People v. Windham

Citation50 Cal.Rptr.3d 768,144 Cal.App.4th 852
Decision Date08 November 2006
Docket NumberNo. A111600.,A111600.
PartiesThe PEOPLE, Plaintiff and Respondent, v. David WINDHAM, Defendant and Appellant.
CourtCalifornia Court of Appeals

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan and Rene A. Chacon, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

David C. Coleman, Contra Costa County Public Defender, for Defendant and Appellant.

GEMELLO, J.

Defendant was arrested for domestic violence against his girlfriend. While he was in jail, he placed several calls to her, which were recorded pursuant to an announced, blanket policy of recording all outgoing telephone calls by jail inmates. The prosecutor obtained recordings of the calls for use in defendant's criminal case, and the trial court denied a motion to suppress. We affirm, holding that defendant impliedly consented to the recording of his calls, and the recordings are admissible under federal and state law.

BACKGROUND

The following factual background was taken from the presentencing report. Windham went shopping with his girlfriend, M.R., and asked her to loan him money. When she refused, he followed her out of the store, got into a car with her and started driving her around. In the car, he grabbed her purse and broke the strap. He then struck her in the neck and pulled a gold chain off her neck. He parked next to a cliff and told M.R. to get out of the car. She refused. He drove further, then stopped again and demanded she have sex with him. He threatened to beat her and abandon her by the road and said he would kill her if she reported him to the police. Out of fear, she agreed. An officer observed M.R. on Windham's lap in the passenger seat of the car. As the officer approached the car, Windham threw M.R. onto the driver's seat. M.R. had a severe injury to her left eye and a swollen lip.

Windham was charged with assault by force likely to produce great bodily injury (count one; Pen.Code, § 245, subd. (a)(1)),1 second degree robbery (count two; §§ 211/212.5, subd. (c)), corporal injury of a cohabitant (count three; § 273.5), and making a criminal threat (count four; § 422). It was alleged that he had a prior felony conviction within the meaning of section 667.5, subdivision (b) and prior felony convictions rendering him ineligible for probation (§ 1203, subd. (d)(4)).

While in custody pending trial, Windham attempted to call M.R. 83 times on the jail telephones. Twelve completed conversations to M.R. included some references to the events leading to Windham's arrest. The jail had a blanket policy of recording all outgoing telephone calls placed by inmates. Inmates were informed about this policy in various ways. The prosecutor planned to use Windham's recorded conversations as evidence in his criminal case.

Windham filed a motion to suppress the recordings. He argued that the recording and disclosure of the telephone calls violated federal and state laws and that those laws mandated suppression of the evidence. In opposing the motion, the prosecutor relied primarily on a decision of this court holding that a jail inmate who makes calls from jail pay telephones despite being warned that the calls may be recorded has impliedly consented to the recording and disclosure of the calls, thus rendering the wiretapping lawful. (People v. Kelley (2002) 103 Cal.App.4th 853, 858, 127 Cal. Rptr.2d 203 (rehearing denied (Nov. 18, 2002), review denied (Jan. 22, 2003))) (Kelley). Kelley primarily applied federal wiretapping statutes, but held that the same result would be reached under state wiretapping laws.2 (Ibid.)

After an evidentiary hearing, the trial court made the following factual findings: "Three separate warnings are given to the caller using the jail pay telephones that are made available to inmates. Firstly, the rules and regulations of the jail are provided to each inmate and apparently so specify. Secondly, there is a posted sign by the telephones which in relatively large print indicates `WARNING! Calls May Be Recorded And Monitored!!!'. Finally, both parties hear a telephone recording advising that the call is being" recorded. [¶] Amongst other indications on the warning notice posted by the telephone is the insignia and name of `AT & T'. Further, the recording identifies the party speaking as `AT & T' and then gives the monitoring warning followed by instructions about accepting the collect call. There is no reason to believe that any of the 12 calls recorded as to this defendant were subject to any more, different or less warning." Windham does not challenge these factual findings on appeal. The trial court concluded that by placing the calls despite receiving these warnings, Windham impliedly consented to the recording policy. The court held the recordings were lawfully obtained under federal and state law and denied the motion to suppress.

Windham pled no contest to the corporal injury charge and the court dismissed the remaining charges and the enhancement allegation. The court sentenced Windham to three years in state prison.

DISCUSSION

Windham argues the trial court erred by denying his motion to suppress. He argues the recordings of his telephone conversations must be suppressed under the federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 United States Code section 2510 et seq. (Title III), and the California Invasion of Privacy Act (Privacy Act), section 630 et seq.

On appeal of a trial court's denial of a motion to suppress, we review the court's factual findings for substantial evidence and its conclusions of law de novo. (People v. Brophy (1992) 5 Cal.App.4th 932, 936, 7 Cal.Rptr.2d 367.)

I. The Recording of Windham's Calls Did Not Violate Title III

With certain limited exceptions, Title III prohibits the unauthorized interception of "any wire, oral, or electronic communication." (18 U.S.C. § 2511, subd. (1)(a).) Title III "protects an individual from all forms of wiretapping except when the statute specifically provides otherwise." (Abraham v. County of Greenville S.C (4th Cir.2001) 237 F.3d 386, 389.) Those protections apply to prisoners and pretrial detainees. (United States v. Faulkner (10th Cir.2006) 439 F.3d 1221, 1222,1223-1224.) When information is obtained in violation of Title III, "no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial." (18 U.S.C. § 2515.) The recording of Windham's conversations with M.R. was legal under Title III only if one of the statutory exceptions to the prohibition applies.

A. Recording Calls with the Implied Consent of One Party Is Lawful Under Title III

Every federal circuit court to address the issue has concluded that Title III is not violated when a jail or prison routinely monitors and records outgoing calls placed by inmates on the institution's telephones and the inmates are put on notice of the recording policy. Most circuits have relied on the consent exception to Title III, which provides: "[i]t shall not be unlawful ... for a person acting under color of law to intercept a wire, oral, or electronic communication, where ... one of the parties to the communication has given prior consent to such interception." (18 U.S.C. § 2511, subd. (2)(c).) Those courts have concluded that an inmate who uses jail or prison telephones with knowledge of a recording policy impliedly consents to the monitoring and recording of the calls. (Faulkner, supra, 439 F.3d at pp. 1224-1226; U.S. v. Hammond (4th Cir.2002) 286 F.3d 189, 192; U.S. v. Footman (1st Cir.2000) 215 F.3d 145, 155; U.S. v. Workman (2d Cir. 1996) 80 F.3d 688, 693-694; U.S. v. Van Poyck (9th Cir.1996) 77 F.3d 285, 292; U.S. v. Horr (8th Cir.1992) 963 F.2d 1124, 1125-1126; see also People v. Loyd (2002) 27 Cal.4th 997, 1014-1015, 119 Cal.Rptr.2d 360, 45 P.3d 296 (cone. opn. of Moreno, J.).)3

In Kelley, supra, 103 Cal.App.4th 853, 127 Cal.Rptr.2d 203, we followed the implied consent line of cases and we adhere to that view here. "So long as a prisoner is given meaningful notice that his telephone calls over prison telephones are subject to monitoring, his decision to engage in conversations over those telephones constitutes implied consent to that monitoring and takes any wiretap outside the prohibitions of Title III." (Id. at p. 858, 127 Cal.Rptr.2d 203.)

Windham cites cases that have questioned whether it is appropriate to infer consent based simply on an inmate's knowledge that his calls will be monitored, particularly where the inmate's alternative is to make no call at all. We reiterate that "there is no reason to believe Congress intended to draw the statute so narrowly as to exclude such prisoner choices from the notion of consent." (Kelley, supra, 103 Cal.App.4th at p. 859, 127 Cal.Rptr.2d 203.) As the Eighth Circuit recently explained in arriving at the same conclusion, "Rarely are choices in life totally free from opportunity costs; something must be foregone whenever one comes to a fork in the road. The real issue is whether imposition of a condition is acceptable, so that a choice subject to that condition is considered a voluntary, consensual one. [Citation.] Because of the undeniable need to control prisoner communications to the outside world, we have no hesitation in concluding that a prisoner's knowing choice to use a monitored telephone is a legitimate `consent' under [Title III]." (Faulkner, supra, 439 F.3d at pp. 1224-1225; see also People v. Davis (2005) 36 Cal.4th 510, 524-529, 31 Cal.Rptr.3d 96, 115 P.3d 417 [holding that pretrial detainees have no greater expectation of privacy than convicted prisoners].)

B. Windham Impliedly Consented to the Recording of His Calls

Windham argues his case is factually distinguishable from Kelley, supra, 103 Cal.App.4th 853, 127 Cal.Rptr.2d 203 and argues that...

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