People v. Finchum

• Decision Date: 01 August 1973
• Docket Number: Cr. 21947
• Citation: 33 Cal.App.3d 787,109 Cal.Rptr. 319
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Gary Alvin FINCHUM, Defendant and Respondent.

Page 319

109 Cal.Rptr. 319

33 Cal.App.3d 787

PEOPLE of the State of California, Plaintiff and Appellant, v. Gary Alvin FINCHUM, Defendant and Respondent.

Cr. 21947.

Court of Appeal, Second District, Division 5, California.

Aug. 1, 1973.

Hearing Denied Sept. 26, 1973.

Joseph P. Busch, Dist. Atty., of Los Angeles County, Harry Wood, Head, Appellate Div., Los Angeles, and Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and appellant.

McDaniel, Plotkin & Bamber, and Barry L. Plotkin and James E. Bamber, Pomona, for defendant and respondent.

HASTINGS, Associate Justice.

The defendant, Gary Finchum, was charged with two counts of burglary (Pen.Code, § 459) and with three counts of receiving stolen property (Pen.Code, § 496). Finchum's motion under Penal Code section 1538.5 was granted, and the cause was dismissed pursuant to section 1385 of the Penal Code. The People now appeal.

The facts adduced in connection with the section 1538.5 hearing were as follows: At approximately 1:50 a.m., on December 24, 1971, Deputy Sheriff Cacucciolo arrested the defendant and his companion, Bartholomew, for burglary. During the morning hours of December 24, 1971, Deputy Sheriff Armstrong talked with the defendant in an interview room of the Industry police substation, at which time Armstrong advised the defendant Finchum of his constitutional rights. Finchum stated that he understood them and that he wished to discuss the matter without an attorney. Finchum then denied all involvement in the commission of the crime for which he had been arrested. Sheriff Armstrong testified that he then placed Bartholomew in the interview room with the defendant, and that he 'told him (the defendant) I had gotten two stories from each subject, and if I left them together for ten or fifteen minutes could they get their stories straight, and they indicated they could, and then myself and detective Land and Sergeant Clark went to another room and monitored the conversation.' The defendant had not been informed that his conversation with Bartholomew would be monitored. The People conceded that the subsequent activities of the police were dependent upon the information obtained from the monitored conversation, and it was stipulated that the suppression of the overheard conversation rendered the People 'unable to justify the seizure of the various items of evidence.' No further evidence was presented with regard to the lawfulness of the subsequent search and seizure.

The sole issue before us on this appeal is whether the monitoring of the conversation between the defendant and his companion after they had been taken into custody involved a violation of defendant's Fourth Amendment right of privacy. California cases have uniformly held that persons incarcerated within a jail facility ordinarily have no reasonable expectation of privacy. (See authorities cited in North v. Superior Court, 8 Cal.3d 301 at pp. 317--318, 104 Cal.Rptr. 833, 502 P.2d 1305 (dissenting opinion of Justice Sullivan); Halpin v. Superior Court, 6 Cal.3d 885, 900, fn. 21,101 Cal.Rptr. 375, 495 P.2d 1295.)

'The rationale underlying this general rule is based upon a policy favoring the use by jail authorities of reasonable security measures. 'A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in a free society. His lack of privacy is a necessary adjunct to his imprisonment. . . .' (Citation.)' (North v. Superior Court, Supra, 8 Cal.3d 301, 309, 104 Cal.Rptr. 833, 837, 502 P.2d 1305, 1309.)

In upholding the admissibility of a transcription of an electronically intercepted jailhouse conversation between petitioner and his brother, an inmate thereof, the United States Supreme Court stated, '. . . 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. (Fn. omitted.)' (Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 1221, 8 L.Ed.2d 384.)

However, as pointed out in North v. Superior Court, Supra, 8 Cal.3d at pages 310--311, 104 Cal.Rptr. at 833, 502 P.2d at 1305, there are exceptions to the general rule: it is not applicable to conversations between persons who occupy privileged relationships (i.e., attorney-client, husband-wife, etc.); also, it may not be applicable where the police have represented to an incarcerated defendant that the communication would be confidential (see people v. Blair, 2 Cal.App.3d 249, 256, 82 Cal.Rptr. 673); or where the circumstances strongly indicate that the parties 'were lulled into believing their conversation would be confidential.' (8 Cal.3d at p. 311, 104 Cal.Rptr. at 839, 502 P.2d at 1311.)

We must decide whether said police conduct was sufficient to cause defendant to have a reasonable expectation of privacy. North v. Superior Court, Supra, assists in supplying the answer. In that case the conversation monitored was between husband and wife. Detective Neesan surrendered his office to them so that they might...