Arias, In re

Decision Date09 October 1986
Citation230 Cal.Rptr. 505,42 Cal.3d 667,725 P.2d 664
CourtCalifornia Supreme Court
Parties, 725 P.2d 664 In re Barbaro Escobedo ARIAS et al. on Habeas Corpus. Crim. 24307.

Robert N. Chargin, Public Defender, David Wellenbrock, Deputy Public Defender, for petitioners.

Margaret C. Crosby, Alan L. Schlosser and Amitai Schwartz, San Francisco, as amici curiae on behalf of petitioners.

John K. Van de Kamp, Atty. Gen., and J. Robert Jibson, Deputy Atty. Gen., for respondent.

BIRD, Chief Justice.

Does the installation of bugging equipment in the chapel complex of a Youth Authority facility violate the religious freedom or privacy rights of Youth Authority wards?

I.

Petitioner Arias was a ward of the Youth Authority (YA) at the Karl Holton School, Northern California Youth Center. 1 From time to time, petitioner participated in religious services held in the Protestant chapel. These services include: (1) worship, (2) music and art, (3) bible studies, (4) prayers and auricular confessions, (5) individual spiritual counselling, and (6) group counselling. Some of these activities, such as worship, are group activities open to the entire Karl Holton School community. Others, such as confessions and counselling, are conducted privately between the chaplain and individual wards.

The Protestant chapel complex consists of a large room that serves as the chapel, various smaller rooms, and a foyer (or "vestibule") located between the chapel and the doors leading outside. On one side of the foyer is a restroom, and on the other, the chaplain's office. Worship services are held exclusively in the chapel, while confessions and private counselling sessions are conducted in the chapel, the foyer, or the chaplain's office. 2

In July or August of 1982, as part of its plan to improve security, 3 the YA updated electronic surveillance throughout the Karl Holton School and installed an "electronic listening device"--a microphone--in the Protestant chapel complex. 4 The microphone is located in the ceiling of the foyer, and is designed to monitor sounds in the foyer and in all of the surrounding areas, including the chapel and the chaplain's office. 5 To this end, the doors between the chapel and the foyer are to remain open at all times.

The microphone has been installed but the wires have not been connected. The YA intends to connect the microphone by wires to a "control center."

Ronald R. Lowry, chief of the YA Facilities Planning Bureau, described in an affidavit how the electronic sound security system at the school is intended to operate. Sixty microphones, including the chapel microphone, have been "strategically" placed throughout the school. The microphone inputs are grouped into 15 monitoring channels, 1 channel for each dormitory unit, serving kitchen, gymnasium, and chapel complex. The microphones monitor sound throughout the facility.

As Lowry explained, the system serves its security function in two ways: first, it acts as an alarm system. A preset noise-level (decibel) threshold is established for each of the fifteen channels. Operators in the main control room manually set a threshold level for each channel by turning a dial. When the noise level in a given location reaches or exceeds the threshold level for only a moment, a warning light is illuminated in the control center. When the threshold level is reached or exceeded for a longer period, or when two or more momentary intrusions at or above the threshold level occur within a prescribed period, the system illuminates a warning light and activates the control room speaker enabling YA personnel to listen to the sounds in the particular location.

Another security objective, Lowry explained, is "information gathering." Once a noise of sufficient loudness and duration or repetition activates the control room speaker, the control room staff listen to the sounds coming from the signal area. If the staff discovers that a security problem exists, they transmit this information to security personnel via two-way radio so that appropriate action may be taken.

The Protestant chapel microphone is monitored on a separate channel. Thus, its threshold level can be adjusted separately. This threshold is supposed to be set just above the "ambient noise level," i.e., just above the level of "background" noise so that only "loud" rather than "routine" noises will trigger the control room speaker.

Apparently, the determination as to what the threshold level will be is left to the discretion of control-room personnel. Neither party has produced any guidelines that would prevent the level from being set so that a conversation at normal speaking level would trigger the alarm and speaker. At oral argument, counsel for the YA explained only that the incentive for monitoring chapel conversations is diminished by the fact that activation of the control room speaker by one channel effectively prevents monitoring of other channels covering the rest of the Karl Holton facility. Nevertheless, the existence of a microphone in the chapel renders it possible for staff to monitor conversations there which occur at levels below that of a normal speaking voice.

The chapel microphone can be turned off at the chaplain's request. However, the YA retains ultimate authority to deny such a request. If a request is honored, security personnel are supposed to come to the chapel and turn off the device. Once that is done, personnel in the control room are unable to monitor sounds in the chapel. The device cannot be reactivated until security personnel return to the chapel.

The chapel monitoring system was tested in March of 1982 and again in June of 1982. The testing sought to determine the optimum microphone placement within the chapel complex and to test the threshold-setting capabilities of the control room equipment. The March test was unsuccessful due to problems with the control room equipment. While the record is somewhat unclear on this point, the apparent problem was that the control room equipment was too sensitive and the microphone input overloaded the system. Thus, the threshold levels could not be accurately adjusted.

By the time of the June test, however, new control room equipment had been installed and these problems had been solved. Microphones were placed in three locations within the chapel complex 6 and monitoring was done at four levels of ambient noise, ranging from complete silence to "loud" background noise. 7 These tests determined that when the microphone was placed in the sanctuary, a loud religious service (i.e., 85 decibels) would activate the alarm system. When the microphone was placed on the ceiling of the vestibule with the chapel doors open, the system performed similarly. When the microphone was attached to the light fixture in the vestibule with the chapel doors open, loud background noise failed to trigger the alarm. From these tests, YA personnel determined that the alarm system would be useless during a loud religious service because the system would be unable to distinguish between loud "background" noise and cries for help.

Neither the March nor the June test involved any formal testing of the chapel microphone's ability to detect sound emanating from the chaplain's office. However, the Reverend Kenneth Leep, the school chaplain, testified that he had conducted informal tests in this regard. The chaplain and another person conducted a conversation in his office, first with the door open and then with the door closed. Reverend Leep then listened to a tape of the experiment in the control room. These informal experiments indicated that conversations could be heard with the door open or closed. Once the door was closed, however, the content of the conversations could not be discerned.

Reverend Leep testified that microphones were in the ceiling and on the hanging light fixture of the foyer during these tests. The record is unclear as to which one of the foyer microphone placements was utilized in these tests. The record fails to disclose the level of background noise at the time the tests were conducted, such as the operation of ventilation systems or activity in the rest of the chapel.

Lowry also offered his opinion as to the ability of the system to monitor conversations in the chaplain's office. His opinions were based on conjecture, rather than on actual testing. In his affidavit, he stated that "a microphone placed [ ] in the vestibule would not be able to pick up the contents of a normal conversation in the chaplain's office, provided the door between the office and the vestibule [were] closed and there [were] normal noise conditions in the chapel and in the control center." The nature of these "normal" conditions was not defined. Lowry did not offer any opinion as to the effect that "abnormal" conditions might have on the system's ability to monitor the fact or contents of a conversation.

In November of 1981, Eugene Escobedo and Donald Sowell, two wards at the Karl Holton School, filed a petition for writ of habeas corpus in the San Joaquin Superior Court. The petitioners sought to enjoin the planned installation of the electronic listening devices in the school's chapel and to declare the use of such devices violative of their rights of privacy and religious freedom under the state and federal Constitutions. They also alleged that the placement of the microphones would violate the clergy-penitent communications privilege. (Evid.Code, § 1032.) A few days later, the court issued an order to show cause and appointed counsel for the petitioners. The matter proceeded to hearing in September of 1982, a few months after the microphone had been installed.

In November of 1982, petitioners Arias and Bolton filed a petition for habeas corpus on the same grounds. Shortly thereafter, the superior court consolidated the two petitions and appointed counsel for petitioners Arias and Bolton. Following supplemental briefing, in which...

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