Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD202783, Albert T. Harutunian III, Judge.
HALLER, J.
Eugene Coleman pled guilty to unlawfully selling methamphetamine, and the court imposed a three-year prison sentence. On appeal, Coleman contends the court erred in denying his motion to suppress evidence resulting from his telephone conversation with an undercover police officer. Coleman argues the conversation violated the Federal Wiretap Act (18 U.S.C. § 2510 et seq.), and constituted an unconstitutional warrantless search under the Fourth Amendment. We reject these contentions and affirm the judgment.
All undesignated statutory references are to title 18 of the United States Code.
FACTUAL AND PROCEDURAL SUMMARY
San Diego Police Detective Scott Barnes arrested Justin Gordon for possessing stolen property and drug paraphernalia. In a search incident to the arrest, police officers found a cell phone and seven baggies of methamphetamine on Gordon's person. Gordon waived his Miranda rights and admitted he was a drug dealer and that he sold methamphetamine to an undercover police officer.
Within 10 minutes of Gordon's arrest, Gordon's cell phone began ringing. After the officers returned to the station, Detective Barnes directed Police Officer Donna Eastep to answer Gordon's phone for the purpose of investigating other illegal drug transactions. Officer Eastep placed the phone on her desk and answered several calls on Gordon's phone, posing as his girlfriend, Heather.
Several hours later, Officer Eastep answered a call from an individual named Ariel, who asked to speak with Gordon. Officer Eastep identified herself as Heather, and told Ariel that Gordon was busy. About one hour later, Ariel called back, and told Officer Eastep that he had "the stuff" that Gordon wanted. Officer Eastep and Ariel agreed to meet to exchange "the stuff" at 2:00 p.m. in a McDonald's parking lot. Ariel then "passed the phone" to another male, later identified as Coleman. Coleman proposed an earlier meeting time which Officer Eastep rejected, and they eventually settled on meeting at 2:00 p.m. at the McDonald's on University Avenue.
Shortly after, Ariel called Gordon's cell phone to indicate that he was running late. Ariel then passed the phone to Coleman, who described his car and told Officer Eastep that he would wait for her inside the McDonald's. Coleman and Officer Eastep agreed he would sell her an "eight ball" of methamphetamine for $150, which is equivalent to 3.5 grams of the drug. When Officer Eastep met Coleman in the parking lot, she gave him $150 in exchange for a plastic container containing methamphetamine. A few minutes later, police officers arrested Coleman.
In moving to suppress the evidence, Coleman argued that he had a reasonable expectation of privacy in his telephone conversations, and therefore police interception of his communications without a warrant violated the Fourth Amendment. In his reply papers, Coleman also referenced the Federal Wiretap Act as a basis for the suppression.
At the suppression hearing, Detective Barnes testified that he directed Officer Eastep to answer Gordon's phone in an attempt to make additional arrests for unlawful drug dealing. Detective Barnes said that based on his training and experience, an admitted drug dealer would likely use his cell phone to contact suppliers and buyers of drugs, and that he "believed narcotic transactions were going to be handled over the phone." Additionally, Officer Eastep confirmed that Coleman did not personally place any calls to Gordon's phone; all conversations between Coleman and Officer Eastep were initiated by Ariel, who would then hand the phone to Coleman during the call.
After considering the evidence and permitting lengthy argument by counsel, the court denied the motion to suppress, concluding that Coleman did not have a reasonable expectation of privacy in his conversations with the undercover officer. Coleman then pled guilty to one count of selling a controlled substance.
DISCUSSION
I. Standard of Review
When reviewing a motion to suppress, we "review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." (People v. Ramos (2004) 34 Cal.4th 494, 505.) Thus, this court will independently review whether, on the facts found by the trial court, the search or seizure violated Coleman's statutory and/or constitutional rights. (Ibid., People v. Glaser (1995) 11 Cal.4th 354, 362.)
II. Fourth Amendment Claim
Coleman contends the officers' conduct violated his Fourth Amendment rights because they did not obtain a warrant before they answered Gordon's cell phone.
"The Fourth Amendment protects an individual's reasonable expectation of privacy against unreasonable intrusion on the part of the government. A warrant is required unless certain exceptions apply . . . ." (People v. Jenkins (2000) 22 Cal.4th 900, 971.) To claim Fourth Amendment protection, " 'a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which has "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." ' " (Id. at p. 972.) " 'In other words, the defendant must show that he or she had a subjective expectation of privacy that was objectively reasonable.' " (People v. Ayala (2000) 23 Cal.4th 225, 255.)
Applying these principles, we conclude Coleman did not have an objectively reasonable expectation of privacy in his telephone conversation with the undercover police officer. Numerous courts have held that "because '[a telephone] conversation belongs equally to all participants . . . no one can have an expectation of privacy about the use of a conversation by a participant.' " (United States v. Passarella (6th Cir. 1986) 788 F.2d 377, 380 (Passarella), italics added; United States v. Congote (5th Cir. 1981) 656 F.2d 971, 976; People v. Rodriguez (App.Div. 2004) 13 A.D.3d 257, 786 N.Y.S.2d 175, 176 ["defendant had no legitimate privacy interest in the [telephone] conversations he unwittingly chose to have with the officer"]; see also United States v. Meriwether (6th Cir. 1990) 917 F.2d 955, 959 [" 'a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties' "].)
We agree with this concept. Every party to a conversation willingly assumes the risk that "the other party may divulge the contents of that conversation, and should that happen, there has been no violation of the right of privacy." (Smith v. Cincinnati Post & Times-Star (6th Cir. 1973) 475 F.2d 740, 741; see also Rathbun v. U.S. (1957) 355 U.S. 107, 111.) This rule applies even though the defendant is mistaken about the identity of the person to whom he or she is speaking. The Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it" (Hoffa v. United States (1966) 385 U.S. 293, 302), nor does it require police officers to truthfully identify themselves when they answer a phone for the purpose of investigating criminal activities. (Passarella, supra, 788 F.2d at p. 380; see People v. Ledesma (2006) 39 Cal.4th 641, 704.)
Under these well-settled principles, Coleman did not have a reasonable expectation of privacy in statements he made to Officer Eastep. He voluntarily spoke with Officer Eastep several times. Coleman did not initiate any of the calls; he merely spoke with the officer when Ariel handed him the phone. There was no showing that Coleman knew the telephone number to which the calls were placed or the identity of the owner of the phone. Further, Coleman did not speak with the intended recipient (Gordon), but rather spoke with an individual claiming to be Heather, who Coleman had never previously met. Under these circumstances, Coleman did not have a reasonable expectation of privacy in a communication on an unidentified cell phone during which he "spoke freely with [a] stranger[ ]." (United States v. Congote, supra, 656 F.2d at p. 976.)
We reject Coleman's argument that his reasonable expectation of privacy was violated because the police did not "lawfully possess" the cell phone. The argument is factually and legally unsupported. The police officers were in lawful possession of the cell phone, having properly acquired it during their arrest of Gordon. To the extent that Coleman argues the police officers were not entitled to "search" the phone, he had no reasonable expectation of privacy in the phone itself. Coleman has not asserted any ground for concluding he had an objective basis to believe that Gordon's cell phone would be kept private.
In this regard, Coleman's reliance on People v. Bullock (1990) 226 Cal.App.3d 380 is misplaced. In Bullock, the police officers arrested the defendant, and seized his pager incident to the arrest. The officers then retrieved incoming phone numbers on the pager without obtaining a warrant. (Id. at pp. 384-385.) The officers called several of the numbers, and some of the answering individuals requested cocaine delivery. (Id. at p. 385.) The trial court denied the defendant's motion to suppress these phone conversations. (Id. at pp. 383-384.) The reviewing court found the retrieval of the phone numbers from the pager constituted an invasion of Fourth Amendment interests of the defendant (the pager owner) because these messages were private and not intended to be exposed to the public. (Id. at pp. 386-387.) However, the court held the court properly denied the defendant's motion to suppress because exigent circumstances permitted the police officer to dispense with the warrant requirement. (Id. at pp. 387-389.)
In this case, unlike Bullock, Coleman did not own the cell phone answered by Officer Eastep or have any form of proprietary interest in the phone, and thus had no reasonable expectation of privacy to any information contained on the phone. A defendant cannot assert a third party's rights as a basis for suppression of evidence to be used against him. (See In re Lance W. (1985) 37 Cal.3d 873, 881-882.) Coleman was seeking only to suppress his own conversation with a police officer, a circumstance not at issue in Bullock. Thus, the privacy analysis in Bullock is inapplicable to Coleman's Fourth Amendment claim.
Coleman's reliance on Katz v. United States (1967) 389 U.S. 347 is also misplaced. In Katz, the defendant made a telephone call to a third party from a public telephone booth, and government agents intercepted the conversation by secretly attaching a listening device to the public telephone. (Id. at p. 348.) The United States Supreme Court held this conduct "violated the privacy upon which [the defendant] justifiably relied while using the telephone booth" and thus constituted a prohibited warrantless search and seizure. (Id. at p. 353.) The court emphasized that by closing the door to the telephone booth and speaking into the mouthpiece of the phone, the defendant sought to exclude "the uninvited ear," and thus had a right to rely on the Fourth Amendment's protection. (Id. at p. 352, italics added.)
In this case, Coleman did not seek to exclude the officer's "ear" from the telephone conversation. Instead, he voluntarily communicated with Officer Eastep several times, believing she was a drug dealer's girlfriend. Although a person has a legitimate expectation that a phone conversation with a third party will not be secretly intercepted, this is different from concluding a person has a legitimate expectation of privacy with respect to communications voluntarily told to a third party. (Passarella, supra, 788 F.2d at pp. 379-380; People v. Rodriguez, supra, 786 N.Y.S.2d at pp. 175-176; see United States v. White (1971) 401 U.S. 745, 749.) The Fourth Amendment's protections do not extend to a person's conversations with a stranger who may be posing as an undercover agent. This principle remains applicable whether the conversation occurs in person or on the telephone. Coleman assumed the risk of speaking to an undercover agent when he engaged in a telephone conversation with a stranger.
III. Federal Wiretap Claim
Coleman alternatively contends his telephone calls were unlawfully "intercepted" in violation of the Federal Wiretap Act (Act). (§ 2510 et seq.) If evidence is obtained in violation of the Act, "no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . ." (§ 2515.)
Under the Act, a person shall be punished or subject to suit if the person: (1) "intentionally intercepts . . . any wire, oral, or electronic communication"; or (2) "intentionally uses . . . any electronic, mechanical, or other device to intercept any oral communication" under certain specified circumstances. (§ 2511(1)(a), (b).) Coleman argues that Officer Eastep's conversations with him constituted an "interception" within the meaning of this statute.
We need not decide this issue because the prohibition against interception does not apply if one party to the conversation is a police officer acting within the scope of his or her duties. "It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication. . . . " (§ 2511(2)(c), italics added; see Obron Atlantic Corp. v. Barr (6th Cir. 1993) 990 F.2d 861, 863-864; Passarella, supra, 788 F.2d at p. 379; United States v. Congote, supra, 656 F.2d at p. 976; People v. Rodriguez, supra, 786 N.Y.S.2d at pp. 175-176.)
In Passarella, the Sixth Circuit relied on this exception to hold that evidence obtained by a federal agent while answering a telephone in the defendant's home did not violate the Act. (Passarella, supra, 788 F.2d at p. 379.) In Rodriguez, the court likewise applied the section 2511(2)(c) exception to facts that are essentially identical to this case. (People v. Rodriguez, supra, 786 N.Y.S.2d at pp. 175-176.) The events began when a police officer answered an arrestee's cell phone. (Id. at p. 176.) "[The] defendant, thinking that he was speaking to the arrestee, implicated himself in a drug transaction. The arrestee gave police a description of defendant and through subsequent calls by defendant to the cell phone, the police set up at meeting and arrested [the] defendant." (Ibid.) As here, the defendant argued that the officer's actions in answering the cell phone and conversing with him constituted an unlawful warrantless interception of a telephone conversation in violation of the Act. (Ibid.) Relying on the plain meaning of the "under color of law" exception, the Rodriguez court rejected the argument. (Ibid.) The court explained that "because a police officer was a party to the conversations on the arrestee's cell phone, and was acting under color of law based on that person's statement that a drug deal was in progress, there was no unlawful interception." (Ibid.; accord, Obron Atlantic Corp. v. Barr, supra, 990 F.2d at pp. 863-864; United States v. Congote, supra, 656 F.2d at p. 976.)
Similarly, in this case, Officer Eastep was acting under color of law because she was working within the scope of her law enforcement responsibilities. She answered the cell phone, while on duty, for the purpose of investigating unlawful narcotics transactions to apprehend suspects. Officer Eastep was a party to the communication because she spoke directly with Coleman. Thus, because Officer Eastep was acting under color of law and was a party to the communication, any interception is specifically exempted from the Act's prohibitions under section 2511(2)(c).
Although the Attorney General did not rely on this statutory exception in its appellate briefs, the prosecutor orally asserted the exception at the suppression hearing. This was the prosecutor's first opportunity to raise the issue because Coleman did not mention the Act until his reply papers below. We provided the parties on appeal the opportunity to file supplemental briefs to address this issue.
In his supplemental brief, Coleman contends the section 2511(2)(c) exception is inapplicable because the police officers did not have a warrant to answer Gordon's phone. Coleman essentially argues that the officers could not have been acting "under color of law" if their search violated Gordon's rights. However, Coleman does not provide any authority holding that the lawfulness of the search of a third party's property (the cell phone) is a basis to find the statutory exception inapplicable to the defendant.
In any event, Coleman's argument fails on its merits. The officers here seized the phone incident to an arrest of an admitted drug dealer, and they were aware the phone was an instrumentality used to perpetuate the drug deals. The officers also knew it was likely that persons calling on the phone shortly after the arrest would be seeking illegal drugs. The challenged phone conversations occurred within hours of the arrest. Under these circumstances, the officers were entitled to answer the phone to further investigate illegal drug activity without obtaining a warrant.
Coleman alternatively argues the "seizure [of Gordon's phone] became unlawful when police segregated the phone from the remainder of Gordon's property," citing People v. Smith (1980) 103 Cal.App.3d 840 and People v. Bradley (1981) 115 Cal.App.3d 744. These decisions are inapposite. Smith and Bradley involved the proper scope of a post-booking search of an arrestee's personal items long after those belongings had been stored for safekeeping in a jail facility. As these cases recognize, police officers are fully entitled to search items at the time of booking, and the lawfulness of a search conducted post-booking depends on whether the defendant retained a reasonable expectation of privacy in the property. (See Bradley, supra, 115 Cal.App.3d at pp. 750-751 [police officers properly conducted a warrantless search of a ring worn by the defendant at the time of his arrest even though ring had been impounded]; Smith, supra, 103 Cal.App.3d at pp. 843-846 [warrantless search not proper of a wallet found inside an impounded purse for the purpose of investigating unrelated crime].) These decisions do not involve items used in the commission of a crime lawfully seized at the time of arrest. Nor do they support a rule that officers must book such items into the evidence storage facility immediately upon returning to the police station.
DISPOSITION
Judgment affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.