Tavernetti v. Superior Court , 22 Cal. 3d 187 ( 1978 )

CLARK, J., Dissenting.

Since the evidence challenged here was not obtained by an unlawful wiretap, suppression is not required.

Subdivision (a) of section 631 of the Penal Code provides that “Any person who . . . intentionally taps . . . any telegraph or telephone wire . . . or who uses, or attempts to use ... or to communicate . . . any information so obtained ... is punishable by a fine ... or by imprisonment . . . or by both . . . .” (Italics added.)

Subdivision (b) of section 631 provides exceptions to the coverage of the section. “This section shall not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited herein are for the purpose of construction, maintenance, conduct or operation of the services and facilities of such public utility 5?

Finally, subdivision (c) of section 631 provides that “no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative or other proceeding.” (Italics added.)

The word “obtained” in subdivision (c) most reasonably refers to the original acquisition of the information by wiretap. Such meaning is consistent with the use of the words “so obtained” in the phrase “or to communicate . . . any information so obtained” in subdivision (a). The original acquisition of the evidence challenged here was clearly lawful under section 631 because, as the trial court impliedly found, the wiretap was encompassed within the exception stated in subdivision (b) in that it was performed by an employee of a public utility “for the purpose of. . . maintenance ... or operation of the services ... of such public utility.” Therefore, the challenged evidence was not “obtained in violation of this section.”

Even assuming for the sake of argument that section 631 prohibits disclosure of information lawfully intercepted, the disclosure here, like the interception, was exempt because it was “for the purpose of construction, maintenance, conduct or operation of the services and facilities of such public utility . . . .” The majority deny this, arguing that the lineman disclosed the conversations to the police, “not for the purpose of protecting the telephone company or promoting its interests,” but because he felt required to do so as a good citizen. (Ante, p. 194.) However, try as they might, the majority cannot explain away the statement, in McKinnon that “a common carrier, no less than any other citizen, has the right, indeed the duty, not to knowingly allow its property to be used for criminal purposes.” (People v. McKinnon (1972) 7 Cal.3d 899, 914 [103 Cal.Rptr. 897, 500 P.2d 1097].) McKinnon reminds us that corporate entities, no less than individuals, have responsibilities as citizens and that by reporting a crime one may fulfill his responsibilities both as an individual citizen and as a corporate employee. This is clearly such a case.

The majority respond that the duty to report crime is overridden here by the public policy favoring privacy. However, the equally strong public policy favoring confidentiality of attorney-client communications, for example, yields to the attorney’s duty to disclose his client’s intention to commit a crime and the information necessary to prevent the crime. (ABA Code of Prof. Responsibility, DR 4-101 (C)(3).)

Finally, today’s majority opinion both impedes effective law enforcement and discourages good citizenship. Now, one who innocently overhears a crime being planned or carried out by telephone cannot lawfully do anything to prevent it. Today, it is a narcotics transaction involving hundreds of thousands of contraband pills; tomorrow, robbery, rape or murder.

The petition for writ of prohibition should be denied.

Richardson, J., concurred.