HALPIN v. PEOPLE (1971)

Petitioners Thomas Halpin, Rebecca Halpin and Martin Silva were indicted by a grand jury for conspiracy to transport marijuana, transportation of marijuana, and possession of marijuana for sale. Their motions to suppress evidence and to dismiss the indictment were denied, and they seek a writ of mandate ordering the superior court to suppress the evidence.

Detective Cole of the Ontario Police Department orally testified before a magistrate in support of a search warrant as follows: A Pomona police officer told him that an informant—who had two weeks before given similar information to the Pomona police, who had relayed it to San Francisco, where an arrest was made and a vehicle similar to the one described below seized with a large amount of marijuana—had informed him that at the Havasu Camper Company, 1515 West Holt in Ontario, a 1971 Ford Sport Custom truck, white in color with a dark green roof, would be parked and on this truck would be a 10 1/2 foot Havasu camper, cream color with a dark simulated wood panel. The truck would carry a temporary license No. 1291208 and it would be parked next to a blue Chevrolet automobile. The camper would have a false body in which approximately $100,000.00 worth of marijuana would be secreted. Officer Cole went to the described location and found a truck and camper which met this description, including the license number. The truck and camper were parked next to a blue Chevrolet. Officer Cole also was advised that an individual named ‘Tom,’ 6 feet tall, 160 to 170 pounds, sandy hair, mustache and horn-rimmed glasses would arrive by air from San Diego to pick up the truck. Sure enough, a man 6 feet tall, 160 to 170 pounds, sandy hair, mustache and horn-rimmed glasses, arrived. He did not arrive by air, but drove a car with the name of a San Diego dealer on the license plate frame. He arrived, then left and went to the mountains with his wife and child. He returned to pick up the truck and the police pulled him over. As they did so and identified themselves, he jumped out and locked the truck. His driver's license indicated that his first name was ‘Tom,’ and his full name, Thomas Halpin. He refused to consent to a search, whereupon the officers proceeded to the magistrate's office and related the above facts. Upon hearing this testimony, the magistrate observed that he was satisfied with the presentation and ordered the issuance of the warrant. There was some general discussion about getting additional information, but the magistrate observed reasonably that he ‘would rather not cause any delay here unless it is absolutely essential because that truck is under surveillance. Anything can happen out there, and the quicker you get there with the search warrant I think the quicker the interests of justice can be served.’

Armed with the search warrant, the officer searched the vehicle and found secreted within it over 500 pounds of marijuana. Thomas Halpin was arrested and taken to a branch of the San Bernardino County Jail from which he made a phone call to his wife, monitored by the sheriff's office, in which both he and his wife made incriminating statements involving themselves and a third party, Martin Silva.

A transcript of the recorded phone conversation was read to the grand jury; it forms a substantial part of the evidence on which the indictment was based. Petitioners attack the admissibility of this evidence on two grounds, but we have determined it was properly admitted.

Petitioners first attack the validity of the search warrant.

By every standard established in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; People v. Benjamin, 71 Cal.2d 296, 78 Cal.Rptr. 510, 455 P.2d 438; and People v. Hamilton, 71 Cal.2d 176, 77 Cal.Rptr. 785, 454 P.2d 681; the evidence set forth above is constitutionally sufficient to support the issuance of the warrant. Here we have the amazingly detailed information of the informant, plus evidence of his previous reliability. Although the testimony did not include the allegation that the informant spoke from personal knowledge, the detail of the description was so great the magistrate could infer this personal knowledge. The facts presented to the magistrate are, under those authorities, an adequate compliance with the so-called two-pronged test of Aguilar that the magistrate must be informed of some of the underlying circumstances from which the informant concludes that the contraband is where he claims it to be and some of the underlying circumstances from which the officer concludes that the informant was credible or his information is reliable. The facts presented to the magistrate would lead him as a man of ordinary caution and prudence to conscientiously entertain a strong suspicion that the truck contained marijuana. People v. Fein, 4 Cal.3d 747, 94 Cal.Rptr. 607, 484 P.2d 583, relied on by petitioners, involved a search without a warrant based on information given by untested informants. The magistrate here knew that this informant had previously given accurate information about a similar camper body; there was no need for corroborating facts pertaining to criminal activity. The testimony gave the magistrate proper grounds to issue a warrant.

I.

THE KATZ CONTENTION.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the court denied admission into evidence of a tapped phone call made from a public phone booth, declaring that the defendant had a constitutionally protected, reasonable expectation of privacy in making the call. However, the law provides that a phone call from jail be made in the presence of an officer. (Penal Code, § 851.5.) Thus, the prisoner has no expectation of privacy, reasonable or otherwise, when an officer may be standing with him. Neither does anyone receiving a call from a jail or a penitentiary have a reasonable expectation of privacy. Such calls are monitored for the security of the jail just as mail is censored and visitors' conversations within jail are monitored. Jails and prisons are not Brownie camps. They contain among their clientele a number of anti-social, irresponsible and sometimes vicious and dangerous people who would like to leave and who care not about the niceties of due process of law in so doing. Every jail and prison has a serious security problem. It is essential that those in charge of those institutions have certain controls over their involuntary guests which are simply not available to the state in dealing with the unincarcerated individual. ‘The courts are and should be reluctant to interfere with or to hamper the discipline and control that must exist in a prison * * * These prisoners include many violent and unscrupulous men who are ever alert to set law and order at defiance within or without the prison walls.’ (In re Riddle, 57 Cal.2d 848, 852, 22 Cal.Rptr. 472, 474, 372 P.2d 304, 306.)

While many attempted escapes arise completely within the institution, history, some of it uncomfortably current, records an alarming number of escapes or attempted escapes in which outside help was or may have been solicited. Thus, the law has given certain powers of censorship and control over communications with those incarcerated in jails and prisons. (See Penal Code, § 4570; Penal Code, § 631(b)(3); Penal Code, § 632(e)(3); People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Califano, 5 Cal.App.3d 476, 85 Cal.Rptr. 292; People v. Blair, 2 Cal.App.3d 249, 82 Cal.Rptr. 673; People v. Apodaca, 252 Cal.App.2d 656, 60 Cal.Rptr. 782.) ‘To censor and in certain instances to forbid communication to and from a prison is inherent in its administration. Such authority is necessary to protect against escape.’ (Davis v. Superior Court, 175 Cal.App.2d 8, 26, 345 P.2d 513, 521.) ‘A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack of privacy is a necessary adjunct to his imprisonment.’ (People v. Morgan, 197 Cal.App.2d 90, 93, 16 Cal.Rptr. 838, 840.)

Thus, neither an incarcerate prisoner nor the recipient of a call from him has a reasonable expectation of privacy and the rationale of Katz simply does not apply to this situation. An exception might be a call to an attorney in which the facts of the case or possible defenses are discussed. The attorney has a reasonable expectation of privacy; however, a call to an attorney is not involved in this case.

II.

THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT CONTENTION.

18 U.S.C. 2515 contains a comprehensive exclusionary rule for evidence obtained in violation of that chapter which is applicable to courts and grand juries of states as well as to the federal government. We note that none of the express exceptions in section 2511 or in the rest of the chapter operate to permit the type of a tap involved in this case. And the chapter (i. e., 18 U.S.C., sections 2510–2520), since it raises serious constitutional questions, may not be interpreted to permit activities not expressly authorized in its comprehensive provisions. (See Application of United States, 9 Cir., 427 F.2d 639, 643.)

However, the legislative history suggests that the act is intended to apply only where the conversations are actually private. The congressional findings supporting the act are replete with references to privacy.

Public Law 90–351, § 801:

‘(a) * * * Electronic, mechanical, and other intercepting devices are being used to overhear oral conversations made in private * * *

‘(b) In order to protect effectively the privacy of wire and oral communications * * *

‘(d) To safeguard the privacy of innocent persons * * *.’

The Senate report accompanying the legislation states ‘privacy of communication’ is the value to be preserved by the chapter. (Senate Report No. 1097, 90th Cong., 2d Sess. (1968); reprinted in U.S.Code Cong. and Admin.News, (1968), p. 2112, at 2154.)

The justification above described for eavesdropping on individuals in jails and penitentiaries negates any expectation of privacy in those situations. Thus, it is clear that petitioner Thomas Halpin, in jail, had no right to speak privately. As indicated, Penal Code, § 851.5, expressly permits an officer to be present during the phone call. The record shows that an officer was there for part of the time. As we stated in our discussion under the Katz contention, the recipient of a call from an inmate in a jail or penitentiary has no reasonable expectation of privacy. Thus, neither Thomas Halpin nor his wife had a reasonable expectation of privacy in their conversations; nor was any right of Martin Silva infringed. Since the history of 18 U.S.C. 2515 indicates that this section is to apply only where the conversation is actually private, we hold that this conversation was not protected by that section and was properly considered by the grand jury as to all three petitioners.¹

FOOTNOTES

1.  Political scientists agree that the enactment of The Omnibus Crime Control and Safe Streets Act of 1968 represents the unfavorable reaction of Congress to certain decisions of the Supreme Court which Congress felt had unduly hampered legitimate law enforcement activities. It would be unrealistic to attempt to read into that Act any intent to establish stricter rules against law enforcement activities than had evolved from the Supreme Court's decisions. (See Congress against the Supreme Court by Adam Carlyle Breckenridge, University of Nebraska Press [1970].)

GARDNER, Presiding Justice.

KERRIGAN and KAUFMAN, JJ., concur.