As the authorities set forth above demonstrate, the lead opinion’s preliminary and sanguine assumption regarding the “plain meaning” of section 2515 is simply nonexistent. The literal meaning of section 2515 is already riddled with judicially fashioned exceptions, on which some federal circuit courts are divided, as examination of the case law demonstrates. It consequently makes no sense to interpret section 2515 as embodying some absolute rule which would be impervious to the judicially fashioned exception announced in Leon, a claim sanctioned by no other present authority. This misperception of Leon's nonapplication here, if adopted by this court, would wrongly fuel extensive and unnecessary uncertainty in the law of search and seizure.

The lead opinion seems to support this dicta as follows: A statutory violation of Title III by a private party recording a conversation is one for which Congress has provided a statutory suppression remedy which “guard[s] against future violations [of Title HI]” and also “minimize[s] the invasion of privacy inherent in each reuse of the intercepted material” (lead opn., ante, p. 1120); suppression for constitutional violations of evidence under rules judicially fashioned pursuant to the Fourth Amendment is not a remedy coextensive with the statutory remedy of exclusion contained in section 2515; and the statutory remedy of exclusion is the only one applicable when an antecedent private violation of Title III is disclosed in a search warrant affidavit.

The implicit and defective corollary of this reasoning is that rules of judicial exclusion under the Fourth Amendment (and the Leon “good faith” exception thereto) can never be triggered if that affidavit discloses such antecedent private violation of Title III, a statutory violation. Suppression must always be ordered because a statutory exclusionary rule is implicated.

The dangerous implications of the lead opinion’s blithe and unfortunate analysis are breathtaking. The People, for example, would be absolutely precluded from the use of evidence secured by search warrant in prosecuting conspirators who assassinate a public official or terrorists who blow up an airplane, if the affidavit for that warrant is founded, in whole or in part, on an antecedent communication between such persons intercepted by a third party not part of the conspiracy or plot, who recorded it without the participants’ permission or police knowledge or sanction. A magistrate’s issuance of a warrant based wholly or in part on disclosure to him in good faith by affidavit stating such facts would become an irrelevant consideration. A wrongdoing criminal’s right of privacy would become absolute when police in good faith sought a warrant on facts disclosing such third party violation of Title III, and recovered incriminating evidence on its execution which the lead opinion would suppress. This seems a most peculiar result, not only because it eviscerates Leon but also because it ignores the fact that Title III is generally recognized as legislation enacted to combat organized crime. (United States v. Traficant, supra, 558 F.Supp. at p. 1001; U.S. v. Ferrara (D.Mass. 1991) 771 F.Supp. 1266, 1287-1288, 1304.) The lead opinion’s analysis simply ignores the nature of the issue raised by appellant’s motion to suppress evidence seized under the search warrant. That motion raised the issue of whether probable cause existed for issuance of that warrant, a constitutional issue implicating a judicial determination of appellant’s Fourth Amendment rights.

The lead opinion, however, wrongly confuses two separate issues: (1) whether a tape recording was illegally made by a third party; and (2) whether a search warrant, the issuance and execution of which are measured by Fourth Amendment standards, was supported by probable cause and obtained in good faith.⁵

As to the first issue, if appellant made a motion to suppress the tape recording in order to bar its use at trial, upon proof it was illegally made, the motion should have been granted under federal statutory law. (See People v. Otto, supra, 2 Cal.4th at p. 1116.) However, the issue here is not whether the trial court should have suppressed the tape recording.

Appellant did make a motion to suppress, which was aimed only at physical evidence seized pursuant to a search warrant for a residence, and at appellant’s subsequent confession. The issue generated by that motion is simply whether the Fourth Amendment to the federal Constitution requires suppression, i.e., whether the search warrant issued was supported in good faith by probable cause. (See In re Lance W., supra, 37 Cal.3d at pp. 881-883.) Any private illegality in taping the burglars’ conversation was not determinative of the constitutional issue of whether probable cause supported the issuance of a search warrant, if the officer securing that warrant acted in good faith.

In sum, the lead opinion errs in this implicit reasoning: The statutory violation of Title III of a private party entirely divorced from police activity, in recording a criminal conversation, has an exclusive statutory remedy under section 2515 requiring suppression when “the communication was unlawfully intercepted.” (§ 2518(10)(a)(i).) Application of that exclusively statutory suppression remedy either eliminates the need for determining, or proscribes additional consideration of, whether probable cause nonetheless existed for the warrant’s issuance, and the concomitant issue of Leon's good faith exception to suppression for lack thereof. Thus, such unlawfully intercepted communication could never wholly or partially be considered or construed as implicating constitutional (Fourth Amendment) issues of probable cause for search warrant issuance, to which the Leon good faith exception always and clearly applies, despite its good faith disclosure by the government in seeking such warrant. This analysis ignores the fact that all statutory violations, if disclosed in good faith by affidavit for a search warrant, are simply included in the total antecedent factual background on which the ultimate Fourth Amendment question of probable cause for issuance of a search warrant pivots, when that issue is presented by a post search suppression motion.

The Fourth Amendment constrains governmental, not individual action; its object being “to deter illegal government activity.” (United States v. Goldstein (9th Cir. 1976) 532 F.2d 1305, 1311, italics in original.) The only issue arising from the search warrant, cognizable in this appeal, was whether the governmental action of police officers in seeking a search warrant was proper, i.e., did they show probable cause for the issuance of the search warrant. (Cf. United States v. Clegg (5th Cir. 1975) 509 F.2d 605, 610-611; U.S. v. Ferrara, supra, 111 F.Supp. at p. 1297.) The trial court could have properly considered the affidavit information, including the informant’s recording, as the antecedent factual background on which a probable cause finding was made; and in making that finding, the lower court could have properly applied Leon's good faith exception in deciding the Fourth Amendment issue its probable cause determination implicated.

The lead opinion’s premise, that Title III provides a statutory remedy of such a degree of finality and exclusivity that it somehow never implicates a constitutional issue, is not the view of the United States Supreme Court. (United States v. Giordano (1974) 416 U.S. 505, 525 [40 L.Ed.2d 341, 358, 94 S.Ct. 1820].) Giordano involved the government’s failure to obtain authorization for a wiretap from a party statutorily empowered to give it. Therein, Justice White conceded, inter alia, the correctness of the government’s contention that section 2518(10)(a)(i), which provided for suppression of evidence where ‘the communication was unlawfully intercepted,” must be construed to include both constitutional violations and statutory violations which result therefrom, acknowledging “[suppression for lack of probable cause” as illustrative of “constitutional violations.” (United States v. Giordano, supra, 416 U.S. at pp. 525-526 [40 L.Ed.2d at pp. 358-359].)

Ten years later, it became clear that a statutory violation implicating Fourth Amendment constitutional rights, where suppression of evidence seized under a search warrant was urged, was subject to a modified analysis. Justice White then authored the opinion in Leon, supra, concluding that Fourth Amendment interests are not advanced by excluding evidence obtained, as here, by officers acting “in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.” (468 U.S. at p. 918 [82 L.Ed.2d at pp. 695-696].)

In sum, the federal Supreme Court recognized in 1974 that Title III implicates both issues of statutory and constitutional violations. In 1984, it adopted the Leon good faith rule, which is applicable to Fourth Amendment probable cause issues. The question here of whether suppression of evidence should be ordered for lack of probable cause in obtaining a search warrant, because the affidavit for the warrant disclosed that the contents of an informant’s tape set forth therein were obtained in violation of Title III, simply presented the constitutional issue of the existence of probable cause for the warrant’s issuance on those facts. In deciding that issue, the good faith exception of Leon could have been properly applied.

Nothing in Leon or any reported case supports the lead opinion’s implicit conclusion that, if an antecedent fact to be considered in making a probable cause determination for issuance of a search warrant is a nonpolice third party violation of a statute, Title III or otherwise, suppression is automatically required without any consideration of the good faith and objectively reasonable belief of the officers who obtained the warrant. In fact, after Leon, “the contemporary understanding of Congress . . . [is] that the judicially crafted exclusionary rule governs conduct which violates both the Fourth Amendment and the provisions of Title III which implement its requirements.” (U.S. v. Ferrara, supra, 771 F.Supp. at p. 1304, italics added.)

Justice Kline’s implicit proscription against applying Leon’s good faith exception under the circumstances of this case is also inconsistent with the recent decision of the Ninth Circuit Court of Appeals in U.S. v. Butz (9th Cir. 1993) 982 F.2d 1378.) Butz found the good faith exception articulated in Leon applicable when state police officers unintentionally violated the provisions of Title III by relying upon what they believed were the applicable state law standards for electronic surveillance of telephones by means of pen registers:. “The interests of justice are not served by suppression in the present case. When the pen registers were ordered, the state officers acted in accordance with Idaho law as it then existed. Excluding the evidence would not serve any deterrence effect. In addition, as the district court observed, ‘criminal investigations . . . would be imperiled from the outset if law enforcement officers and prosecutors were required to be omniscient and constrained to guess what construction may or may not be placed on a given statute.’ ” (U.S. v. Butz, supra, 982 F.2d at p. 1383.) Evidence should not be excluded when based upon a good faith interpretation of state law which is subsequently found to violate federal standards. (Illinois v. Krull (1987) 480 U.S. 340, 359-360 [94 L.Ed.2d 364, 381, 107 S.Ct. 1160].)

Finally, the lead opinion’s rationale is inconsistent with what we (Division Two) have previously said. In People v. MacAvoy (1984) 162 Cal.App.3d 746, 763 [209 Cal.Rptr. 34], we held (per Kline, P. J.) that the Leon good faith exception applied where a search warrant was defective for violation of the statutory requirements of Penal Code section 1525 that the warrant describe “particularly” the place to be searched: “When an officer conducts a search under the authority of a warrant issued by a neutral and detached magistrate, this ‘normally’ establishes that the law enforcement officer has acted in good faith in conducting the search.” (People v. MacAvoy, supra, 162 Cal.App.3d at p. 763, citing United States v. Leon, supra, 468 U.S. at p. 922 [82 L.Ed.2d at p. 698].) Even though in 1872 the drafters of the particularity requirement of Penal Code section 1525 obviously could not have known of the Leon good faith exception, we held the statutory requirement was subject to the Leon exception. The same applies here.

No case the lead opinion cites has even held or considered the issue of the Leon good faith exception’s inapplicability solely because the affidavit for the search warrant stems, in whole or in part, from information furnished by a private third party who, acting independently, acquired it by violating Title III. Ferrara, supra, applied Leon to a warrant obtained in violation of federal wiretap laws. (771 F.Supp. at pp. 1296-1298.) It is also notable that, having relied on Vest I which did not discuss Leon, the lead opinion fails to cite the same court’s later case of U.S. v. Vest (1st Cir. 1988) 842 F.2d 1319 (cert, den. (1988) 488 U.S. 965 [102 L.Ed.2d 526, 109 S.Ct. 489]) (Vest II). Vest II refused a defense request to dismiss an indictment because the government presented illegal wiretap evidence to a grand jury in securing the indictment, citing the Leon exception. “To penalize the government when it acts in good faith is unlikely to have a deterrent effect on future ‘misconduct.’ ” (Vest II, supra, 842 F.2d at p. 1334, citing United States v. Leon, supra, 468 U.S. at p. 918 [82 L.Ed.2d at p. 695].)

“[A]ny rule of evidence that denies the jury access to clearly probative and reliable evidence must bear a heavy burden of justification, and must be carefully limited to the circumstances in which it will pay its way by deterring official lawlessness.” (Illinois v. Gates (1983) 462 U.S. 213, 257-258 [76 L.Ed.2d. 527, 560-561, 103 S.Ct. 2317] (cone. opn. of White, J.) italics added.)

Were it necessary to decide this case on grounds implicating the Leon good faith exception, I would adhere to the view we unanimously adopted before granting rehearing in this case, that the exception clearly applies.⁶

A petition for a rehearing was denied April 27, 1993, and appellant’s petition for review by the Supreme Court was denied July 22, 1993.

* Presiding Justice of the Court of Appeal, First District, Division Five, sitting under assignment by the Chairperson of the Judicial Council.

1 Unless otherwise indicated, all subsequent statutory references are to the United States Code, title 18.

2 Title III was introduced in this case by a very strange means. A deputy attorney general, by an amicus curiae brief filed in the superior court in opposition to appellant’s Penal Code section 995 motion, urged the inapplicability of section 2515 (the applicability of which had not theretofore been asserted) in the erroneous belief that Officer Welch’s confidential informant was appellant’s accomplice in the burglary, an assumption neither directly or inferentially supported by the record nor urged by appellant or the district attorney.

3 I will assume arguendo, for purposes of my discussion, that the tape recording was illegally obtained by the informant, although the record does not even clearly establish that.

The burden of proving the tape recording of the conversation between Moraga and appellant was made without the permission of either party or both parties thereto, and hence illegally violated the Act (§§ 2510-2520), was indisputedly on appellant. (Traficant v. C.I.R. (6th Cir. 1989) 884 F.2d 258, 266; accord, United States v. Truglio (4th Cir. 1984) 731 F.2d 1123, 1131-1132.) It is questionable whether appellant carried this burden on the record before us. Neither appellant nor Moraga so testified, and the evidentiary record is wholly silent on this subject.

As the People pointed out at the hearing on appellant’s Penal Code section 995 motion, testimony elicited from Officer Welch on cross-examination at the preliminary hearing concerning what the defense described as his “understanding . . . that the tape recording[] was made without the consent or knowledge of either [Moraga or appellant]” was “purely [Officer Welch’s] assumption .... in response to a question by [appellant’s counsel].” (Italics added.) Such speculation was based on no evidence at all.

4 Simpson was criticized by our Supreme Court in People v. Otto (1992) 2 Cal.4th 1088, 1103-1107 [9 Cal.Rptr.2d 596, 831 P.2d 1178], a case not involving Leon. The typed opinion issued by the court in Otto, by apparent inadvertence, relied in part on portions of our first decision in this case, regarding issues other than the good faith exception of Leon, although we had granted a rehearing herein about eight months previously. The Reporter of Decisions has removed Otto's citation of that authority. (People v. Otto, supra, 2 Cal.4th at p. 1112.)

5 Appellant does not contest the good faith of Officer Welch in preparing the affidavit for, and in obtaining from the magistrate, the search warrant at issue here.

6 “Under these circumstances, we conclude [the officer] acted reasonably when he took this affidavit [containing information given by a confidential informant] to a judicial officer for determination. His subsequent reliance on the warrant that was issued was thus objectively reasonable under Leon, and suppression of the evidence is not required." (People v. Camarella (1991) 54 Cal.3d 592, 607 [286 Cal.Rptr. 780, 818 P.2d 63]; accord, Bay v. Superior Court (1992) 7 Cal.App.4th 1022, 1031 [9 Cal.Rptr.2d 339] [“It is only unreasonable police conduct that is sanctioned by the exclusionary rule. We find the good faith exception of Leon applicable in the instant case and, therefore, conclude the motion to suppress was properly denied.”].)

Tested under the Leon standards, the private party’s action would not justify exclusion of the seized evidence when police obtained the warrant in the good faith belief that it was legal to rely on evidence gathered by a private party. No Fourth Amendment principles are thereby offended. (Vest II, supra, 842 F.2d at pp. 1334-1335; see also U.S. v. Malekzadeh (11th Cir. 1988) 855 F.2d 1492, 1496-1497, cert. den. (1989) 489 U.S. 1029 [103 L.Ed.2d. 221, 109 S.Ct. 1163] [The Leon exception applied to a warrant issued under the federal wiretapping laws.].)

The lead opinion’s scattered authorities to the contrary are not persuasive. It cites two isolated federal district court opinions which indicated, on very different facts, that Leon might not apply to certain violations of the federal Act. (United States v. Orozco (S.D.Cal. 1986) 630 F.Supp. 1418, 1521-1522; County of Oakland by Kuhn v. City of Detroit (E.D.Mich. 1984) 610 F.Supp. 364, 369, fn. 10.) However, no appellate court has ever followed these early indications, or held that a good faith exception should not apply to claimed violations of the Act. The lead opinion’s other authorities do not even deal with the federal Act at all. In State v. Garcia (Fla. 1989) 547 So.2d 628, 630, the state court dealt with a state statute which had been drafted so as to exclude a Leon exception. In United States v. Spadaccino (2d Cir. 1986) 800 F.2d 292, 296-297, the Second Circuit initially questioned in dicta whether certain evidence should have been admissible, because a state statute requiring notice was not complied with; and the court indicated a Leon exception would not apply because the state law had previously been interpreted by the state courts as requiring strict compliance with the notice requirement. The Second Circuit found the evidence properly admissible, in any event, because there had been no case law on point and because the police officers “conducted the search in good faith.” (United States v. Spadaccino, supra, 800 F.2d at p. 297.) These authorities, in sum, certainly do not impair the conclusions reached in the authorities cited in the first two paragraphs of this footnote.