We held in Burrows v. Superior Court (1974) 13 Cal.3d 238 [118 Cal.Rptr. 166, 529 P.2d 590], that a depositor's bank statements provided to the police by the bank without the benefit of legal process were obtained as the result of an illegal search and seizure, in violation of article I, section 13 of the California Constitution.
Defendant was convicted of the murders of Alan and Renate Wellman, which occurred at their home in Los Angeles on the night of December 14, 1975. He appeals from the judgment of conviction.
On August 12, 1975, Wellman, a lawyer, appeared before a federal grand jury in Philadelphia regarding a stolen treasury bill. He testified that he had met defendant socially, that defendant had asked him to negotiate a $50,000 treasury bill, and he agreed to do so for a fee of $500. When he attempted to cash the note, the bank notified him that it had been stolen. He advised defendant to protest the bank's claim, but defendant did not do so.
In October 1975, defendant was indicted for selling or receiving the note, and a trial date of November 19, 1975, was set, which was continued to January 12, 1976, at the request of defendant's attorney. Wellman had been subpoenaed to appear at the trial.
Defendant had been convicted in 1970 on a charge involving stolen federal securities and was on parole for that conviction at the time of the grand jury proceedings. If convicted on the 1975 charge he could have received a maximum of 10 years in prison in addition to the time remaining to be served on his parole term. One month after the Wellmans were murdered, the United States Attorney in Philadelphia moved to dismiss the case against defendant because Wellman was the only witness to the charge.
On December 14, between 9 and 9:30 p.m., defendant entered the motel office of Rocky Stroud in Encino, and asked directions to Scadlock Lane.
Suspicion focused upon defendant almost immediately. Defendant, who sometimes used the name Robert Bartee,
The authorities in Philadelphia provided Los Angeles police with the California telephone numbers shown on Vineyuard's records, and the police determined that the Oakland number was that of the Edgewater Hyatt House Hotel (hereinafter Hyatt House) and the Los Angeles number was the Marriott Hotel. They examined the registers of these hotels and found that a Robert Bartee and two others had checked into two rooms at the Hyatt House on December 11, 1975, and departed on December 14, and that Bartee and his party were at the Marriott on the night of December 14, checking out early in the morning of December 15. At the request of the police, an employee of the Hyatt House showed the police a list of telephone calls charged to Bartee's account by the hotel. Among them was one at 4:17 p.m. on December 14 to the Wellman home in Los Angeles.
Credit cards had been issued to Robert Bartee by Diner's Club, American Express, and Carte Blanche. The police, by informal inquiries and without obtaining search warrants or subpoenas, requested and received from American Express a copy of Bartee's credit card application, and from Carte Blanche information as to the amount he owed. An employee of Diner's Club informed the police that a TWA airline ticket had been charged to the card, and gave them the ticket number, but declined to provide further information without a subpoena. Subpoenas were issued to the credit card companies for information regarding Bartee's accounts, returnable at the preliminary hearing on June 14, 1976.
When a Federal Bureau of Investigation agent conducted an interview on December 19 in Philadelphia, defendant denied that he knew the Wellmans. On December 23, defendant, without having been summoned, visited his parole officer in Philadelphia, denied that he was involved in the Wellman murders, and displayed to the officer a letter purporting to set forth in detail his whereabouts in the Philadelphia area on the weekend of the murders. Defendant retained the letter. Thereafter, in a search of the Vineyard residence for narcotics made under the authority of a warrant, a Philadelphia homicide officer assigned to investigate the Wellman murders found the letter in Vineyard's bureau drawer in which a quantity of narcotics was also discovered.
Defendant testified at the trial, offering an alibi as his primary defense. He testified as follows: he is a narcotics dealer and made frequent trips to Oakland and Los Angeles for the purpose of purchasing narcotics. Between December 11 and 14 he was in Oakland with two associates to buy heroin, and after they successfully completed the purchase, they left for Los Angeles on December 14.
His supplier of cocaine was Wellman from whom he had bought cocaine in the past. On December 14, he called Wellman from Oakland for the purpose of arranging a purchase of cocaine. When he arrived in Los Angeles, he rented a Ford Thunderbird from Avis. He then called Wellman from a pay telephone about 8:30 p.m. and arranged to meet Renate Wellman on the corner of Sepulveda and Valley Vista streets at 9:15 p.m. He did not stop at the Stroud motel on the way to the meeting place. Shortly after defendant arrived at Sepulveda and Valley
The Department of Motor Vehicles had no record of a red Volkswagen registered to the Wellmans, and no report of a mechanical failure had been filed with Avis regarding the Ford Thunderbird. There was evidence that Wellman used cocaine and that he had said shortly before the murders that he "was coming into a large sum of money the first of the week." The gun used in the murders was stolen on June 27, 1975, from a police officer in Haddenfield, a New Jersey town 10 miles from Philadelphia.
Defendant pleaded not guilty to two counts of first degree murder. He made a motion to suppress the identification testimony of Stroud, and moved under Penal Code section 1538.5 to suppress the documents revealing the telephone calls made to and from Vineyard's telephone in Philadelphia, the call made from the Hyatt House to the Wellman telephone, and the charges defendant made on his Diner's Club card, as well as the letter written by him to his parole officer. The motion was denied. In a first trial, the jury was unable to reach a verdict and a mistrial was declared. Defendant moved to dismiss the charges in the interest of justice. After the motion was denied, a second trial was held which, after three days of jury deliberations, resulted in a verdict of guilty of murder in the first degree on both counts.
We consider, first, whether the trial court properly denied the motion to suppress the information regarding the charges made on defendant's Diner's Club card.
In Burrows, we held that a bank customer has a reasonable expectation of privacy in the checks which he transmits to the bank in the course of business, and the bank statements which summarize the information revealed thereby, and he expects that absent compulsory legal process, the matters he reveals to the bank will be used by it only for internal banking purposes. The prosecution unreasonably interfered with this expectation by revealing, pursuant to an informal inquiry by the police, information regarding details of defendant's accounts. The character, scope, and relevancy of the material obtained was thus determined entirely in the unbridled discretion of the police. (Also see Commonwealth v. DeJohn (1979) — Pa. — [403 A.2d 1283, 1289-1290].)
We pointed out that for all practical purposes, the disclosure of an individual's financial affairs to a bank is not entirely volitional because it is impossible to participate in modern economic life without maintaining a bank account, that in the course of such dealings a depositor reveals many aspects of his personal affairs, opinions, habits and associations so that bank records provide "a virtual current biography." To allow the police access to such records and other financial information provided by a customer to his bank would open the door to a vast range
A credit card holder would reasonably expect that the information about him disclosed by those charges will be kept confidential unless disclosure is compelled by legal process. The pervasive use of credit cards for an ever-expanding variety of purposes — business, social, personal, familial — and the intimate nature of the information revealed by the charges amply justify this conclusion.
Nor can there be any doubt that, as in Burrows, the scope of the search was unreasonable. The documents provided to the prosecution constituted virtually the entire file of the Diner's Club relating to defendant's account.
The People seek to justify this significant intrusion into defendant's privacy upon two grounds. They claim, first, that Diner's Club was not a neutral party because defendant had obtained the card under an assumed name and therefore the case comes within the exception to the rule referred to in Burrows. This reasoning is flawed under the circumstances of the present case. Diner's Club obviously did not view itself as the "victim" of defendant's conduct: after informing the police regarding one charge on the account, it refused to provide any further information unless compelled to do so by subpoena. It is noteworthy also that a representative of American Express testified at the suppression hearing that the fact a customer obtains a card under a fictitious name would not cause the company to cancel the account. Use of fictitious names is not illegal in California unless employed for a fraudulent purpose or in violation of a statute. (See, e.g., Pen. Code, § 12076.)
In People v. McKunes (1975) 51 Cal.App.3d 487 [124 Cal.Rptr. 126], it was held, under the authority of Burrows, that the police may not, without legal process, obtain from the telephone company records revealing the calls dialed by a defendant from his home or office. The court reasoned that, as with bank records, a telephone subscriber has a reasonable expectation that the calls he makes will be utilized only for the accounting functions of the telephone company and that he cannot anticipate that his personal life, as disclosed by the calls he makes and receives, will be disclosed to outsiders without legal process. As with bank records, concluded the court, it is virtually impossible for an individual or business entity to function in the modern economy without a telephone, and a record of telephone calls also provides "a virtual current biography."
The fact that the telephone calls in the present case were made by defendant from a hotel room rather than his home does not render the McKunes rationale inapplicable. As in the case of a telephone call from
In Smith v. Maryland (1979) 442 U.S. 735 [61 L.Ed.2d 220, 99 S.Ct. 2577], the United States Supreme Court held that a telephone subscriber does not have federal constitutional protection in the numbers which he dials from a home telephone, the numbers being obtained from a pen register installed by the telephone company at the request of the police in the offices of the company.
Even though the seizures were proper under federal law, the question remains whether the manner in which the records were obtained would have violated California law if the seizures had occurred in this state, and if so, whether they should have been excluded. The People contend
Such a procedure would have rendered the telephone records inadmissible in evidence in this state. For the same reasons which impelled us to conclude above that the mere issuance of a subpoena duces tecum by law enforcement officials did not entitle them to obtain the records of defendant's credit card transactions, we hold that the prosecution would not have been entitled to the telephone records if they had been produced pursuant to a subpoena issued by a California grand jury, without a judicial determination that law enforcement officials were entitled thereto. We have recognized that the prosecution "is typically in complete control of the total process in the grand jury room" and that the grand jury is "independent only in the sense that it is not formally attached to the prosecutor's office." (Hawkins v. Superior Court (1978) 22 Cal.3d 584, at p. 589 [150 Cal.Rptr. 435, 586 P.2d 916].) Thus, we have no doubt that Vineyard's telephone records could not have been introduced into evidence in California if they had been seized here under circumstances similar to those which occurred in Philadelphia.
The question at issue in this aspect of the case is, therefore, whether the trial court should have excluded the telephone records on the ground that, although they had been legally seized under federal law and under the law of Pennsylvania, the seizure would have violated article I, section 13, of the California Constitution if it had occurred in this state.
From the inception of the exclusionary rule, we have made it clear that the rule has a two-fold purpose: To deter the police from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in illegal conduct. (See, e.g., People v. Cahan (1955) 44 Cal.2d 434, 445-446 [282 P.2d 905, 50 A.L.R.2d 513]; Kaplan v. Superior Court (1971) 6 Cal.3d 150, 156-157 [98 Cal.Rptr. 649, 491 P.2d 1]; People v. Disbrow (1976) 16 Cal.3d 101, 113 [127 Cal.Rptr. 360, 545 P.2d 272].)
The question remains, however, whether the vindication of judicial integrity requires exclusion. The rationale underlying this basis for the rule, as explained in Cahan, is that it is morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens obey the law, that government teaches by example, and that if the government becomes a law-breaker, its action breeds contempt for the law. The "success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced.... Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such `dirty business.'" (Cahan, 44 Cal.2d at p. 445.)
Defendant urges that judicial integrity is compromised in this circumstance so as to outweigh the state's interest in the successful prosecution of crimes committed in this state. We write upon a clean slate, for no direct authority regarding this issue has been cited or found.
Defendant admits that the narcotics officers could have seized the letter if they had known of its connection with the homicide investigation (People v. Hill (1974) 12 Cal.3d 731, 758 [117 Cal.Rptr. 393, 528 P.2d 1] [overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, at fn. 5, p. 896 (135 Cal.Rptr. 786, 558 P.2d 872)].) The search did not exceed the scope allowed by the warrant; the narcotics were found in a bureau drawer which also contained the letter.
While the homicide investigator's testimony raises some doubt as to his purpose for participating in the search, we need not undertake a detailed analysis of defendant's claim since it is inconceivable that any error in admission of the letter could have been prejudicial. The primary importance of the letter in the case against defendant was that it demonstrated a consciousness of guilt and reflected upon his credibility. The details of his whereabouts as stated in the letter were unimportant relative to this purpose. Defendant's parole officer spoke with a Federal Bureau of Investigation agent shortly after the letter was presented to him and told the agent that it contained a summary of defendant's whereabouts in Philadelphia on the weekend of the murders. The parole officer testified to the same effect at both the suppression hearing and the trial. In these circumstances, admission of the letter itself could not have added significantly to the prosecution's case.
Defendant's next assertion is that Stroud's identification of him at the trial was based upon unnecessarily suggestive pretrial procedures conducive to error, thereby depriving him of due process. He states that without Stroud's testimony, the prosecution's case depends entirely upon proof of motive and opportunity to murder the Wellmans, and that such evidence would be an insufficient basis for conviction. Thus Stroud's identification of him as the man who asked directions to the street where the Wellman home was located, about the time the murders were committed, was critical.
According to Stroud, at 9 or 9:30 p.m., on December 14, he pointed the way to Scadlock Lane on two maps in the motel office to the man who asked for directions. He observed the visitor for a period of three to five minutes from a distance of about eighteen inches. The lighting was excellent.
The next night, Stroud heard about the Wellman murders on a television news program which mentioned that the victims had lived on Scadlock Lane. He immediately called the police, recounted to them the events of the night before, and described the person who had asked for directions as a black male about 6 feet 2 or 4 inches tall, weighing about 165 pounds. Defendant claims that Stroud also stated in his initial identification that the man had an eye which floated upwards but, while Stroud testified to this effect at the suppression hearing and at the trial, it is questionable whether he made that statement as part of his initial identification.
A few days later, a police artist prepared a composite drawing of the man described by Stroud. The drawing revealed a man with long sideburns. Defendant is 6 feet 1 inch tall, and at the time of trial weighed 215 pounds. He does not have a floating eye, and according to an expert witness, he is unable to grow sideburns.
Between December 29, 1975, and March 3, 1976, the police showed Stroud 39 photographs of black males, in 4 sets, each set containing between 6 and 15 pictures. Defendant appeared in three of those sets. In
On May 13, 1976, five months after the murders, Stroud traveled to Philadelphia, where he picked defendant out of a lineup of seven men. All were black males, wearing blue pants and white shirts. Defendant was the oldest by 7 years, and he weighed 37 pounds more than any other man.
Defendant asserts that the use of the photographs for identification prior to the lineup was unnecessary and "programmed" Stroud to point out defendant at the lineup, and that the lineup itself was suggestive because
Nor do we agree that photographic identification was unnecessary because the prosecution had the alternative of presenting defendant at a corporeal lineup by arresting him for violating parole in leaving Pennsylvania without permission. In fact, he was a fugitive from justice during much of the period in which the photographic identifications were made. A warrant had been issued for defendant's arrest in January 1976, and he was not arrested until May 10, 1976. The lineup in Philadelphia occurred three days later.
The next question is whether the lineup itself was impermissibly suggestive because of the differences in appearance between defendant and the other participants. Defendant asserts that the "sine qua non of lineup fairness" is similarity in appearance between the accused and the other participants because the "unique or different draws attention and is more likely to be picked." (Citing Buckhout, Eyewitness Testimony (Dec. 1974) Scientific Am. 23; Note, Pretrial Identification (1971) 55 Minn.L.Rev. 779, 803.)
In the lineup conducted here, the recounting of the age, height and weight of the participants as set forth in footnote 16 might indicate a marked disparity between the appearance of defendant and the other six persons, but, photographic slides of the lineup in evidence demonstrate that defendant does not appear to be significantly taller, heavier, or older than the other participants.
It seems clear to us that Stroud had a sufficient opportunity to observe the man in question. Their conversation lasted three to five minutes in a well-lit room, in which the parties were only eighteen inches apart. Although Stroud's description of defendant to the police shortly after the crimes as weighing about 165 pounds was incorrect (he weighed 215 pounds at the time of trial and 217 pounds at the lineup), there was some evidence that defendant weighed less at the time of the crimes.
In spite of these discrepancies, there are significant factors pointing in the direction of reliability. Defendant's photograph was one of four chosen among 39 presented to Stroud, he was identified at a fair lineup, and Stroud had ample opportunity to observe defendant under excellent lighting conditions. In these circumstances, we cannot say that there was a substantial likelihood of misidentification because of impermissibly suggestive pretrial procedures, or that Stroud's testimony was demonstrably unreliable.
Next, defendant asserts that the trial court erred in failing to give on its own motion a cautionary instruction regarding eyewitness identification testimony. At defendant's request, the court gave a special instruction stating that the jury should accord to defendant's evidence suggesting that the photographic lineup identification was unfair and unreliable the weight to which it was entitled. No request was made either for instruction No. 2.91 in the California Book of Jury Instructions, Criminal (CALJIC)
Defendant claims that because of the unreliability of the identification evidence and the importance of that evidence in the present case, the court should have given either of these instructions on its own motion under the principles of People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal.Rptr. 1, 518 P.2d 913], and People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390]. In those cases, we held that a trial court must, on its own motion, if necessary, instruct the jury on the general principles of law relevant to the issues raised by the evidence, and we defined such principles as those "closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (St. Martin, at p. 531; and see People v. Freeman (1978) 22 Cal.3d 434 [149 Cal.Rptr. 396, 584 P.2d 533], holding that the trial court need not give instructions on an alibi defense on its own motion.)
In a recent case it was held under these principles that a court is not required to give CALJIC No. 2.91 on its own motion since the correctness of identification does not constitute an affirmative defense, and the court's general instructions on credibility and burden of proof were sufficient to inform the jury of the test they should apply to the identification evidence. (People v. Richardson (1978) 83 Cal.App.3d 853, 860-862 [148 Cal.Rptr. 120].)
Under Evidence Code section 352, a court may in its discretion exclude evidence if the probative value of the evidence is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice or mislead the jury. We cannot say here that the court abused its discretion. Defendant failed to object for tactical reasons to the question whether he had ever carried a gun. He took the chance that the court would allow impeachment of this statement in order to avoid leaving the jury with the erroneous impression that his denial was truthful.
Moreover, there was considerable other evidence casting doubt on defendant's credibility. According to his own testimony, he often used false names, bought stolen airline tickets at cut-rate prices for travel on his narcotics buying trips, and employed stolen credit cards to pay his hotel bills.
Contrary to defendant's contention, the trial court's ruling did not elevate a fastidious adherence to the technicalities of the law of evidence over the right to a fair trial. For here, unlike Chambers, there was no solid assurance that the hearsay statements were reliable. It appears to be the rule in all jurisdictions in which the matter has been considered that statements made under hypnosis may not be introduced to prove the truth of the matter asserted because the reliability of such statements is questionable. While in California such statements — and those made under the influence of truth serum — may be used to establish a basis for expert opinion, the cases either state specifically or assume that they are not admissible to prove the truth of the matter therein contained. (See, e.g., People v. Modesto (1963) 59 Cal.2d 722, 732-733 [31 Cal.Rptr. 225, 382 P.2d 33] [overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810]]; People v. Johnson (1973) 32 Cal.App.3d 988, 1000-1002 [109 Cal.Rptr. 118]; People v. Hiser (1968) 267 Cal.App.2d 47, 61-62 [72 Cal.Rptr. 906, 41 A.L.R.3d 1353]; cf. People v. Cartier (1959) 51 Cal.2d 590, 600-601 [335 P.2d 114]; People v. Jones (1954) 42 Cal.2d 219, 225 [266 P.2d 38].) The rule is the same in other jurisdictions. (See 29 Am.Jur.2d, Evidence, § 831, p. 924; Annot. (1952) 23 A.L.R.2d 1306, 1310.)
Defendant's claim that there were assurances the witness was telling the truth under hypnosis is unpersuasive. The fact that she was a neutral person and had no reason to falsify her statements under hypnosis
Finally, defendant asserts that the trial court should have granted his motion of acquittal because the evidence is insufficient to support a finding of guilt.
We have concluded above that the trial court erred in failing to suppress the evidence regarding the charges made by defendant on his Diner's Club card and the telephone call made by defendant to Wellman from the Hyatt House. Under all the circumstances, these errors were not prejudicial. The evidence based on the credit card revealed only that defendant had charged with the card his hotel bills in Oakland and Los Angeles and three tickets on TWA from Los Angeles to Baltimore on December 15.
The judgment is affirmed.
Bird, C.J., Tobriner, J., Clark, J., Richardson, J., Manuel, J., and Newman, J., concurred.
Two law review commentaries discuss the application of the exclusionary rule in the circumstances present here. One author concludes that it is unlikely that a court would exclude the evidence "unless it places heavy reliance on an exacting notion of judicial integrity." (Theis, Choice of Law and the Administration of the Exclusionary Rule in Criminal Cases (1977) 44 Tenn.L.Rev. 1043, 1060.) The second article states that "[U]nless the forum regards judicial integrity as a separate basis for application of the exclusionary rule, the evidence should be admitted since the search activity that occurred outside the jurisdiction of the forum was not illegal." (Tullis & Ludlow, Admissibility of Evidence Seized in Another Jurisdiction: Choice of Law and the Exclusionary Rule (1975) 10 U.S.F.L.Rev. 67, 91.)
NO. AGE HEIGHT WEIGHT1 26 6'0" 175 2 23 5'11" 167 3 19 6'0" 170 4 37 6'1" 217 5 30 5'11" 160 6 23 5'11" 170 7 25 6'1" 180