Morgan

In this case we consider a question that has in trigued and divided sóholars of the law of evidence, namely, whether implied assertions are hearsay. Here, the question arises in a common context. While officers were executing a search warrant for evidence of possession of a controlled substance for sale, an officer answers the phone and hears the caller ask to buy drugs. Are the caller’s questions and statements hearsay? We conclude that under the provisions of California’s Evidence Code the caller’s oral expressions are hearsay, but that case law, recognized and accepted when the Evidence Code was adopted and continuing thereafter, has created an exception to the hearsay rule for this reliable type of evidence.

Defendants Douglas Roy Brown (Brown) and Frances Nadene Morgan (Morgan) were convicted by jury of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). They were granted probation, subject to certain conditions and jail time. On appeal both contend it was error to admit evidence of a phone call in which a caller sought to purchase methamphetamine. In addition, Brown…