*1 July No. 24095. [S.F. 1982.] al., Petitioners, et
MARLENE DE LANCIE COUNTY, THE OF SAN MATEO SUPERIOR COURT Rеspondent; etc., al., McDONALD, Sheriff, Real Parties in Interest.
JOHN et *3 Counsel Schwartz, Thomas J. Schlosser, Amitai L. C. Alan Crosby,
Margaret Petitioners. for Glancy Nolan and Dorothy State Defender, Denvir, Lundy, Deputy and Tom Public State
Quin of Petitioners. Defender, Amici Curiae on behalf Public as No appearance Respondent. and David A. Sorenson, W. Foley
Keith District James Attorney, C. Interest. Parties in District for Real Attorneys, Levy, Deputy Bernardino), A. Cramer, (San Joseph and Attorney James M. District Burns, of Real Amici Curiae on behalf District as Deputy Attorney, Parties in Interest.
Opinion re- declaratory and injunctive
THE COU R T*. Plaintiffs filed suit for lief, Mateo Sheriff County the of the San alleged practice challenging conversations of recording and other officials in and county in- The complaint alleged, detained in trial. persons county jail awaiting alla, purposes, ter that the was not undertaken for security in criminal but evidence for use rather was utilized primarily gather without leave to amend trials. The trial court sustained a demurrer to consider several a granted hearing counts of the and complaint, of the ap- whether the exceed the alleged monitoring practices authority officials. plicable public officials mon question: county jail
We here a narrow probe very may detainees1 and pretrial itor conversations between ostensibly private in criminal evidence for use discovering their visitors for the purpose trials, security public pro- rather than for the of institutional purpose * J., Broussard, Newman, J., Kaus, Bird, J., Mosk, J., Richardson, J., J. Before C. “detainee,” custody prosecution detainee, pending is one held hereafter pretrial 1A prisoner. sentenced distinguished from a convicted and charge, of a criminal of Penal Code sections
tection? We enactment explain retain the prisoners policy established Legislature to the ex- except free rights persons, including privacy, prison insure restrictions are tent that Although speak per- these statutes public. state detainees as matter of prison, jails sons confined in local at least Since logical enjoy equal rights. and constitutional necessity issues of fact as to whether complaint county raise allegations in- conversations permissible purpose safeguarding monitors the impermissible or for protecting public, stitutional detainees, those evidence for use alle- against gathering 2601. a cause of under sections 2600 and We gations state action issue a writ to direct trial court overrule de- peremptory therefore *4 demurrer. fendants’ detainee, attorney and an several a taxpayers,
Plaintiffs —three class action surveil- challenge an individual and to detainees —filed The trial court sustained jail. in the San Mateo practices County lance first, demurrers, amend, second, leave to as to the defendants’ withóut filed tenth, eleventh, Plaintiffs and twelveth causes action. order. for mandate to overturn trial court’s present petition disputed of the summarizing allegations We our begin analysis by a detainee’s The of action alleges causes of action. cause first visitor a tele- through special means of oral communication a phone visiting parties intercom areas where are system installed The “designed was and separated by sound-proof panel. system glass be monitored installed in such a manner that conversations could and to detainees and alerting revealing plaintiff pretrial recorded without or are monitored and re- pretrial being visitors their conversations the panel corded.” A is stationed on the detainee’s side of at a guard facilities, “The of the arrangement visiting “discreet distance.” size and visitors, their the distance of the from the detainees and guards pretrial and and use communications com- design telephone system bine deceive detainees visitors plaintiff plaintiff pretrial by as to the illusion and reasonable their creating expectation to, do, with each are thus They encouraged conversations other. their livеs and private discuss the most intimate and aspects feelings.” telephone are wired into central monitor. “An systems un- to,
seen . sheriff .. sits at this master and is able deputy keyboard does monitor surreptitiously conversations between plain- [and record] tiff pretrial detainees and plaintiff visitors.” No effect regulations govern recording conversations or the use of those recordings.
Plaintiffs on information and belief that the “conversations are allege and tape monitored recorded without cause or reasonable any probable suspicion believe that the contents of said conversations will pertain acts or activities.” Plaintiffs assert that defendants illegal although practice their as a means of justify protecting jail security, justi- “[t]his fication a sham.” Conversations are monitored and recorded generally at the request of the prosecutor police; use made . . . primary “[t]he evidence, information this gathered surveillance is as or as a by evidence, means to attempt in criminal gather proceedings against plaintiff pretrial detainees and others.”
Plaintiffs claim that
the described surveillance violates a detainee’s
I,
privacy guaranteed
article
section 1 of the California Con
stitution, constitutes an unreasonable search and seizure in violation of
the Fourth and Fourteenth Amendments to the United States Constitu
I,
tion and article
section 13
Constitution,
of the California
and violates
title III of the Omnibus Crime Control and Safe Streets Act of 1968
*5
(18
2510-2520).
U.S.C.
do not
They
specifically allege
§§
violation of
Penal Code sections
omission,
2600 and 2601. That
however, is of no
so
consequence
as the
long
factual
allegations
complaint state a
cause of action under those provisions;
nature of an action and
“[t]he
the issues
determined,
involved are to be
not from the appellation given
the pleading, but from the facts
and
alleged
the relief that they support.”
(Bl
143,
v. Roloson
70 Cal.2d
Cal.Rptr.
[74
oniarz
285,
Plaintiffs’ second cause of action defendants’ challenges of ran- policy dom and monitoring of recording private conversations detainees among “in every room in the jail.” Plaintiffs assert such surveillance violates the constitutional and statutory provisions referred to the first cause of action. demur,
Defendants demurrers, did not or the court failed to sustain to the third ninth causes of through action.2 Thе causes of remaining through 2The third recording ninth causes of action relate to the and of public telephone conversations over attorney lines and in conference rooms at the jail; recording privileged of communications between detainees and counsel, advisors; physicians, religious and the uses made defendants of the re- corded conversations. (tenth twelveth) sig- add no new factual allegations action through action, but assert merely second causes of nificance to the first and violates additional consti- in those earlier counts surveillance described association, and freedom of speech, tutional that it chills proscriptions: (tenth action); and unusual punishment inflicts cruel cause of religion (eleventh action); detaineеs the equal protection cause of and denies (twelfth action). the laws cause of earlier, defendants’ demurrer court, sustained as we noted
The trial eleventh, first, second, tenth, and twelfth to the without leave to amend Court writ mandate in the for petitioned causes of action. Plaintiffs court, the use of a preroga- recognizing That Appeal. although is generally questions pleadings review rulings tive writ 841, (see 3 Cal.3d v. Court disfavored Babb Superior because 179, appropriate mandamus 379]), 479 P.2d found Cal.Rptr. and the trial importance, of general were matters presented the issues the merits. heard on being bar such issues from court’s order would (1971) 4 Cal.3d (See Court Superior Vasquez Appeal The Court 513].) 484 P.2d 53 A.L.R.3d the trial court to overrule writ commanding then issued a peremptory first, second, and tenth causes action. to plaintiffs’ the demurrer as hearing. We granted petition Code believe the of Penal provisions
As shall we explain, in this presented of the issues 2601 are dispositive sections pro Legislature as amended by Section proceeding. prison may, in a state imprisonment sentenced to person vides that “[a] confinement, of such deprived rights, be period such during any the reasonable as is in order to provide rights, and for the reason in which he is confined the institution security of (Italics added.) The broad span public.” able *6 the 2600 is augmented by section protected by constitutional rights have” 2601, state “shall prisoners which specifies terms of section to buy the to own or sell property; civil among certain rights, them suits; and, to civil marry; bring periodicals; and read newspapers visits; case, pro “to have personal the instant the relevant to provision such restrictions as provide vided that the department may 2601, (§ subd. the institution.” the reasonable for (d).) (Italics added.) 2600, section 145 enacted in 1850 as The version of section original Punishments, sen provided Crimes and Concerning of the Act “[a] imprisonment tence of in State the Prison for a term less life than all suspends civil of the so sentenced the rights person during term of trusts, imprisonment, forfeits and all public all offices au private and power; and the sentenced to thority, person imprisonment such (Stats. 1850, 99, 145, life shall thereafter be deemed dead.” ch. civilly § (Italics 247.) added.) p. Under that all provision, prisoners state were outcasts, the status of relegated social victims of the archaic “civil death” doctrine3 which cоnceived as than prisoners something less beings. human civil Legislature modified the death statute when insert slightly 2600; it the
ing Penal Code in as section all civil rights of state prisoners were but the Adult suspended, was vested Authority with dis cretion restore it 1968, “as deem rights may Not until proper.” however, did death, the Legislature abolish civil officially amending section 2600 to specify that all state prisoners retained certain enumer ated civil rights.4 later,
Two our reform, court endorsed this years legislative critical that, explaining amendment of section “[California has] abandoned the medieval of strict ‘civil death’ and ... concept replaced it with statutory civil provisions seeking insure rights those convicted of crimes be limited in accordance with only legitimate (In penal objectives.” (1970) re Harrell Cal.3d 702 [87 470 P.2d 640].) dis- Finally, Legislaturе carded the version punitive of section 2600 it with entirely replaced version, the current rather than designed rights eviscerate the protect of state prisoners. of this dramatic reversal of considering significance legislative case, civil
policy for instant we stress at the outset that the pre-1968 death,” prisoner deprived originated 3“Civil of a rights, status all in ancient throughout Greece Ages and flourished the Dark outgrowth primi- natural penal systems tive developed Europe. During the Germanic tribes latter half every doctrine; century, virtually country rejected nineteenth Europe Cali- fornia, however, text, as indicated in adopted though civil death —as bent rescuing concept years from well-earned four before France and oblivion — (See, e.g., Germanic countries Concept abolished it. Civil Death in A California: 429-433; Note, Overdue Its Grave 15 Santa Law. Clara Civil Mary 988.) Death —A New Look an at Ancient Doctrine Wm. & L.Rev. *7 “imprisonment 4The statute prison any 1968 reiterated that in a state term sus- sentenced,” pends rights person all the civil so qualified but the civil death by reviving specified rights: rights doctrine certain civil to property, inherit to cor- respond confidentially attorney, writings an to own produced prison, with all in and to buy periodicals, newspapers, receive and books. 872 in
death statute never to detainees and other confined persons applied v. Lorenz (See, (1954) Hayashi 42 Cal.2d local detention facilities. e.g., (1951).) 848 P.2d 18 275 Because the 18]; Ops.Cal.Atty.Gen. [271 nature; in we held that it re- statute was construed it penal strictly to state prison. stricted of individuals sentenced rights 852.) (Hayashi, at Sincе the restrictions in the supra, p. pe- Cal.2d in the nal never detainees applied pretrial versions section 2600 first it that the in restor- place, Legislature, specifically follows logically less meant to afford no ing rights prisoners, protection state pretrial detainees.
Moreover,
the conclusion that de
equal
principles
protection
support
to those
state
guaranteed
tainees retain
at
least
rights
equivalent
requires
and 2601. Our Constitution
prisoners under sections 2600
respect
to the legitimate
situated
persons “similarly
State
&
(Purdy
Fitzpatrick
like
law receive
treatment.”
Califor
645,
77,
nia
P.2d
Cal.Rptr.
71 Cal.2d
conversations,
de
to the
respect
A.L.R.3d
With
1194].)
situated”;5 we must therefore
“similarly
tainees and convicted felons
context not only
in this
apply
sections 2600 and
acknowledge
trial.
detained pending
to state
but also to those
prisoners
merely
state
au
upon
prison
impose
limitations which these provisions
The
thorities,
authorities.6
conclude,
county jail
binding upon
we
are equally
survive demurrer
will therefore
plaintiffs’ complaint
allegations
The
is
defendants
unneces
undertaken by
if
that the surveillance
assert
they
hence,
and,
of the public
protection
for institutional
sary
(d). We
subdivision
sections 2600 and
by
rights protected
violates
allegations.
those
proceed
analyze
Cal.Rptr.
(1977)
convicted v. Board Governors Compare Newland also equal protection. wоuld violate 254], holding if a “certificate 566 P.2d 19 Cal.3d 711 [139 felons and rights of convicted the civil to restore is available statute rehabilitation” be made available a must junior college, such certificate at a allow them to teach equal “violates ... legislative otherwise classification misdemeanant. a (Id. at legitimate purpose.” state to a “rationally it does not relate[] of law” because 711]). p. as are procedures exactly same jails must follow imply do that county 6We security will to institutional is essential measure prisons. Whether state followed hold next. We facility to the factors, vary one may from many and thus upon depend prison in itself state jail instead of county inmates only that the detainees’ status rights prison inmates. afforded deny them no reason to *8 visitors, resрect With to surveillance of detainees’ conversations plaintiffs that of allege by means a covert surveillance au- system, jail thorities and such monitor and record routinely arbitrarily private conversations, without cause to that probable suspect illegal activity any is states, These taking place. the are intended not recordings, complaint to enhance or but preserve prison rather to obtain for security, evidence use and by investigatory agencies in search of convictions. prosecuting moreover, Plaintiffs that the allege, is recording system entirely unregu- lated that no coherent set of or to guidelines rules exists govern surveillance created policies by officials different jails. find,
Plaintiffs’ allegations, we establish that be clearly plaintiffs may еntitled to relief aas of on consequence illegal activity part of local (d), officials. Under sections subdivision those offi cials may restrict a detainee’s visitation rights only to extent necessary provide for institutional Plaintiffs security.7 allege that the of system monitoring detainee-visitor conversations in the San Mateo is used County jail not for the purpose institutional or pro tection of the officials, assert, public; plaintiffs eavesdrop detainees’ conversations with visitors to obtain evidence be primarily used at against them trial. further complaint the absence of alleges any regulations governing conversations.
In sections 2600 light should be entitled at- plaintiffs a tempt prove as matter fact their that charge pervasive and unregulated system surveillance is se- еmployed preserve jail protect but for curity public, evidence gathering against detainees. of such allegations Proof would establish that the system surveillance used in a infringes manner which being upon detainees’ right of under sections 2600 and 2601.
Defendants, however,
that dictum in North Court
Superior
argue
Defendants next in in point many echoed other language cases, California that as a rule “an inmate a or prison of general (8 311; has of no reasonable Cal.3d at see expectation privacy.” p. Hal 885, 900, v. 6 (1972) Court Cal.3d pin Superior fn.
375, cited; (1979) P.2d and cases there People Estrada 1295] Cal.App.3d 98-90 Cal.Rptr. 731].) Since a reasonable person’s expectation of in a a privacy particular part in setting plays determining whether he a in enjoys of that legally protected right privacy a setting, factual finding that detainees have no reasonable that thеir expectation conversations are private undermine might plaintiffs’ allegations.11 cases, however,
The cited do not to make purport a factual determi- of nation the subjective expectations or of the reasonableness of inmates such expectations. Instead they declare a legal proposition: the absence of any of right privacy From that jail. proposition, they reason that prisoners could not reasonably expect that will state refrain from their conversations. cases, of reasoning however, those cannot serve to de- properly fine the rights granted inmates by sections 2600 and 2601. The Legislature, sections, enacting these evidently intended to place regard, this 10In we note that the Board of Corrections has regulation enacted a spe- cifically requiring local “develop implement officials to visiting an inmate Code, (Cal. plan.” 1062.) alla, Admin. tit. alleged, Plaintiffs have § inter the ab- any sence of plan. such coherent 11The role of an subjective individual’s expectation privacy in defining rights his under the Fourth complex (See Amsterdam, Amendment is a issue. discussion Per spectives (1974) on 384; Giannelli, the Fourth Amendment 58 Minn.L.Rev. Seizures; "Locking” Prison Searches and the Fourth Out Amendment Correctional 1060; Fave, Facilities 62 Va. L.Rev. La Search Seizure 2.1.) The rule, discussion in the cited works makes it general § clear that as a the state person’s right announcing cannot curtail a of privacy by carrying system out a surveillance expectations. which diminishes person’s as non- on the same footing as possible of inmates as
rights
nеarly
or
inmates,
the needs of institutional
subject
inmates, dis-
ground
on
privacy
To
a
public.
deny
decisions,
expectation
their normal
have lost
prior
abused cannot, consistently
Thus we
the statutes.
would defeat
purposes
as matter of
hold
a
sections 2600
underlying
the policies
that their conversa-
expectation
have no reasonable
law that detainees
such
will
be private,
tions with visitors
an
expectation
privacy.
infringes upon
conversations never
can
that the jail
the argument
accept
For similar reasons
cannot
its
him of
warning
by posting
sign
of privacy
defeat
detainee’s right
mistak-
rests
argument
That
conversations.
*11
intention to monitor
monitored is
person
expectation
the subjective
en
that
assumption
has
viola-
of
been
whether a
deciding
right
mattеrs in
all that
the constitutional
hole through
that drives a gaping
argument
ted —an
ante.)
(See authorities cited footnote
of privacy.
and statutory right
can
merely by
or intrusion
be justified
not
if a
is
safe
Privacy
search
rec-
in advance. This court
its intention
that the state announced
proof
(1974)
We conclude visitors, conversations between detainees ing monitoring We to entitle to relief. the same plaintiffs aрply states facts sufficient action, relates second cause of which to conversa analysis plaintiffs’ security tions Considerations institutional between detainees. well different monitoring practices protection public may justify detainees than detainee-visitor conversa conversations between tions, case we determine on the alone that pleadings but neither can of meeting done for the being defendants’ Thus action needs.12 second cause of jail’s plaintiffs’ legitimate issues which cannot be resolved on demurrer. also factual presents statutory language suggests also a distinction detainee 12The between conversations specific language The latter fall within the and detainee-visitor conversations. 2601, of section (d), grants personal which thе inmate the “to have visits” sub- subdivision ject as are for the reasonable “such restrictions the institution.” hand, conversations, provision, no specific on the other fall within Detainee Plaintiffs’ tenth cause of action reference all incorporates by allega action, tions of the nine causes of allegation and adds preceding chills the exercise First Amendment Since we have rights. held that the first and second causes of action state facts sufficient constitute cause of action it follows necessarily tenth cause of action, with or without the additional also sufficient. allegations, additional were allegations obviously intended to frame a cause of ac tion under the First Amendment and the California corresponding (art. I, 4).& provision held, Since we have how §§ еver, plaintiffs’ frames a complaint cause of action on statutory we need not it grounds, do rule on whether also state a may cause of action under the cited provisions.13 constitutional
Plaintiffs’ eleventh and twelfth causes of action incor similarly porate nine, numbers one then through add allegations cruel charging (eleventh and unusual punishment action) cause of and denial equal (twelfth action). cause of As we explained with to the regard tenth action, cause of the eleventh and twelfth causes of action are suf ficient without the additional allegations; we do not determine at this time whether additional allegations suffice to frame a valid consti tutional claim. *12 sum,
In we conclude that the complaint as that alleges insofar the jail officials’ monitoring practice has been undertaken for the purpose gathering evidence use for in criminal rather proceedings, than to main- tain the security jail, complaint states a cause action for declaratory and injunctive relief under sections 2600 and 2601 of the Penal Code. Plaintiffs are entitled their to in court day so that may they attempt prove the factual of their allegations complaint.
Let a writ of peremptory mandate issue directing the superior court to vacate its order sustaining defendants’ general demurrer without first, second, tenth, leave to amend to the eleventh and twelfth causes of 2600; only language protected general rights under the of section by conferred section may “necessary provide 2600 be restrictions in order to for the security reasonable the however, and for the reasonable public.” institution ... pleadings, On the differences, it is impossible any, to determine what if in monitoring proce- justified may statutory language. dures be this difference in 13It is well principle established that resolving courts should avoid constitutional is- if be statutory grounds. (See sues a case can decided on People v. Williams 16 Cal.Rptr. 1000]; Cal.3d People P.2d v. Gilbert 1 Cal.3d 580].) 484-485 P.2d the views action, consistent with to undertake further proceedings in this expressed opinion. re- that understanding majority’s
KAUS, my I concurbased J . was monitoring that complaint in the of the allegation cital activity taking illegal that suspect any cause to “without probable [was] can security purposes for jail that imply does not place” law, I mon- cause.” As understand be on “probable undertakеn without any undertaken routinely be purposes may itoring security will disclose evidence surveillance particular believe that any reason to trial, this that if matter goes I illegal further assume activity. demonstrating invalidity will bear burden plaintiffs that, a contrary in the absence of monitoring practices authorities’ undertaken for be to have been the monitoring presumed will showing, purposes. said, remains that al- plaintiffs’ complaint That been the fact having Code, in it the Penal that sections 2600 and violations of leges been undertaken to practice has county’s monitoring alleges not securi- cases and pending evidence gather prove propose I no how Although plaintiffs have idea ty. evidence and not for se- gather performed solely being proof the matter of in viеw of defendants’ demurrer curity purposes, enactment of sections Legislature’s before us. simply light if can show at trial entitled to relief they 2600 and plaintiffs are not measures. monitoring practices that the it that Justice Richardson’s dissent as- respect, With all seems me meet their sumes a matter of law cannot plaintiffs possibly *13 supposition any This be based on the proof. burden of appears But for can security purposes. is undertaken jail monitoring necessarily are able invariably Suppose plaintiffs hold that that is so? properly not have been undertaken monitoring to demonstrate that certain would the of- prosecutor’s had it been for a from jail request not personnel fice, was a crime which relating which for admissions looking case, were the it would was such chargеd. Surely, detainee particular security was undertaken for the facts to hold defy monitoring purposes. dissent, note that I would simply
With to Justide Mosk’s respect the sug- to post forbids the authorities nothing majority opinion however, believe, I do not that counsel’s gested warnings. “general” his this to have clients do so moots We are willingness proceeding. been if the informed that have warnings actually posted. Surely, us, matter is otherwise before we should not dismiss it properly merely because at the some argument vague willingness oral counsel expressed Furthermore, from with a the bench. I believe go along suggestion is monitoring authorities could conclude that secret jail reasonably for I am this necessary security therefore loath to dismiss purposes on the that it will be proceeding assumption abandoned.
RICHARDSON, I respectfully J . dissent.
The majority, relying upon inapposite solely statutory provisions (Pen. Code, 2600, 2601), challenges propriety the routine §§ conversations of inmates detained in county jail awaiting criminal trial. The assumes that such a violates an in- majority practice mate’s interests if conducted for gathering evidence, incriminating rather than safeguard institutional security or to protect the To the I public. as sounder contrary, explain, decisions held, have uniformly law, as a matter of that the practice monitoring an inmate’s conversations is reasonably necessary maintain security, that a person incarcerated a jail prison possesses no justifiable expectation of privacy. Accordingly, regardless conversation, officials’ reason for a particular practice is sensible, necessary proper. relies majority exclusively upon sections 2600 and 2601 of the
Penal Code. Section 2600 provides person that “A impris- sentenced to onment in a state confinement, such prison may, during any period be deprived such rights, and such as in order rights, necessary to provide the reasonable he institution which confined and for (Italics the reasonable add- public.” ed.) Section (d), subdivision describes various civil rights available to prisoners, visits; “To have including personal pro- vided that the department may provide restrictions (Italics reasonable institution.” added.)
Is the monitoring unprivileged jailhouse conversations “necessary for the reasonable of the institution”? In the light the history of violence committed during attempted and the jailbreaks еver-present and danger risks of escape, how can we hold To possibly otherwise? 880
limit or restrict authorities’ monitor inmates’ conversations is to invite further acts of thereby violence not escapes, endangering institutional but the as well. This is safety public we 10 in North v. exactly position years took Court ago Superior (1972) 833, 1305, 8 Cal.3d 312 502 P.2d 57 Cal.Rptr. [104 North, A.L.R.3d held that 155], under unusual circumstances case, in that tape-recorded conversation between husband “jailhouse” (see Code, 917) and wife Evid. should have been ordered suppressed § careful, as an impermissible invasion of marital We were privacy. how- ever, to limits of explain precise holding, our as follows: “We be emphasize nothing in our should deemed a opinion disapproval the common with monitoring inmates’ conversations oth- prаctice ers, in spouses, visiting their rooms or similar including places. That seems practice necessary order maintain reasonably jail security (P. 312, is added, and ... proscribed omitted.) law.” italics fn. by monitoring as a law that the Thus North matter acknowledged is there “reasonably necessary” jail security, jailhouse conversations of sections 2600 and 2601 relied statutory requirement by fulfilling repeatedly defensively herein. majority majority, “dictum,” North as mere suggests characterizing exposition fact which necessity “poses questions question jail security 875.) (Ante, contrary, be on the To p. cannot resolved pleadings.” both indicates, to confirm what ob North no factual needed hearing us, tells routine namely, servation and common sense reduce threat of escapes conversations unprivileged jailhouse helps otherwise, does, as the majority To suggest violence. accompanying public safety. of institutional and disregard is both naive and reckless 90, 93 (1961) 197 Cal.App.2d As was v. People Morgan stated [16 (8 309), at p. with in North Cal.3d Cal.Rptr. quoted approval 838], to protect “is prisoner’s to censor a communications authority (See Cal.App.3d v. Estrada 93 also against escape.” People conversations con 99-100 [monitoring jailhouse 731] Code, 2600].) sistent Pen. § citizens, are no as for
The fundamental risks custodians today, Moreover, courts other jurisdic- 10 from years ago. less than were they of routine necessity tions have uniformly recognized (See concerns. We are not alone our prison conversations. (6th 1980) 116; United States Paul Cir. F.2d United States v. 1344-1346, den. (9th cert. 1977) Cir. 563 F.2d v. Hearst S.Ct. State 1656]; Ryan U.S. L.Ed.2d
881 A.2d I have found nо case to the N.J.Super. 920].) 330 contrary, [367 court it well: “A further ra- put cites none. The majority Ryan tionale rule is [jailhouse monitoring] upon underlying premised officials to use reasonable measures to necessity jail security protect prisoners and the Electronic surveillance jail environment..... [If] ... is an prerequisite essential to the maintenance of and its Lack must prisoners .... be balanced reason- privacy against end, able in In the the scales must be in favor of jail. tipped (P. 922.) security.”
Apart from the security reason, view, a second aspects, in my conclu- sively justifies the question. Jail have inmates no right privacy the traditional and accepted sense. Once North is di- again, rectly in point: California cases have held uniformly that an “[P]rior inmate of a jail has ordinarily no privacy. The ra- [Citations.] tionale this underlying general rule is based upon policy favoring use by jail authorities of reasonable ‘A man security measures. detained in jail cannot reasonably expect enjoy afforded to a privacy per- son in free His lack society. is a privacy necessary adjunct to his imprisonment----’ (8 308-309; Cal.3d at pp. see Lanza v. [Citation.]” New York U.S. 387-388, L.Ed.2d 82 S.Ct. [8 Hearst, 1218]; United States supra, 1344-1346; 563 F.2d pp. at Brown v. 1977) 1196, 1197; State (Fla.App. So.2d Com. v. Look (1980) 379 Mass. 893 N.E.2d 482]; v. Blehm People [402 44 Colo.App. P.2d 415].) In the words of the United States Lanza, Supreme Court in “a shares none attributes of home, automobile, of a an office, an or a hotel room. In prison, official has surveillance been the (370 order traditionally day.” U.S. at p. L.Ed.2d at p. 388], omitted.) fn. in this majority apparently contemplates evidentiary hearings
сase to whether in determine fact the at San Mateo County jail was undertaken for security purposes, and whether in fact the inmates so monitored did not entertain a reasonable expectation of view, privacy. my evidentiary hearings wholly unnecessary light above, the authorities and cited which principles establish both a matter propositions of law.
I would writ. deny peremptory
MOSK, J.I d i ssent. *16 is whether us, petitioners, posed by before question
The basic of privacy expectation reasonable have a their visitors detainees and the answer assume majority blithely The conversations. their jailhouse (ante, in privacy constitutional in terms of a speaking by he is under while to enjoy 876). purporting The concept one p. anom monumental to be a appear would supervision authorized legally can expectation whether it is urged Nevеrtheless aly. de environment of controlled necessarily exist reasonably the participants. beliefs of the subjective pends upon be It might for analysis. an elusive matter always The is subjective intelli- average even one of of sophistication, that an inmate anticipated in total communicate his ability would understand gence, bars. On the other while he is behind be curtailed likely confidence of limited experience, that a hand, person be anticipated it also may be- might naively and comprehension, of limited education also perhaps authorities who by any monitoring without speak freely lieve he could trial. him for holding are merely solution to the simple remarkably there is a
It to me that appears privacy by anyone expectation Ireasоnable there can be no problem: This can to the contrary given. if an adequate warning in a jailhouse all room advising in the visiting posting signs be accomplished by and recorded by be overheard may their conversations persons to be be large enough should warning charge jail. those understood, and observed, easily to be enough uncomplicated readily and visitors. both detainees as to be readable posted should be so Spanish, speaking number of residents with a substantial communities in English be both should signs other foreign languages, Chinese or and the appropriate languages. general conceded a oral argument, at respondent,
Since counsel for inter- notices, for the courts to I see no need willingness post warning much the same attempt accomplish in order to vene at this time Therefore, the writ. I would deny purpose.