Donaldson v. Superior Court

Page 704

196 Cal.Rptr. 704

35 Cal.3d 24, 672 P.2d 110

Kenneth Lee DONALDSON, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 31424.

Supreme Court of California In Bank.

Nov. 21, 1983.

As Modified on Denial of Rehearing Dec. 21, 1983.

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Laurence M. Sarnoff, Charles Gessler and Morton P. Borenstein, Deputy Public Defenders, for petitioner.

Quin Denvir, State Public Defender, Handy Horiye & Harriet Wiss Hirsch, Deputy State Public Defenders, Daniel Costello, Philip H. Pennypacker, San Jose and James S. Thomson, Sacramento, as amici curiae for petitioner.

No appearance for respondent.

John K. Van de Kamp and Robert H. Philibosian, Dist. Attys., Harry B. Sondheim, Donald J. Kaplan and George M. Palmer, Deputy Dist. Attys., for real party in interest.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D Mayfield and John W. Carney, Deputy Attys. Gen., as amici curiae for real party in interest.

BROUSSARD, Justice.

Defendant Kenneth Lee Donaldson, charged with murder involving special circumstances, robbery, and burglary, seeks a writ of mandate to compel respondent superior court to grant his motion to suppress evidence. He asserts that the use of a hidden microphone to record a conversation between him and his brother Lester while they were waiting in a police interview room constitutes an unlawful search under both federal and California law.

We explain that under settled federal precedent and under the California decisions prior to De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142, the secret monitoring and recording of unprivileged conversations in prisons, jails, and police stations did not constitute an unlawful search. De Lancie held that such monitoring was unlawful unless done to protect institutional security. Because the purpose of De Lancie would not be furthered by applying its holding retroactively, we conclude that De Lancie does not govern police conduct that took place before that decision was filed. We therefore deny defendant's petition for writ of mandate.

1. Summary of facts and proceedings below.

On the morning of September 15, 1980, someone broke into the Wise Owl Pre School and killed Mattie Chissell, one of the teachers. About three weeks later, on October 6, Lester Donaldson, defendant's brother, was present at the southeast police station as a potential witness, not a suspect, and was not under arrest.

Later that same day defendant telephoned the station and then went voluntarily to the police station where he, too, was considered a potential witness. ¹ A police officer brought defendant to interview room 109 where Lester was seated, and told defendant, "Have a seat and we will be with you in a minute," or words to that effect. Lester and defendant were then left alone in the room with the door closed.

Room 109, like the other interview rooms, is bugged to permit the police to overhear and record conversations. After leaving the brothers alone in that room, the police listened to their conversation, and apparently heard and recorded statements by defendant incriminating him in the Chissell murder. ²

Defendant moved to suppress the recording and other evidence of the overheard conversation. At the evidentiary hearing, which occurred before our De Lancie decision, defendant emphasized the fact that neither he nor his brother was in custody. The prosecutor in reply asserted that the location of the conversation, not the status of the conversants, was the controlling factor, and that neither brother could expect privacy in a police interview room. The trial court agreed and denied the motion to suppress.

We issued an alternative writ of mandate to consider defendant's petition in connection with De Lancie, which was then pending before this court. Our De Lancie decision, while upholding a cause of action for injunctive relief, left unsettled questions concerning the suppression of evidence in criminal cases, particularly those in which the challenged monitoring took place before De Lancie was filed. Because we conclude that the De Lancie principles should not apply to conversations monitored before that decision was filed, we do not address whether suppression of evidence is a proper remedy for conversations monitored in violation of De Lancie. We address the retroactivity of De Lancie following our discussion of defendant's claim that the proffered evidence was seized in violation of federal search and seizure law.

2. Admissibility of the evidence under federal law.

Defendant's claim that admission of the intercepted conversation violates the Fourth Amendment cannot surmount the decision of the United States Supreme Court in Lanza v. New York (1962) 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384. The police surreptitiously recorded a visiting room conversation between Lanza and his jailed brother. Lanza later refused to answer questions based on the secret recording in a hearing before a legislative investigating committee. After upholding Lanza's conviction on independent grounds, the Supreme Court added that in any case Lanza could not rely on the Fourth Amendment in refusing to answer the committee's questions because the location of the recorded conversation, a jail visiting room, was not a protected area.

The court stated that "to say that a public jail is the equivalent of a man's 'house' or that it is a place where he can claim constitutional immunity from search and seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area, and so may be a store. A hotel room, in the eyes of the Fourth Amendment, may become a person's 'house,' and so, of course, may an apartment. An automobile may not be unreasonably searched. Neither may an occupied taxicab. Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day. Though it may be assumed that even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection, there is no claimed violation of any such special relationship here." (Pp. 143-144, 82 S.Ct. at 1220-1221; fns. omitted.) ³

In 1967, however, Katz v. United States, (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, declared that "the Fourth Amendment protects people not places.... [W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (Pp. 351-352, 88 S.Ct. at 511-512.) Justice Harlan's explanation of this language has proved particularly influential. The cases, he stated, establish "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'." (P. 361, 88 S.Ct. at 516, conc. opn. of Harlan, J.)

Because Lanza epitomized the "protected areas" type of analysis repudiated by Katz, commentators have questioned whether the earlier decision retains vitality. (See 3 La Fave, Search and Seizure (1978) § 10.9; Giannelli & Gilligan, Prison Searches and Seizures: "Locking" the Fourth Amendment Out of Correctional Facilities (1976) 62 Va.L.Rev. 1045.) Federal courts, however, have consistently followed Lanza and upheld admission of monitored conversations in jails or police stations. "It still appears to be good law that so far as the Fourth Amendment is concerned, jail officials are free to intercept conversations between a prisoner and a visitor. This was the ruling in Lanza v. New York [citation] and it appears to have survived Katz v. United States [citation]." (United States v. Paul (6th Cir.1980) 614 F.2d 115, 116, 100 S.Ct. 2165, 64 L.Ed.2d 796; see United States v. Hearst (9th Cir.1977) 563 F.2d 1331, 1345, cert. den. 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90, and cases there cited; Christman v. Skinner (2d Cir.1972) 468 F.2d 723, 726.)

There are signs that the federal courts may move away from Lanza 's total rejection of privacy in a jail or police station, and may ultimately adopt the De Lancie position limiting evesdropping to that required for institutional security. In Bonner v. Coughlin (1975) 517 F.2d 1311, certiorari denied 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529, Justice Stevens, writing for the Seventh Circuit, stated that although "the justifiable reasons for invading an inmate's privacy are both obvious and easily established[,] [w]e are persuaded ... that the surrender of privacy is not total and that some residuum meriting the protection of the Fourth Amendment survives the transfer into custody." (P. 1316.) And United States v. Hearst, supra, 563 F.2d 1331, described the post-Katz cases as permitting only "[a]n intrusion by jail officials pursuant to a rule or policy with a justifiable purpose of imprisonment or prison security" (p. 1345), but upheld the evidence in that case on the ground that "[h]ere the government adequately established that its practice of monitoring and recording prisoner-visitor conversations was a reasonable means of maintaining prison security." (P. 1346.)

Despite these precursors, no federal case has repudiated the Lanza dictum or excluded a jail or police station conversation from evidence. (See 3 LaFave, op. cit. supra, § 10.9, p. 418.) If occasional state court cases such as De Lancie take a different course, they do so on state, not federal, grounds. Bound in matters of...