PEOPLE v. MAXIE (1980)

The superior court denied Carmen Maxie's motion to suppress evidence obtained by a detention officer who monitored Maxie's visit with an inmate of Los Colinas correctional center in the visitor's room. Maxie pleaded guilty to second degree burglary. Sentence was suspended, Maxie received probation and appeals the judgment.

Contention on Appeal

Maxie claims the interception and use of her statements to a jail inmate violated her right against unreasonable searches and seizures because she reasonably expected her visit would be private. We restate the issue: Was it reasonably necessary for the government to intrude upon Maxie's right of privacy in a visitor's room at Los Colinas detention facility? Article I, section 1, of the California Constitution as amended in 1972, requires us to frame the issue in this manner, placing upon the People the burden of proving the necessity of the intrusion and removing the excessive burden of proving a subjective reasonable expectation of privacy from the defendant.

The contention highlights the conflict between two compelling interests, Maxie's individual right to privacy on one hand and the state's interest in furthering the necessary objectives of institutional security. The Constitution provides Maxie with a right of privacy (Art. I, s 1) and sets forth standards for necessary governmental intrusions upon that right (Art. I, s 13). In light of White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222, which recognized the newly created right of privacy, we find it necessary to distinguish earlier California authority denying a privacy right to persons in a detention facility.

Factual Summary

Maxie visited her friend Ms. Bennet White at Los Colinas several times, each time declaring her relationship to White to be “wife.” During an hour's visit on August 27, 1978,^[FN1] Maxie told White she stole a sewing machine, stereo set and a macrame plant. A jail guard monitored the conversation.

The visiting area is constructed of two separate rooms. One room is for the inmate and is a secure area. The second room is for the visitor and is not a secure area, the visitor being able to leave at will without the aid or permission of a guard. The two rooms are separated by a glass wall. A communication system has been installed so that a visitor may speak to an inmate over a corresponding device which has been loosely referred to as a “phone.” At least one other wall in the room is glass and covered with a paint-like material that allows a guard to see in but neither the inmate nor visitor are able to see out. During visits no guard is posted in either area, nor are those inside the room aware anyone else is present. At the time of the conversation in question, it appeared to Maxie only she and White were present in the visitor's area. No written rules are given to inmates by the facility regarding visiting and no regulations or notices relating to visits or visitors are posted in the facility. Each communication device in the visitor's area is subject to being selectively monitored. The monitoring device is housed in an area at the other end of the building, estimated to be 300 yards away from the visiting area. The outside telephones inmates are allowed to use are not monitored and there are no notices by the telephones they may be monitored.

In the course of Maxie's conversation with White over her recent acquisitions, White had told Maxie that phones may be tapped. Maxie replied, “No, they do not do that” and White asked, “Well, what did you do?”

The Right of Privacy in California

Article I, section 1, of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among those are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy.” On November 7, 1972, section 1 was amended by substituting “people” for “men” and adding the word “privacy” at the end of the section. The primary purpose of this amendment is set forth in White v. Davis, supra, 13 Cal.3d 757, 774, 120 Cal.Rptr. 94, 104, 533 P.2d 222, 233:

“(T)he moving force behind the new constitutional provision was a more focussed privacy concern, relating to the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society. The new provision's primary purpose is to afford individuals some measure of protection against this most modern threat to personal privacy.”

For the first time White permitted this newly created constitutional right of privacy to enjoin the expenditure of public funds for covert police activities. The general demurrer sustained by the trial court was overruled and the government was allowed to contest the allegations of the complaint by proof of a compelling governmental interest (White v. Davis, supra, 13 Cal.3d 757, 776, 120 Cal.Rptr. 94, 533 P.2d 222).^[FN2]

The California Constitution is a “document of independent force” (People v. Brisendine (1975) 13 Cal.3d 528, 549-550, 119 Cal.Rptr. 315, 531 P.2d 1099) and extends a guarantee of basic civil rights to the people of this state, independent of and broader than parallel rights afforded under the Federal Constitution. (People v. Pettingill (1978) 21 Cal.3d 231, 247, 145 Cal.Rptr. 861, 578 P.2d 108; People v. Hannon (1977) 19 Cal.3d 588, 606, 138 Cal.Rptr. 885, 564 P.2d 1203; People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4, 123 Cal.Rptr. 297, 538 P.2d 753.) When Maxie entered the visitor's area of Los Colinas she entered possessing a constitutional right of privacy.

The Governmental Interest of the Detention Facility

Section 2600 of the Penal Code provides, “a person sentenced to imprisonment in a state prison may during any such period of confinement be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.” Section 2601 subdivision (d) provides such a person shall have the right “to have personal visits, provided that the department may provide such restrictions as are necessary for the reasonable security of the institution.”^[FN3]

Before these statutes were enacted the California case law had defined and set limits upon the appropriate governmental interests. In Halpin v. Superior Court (1972) 6 Cal.3d 885, 900, 101 Cal.Rptr. 375, 495 P.2d 1295, the California Supreme Court notes they leave unresolved the precise limitations on what privacy can be expected by a jail inmate. Seven months later in North v. Superior Court (1972) 8 Cal.3d 301, 308-309, 104 Cal.Rptr. 833, 837, 502 P.2d 1305, 1309, the court referred to the previous footnote in Halpin and stated:

“The rationale underlying this general rule is based upon a policy favoring the use by jail authorities of reasonable security measures. ‘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. . . . ”To censor and in certain circumstances to forbid communication to and from a prison is inherent in its administration. Such authority is necessary to protect against escape.“ ‘ (Citation.)”

Thus, under this rationale, the governmental purpose for the constitutional intrusion was to prevent escapes and to enhance the security of the detention facility. It is noteworthy the purpose of the eavesdropping is not to obtain evidence in a criminal case.

People v. Estrada (1979) 93 Cal.App.3d 76, 99-100, 155 Cal.Rptr. 731, 746 appears to have expanded the rationale in stating the “penological objectives (of the institution authorizing the monitoring of conversations) . . . is in no way restricted to the maintenance of institutional security. . . . (A) wide range of concerns remain to justify the imposition of certain restrictions upon the rights of prisoners.” However, the examples given by the Estrada court are limited to considerations “absolutely essential to the orderly administration of our penal system.”

It thus appears the purpose of the governmental intrusion is to protect the security of the penal institution and to permit its orderly administration. The limitations on the use of devices to accomplish that purpose should be co-extensive. The reasons for the deprivation of any constitutional right would be limited to the reasons set forth in section 2600 of the Penal Code which is a codification of the principle adopted by the courts: “. . . the reasonable security of the institution . . . and the reasonable protection of the public.” The provisions of Penal Code sections 2600 and 2601 were obviously enacted in 1975 to reflect both the developed case law recognizing the governmental interest in security and the right to privacy set forth in the 1972 amendment to Article I, section 1, of the Constitution.

Suggested Approach to Solve the Social Equation

The United States Supreme Court decision of Bell v. Wolfish (1979) 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 suggests the test of reasonableness under the Fourth Amendment (here equally applicable to Article I, sections 1 and 13 of the California Constitution) is not capable of a precise definition or mechanical application. Each case requires a unique balancing of the need for the particular intrusion and the personal rights of a defendant. Several considerations are set out by the court: (1) the scope of the particular intrusion; (2) the manner in which it is conducted; (3) the justification for instituting the search; (4) the places in which it is conducted.

The Bell analysis conforms in many respects to the “expectation of privacy” approach adopted by Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and the assertion in North v. Superior Court, supra, 8 Cal.3d 301, 311, 104 Cal.Rptr. 833, 839, 502 P.2d 1305, 1311, stating the defendant and his wife were “. . . lulled into believing that their conversation would be confidential (private).” Both the right of privacy and the type of effect created by the agency's behavior in North were factors in each court's overall consideration of the constitutional value of the interest protected balanced against the reason for and the importance of the governmental intrusion. These cases were the genesis of the White decision.

Ultimately in reaching a conclusion any court makes a value judgment for society by determining what is reasonable in any particular situation. This responsibility requires the application of an understandable social equation so the standard adopted can be more easily applied by the officials that undertake the responsibility of running detention facilities. Standards must be formulated to distinguish between allowable and nonallowable electronic surveillance.^[FN4]

Here the court is required specifically to determine whether the monitoring of Maxie's conversation was reasonable conduct in the interest of maintaining security at Los Colinas.

Did the Detention Facility Act Reasonably?

Regulations applicable to prison facilities under Title 15 are: (1) Section 3170^[FN5] provides general policy relating to visiting and declares “visiting will not be unreasonably restricted nor will the privacy of visits be imposed upon except as is necessary in individual instances to prevent physical injury to persons, maintain the safety and security of the institution, and prevent the introduction of items, commodities or substances which inmates are not permitted to possess in the institution.” (Italics added.)

(2) Section 3171(b) provides: “Newly arriving inmates will be promptly and verbally informed of local visiting procedures and will be given a written summary of all rules, regulations and procedures governing visiting at the institution or facility in which confined.

(3) Section 3171(b) also provides: “(T)his . . . summary will be conspicuously displayed in all public entrances to the institution. . . .”

(4) Section 3282(g) requires “(A) conspicuous notice . . . posted at each telephone installation . . . (stating) ‘any calls placed on this telephone may be monitored without prior notice to the caller or to the person called. The caller is responsible for notifying the person called that their conversation may be monitored.’ ”

The traditional legal principles are set forth in the California Supreme Court decision of North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, and the United States Supreme Court decision of Katz v. United States, supra, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.

North, which appears to control this issue, held that conversations between a prisoner and his wife, secretly monitored and recorded while the parties were permitted by a detective to meet alone in his office, must be suppressed. The court stated: “(T)he conversation occurred in a detective's private office under circumstances which strongly indicate that petitioner and his wife were lulled into believing that their conversation would be confidential (private). Although the record does not disclose whether . . . (the detective) made any representations to that effect, his admitted conduct spoke as clearly as words. (Italics added.) First, the surrendering to petitioner and his wife (his) own private office so that they might converse and then by exiting and shutting the door, leaving them entirely alone. . . .”

In his concurring opinion in Katz, Justice Harlan first created the terminology, “reasonable expectation of privacy.”^[FN6]

According to Justice Harlan there is a twofold requirement to determine if a reasonable expectation of privacy exists: “. . . first, that a person has exhibited an actual (subjective) expectation of privacy and second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”

The objective portion of Justice Harlan's test has been used in California to deny protection under the Fourth Amendment to inmates (People v. Califano (1970) 5 Cal.App.3d 476, 85 Cal.Rptr. 292). It appears California has adopted both the subjective view of the majority opinion and the objective test proposed in the concurring opinion and in practice both have been applied to the determination of the right of privacy in California.

The Traditional Analysis

Based upon the case law, and the statutes and regulations which reflect “the expectation . . . that society is prepared to recognize as ‘reasonable,’ ” did the conduct of the jail authorities create either by action or inaction a reasonable expectation of privacy in Maxie's mind?

White was made available to Maxie in a visiting room area where apparently no one else was present. She was required to use a communication system constructed of a speaker and an amplified receiver that White could place at her ear (“the phone”). No notice was given to the visitor by the authorities that the communication might be monitored. No written summary of the visiting procedures was given Maxie or White (s 3171(b)) and the telephone areas of the institution were not posted with the required warnings of possible monitoring (s 3282(g)). We have nothing in the record to determine whether the procedure relating to visits were “conspicuously displayed in all public entrances.” (s 3171(b).)

In fact, a guard area was concealed behind a “one-way” glass and all officers were removed from the room to create an “aura” of privacy. The failure to “post” the telephone area and the fact the outside phones were not monitored created an open attitude in the jail facility. We are left with the general impression of a governmental attempt to use the “phone tank” visiting area as a source of general information, including the collection of information relating to subjects other than security or other legitimate interests of a penal institution.^[FN7]

In the language of North, Maxie's conversation occurred under circumstances which strongly indicate she was lulled into believing it would be confidential (private). The jailor's conduct spoke as clearly as words and the words created both subjectively and objectively a reasonable expectation of privacy.

The People argue the defendant was warned by White. However, Maxie answered, “No, they don't do that” and White then asked, “Well, what did you do?” Obviously, based upon subjective test, Maxie felt she was speaking in private.

Although we might decide this case solely on the “lulling” analysis of North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, such a conclusion would be an incomplete weighing of the issue.

Problems With Traditional Analysis

Here the specific intrusion is unlimited eavesdropping upon all visitor-inmate conversations. This conduct appears to have been authorized by a number of United States and California decisions. Lanza v. New York (1962) 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384; North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305; People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Martinez (1978) 82 Cal.App.3d 1, 147 Cal.Rptr. 208; People v. Santos (1972) 26 Cal.App.3d 397, 102 Cal.Rptr. 678.

With the decision of Lanza v. New York, supra, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384, a general philosophy began to permeate the judicial system stating a public jail is not the equivalent of a man's house and is not a place where a person may claim constitutional immunity. This attitude is still pervasive although for a number of reasons the reliance on Lanza appears inappropriate. First, the comments in Lanza, on the Fourth Amendment were dictum. The court stated at page 146, 82 S.Ct. at page 1222: “(The ultimate conclusions) . . . were not dependent upon the conversation overheard in the jail” and three justices participating in the decision protested the constitutional conclusion as dictum and declared such a “gratuitous exposition” was unnecessary (Lanza v. New York, supra, 370 U.S. 139, 152-153, 82 S.Ct. 1218, 1225-1226, 8 L.Ed.2d 384). More important, the later decision of Katz v. United States, supra, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, rejected the “constitutionally protected area” type of analyses in favor of the “expectation of privacy” approach.

In Halpin v. Superior Court, supra, 6 Cal.3d 885, 900, 101 Cal.Rptr. 375, 495 P.2d 1295, footnote 21, the California Supreme Court declined to reach the issue of place versus expectation of privacy. Finally, in North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, the California Supreme Court, citing other search and seizure cases adopted the “reasonable expectation of privacy” concept to an eavesdropping case. The North court, however, continued to recognize the reasoning of Lanza stating, “. . . an inmate of a jail ordinarily has no right to privacy.” It then suppressed the conversation because of the deceptive conduct of the detective (North v. Superior Court, supra, p. 308, 104 Cal.Rptr. 833, 502 P.2d 1305).

Thus, despite the obvious frailty of the Lanza decision, it continues to be relied upon heavily in the appellate decisions. The Katz-North analysis merely presents to the court an appropriate conclusion where it, because of the conduct of the jailor, decides to exclude the evidence. The concept of Katz has become an axiom rather than a method of analysis. This line of reasoning suggests to the jailor that unlimited eavesdropping is the order of the day. Such a piecemeal approach gives no direction to those responsible for the security of the detention facility and creates the type of inconsistency that in turn breeds the further litigation of issues. This type of analyses impermissibly places the burden of demonstrating the unreasonableness of the government's conduct on a defendant by requiring that person to prove a reasonable expectation. This is clearly contrary to constitutional principles, as developed by search and seizure case law, placing the burden of proof on the People in all other instances (People v. Maher (1976) 17 Cal.3d 196, 203, 130 Cal.Rptr. 508, 550 P.2d 1044; Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, Article I, section 13 of the Constitution).

Method of Weighing the Conflicting Interests

In November 1972 the People of this state granted Maxie a right of privacy (amendment to Article I of the California Constitution). She walked into Los Colinas correctional facility with that right. Maxie's privacy was not surrendered by visiting any inmate. Her right was intruded upon by a detention officer under the authority of the facility. This intrusion must be justified under Article I, section 13 of the California Constitution and the Fourth Amendment of the Constitution of the United States.

We recognize there may have been a compelling governmental interest to intrude upon Maxie's rights and justify the conduct of the detention officer. A procedure may be adopted to monitor conversations in the “phone tank” to protect the security of Los Colinas.

Article I, section 13, and the Fourth Amendment proscription against unreasonable search and seizures, protect Maxie's right of privacy. Any procedure adopted by a correctional facility for security purposes must comply with the constitutional protection and meet this standard of reasonableness set forth by Justice Harlan in the Katz decision; a standard which “. . . society is prepared to recognize as reasonable.” (Katz v. United States, supra, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576.)

A procedure has been adopted in California which is a standard set by California authorities to reflect the socially accepted balance between individual rights and the governmental interest. The California Legislature in Penal Code sections 2600 and 2601 and the Department of Corrections in Title 15, California Administrative Code, sections 3170 and 3171(b) established standards for prison inmate visiting procedures. Although the People argue these provisions do not apply to local detention facilities, it is difficult to imagine how the security interests of a local detention facility can be greater than those of a state prison. The Penal Code provisions and regulations merely comply with the constitutional requirements which have been recognized in this decision.

The People should be required to bear the burden of proof in demonstrating the necessity of this particular intrusion.^[FN8]

The judgment is reversed and the case remanded to the trial court with directions to consider the facts that led the jailor to believe the security of Los Colinas required the monitoring of the conversation and weigh them against Maxie's right of privacy,^[FN9] in the light of this opinion.

FOOTNOTES

FOOTNOTE.  

1.  The court takes judicial notice that Ms. Bennet Frank White was convicted on August 18, 1978, for the crime of assault with a deadly weapon on a police officer (Pen.Code, s 245, subd. (b)). (The conversation in question occurred on August 27, 1978, nine days later). White was sentenced on September 12, 1978, to four years in prison. (Evid.Code, s 452(d).)

2.  The case of Division of Medical Quality v. Gherardini, 93 Cal.App.3d 669, 677, 156 Cal.Rptr. 55, 59, discusses the language of the California ballot pamphlet relating to the 1972 amendment to Article I, section 1, as follows:“This constitutional amendment did more than declare an already existing right. ‘The elevation of the right to be free from invasions of privacy to constitutional stature was apparently intended to be an expansion of the privacy right. The election brochure argument states: ”The right to privacy is much more than ‘unnecessary wordage.’ It is fundamental to any free society. Privacy is not now guaranteed by our State Constitution. This simple amendment will extend various court decisions, on privacy to insure protection of our basic rights.“ (Cal. Ballot Pamp. (1972) p. 28.) (Italics added.)' (Citation.)”

3.  Title 15, California Administrative Code, section 3170, provides the allowance and regulation of visits in prison are subject to the provisions of Penal Code sections 2600 and 2601.

4.  On the general subject, see Gianelli and Gilligan, Prison Searches and Seizures, Locking the Fourth Amendment Out Of Correctional Facilities, 62 Va.L.Rev. 1045 (1976) at page 1088.

5.  All section references are to the Title 15, California Administrative Code unless otherwise specified.

6.  Justice Steward did not use the phrase in the majority opinion, his language centered upon whether the defendant had a privacy interest on which he could rely using a subjective test to make the determination.

7.  We must note the comment of the trial judge that he was suspicious that the conversation was being monitored out of “curiosity.” This is not a “finding” but if this were the fact, the purpose of the intrusion would obviously be beyond the scope of the governmental function. That “finding” appears to be based upon (1) the relationship between the visitor and inmate; (2) the fact generally all visits are not monitored; (3) all the previous visits of Maxie were monitored; (4) the conversation in question was monitored for a full hour. Although the question was never asked we also are curious.

8.  Since this is, in effect, a warrantless search, the burden of proof is on the prosecution. The standard of proof is preponderance of the evidence (People v. James (1977) 19 Cal.3d 99, 137 Cal.Rptr. 447, 561 P.2d 1135).

9.  This does not place an undue burden on the responsible officials. A log entry might be used to refresh an officer's memory, at the time of hearing on the necessity of the intrusion.

GREER,[FN*] Associate Justice. FN* Superior Court Judge sitting under assignment by the Chairperson of the Judicial Council.

GERALD BROWN, P. J., and COLOGNE, J., concur.