People v. Loyd

• Decision Date: 06 May 2002
• Docket Number: No. S092653.,S092653.
• Citation: 119 Cal.Rptr.2d 360,27 Cal.4th 997,45 P.3d 296
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christine LOYD, Defendant and Appellant.

119 Cal.Rptr.2d 360

27 Cal.4th 997

45 P.3d 296

The PEOPLE, Plaintiff and Respondent, v. Christine LOYD, Defendant and Appellant.

No. S092653.

Supreme Court of California.

May 6, 2002.

Jo Anne Keller, Berkeley, for Defendant and Appellant.

Kenneth I. Chapman, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defender Association and the Public Defender of Ventura County as Amici Curiae on behalf of Defendant and Appellant.

Alan L. Schlosser for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of Defendant and Appellant.

John T. Philipsborn, San Francisco, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, René A. Chacón, Bridget Billeter and William Kuimelis, Deputy Attorneys General, for Plaintiff and Respondent.

George Palmer; Thomas J. Orloff, District Attorney (Alameda) and A. Mark Hutchins, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

BROWN, J.

In this case we consider whether secretly monitoring and recording an inmate's unprivileged jail conversations with her visitors, solely for the purpose of gathering evidence, constituted prosecutorial misconduct by violating De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142 (De Lancie). Because we decide De Lancie had been superseded by statute at the time of the taping, we find the prosecutor's request for and use of the tape did not constitute misconduct under state law.

I. FACTUAL AND PROCEDURAL BACKGROUND

Christine Loyd was convicted by jury of two counts of first degree murder (Pen. Code, § 187)¹ and one count of arson (§ 451, subd. (c)), and was sentenced to prison for a term of 55 years to life.

Before her trial began, defendant sought a ruling on the legality of the taping of defendant's personal visits and telephone calls.² After the prosecution noted defendant's motion failed to request a remedy, defendant formally moved for dismissal of the charges or recusal of the prosecutor. Defendant alleged the prosecutor violated the rule of De Lancie, supra, 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142, which bars monitoring of inmate conversations unless necessary for security purposes.

The parties stipulated to certain facts. Defendant was in jail awaiting trial for the murder of Virginia Baily. The prosecutor requested the recording of defendant's conversations with her nonattorney visitors. In response to this request, the sheriffs department provided the prosecutor with tapes of conversations between defendant and three visitors, Kristen Albertson, Dave DeWolf and Ann Argabrite. The prosecutor also requested and received tapes of telephone conversations defendant had with her brother, Philip Loyd, and with Ann Argabrite. The recorded communications occurred between March 26, 1996, and June 30, 1996. There was no taping of any conversation between defendant and her attorney or anyone retained by her attorney. The prosecutor requested this taping to gather evidence for the prosecution of Virginia Baily's murder, and to gain an indictment and subsequently prosecute defendant for the murder of her mother, Myrtle Loyd.

The trial court denied defendant's suppression motions. The jury convicted defendant on both counts of murder and on one count of arson. Defendant appealed.

The Court of Appeal discussed our De Lancie decision at length. The court noted De Lancie arose out of a civil suit seeking declaratory and injunctive relief from what had been the routine practice of recording conversations between inmates and visitors. Prior to De Lancie, we had recognized a right of confidentiality only for protected communications, like those between an inmate and counsel. (North v. Superior Court (1972) 8 Cal.3d 301, 308-311, 104 Cal.Rptr. 833, 502 P.2d 1305 (North); see also § 636 [forbidding eavesdropping on communications between inmate and attorney, religious adviser or physician].) In De Lancie, supra, 31 Cal.3d at page 868, 183 Cal.Rptr. 866, 647 P.2d 142, however, we concluded former sections 2600 and 2601 extended the protection of confidentiality to unprivileged communications, unless monitoring was necessary for the security of the institution or the public.

The Court of Appeal noted the difficulty involved in applying De Lancie. "The decision in De Lancie may well have raised more questions than it answered, including the nature and origin of the right protected, the extent to which it depends on the subjective expectations of prisoners and visitors, the extent to which it is subject to modification or abolition by legislative action, and—of foremost importance here—the nature of the remedy, if any, to be granted by a trial court presiding over a criminal prosecution in which the prosecutor has recorded the defendant's conversations in violation of De Lancie."

The Court of Appeal opinion also noted the concerns of the De Lancie dissenters. "[T]he practice of monitoring an inmate's conversations is (1) reasonably necessary to maintain jail security, and (2) that a person incarcerated in a jail or prison possesses no justifiable expectation of privacy." (De Lancie, supra, 31 Cal.3d 865, 879, 183 Cal.Rptr. 866, 647 P.2d 142 (dis. opn. of Richardson, J.); see id. at p. 882, 183 Cal.Rptr. 866, 647 P.2d 142 (dis. opn. of Mosk, J.).) Justice Richardson also quoted our opinion in North, supra, 8 Cal.3d at page 309, 104 Cal.Rptr. 833, 502 P.2d 1305: "`"A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack of privacy is a necessary adjunct to his imprisonment...."'" (De Lancie, at p. 881, 183 Cal.Rptr. 866, 647 P.2d 142 (dis. opn. of Richardson, J.).)

The Court of Appeal held the tape recording did not violate the Fourth, Fifth or Sixth Amendment to the United States Constitution, and thus suppression was not an available remedy. The court thus stated that defendant's "only coherent theory of error is that the prosecutor's misconduct was such an egregious violation of her rights as to `shock the conscience' and effect a denial of due process under the federal Constitution." The opinion cited Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), "which prohibits the suppression of evidence except where it is compelled by federal authority."³ Finding no federal constitutional violation, and thus no basis for remedy, whether suppression, dismissal or recusal, the Court of Appeal noted that the unresolved De Lancie issues "may deserve the attention of the Supreme Court, especially in light of recent statutory amendments [to section 2601]."

Justice Poché dissented, disagreeing with the majority's conclusion that there was no available remedy. The dissent construed the taping as a denial of defendant's right to due process of law, warranting reversal and retrial. Justice Poché also found that the telephone taping violated federal wiretap law.

We granted review on the limited question of whether the trial court erred in not dismissing the information or recusing the prosecutor for the asserted De Lancie violation.

II. DISCUSSION

Defendant contends the surreptitious tape recording of conversations between her and her visitors violated De Lancie and warranted a remedy—either dismissal, recusal or suppression. Our analysis of the issue persuades us that the amendments noted by the Court of Appeal have abrogated the statutory basis for De Lancie. Indeed, the Legislature has acted to restore the pre-De Lancie state of the law. Accordingly, we find the taping of the conversations between defendant and her visitors did not violate California law.

A. The Legacy of Lanza: Jail Inmates Do Not Enjoy a Justifiable Expectation of Privacy

The United States Supreme Court addressed this issue 40 years ago in Lanza v. New York (1962) 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (Lanza). Jail officials secretly tape-recorded a conversation between Lanza and his brother, an inmate, without their knowledge. (Id, at p. 141, 82 S.Ct. 1218.) The court rejected Lanza's contention that the tape was the product of a Fourth Amendment violation. It distinguished the jail from those other settings that could implicate the right to be free from unreasonable search and seizure. "[T]o 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 or seizure of his person, his papers, or his effects, is at best a novel argument.... [W]ithout 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." (Lanza, at p. 143, 82 S.Ct. 1218, fns. omitted.)

The Lanza doctrine shaped Congress's creation of the Omnibus Crime Control and Safe Streets Act of 1968. Title 18 United States Code section 2510(2), part of the wiretap law, defines a protected oral communication as one "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." The legislative history indicates that although Congress did not intend that the place of the communication determine the justifiability of the expectation, "[nevertheless, such an expectation would clearly be unjustified in certain areas; for example, a jail cell (Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962))...." (Sen.Rep. No. 1097, 90th Cong., 2d Sess.(1968), reprinted at 1968 U.S.Code Cong. & Admin. News, p. 2178.)

We embraced the principle that a suspect's custodial conversations did not enjoy a justifiable...