DE LANCIE v. McDONALD (1979)

Upon petitioners' application to review the propriety of respondent's ruling sustaining a demurrer without leave to amend, we granted an alternative writ of mandate to examine significant constitutional questions relating to the rights of pretrial detainees and their visitors to be free from indiscriminate covert electronic surveillance. Our examination in light of governing principles impels a determination that petitioners state a valid cause of action independently grounded upon the state Constitution's right of privacy (Cal.Const., art. I, s 1);¹ to that extent, the general demurrer interposed by real parties must be overruled. Our reasons follow.

I

Propriety of Extraordinary Review

Preliminarily we address the question whether the procedural error claimed is properly reviewable in mandamus. While we recognize that the use of the prerogative writ to review rulings on questions of pleadings is generally disfavored (Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379) nonetheless when important issues of significant legal impact are involved, as here, mandamus is appropriate to adjudicate such issues in place of later resolution on direct appeal particularly where the challenged order would otherwise bar a substantial part of the cause from being heard on the merits. (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807, 94 Cal.Rptr. 796, 484 P.2d 964.) Moreover, having issued our alternative writ, we have concluded that the normal remedy of appeal is inadequate. (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 155, 118 Cal.Rptr. 14, 529 P.2d 46; Brown v. Superior Court (1971) 5 Cal.3d 509, 515, 96 Cal.Rptr. 584, 487 P.2d 1224; People v. El Dorado (1971) 5 Cal.3d 480, 491, 96 Cal.Rptr. 553, 487 P.2d 1193.) Accordingly, we turn to the merits of the petition.

The Pleadings

Petitioners (three taxpayers, a pretrial detainee, his wife and frequent visitor, and an attorney representing several pretrial detainees) filed an individual and class action complaint against real parties (the county sheriff and jail commander, district attorney and the individual members of the board of supervisors) challenging the legality of a covert electronic surveillance system operating within the county jail through which private conversations among detainees and their visitors are routinely monitored and recorded at random and the information so acquired disseminated to law enforcement authorities for their official use. Following the sustaining of successive demurrers with leave to amend, petitioners filed a third amended complaint for injunctive and declaratory relief containing 14 causes of action; the trial court upheld real parties' general demurrer without leave to amend as to five of the counts pleaded² which are the subject of the petition.

The parties agree that the gravamen of the complaint concerns the validity of the electronic surveillance system maintained within the county jail used to routinely monitor and record conversations (1) between detainees and their visitors conducted over an intercom telephone system installed for that singular purpose and (2) among detainees throughout the jail facility. Petitioners contend that such conduct is in derogation of the rights guaranteed under the several provisions of both federal and state Constitutions and statutes hereafter discussed. We set forth the substance of the several counts under review:

First Cause of Action: Petitioners claim a violation of the right of privacy guaranteed by article I, section 1, of the California Constitution, an unreasonable search and seizure (U.S.Const., 4th and 14th Amends.; Cal.Const., art. I, s 13), and an illegal interception of oral communications under the provisions of title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C., ss 2510-2520), based upon the following averments: (1) detainees'³ only means of oral communication with visitors is through a special intercom telephone system installed in the designating visiting areas where the communicants are separated by a thick, sound proof transparent glass panel; (2) the system is designed to permit covert electronic surveillance and taping at a central monitoring station; (3) a guard is stationed on the detainees' side of the panel at a “discreet distance” Conveying an impression that the conversations between detainees and visitors cannot be overheard, thus creating an illusory but reasonable expectation of privacy by the communicants; (4) the secret monitoring and recording is conducted at random, with Neither regulatory guidelines nor probable cause to Suspect any illegality, usually at the request of law enforcement agencies for the primary purpose of gathering evidence for use against such detainees (and others) in criminal proceedings.

Second Cause of Action: Petitioners complain of a similar invasion of private conversations among detainees “in every room in the jail” through use of a comparable, indiscriminate covert surveillance system employed for similar purposes.

Tenth Cause of Action: It is alleged that awareness of the existence of such unlawful routine surveillance has a “chilling effect” on the rights of free speech, association and religion guaranteed to petitioner detainees, visitors and attorneys under the First and Fourteenth Amendments of the federal Constitution and counterpart provisions of the state Constitution.

Eleventh Cause of Action: Petitioner detainees allege that such unlawful conduct constitutes an unnecessary and summary punishment repugnant to the due process and cruel and unusual punishment clauses (U.S.Const., 8th and 14th Amends.; Cal.Const., art. I, ss 7 and 17).

Twelfth Cause of Action: The final count presents an equal protection claim based upon unequal treatment of incarcerated detainees in that their private conversations are subject to clandestine surveillance solely by reason of financial inability to post bail.

Contentions

While resting their claim of privacy upon both state and federal grounds, the principal theory of relief underlying the first and second causes of action is based upon the right of privacy extended under article I, section 1, of the state Constitution. Petitioners contend that such independent constitutional right represents a fundamental interest invulnerable to state infringement in the absence of a showing of overriding governmental interests justifying such intrusion by the least restrictive alternative. (See White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222.) In examining the merits of those contentions, we are obliged to accept as true all of the material factual averments set forth in the causes of action under review. (See White v. Davis, supra, at p. 765, 120 Cal.Rptr. 94, 533 P.2d 222; Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 117 Cal.Rptr. 541, 528 P.2d 357; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 827, 134 Cal.Rptr. 839; see generally 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, s 800, pp. 2413-2414.)

Real parties, relying on an impressive array of precedents (see generally fn. 5, Post ), vigorously dispute petitioners' claim arguing that as a matter of law no reasonable expectation of privacy exists in a jail-house setting where traditional interests of institutional security justify official surveillance. Nor, real parties contend, do clandestine methods of monitoring jail-house conversations establish a deliberate attempt to create a reasonable expectation of privacy protectable on Fourth Amendment grounds. (See People v. Hill (1974) 12 Cal.3d 731, 764-765, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Finchum (1973) 33 Cal.App.3d 787, 791, 109 Cal.Rptr. 319; United States v. Hearst (9th Cir. 1977) 563 F.2d 1331.)

II

Right of Privacy

The focal point of our inquiry centers upon whether petitioners state a prima facie violation of a protectable right of privacy. (See White v. Davis, supra, 13 Cal.3d 757, 765, 120 Cal.Rptr. 94, 533 P.2d 222.) As earlier noted, for purposes of review we must treat real parties' general demurrer as admitting all of the material facts properly pleaded. (Furey v. City of Sacramento (1979) 24 Cal.3d 862, 866, 157 Cal.Rptr. 684, 598 P.2d 844; Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.) Thus, we must assume that the San Mateo County Jail officials are regularly engaged in maintaining and operating, at public expense, a covert surveillance system within the jail resulting in the indiscriminate monitoring and recording of private conversations between pretrial detainees and with their visitors without reason to believe that such conversations relate to criminal activity and for the primary purpose of attempting to gather incriminating evidence for the use of law enforcement agencies. Additionally, we are required to further assume that most of the monitored conversations pertain to purely innocent matters, including private expressions of personal, political and religious beliefs.

It has been repeatedly held by the courts of this state that except under limited circumstances involving a special relationship,⁴ an incarcerated person has no reasonable expectation of privacy in ordinary jail-house conversations protectable under the warrant clause of the federal and state Constitutions. (People v. Hill, supra, 12 Cal.3d 731, 764-765, 117 Cal.Rptr. 393, 528 P.2d 1; North v. Superior Court, supra, 8 Cal.3d 301, 308-309, 104 Cal.Rptr. 833, 502 P.2d 1305; Halpin v. Superior Court, supra, 6 Cal.3d 885, 900, fn. 21, 101 Cal.Rptr. 375, 495 P.2d 1295 and cases there collected; People v. Estrada (1979) 93 Cal.App.3d 76, 98-99, 155 Cal.Rptr. 731.) The traditional rationale underlying the general rule, heavily relied upon by real parties herein, has been stated to be grounded upon policy considerations “favoring the use by jail authorities of reasonable security measures” (North v. Superior Court, supra, 8 Cal.3d at p. 309, 104 Cal.Rptr. at p. 837, 502 P.2d at p. 1309), a statement in accord with the general proposition that “(i)n prison, official surveillance has traditionally been the order of the day.” (Lanza v. New York (1962) 370 U.S. 139, 143, 82 S.Ct. 1218, 1221, 8 L.Ed.2d 384.)

In virtually all of a long line of cases reviewed involving similar challenges (by either a suspect, arrestee or an inmate), the challenges were advanced and decided either wholly or in part upon a Fourth Amendment claim of privacy.⁵ In its benchmark decision stressing the personal nature of the constitutional protection against intrusion from the “uninvited ear,” the United States Supreme Court incisively distinguished Fourth Amendment protection from the right of privacy in the following language: “(T)he Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of government intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion.” (Katz v. United States (1967) 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576.) Thus, it seems clear that while under limited circumstances certain governmental conduct toward prisoners in general may be subject to judicial scrutiny within the context of the Fourth Amendment (see, e. g. United States v. Lilly (5th Cir. 1978) 576 F.2d 1240; United States v. Savage (9th Cir. 1973) 482 F.2d 1371; Palmigiano v. Travisono (D.C.R.I.1970) 317 F.Supp. 776, 791; North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305), no right of privacy is extended to ordinary jail conversations precluding secret monitoring and probative use under the protective shield of that amendment.

But the centerpiece of petitioners' argument for relief, placed upon an independent constitutional foundation, presents a wholly different perspective of the privacy claim. In reliance upon the right of privacy guaranteed by article I, section 1, of the California Constitution, petitioners assert that the challenged conduct is constitutionally impermissible in the absence of demonstrated compelling governmental interests justifying the systematic surveillance operation.⁶ (See White v. Davis, supra, 13 Cal.3d 757, 776, 120 Cal.Rptr. 94, 533 P.2d 222.) The argument is persuasive.

It is now firmly established that the California Constitution as a “ document of independent force” (People v. Brisendine (1975) 13 Cal.3d 528, 549-550, 119 Cal.Rptr. 315, 531 P.2d 1099; accord Allen v. Superior Court (1976) 18 Cal.3d 520, 525, 134 Cal.Rptr. 774, 557 P.2d 65; People v. Disbrow (1976) 16 Cal.3d 101, 115, 127 Cal.Rptr. 360, 545 P.2d 272) extends to its citizens a guarantee of basic civil rights independent of those provided by the federal Constitution (Id. 13 Cal.3d at p. 551, 119 Cal.Rptr. 315, 531 P.2d 1099; see Cal.Const., art. I, s 24) and requires a more exacting standard than its parallel federal provision in order to afford a greater degree of protection. (Id. at pp. 545, 548-549, 119 Cal.Rptr. 315, 531 P.2d 1099; see also 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; People v. Krivda (1973) 8 Cal.3d 623, 624, 105 Cal.Rptr. 521, 504 P.2d 457; Curry v. Superior Court (1970) 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345; cf. Cardenas v. Superior Court (1961) 56 Cal.2d 273, 14 Cal.Rptr. 657, 363 P.2d 889.) Although the courts have consistently recognized the existence of a protectable privacy interest within a variety of factual contexts (see, e. g., cases cited in White v. Davis, supra, 13 Cal.3d 757, 774, fn. 10, 120 Cal.Rptr. 94, 533 P.2d 222; Central Valley Chapter, etc. v. Younger, (1979) 95 Cal.App.3d 212, 234-235, 157 Cal.Rptr. 117), the 1972 constitutional amendment was manifestly intended to expressly ensure to Every Californian the “inalienable” right of privacy from the “accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society. . . . (affording) . . . some measure of protection against the most modern threat to personal privacy.” (White v. Davis, supra, 13 Cal.3d at pp. 773-774, 120 Cal.Rptr. at p. 105, 533 P.2d at p. 233.)

The explicit inclusion of such a fundamental right within a constitutional framework has been construed to reflect an enhanced concern for the protection of the people's right of privacy (Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 194-195, 148 Cal.Rptr. 883, 583 P.2d 737) through elevation of such cognizable right to a constitutional level (Porten v. University of San Francisco, supra, 64 Cal.App.3d 825, 829, 134 Cal.Rptr. 839). While the amendment is not intended to prevent every form of restriction, it does require that at a minimum such restriction be justified by a compelling interest. (White v. Davis, supra, 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222; accord Loder v. Municipal Court (1976) 17 Cal.3d 859, 864, 132 Cal.Rptr. 464, 553 P.2d 624; Central Valley Chapter etc. v. Younger, supra, 95 Cal.App.3d 212, 237, 157 Cal.Rptr. 117; Division of Medical Quality v. Gherardini (1979) 93 Cal.App.3d 669, 680.)

In applying the foregoing principles to the facts alleged, we must consider the precise nature of the representative claim and challenged restriction in light of the following circumstances: unlike the sentenced inmate, the singular objective underlying pretrial detention is to assure the presumptively innocent detainee's presence at trial. (See Brenneman v. Madigan (N.D.Cal.1972) 343 F.Supp. 128, 136; see also Feeley v. Sampson (1st Cir. 1978) 570 F.2d 364, 369; Duran v. Elrod (7th Cir. 1976) 542 F.2d 998; United States ex rel. Tyrrell v. Speaker (3d Cir. 1976) 535 F.2d 823, 827; Rhem v. Malcolm (2d Cir. 1974) 507 F.2d 333, 336; Anderson v. Nosser (5th Cir. 1972) 456 F.2d 835, 837-838 (en banc) (modifying Anderson v. Nosser (5th Cir. 1971) 438 F.2d 183 (cert. den. 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89)).) In most cases, detention is due to financial inability to post bail or otherwise establish eligibility for pretrial release. As such, his basic civil rights are subject to restriction “only in accordance with legitimate penal objectives” (In re Harrell (1970) 2 Cal.3d 675, 702, 87 Cal.Rptr. 504, 522, 470 P.2d 640, 658) which limitations arguably should be no greater than those imposed upon a sentenced inmate undergoing punishment. (See Bell v. Wolfish (1979) 441 U.S. 520, ——, 99 S.Ct. 1861, 60 L.Ed.2d 447, 472; cf. Pen.Code, s 2600.)⁷ Though subject to the physical restraint on liberty incident to confinement, the detained citizen does not automatically forfeit his basic civil rights as soon as the jail-house door clangs shut. (Cf. Bell v. Wolfish, supra, 441 U.S. at p. ——, 99 S.Ct. at p. 1877, 60 L.Ed.2d at p. 472.) Nor may specifically protected constitutional rights be restricted unless justified by a substantial need achieved in the least intrusive manner. (O'Brien v. Skinner (1974) 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (voting); Goosby v. Osser (1973) 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (voting); Cruz v. Beto (1972) 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (religion); Cooper v. Pate (1964) 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (religion).) Curtailment of the right of private expression, so intimately associated with the meaningful exercise of a number of constitutionally guaranteed individual freedoms, demands no lesser standard of justification together with the least offensive form of intervention. (Cf. Pell v. Procunier (1974) 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495; Procunier v. Martinez (1974) 416 U.S. 396, 413-414, 94 S.Ct. 1800, 40 L.Ed.2d 224.)

The fundamental importance attached to the right of privacy in a free society is vividly illustrated within the unfamiliar setting of a detention facility visiting room, usually the only place available to the detainee and visitor to avoid the “uninvited ear” at the risk of foregoing all contact with the outside world. (See 57 Cal.L.Rev. 1182, 1207.) Probably few other human experiences evoke a greater need to engage in private communications with family and friends on a most intimate and personal level. While it can be rationally argued that the detainee's (and visitor's) right of privacy within the context of private expression may be reasonably burdened in furthering necessary objectives of institutional security and public safety,⁸ we cannot conceive Without more of any compelling need to engage in such wholesale, indiscriminate intrusion into the area of a detainee's private conversation, particularly in the visiting room. The pervasive, covert practices challenged herein became instantly suspect and, in the absence of a compelling justification, cannot survive judicial scrutiny. We unhesitantly reject real parties' assertion that every detained citizen has No right to private conversation with anyone other then counsel. Such an unenlightened view, perhaps tolerable in an Orwellian state, is an anathema in a society founded upon constitutional principles which historically has demanded that any governmental incursion into a fundamental right of constitutional dimension be first justified by proof of compelling necessity.

Nor can we reasonably conclude as a matter of law that the Legislature's enactment of the 1967 Privacy Act, intended “to protect the (people's) right of privacy” (Pen.Code, s 630), simultaneously removed such protection by excepting telephonic communications systems used within a Correctional facility (see Pen.Code, ss 631, subd. (b)(3), 632, subd. (e)(3)). By construing the statutory exceptions sanctioning electronic surveillance as being expressly limited to a Correctional facility which by definition relates to Convicted offenders alone, we avoid a needless constitutional confrontation that would arise in attempting to apply the same blanket exceptions to a local Detention facility. (Braxton v. Municipal Court (1973) 10 Cal.3d 138, 145, 109 Cal.Rptr. 897, 514 P.2d 697; County of Madera v. Gendron (1963) 59 Cal.2d 798, 801-802, 31 Cal.Rptr. 302, 382 P.2d 342; Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558, 11 Cal.Rptr. 758, 360 P.2d 334.)

In light of the significant considerations discussed above, we conclude that the complaint sufficiently states a prima facie violation of the state constitutional right of privacy; upon remand, real parties will be free to plead and prove compelling governmental necessity upon which they rely to justify the pervasive, secret monitoring of conversations in every room of the detention facility, including visiting rooms.⁹

III

Due Process, Equal Protection and Cruel and Unusual Punishment

Insofar as the 10th cause of action claims of unconstitutional abridgment of First Amendment rights by state action is implicated by the privacy amendment violation, it likewise survives a general demurrer for substantially the same reasons discussed above (part II). (See generally Procunier v. Martinez, supra, 416 U.S. 396, 413-414, 94 S.Ct. 1800, 40 L.Ed.2d 224; In re Short (1976) 55 Cal.App.3d 268, 127 Cal.Rptr. 498.) However, petitioners' separate claim of a violation of equal protection (12th cause of action) must necessarily stand or fall on whether real parties are able to demonstrate a compelling necessity to justify the challenged surveillance since it is clear that reasonable restrictions to promote institutional security and order may be constitutionally imposed upon detainees so long as accomplished in the least intrusive manner. (See, e. g., Miller v. Carson (5th Cir. 1977) 563 F.2d 741; Smith v. Shimp (7th Cir. 1977) 562 F.2d 423, 426; Detainees of Brooklyn House of Detention for Men v. Malcolm (2d Cir. 1975) 520 F.2d 392, 397; Rhem v. Malcolm, supra, 507 F.2d 333, 336; Mitchell v. Untreiner (N.D.Fla.1976) 421 F.Supp. 886; United States ex rel. Wolfish v. Levi (S.D.N.Y.1976) 406 F.Supp. 1243, 1247; Dillard v. Pitchess (C.D.Cal.1975) 399 F.Supp. 1225.) In the event real parties meet the required test of compelling necessity at trial as previously discussed, then a valid finding that the least intrusive methods were employed to further such governmental purpose would not offend the equal protection clause solely by reason of the fact of otherwise lawful detention. Contrawise, should petitioners prevail at trial, the equal protection claim is rendered superfluous. We thus conclude that no actionable theory is stated by the 12th cause of action.

Finally, we find no facial merit in petitioners' assertion of cruel and unusual punishment as alleged in the 11th cause of action. The claim, predicated upon the challenged surveillance system, relates Not to punishment but to a privacy right violation herein found actionable on independent state grounds. Moreover, it has recently been determined that the Fifth and Eighth Amendments are not implicated by reason of restraints imposed during detention so long as the restraints imposed manifest neither “arbitrary or purposeless” conduct nor an “expressed intent to punish” on the part of detention facility officials. (Bell v. Wolfish, supra, 441 U.S. 520, ——, 99 S.Ct. 1861, 1873, 60 L.Ed.2d 447, 468.) In rejecting a class action claim grounded upon the First, Fourth, and Fifth Amendments of the federal Constitution relating to a number of challenged detention practices (“double-bunking,” “publisher-only” rule, body-cavity and room searches, and receipt of packages), the Bell court concluded that “ . . . the fact that such detention interferes with the detainee's understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into ‘punishment.’ ” (Id. 441 U.S. at p. ——, 99 S.Ct. at p. 1873, 60 L.Ed.2d at p. 467.) The demurrer was properly sustained as to said count.

Let a peremptory writ of mandate issue, commanding the trial court to vacate its order sustaining the general demurrer without leave as to the first, second and tenth causes of action and upon the filing of responsive pleadings to undertake further proceedings not inconsistent with the views expressed herein.

Finding myself in disagreement with my esteemed colleagues I respectfully dissent.

I am unable to discern from the 1974 amendment of article I, section 1, of California's Constitution, a grant to the state's persons of a right of privacy where No reasonable expectation of privacy exists.

It has consistently been held by the highest authority that a jail inmate, whether held on probable cause for his arrest or trial, or after conviction of crime, has no reasonable expectation of privacy from electronic surveillance under the general circumstances of the case before us. (See Lanza v. New York (1962) 370 U.S. 139, 143-144, 82 S.Ct. 1218, 8 L.Ed.2d 384; People v. Hill (1974) 12 Cal.3d 731, 764-765, 117 Cal.Rptr. 393, 528 P.2d 1 (overruled on other grounds, People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872); North v. Superior Court (1972) 8 Cal.3d 301, 308-309, 104 Cal.Rptr. 833, 502 P.2d 1305; Halpin v. Superior Court (1972) 6 Cal.3d 885, 900, fn. 21, 101 Cal.Rptr. 375, 495 P.2d 1295; People v. Estrada (1979) 93 Cal.App.3d 76, 98-99, 155 Cal.Rptr. 731; People v. Martinez (1978) 82 Cal.App.3d 1, 15, 147 Cal.Rptr. 208; In re Joseph A. (1973) 30 Cal.App.3d 880, 884, 106 Cal.Rptr. 729.)

I am of the opinion that we are bound to a different conclusion by the rule of stare decisis and, more particularly, by the mandate of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.

In my view the writ should be denied.

FOOTNOTES

1.  Article I, section 1, originally adopted in November 1972, and reworded by amendment in 1974, provides as follows: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

2.  The trial court's ruling excepted the 10th, 11th, and 12th causes of action from reach of the general demurrer insofar as those counts dealt with “monitoring of telephones installed by the telephone company as a common carrier.” (Cf. Halpin v. Superior Court (1972) 6 Cal.3d 885, 900, 101 Cal.Rptr. 375, 495 P.2d 1295.) The demurrer was overruled as to the remaining 9 counts which generally alleged (1) unlawful disclosure and use of the monitored and recorded information in disregard of the right of privacy and other constitutional guarantees including the First and Sixth Amendments of the federal Constitution, (2) doctor-patient privilege, (3) violations of relevant statutory law (tit. III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C., s 2510 et seq.; California Invasion of Privacy Act (Pen.Code, ss 630-637.3)), and (4) an unlawful expenditure of public funds.

3.  Throughout our discussion, the term “detainee” is used to denote one held in custody pending prosecution of a criminal charge, and the term “inmate” to denote a convicted and sentenced prisoner.

4.  Notably confidential communications between spouses under circumstances deliberately designed to create a reasonable expectation of privacy (see North v. Superior Court (1972) 8 Cal.3d 301, 311-312, 104 Cal.Rptr. 833, 502 P.2d 1305), and between a person in custody and his attorney, religious advisor or physician. (See Pen.Code, s 636; cf. Evid.Code, ss 952-954, 980, 992-994, 1012-1014, 1032-1034.)

5.  E. g., People v. Hill, supra, 12 Cal.3d 731, 764-765, 117Cal.Rptr. 39 3, 528 P.2d 1 (conversation between spouses over jail telephone intercom sy stem); People v. Lopez (1963) 60 Cal.2d 223, 248, 32 Cal.Rptr. 424, 384 P.2 d 16 (dictum approving use of admissions to confederate cellmate); People v. Estrada, supra, 93 Cal.App.3d 76, 98-100, 155 Cal.Rptr. 731 (recorded con versations during jail-house visits); People v. Suttle (1979) 90 Cal.App.3d 572, 578-579, 153 Cal.Rptr. 409 (recorded conversations with cellmate and over portable telephone); People v. Martinez (1978) 82 Cal.App.3d 1, 15, 14 7 Cal.Rptr. 208 (recorded conversation during jail visit); People v. Kaaine apua (1977) 70 Cal.App.3d 283, 287, 138 Cal.Rptr. 651 (conversation overhea rd by listening through a common wall); People v. Newton (1974) 42 Cal.App. 3d 292, 296, 116 Cal.Rptr. 690 (taped conversation of arrestees in police c ar); People v. Fonville (1973) 35 Cal.App.3d 693, 707, 111 Cal.Rptr. 53 (re corded jail-house conversation with visiting relative); People v. Finchum, supra, 33 Cal.App.3d 787, 789, 109 Cal.Rptr. 319 (monitored conversation of arrestees in interview room); In re Joseph A. (1973) 30 Cal.App.3d 880, 88 3, 106 Cal.Rptr. 729 (monitored conversation between minor and uncle in int errogation room; held: no reasonable expectation of privacy within meaning of tit. III or Cal. Invasion of Privacy Act); People v. Todd (1972) 26 Cal. App.3d 15, 17, 102 Cal.Rptr. 539 (conversation recorded in police vehicle); People v. Santos (1972) 26 Cal.App.3d 397, 400-402, 102 Cal.Rptr. 678 (mon itored telephone intercom conversation wherein defendant admonished wife te lephones were “bugged”; held: defendant's awareness of monitoring defeated subjective claim of expected privacy); People v. Guerra (1971) 21 Cal.App.3 d 534, 536-538, 98 Cal.Rptr. 627 (eavesdropping at apartment door); People v. Foster (1971) 19 Cal.App.3d 649, 653, 97 Cal.Rptr. 94 (conversation over heard through a common wall); People v. Blair (1969) 2 Cal.App.3d 249, 256, 82 Cal.Rptr. 673 (where defendant informed of systematic “bugging”; held: recorded conversation not confidential under Pen.Code, s 632 nor protected under 4th Amend.); People v. Chandler (1968) 262 Cal.App.2d 350, 352, 68 Ca l.Rptr. 645 (recorded conversations of accomplices in police vehicle); Peop le v. Apodaca (1967) 252 Cal.App.2d 656, 658-659, 60 Cal.Rptr. 782 (taped c onversation over visitor telephone intercom authorized under former Pen.Cod e, s 653j).

6.  In the few reported criminal cases which considered the scope of protection afforded under the privacy amendment, a determination unfavorable to the accused was grounded upon a (1) Fourth Amendment analysis of reasonable privacy expectations (People v. Estrada, supra, 93 Cal.App.3d 76, 98-99, 155 Cal.Rptr. 731 (defendant aware that conversation with relative being recorded)), (2) waiver (People v. Kaaienapua, supra, 70 Cal.App.3d 283, 287, 138 Cal.Rptr. 651 (audible conversation unprotected)), or (3) an express finding of a compelling justification (People v. Ayers, (1975), 51 Cal.App.3d 370, 376 (recorded evidence of a specific plot to commit murder)). Other issues related to the scope of the amendment's reach are presently pending before the California Supreme Court; (People v. Blair, Crim. No. 20936; People v. Mejia, Crim. No. 21171).

7.  As a matter of general policy, state prison inmates are accorded private visitation rights governed by applicable rules and regulations and subject to restriction only as may be necessary In individual instances to maintain institutional security and safety and to prevent introduction of unauthorized substances. (See 15 Cal.Admin.Code, s 3170.)

8.  A closely related question was left unanswered by our Supreme Court. (See Halpin v. Superior Court, supra, 6 Cal.3d at p. 900, 101 Cal.Rptr. 375, 495 P.2d 1295.)

9.  Since we sustain petitioners' claim based upon the California privacy amendment, we need not discuss the remaining grounds urged in support of the first and second causes of action.

RACANELLI, Presiding Justice.

NEWSOM, J., concurs.