People v. Blehm

• Decision Date: 17 July 1980
• Docket Number: No. 78-733,78-733
• Citation: 44 Colo.App. 472,623 P.2d 411
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Monika BLEHM, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 411

623 P.2d 411

44 Colo.App. 472

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Monika BLEHM, Defendant-Appellant.

No. 78-733.

Colorado Court of Appeals, Div. II.

Decided July 17, 1980.

Rehearing Denied Aug. 14, 1980.

Certiorari Denied Jan. 5, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Kathleen M. Bowers, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Peter R. Bornstein, Sp. Deputy State Public Defender, Denver, for defendant-appellant.

PIERCE, Judge.

Defendant appeals her conviction of conspiracy to commit escape. We affirm.

In January 1978, defendant's husband was confined in the Boulder County Jail awaiting trial on a number of felony charges. On January 15, he attempted to escape from the jail. On January 26, defendant went to the jail to visit her husband. She entered through an electronically operated security door marked "Visitors Entrance." Posted on that door was a sign with three-eighths-inch lettering which read: "NOTICE THIS FACILITY IS EQUIPPED WITH AUDIO AND VISUAL SECURITY SYSTEMS." An identical sign was posted in the booking room through which all prisoners enter the jail.

Defendant met with her husband in a visiting room which was divided into a visitors' side and a prisoners' side. A plexiglass partition extended from floor to ceiling and prevented any physical contact between visitors and prisoners. Defendant conversed with her husband over an intercom system which constituted the only means by which visitors and prisoners could communicate. One wall of the visiting room consisted of large glass windows, and on the other side of the windows was the jail master control room. From the master control room, jail personnel could see the prisoners and their visitors, and could also monitor the conversations being carried on over the intercom system.

Because of defendant's husband's previous escape attempt, the conversation between defendant and her husband was monitored by a sheriff's officer who heard them discuss a plan for the prisoner's escape. The plan involved the active participation of defendant and the use of firearms.

On January 30, 1978, defendant again visited her husband and again their conversation was monitored. As a result of the monitoring, jail officials learned that the escape attempt would occur later the same day. When defendant left the jail, she was arrested and her car was seized. A search warrant for the car was issued based on the conversations monitored between defendant and her husband. The car was searched, and a number of items, including some marijuana, were seized.

At trial, defendant moved to suppress all evidence related to the monitored conversations. Her motions were denied, and the conversations and items seized were admitted into evidence.

I.

Defendant's principal contention on appeal relates to the admissibility of the conversations which were monitored by jail officials. It is undisputed that the monitoring was not conducted pursuant to a court order or warrant. Nor was it conducted with the knowledge or consent of either of the parties. Defendant contends, therefore, that the monitoring and subsequent use by the state of the conversations violated her rights under the Fourth Amendment as well as various statutes.

The Fourth Amendment guarantees only against unreasonable searches, and not every search without a warrant is unreasonable. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972). The test of reasonableness of a search requires balancing the need for the particular search against the invasion of personal rights involved. The elements which must be considered are "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979). Also, in the context of this case, for there to be a search and seizure of a conversation which violates the Fourth Amendment, there must have been a justifiable expectation of privacy with respect to that conversation. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The courts have generally recognized the existence of and justification for official surveillance in a prison environment, and that such surveillance does not necessarily violate the Fourth Amendment. Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970). This recognition is based on the fact that detention facilities are unique places "fraught with security dangers." Bell v. Wolfish, supra.

Additionally, the justification for intrusive prison practices is not dependent upon the status of the individual involved. Among the purposes of official surveillance in a prison environment are the preservation of internal order and discipline and the maintenance of institutional security against escape or unauthorized entry. In this context, no justifiable distinction can be made between one who has been convicted of a criminal act and one who is being detained prior to trial on criminal charges. United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). Nor is there necessarily a distinction between those who are detained within a facility and those who enter the facility as visitors, particularly when the purpose for the surveillance is the prevention of escape or unauthorized entry. See Lanza v. New York, supra.

In considering the reasonableness of the specific type of intrusion involved in this case, the monitoring of conversations, we must apply the test established in Katz v. United States, supra, and determine whether defendant had a justifiable expectation that her conversation with her husband was private. This test has previously been applied in Colorado in situations involving detention facilities.

In People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972), it was determined that a prisoner's constitutional rights were not violated by the use of comments he made while talking on a telephone when he voluntarily made those comments knowing of the imminent presence of a jail official.

In contrast, this court determined in People v. Harfmann, 38 Colo.App. 19, 555 P.2d 187 (1976), that prison officials created a justifiable expectation of privacy in a prisoner and his attorney when the two were escorted to an apparently secure room and were left alone in that room. As a result, the evidence obtained as a result of the ensuing covert surveillance of the prisoner and his attorney was held to be inadmissible against the attorney relative to charges concerning the introduction of narcotic drugs into the jail. Similarly, the California Supreme Court applied the same test in North v. Superior Court, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, 57 A.L.R.3d 155 (1972), in determining that the recorded conversation between a prisoner and his wife should have been suppressed as the product of an unreasonable search and seizure. There, it was held that, as in Harfmann, by escorting the prisoner and his guest to an apparently private office, and by leaving them alone in the room, the jail officials created a justifiable expectation that the conversations between the parties were private.

In a situation almost identical to the one presented in this case, however, both the California Court of Appeals and the California Supreme Court found no violation of the Fourth Amendment. People v. Hill, 107 Cal.Rptr. 791 (1973), rev'd on other grounds, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1 (1974). There, the California Court of Appeals considered the admissibility of a conversation between a prisoner and his wife which was recorded while the two conversed in the regular visiting area of the jail, separated by a plate glass partition. The court approved the admission of the evidence, stating that under these circumstances the parties had no justifiable expectation of privacy. Although it reversed the Court of Appeals on other grounds, the California Supreme Court referred to its opinion in North v. Superior Court, supra, and stated that: "It was the police officer's deliberate attempt to create an expectation of privacy which led the majority in that case to conclude that the expectations of the Norths were reasonable ... Absent such unusual circumstances, spouses can have no reasonable expectation that their jailhouse conversations will be private." The court then concluded that the conversation in People v. Hill, supra, was properly monitored and recorded and therefore was properly received into evidence.

We find persuasive the language of the California courts in People v. Hill, supra, as well as the comments of the California Court of Appeals in DeLancie v. Superior Court, 97 Cal.App.3d 519, 159 Cal.Rptr. 20, 25 (1979), that "no right of privacy is extended to ordinary jail conversations precluding secret monitoring and probative use under the protective shield of" the Fourth Amendment.

We rule, therefore, that under the circumstances of this case, defendant had no justifiable expectation that her conversations with her husband were private. As a result, we find that the intrusion by jail officials, which was for the purpose of preventing escape, did not violate defendant's rights under the Fourth Amendment.

II.

Defendant also contends that the conversations should not have been admitted into evidence because the monitoring of those conversations violated various federal and state statutes. We disagree.

In her reply brief on appeal, defendant referred to but did not discuss the applicability of 18 U.S.C. § 2510 et seq. (The Omnibus Crime Control and Safe Streets Act of 1968). That statute regulates the interception of wire and oral communications, which are defined as follows:

"(1) 'wire...