A PUBLICATION OF THE CRIMINAL JUSTICE SECTION OF
THE LOS ANGELES COUNTY BAR ASSOCIATION
July 2007
Volume II, Number 2
KLEIN’S KORNER
JUDGE ROSS KLEIN
LOS ANGELES SUPERIOR COURT
TELEPHONE: (562) 804-8045
Klein's Korner Column: Police Recording of Jail Telephone Calls or “Hello, I Must Be Going”
Proposition 36 Analysis:
Changes Since December 2006 Outline
Part I: All Cases Through December 2006
Part II: Reference Guide: Cases and Penal Code
KLEIN’S KORNER
When Groucho Marx sang “Hello, I Must Be Going” in the 1930 movie “Animal Crackers,” he certainly was not making a reference to having a brief telephone conversation while being incarcerated. However brief, or however long, jail telephone conversations last, law enforcement agencies are now given wide latitude in monitoring and recording those telephone calls.
Purpose: The reason that telephone calls are protected is to prevent the “uninvited ear” from listening to individuals who have an expectation of privacy and where neither has given consent to the eavesdropping. (People v. Murphy (1972) 8 Cal 3rd 349, 359, referencing Katz v. United States (1967) 389 U.S. 347, 352)
Federal Law: Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.S. sec. 2511 et seq.) prohibits the interception of oral communication made by the public or those inside prisons. However, section 2511(2c) allows law enforcement the right to intercept an oral communication if one of the parties to the communication has given prior consent to the interception. A prisoner has impliedly consented to interception when a monitoring notice is placed near the telephone or a telephonic recording is played over the telephone prior to the call being made. (People v. Kelly (2002) 103 Cal App 4th 853; United States v. Faulkner (2006) 439 F 3rd 1221) The Federal law does not prohibit a state from enacting a stricter rule. (Warden v. Kahn (1979) 99 Cal App 3rd 805)
California Law:
Overruled DeLancie Rule: Prior to the decision in DeLancie v. Superior Court, law enforcement officials were permitted to monitor conversations to gather evidence and were not limited to monitoring solely for the purpose of maintaining jail security. (People v. Seaton (1983) 146 Cal App 3rd 67; Donaldson v. Superior Court of Los Angeles County (1983) 35 Cal 3rd 24, 33) The California Supreme Court held in DeLancie v. Superior Court (1982) 31 Cal 3rd 865 that a prosecutor is prohibited from monitoring inmate conversations unless it is necessary for maintaining security in the jail facility. This rule was expressly overruled by the Supreme Court when it revisited this issue in People v. Loyd (2002) 27 Cal 4th 997. Loyd stated that the prosecuting agency has not committed misconduct when it surreptitiously records conversations between a defendant in custody and third parties. Loyd concluded that police officers may monitor conversations in a jail similar to their right they have to record conversations in police cars (Loyd, 27 Cal 4th at 1009; People v. Crowson (1983) 33 Cal 3rd 623)
California’s statutory law is referred to as the Invasion of Privacy Act and is embodied in Penal Code sections 630 et seq. Section 633 states that the listed law enforcement officials may overhear and record any communication or recording that it was authorized to monitor or record prior to its enactment (November 8, 1967). This is known as the “law enforcement exception” to monitoring the communications protected by section 631. (People v. Windham (2006) 144 Cal App 4th 852) Although not specifically listed, “city attorneys” prosecuting misdemeanor charges have the same authority granted to the “district attorneys” under this section. (79 Ops. Cal. Atty. Gen. 96-304)
Section 636 forbids the eavesdropping on communications between a defendant and an attorney, religious advisor or a physician. With privileged statutory exceptions, persons awaiting trial in jail do not have an expectation of privacy: “It is obvious that a jail shares none of the attributes of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.” (Lanza v. New York (1962) 370 U.S. 139, 143) If the third party with whom the defendant is speaking voluntarily gives consent to the recording of the conversation when authorized by law enforcement officials, then the conversation is admissible in a criminal proceeding (Murphy, supra, at pages 359-361; People v. Fulton (1984) 155 Cal App 3rd 91 at 100)
Windham held that the recording of an incarcerated individual is lawful if the inmate consents. In Windham the evidence was overwhelming that the defendant was given notice and impliedly consented to the recording: he was given the recording rules and regulations when he was booked, and a sign was posted next to the telephone stating “WARNING! Calls May Be Recorded and Monitored!!!” and a recording was played for both the inmate and the other individual indicating that the call was being recorded. (Windham, supra, 144 Cal App 4th at 856)
If one of the parties to the conversation gives consent, law enforcement agencies are not required to obtain the permission of telephone companies before recording a telephone conversation. (People v. Carbonie (1975) 48 Cal App 3rd 679)
Use of the Recording: A defendant’s inculpatory statements may be admitted against him in trial. (People v. Davis (2005) 36 Cal 4th 510, Evidence Code section 1220) If the recorded conversation is admissible, it may be used by both the prosecution and the defense. (People v. Cooks (1983) 141 Cal App 3rd 224) If there is a violation of the Privacy Act, the evidence obtained by unlawfully intercepting a communication is inadmissible in any judicial proceeding, except to prove a violation of the Act. (Sec. 631, sub. c; Windham, supra, 144 Cal App 4th at 860)