Note: This article reprinted with permission from Alameda County District Attorney’s Office.
“Indeed, in the jailhouse the age-old truism still obtains: “Walls have ears.”1 For various reasons, officers may want to intercept communications between a prisoner and another person, such as a visitor or a fellow inmate. The most common objectives are to obtain information about plans to escape or smuggle contraband, learn about plans to intimidate or kill witnesses, and obtain incriminating information concerning a crime under investigation.
In this article, we will discuss the admissibility of confessions and other information obtained as the result of the warrantless interception and recording of prisoner communications.2 Specifically, we will explain when officers may intercept conversations between a prisoner and a visitor without a warrant, intercept a prisoner’s telephone conversations and mail, and search a prisoner’s cell. We will also explain the impact of Miranda and the Sixth Amendment right to counsel on such operations.
At the outset, it is important to remember it is never permissible to intercept a privileged communication between a prisoner and his or her attorney. In fact, the interception of such communication constitutes a felony.3
Conversations with Visitors
Conversations between prisoners and visitors that occur in a jail or police station may be intercepted without court authorization or consent. This is because prisoners and visitors in such facilities cannot reasonably expect their conversations to be private.4 As the United States Supreme Court observed in Lanza v. New York, “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.”5
In discussing this language, the California Supreme Court noted that federal courts “have consistently followed Lanza and upheld admission of monitored conversations in jails or police stations.
1 Ahmad A. v. Superior Court (1989) 215 Cal.App.3d 528, 536.
2 NOTE: If it is lawful to intercept a prisoner’s conversation, it is lawful to record it. See U.S. v. Cheely (D.Alaska 1992) 814 F.Supp.1430, 1441. Also see People v. Siripongs (1988) 45 Cal.3d 548, 564.
3 See Penal Code ‘636; North v. Superior Court (1972) 8 Cal.3d 301, 309; Lanza v. New York (1962) 370 US 139, 144.
4 NOTE: If a jailhouse conversation is admissible against a prisoner it will probably be admissible against the visitor because the public knows, or should know, that prisoner-visitor conversations may be monitored. See U.S. v. Willoughby (2nd Cir. 1988) 860 F. 2d 15; U.S. v. Sababu (7th Cir. 1989) 891 F.2d 1308, 1329; U.S. v. Cheely (D-Alaska 1992) 814 f.Supp.1430, 1439.
5 (1962) 370 US 139, 143. Also see People v. Hammons (1991) 235 Cal.App.3d 1710, 1715; U.S. v. Amen (2nd Cir. 1987) 831 F.2d 373, 379-80.
It still appears to be good law that so far as the Fourth Amendment is concerned, jail officials are free to intercept conversations between prisoner and a visitor. [&] [N]o federal case has repudiated the Lanza dictum or excluded a jail or police station conversation from evidence.”6
Even though prisoner-visitor conversations are not regarded as private, if a motion to suppress is filed it is usually a good idea to review a tape of the conversation for comments indicating the parties were aware or suspected the conversation would be monitored. Such comments should then be brought to the attention of the court as additional proof that the parties did not reasonably expect privacy. For example, in denying motions to suppress prisoner conversations, the courts have noted the following:
During a conversation between a prisoner and his wife over a telephone intercom, the prisoner said, “Careful, they’ve got these phones bugged.”7
During a conversation between a prisoner and his brother, the prisoner wrote “hit Signe” (name of a prosecution witness) on a piece of paper and showed it to his brother; prisoner “never mentioned [the witness] by name and never used the work ‘kill’ or ‘murder’”; he used “veiled allusions and awkward circumlocutions to refer to the intended murder and the manner in which he wanted it carried out.”8
Prisoner “purposely and deliberately told his sister during their first visit that their conversation was being recorded. He also spoke to her in a manner in which was not common between them, and therefore, demonstrated that circumstances were such that others could easily overhear-which is a strong indication that the communication was not intended to be confidential.”9
Exception: “Lulling” Although it is usually unreasonable for the parties to a prisoner-visitor conversation to expect privacy, it is possible that officers may say or do something that will create a reasonable expectation of privacy.
6 Donaldsonv. Superior Court (1983) 35 Cal.3d 24, 29-30 [quoting from United States v. Paul (6th Cir. 1980) 614 F.2d 115, 116]. NOTE: The California Supreme Court Previously observed that it is a “common practice” to monitor inmates’ conversations with visitors, and that such a practice “seems reasonably necessary in order to maintain jail security….” North v. Superior Court (1972) 8 Cal.3d 301, 312. Also see People v. Estrada (1979) 93 CalApp.3d.76, 99 [(I)t is well settled and understood that incarcerated persons have no reasonable expectation of privacy with respect to their conversations.”]; People v. Santos (1972) 26 CalApp.3d 397, 402 [“It has repeatedly been held, however, that electronic surveillance of conversations between jail inmates and their visitors does not transgress the constitutional prohibition against unreasonable searches and seizures.”]; In re Joseph A. (1973) 30 Cal.App.3d 880, 883 [“It thus appears that under both the federal and state statutes, electronically intercepted oral communication are inadmissible only if the parties thereto had a reasonable expectation of privacy.”]; Sacramento County Deputy Sheriff’s Assn. V. Sacramento County (1996)_Cal.App.4th_.
7 People v. Santos (1972) 26 Cal.App.3d 397, 402. Also see Donaldson v. Superior Court (1983) 35 Cal.3d 24, 34, fn. 7; People v. Miranda (1987) 44 Cal.3d 57, 85, fn. 10; People v. Von Villas (1992) 11 Cal.App.4th 175, 216.
8 People v. Edelbacher (1989) 47 Cal.3d 983, 1004. Also see People v. Califano (1970) 5 Cal.App.3d 476, 482.
9 People v. Estrada (1979) 93 Cal.App.3d 76, 99.
As the Court of Appeal explained, “[A]n expectation of privacy can arise under circumstances where the arrested person and a person with whom he was conversing were lulled into beleiveing their conversation would be confidential.”10
The legal consequences of “lulling” depend on whether the officer’s representation of privacy was express or merely implied. If an officer expressly represented to a prisoner or visitor that the conversation would be private, a reasonable expectation of privacy is created automatically. Thus, the monitoring of the parties’ conversation without a warrant or consent would be unlawful and the conversation would be suppressed. In the words of the Court of Appeal, “[When] the police make an express representation that a conversation will be private, they create a legitimate and reasonable expectation of privacy and the surreptitious monitoring and recording of that conversation is violative of the Fourth Amendment.”11
For example, an express representation of privacy was found when an officer told two prisoners that they could have a “private conversation between just the two of you” in an interview room.12
On the other hand, if officers merely implied the conversation would be private, statements made by the parties will be suppressed only if the conversation was privileged; e.g., a conversation between husband and wife.13 This occurred in North v. Superior Court 14 where the court ruled an officer’s act of permitting a prisoner and his wife to speak alone in a private office that had been “bugged” constituted an implied representation of privacy.
A representation of privacy will not, however, be implied merely because officers permitted a prisoner and visitor to speak alone in an interview room with the door closed. 15
Officers may intercept and record phone calls to and from a jail or prison inmate without a court order if one or more of the following circumstances existed: (1) the conversation was intercepted by an officer “in the ordinary course; of the
10 People v. Hammons (1991) 235 Cal.App.3d 1710, 1715.
11 People v. Hammons (1991) 235 Cal.App.3d 1710, 1716-7.
12 People v. Hammons (1991) 235 Cal.App.3d 1710. Compare In re Joseph A. (1973) 30 Cal.App.3d 880, 886 [officer’s act of granting a visitor’s request to speak with a prisoner “by himself” did not create a reasonable expectation of privacy].
13 See Donaldson v. Superior Court (1983) 35 Cal.3d 24, 32; North v. Superior Court (1972) 8 Cal.3d 301, 310; In re Joseph A. (1973) 30 Cal.App.3d 880, 885; Ahmad A. v. Superior Court (1989) 215 Cal.App.3d 528, 536, fn.5; People v. Von Villas (1992) 11 Cal.App.4th 175, 220-2; People v. Finchum (1973) 33 Cal.App.3d 787, 791. NOTE: Conversations that are not privileged include conversations between parents and their children (See Ahmad A. v. Superior Court (1989) 215 Cal.App.3d 528, 535, fn.5) and conversations between siblings (See Donaldson v. Superior Court (1983) 35 Cal.3d 24, 32). Conversations between husbands and wives are not privileged if the purpose of the conversation was in whole or in part, “to enable or aid anyone to commit or plan to commit a crime or a fraud” or to plan the destruction or concealment of evidence. See Evidence Code ‘981; People v. Santos (1972) 26 Cal.App.3d. 397, 402-3.
14 (1972) 8 Cal.3d 301.
See Ahmad A. v. Superior Court (1989) 215 Cal.App.3d 528, 531, 535. Also see People v. Von Villas (1992) 11 Cal.App.4th 175, 222; People v. Plyler (1993) 18 Cal.App.4th 535, 542; Donaldson v. Superior Court (1983) 35 Cal.3d 24, 32.
Officer’s duties; (2) the officer was a party to the communication; 16 or (3) one of the parties to the conversation expressly or impliedly consented to such monitoring.17
“Ordinary course of duties” A prisoner’s phone conversation will be deemed intercepted “in the ordinary course” of an officer’s duties” only if such monitoring occurred as a matter of established routine-not in response to a criminal investigation. For example, the “ordinary course” exception would apply if the conversation and all other prisoner telephone calls were recorded as a matter of policy. Thus the U.S. Court of Appeals upheld the interception of a prisoner’s phone calls at the Metropolitan Detention Center in Los Angeles under the “ordinary course” exception because, said the court, “MDC is a law enforcement agency whose employees tape all outbound inmate telephone calls; intrception of these calls would appear to be in the ordinary course of their duties.” 18
Note, however, that the recording of a phone conversation would not be conducted in the “ordinary course of the officer’s duties” merely because the purpose of the wiretap was to obtain evidence of a crime, and the officer’s “ordinary duties” included the investigation of crimes. 19
Officers may also intercept a prisoner’s phone calls from jail or police station if either of the parties to the conversation consented to the monitoring. 20 Such consent may be express or implied. 21 For example, express consent has been found where the prisoner signed a wiretap consent form. 22 Most consent, however, is implied from the fact the prisoner engaged in a conversation over the telephone after being informed that such conversations may be monitored. 23
16 See 18 U.S.C. (2511 (2)c)).
17 NOTE: The interception of a prisoner’s phone calls is governed by Title III OF THE FEDERAL omnibus crime Control Act (18 U.S.C. (2510 et seq.) See Halpin v. Superior court (1972) 6 al.3d 885,896-900; U.S. v Amen (2nd Cir. 1987) 831 F.2d 373 379.
18 U.S. v/ Van Poyck (9th Cir. 1996) 77 F.3d 285, 292. Also see U>S> v. Sabaru (7th Cir. 1989) 891 F.2d 1308, 1328-9: U.S. v. Feekses (7th Cir. 1989) 897 F.2d 1562, 1566: U.S. v. Cheely (D. Alaska 1992) 814 F. Supp. 1430, 1442: U.S. v. Paul (6th Cir. 1980) 614 F.2d 115, 117. Bunnell v. Superior Court (1994) 21 Cal.App. 4th 1811, 1822-3.
19 See Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 1822.
20 See 18 U.S.C. (2511 (2)c)); U.S v. Willoughby (2nd Cir. 1988) 860 F.2d 15, 20.
21 See U.S. v. Van Poyck (9th Cir. 1996) 77 F.3d 285, 292.
22 See U.S. v. Van Poyck (9th Cir. 1996) 77 F.3d 285, 292; U.S. v. Willoughby (2nd Cir. 1988) F.2d 15, 20.
23 PROSECUTER’S NOTE: In two decisions by the Seventh Circuit, the court pointed out that such acquiescence may not constitute consent. See U.S. v. Daniels (7th Cir. 1990) 902F.2d 1238, 1245 (“knowledge and consent are not synonyms”); U.S. v. Feekes (7th Cir. 1989) 879 F.2d 1562, 1565 (“to take a risk is not the same as to consent”). The Ninth Circuit, however, has ruled otherwise. See U.S. v. Poyck (9th Cir. 1996) 77F.3d 285,292. In discussing the logic behind the Ninth Circuit’s opinion on this issue, the court in People v. Picket (Superior Ct. Sacramento County 1996) observed, “If one recognizes the desire of the police to enter the home and then person steps back and swings the door open wider, such conduct would often result in an appropriate finding of implied consent. (See People v. James (1977) 19 Cal.3d.99; People v. Ford (1979) 97 Cal.App.3d 744). In the instant case, the defendant knew of the desire of the jail staff to listen to his telephone call and then he took further specific action by placing the telephone call. He exercised a privilege, which was extended upon a particular condition. His knowledge, followed by that type of action, does constitute implied consent.” The court noted other analogies: a person crossing a border or entering a security building who has notice that he may be searched impliedly consents to a search even though only a small number of persons are actually searched. See People v. Dickinson 91980) 104 Call.App.3d 505. Although Picket is not citable authority, its logic seems very sound.
The most common ways of informing a prisoner that his or her calls may be monitored are as follows:
WARNING SIGNS: A prisoner who places a telephone call may be deemed to have impliedly consented to the monitoring of the conversation if warning signs had been posted on the telephone or in the phone room.24 For example, in U.S. v. Amen, the court ruled that a federal convict impliedly consented to having his telephone calls intercepted because the following signs were placed on each phone used by prisoners: NOTICE; The Bureau of Prisons reserves the authority to monitor conversations on this telephone. Your use of institutional telephones constitutes consent to this monitoring. A properly placed telephone call to an attorney is not monitored. 25
INMATE RULES AND REGULATIONS: Notice that phone calls may be monitored may also be given in prisoner orientation brochures or handouts. 26 For example, the following notice is contained in the RULES AND INFORMATION sheet for inmates in facilities operated by the Alameda County Sheriff’s Department: The Alameda County Sheriff’s Department reserves the authority to monitor (this includes recording) conversations on any telephone located within its facilities for the purpose of preserving the security and orderly management of the facility, and to protect the public. An inmate’s use of the telephone constitutes consent to this monitoring. Telephone calls to attorneys are not monitored.
RECORDED MESSAGES: Notice may also be given through a recorded message that is automatically played when a prisoner places a call from a jail or prison phone. For example, prisoners in Alameda County jail facilities hear the following message when placing an outside call, “At the tone state your name. Please wait while your call is being processed. This call may be monitored or recorded.”
In addition, the person who receives a phone call from an Alameda County inmate hears the following message before the conversation begins, “This is a collect call from (name) at (Santa Rita)(North County) jail. This call is subject to being monitored or recorded. If you do not wish to accept this call, please hang up now. To accept this call, press 0.
Sixth Amendment and Miranda Issues
Miranda rights are not implicated when officers secretly intercept a prisoner’s conversation through “bugging” or a wiretap. This is because a Miranda waiver is required only when a person in custody is being interrogated or questioned by someone who is known to be a law enforcement officer. 27
24 See U.S. v. Paul (6th Cir.1980) 614 F.2d 115, 117; U.S. v. Van Poyck (9th Cir. 1996) 77 F.3d 285, 292.
25 See U.S. v. Amen (2nd Cir. 1987) 831 F.2d 373, 379; U.S. v. Willoughby (2nd Cir. 1988) 860 F.2d 15, 20. NOTE: Consent to monitor a telephone conversation also constitutes consent to record it. See U.S. v. Cheely (D. Alaska 1992) 814 F.Supp. 1430, 1441-3.
26 See U.S. v. Amen (2nd Cir. 1987) 831 F.2d 373, 379.
27 See Illinois v. Perkins (1990) 496 US 292, 296.
Consequently, Miranda does not apply when a prisoner is speaking to a relative, friend, or an undercover officer or police agent posing as a fellow inmate.28 This is true even if the prisoner invoked his Miranda rights. 29
It is important to understand, however, that the interception of such a conversation will constitute a violation of the prisoner’s Sixth Amendment right to counsel if all of the following occurred: (1) the prisoner had been formally charged with or indicted for the crime which was discussed during the conversation, (2) the prisoner was speaking to an undercover officer or person acting as a police agent, and (3) the officer or agent directly or indirectly stimulated the conversation concerning the charged crime or otherwise “deliberately elicited” incriminating statements about the crime from the prisoner. 30
Jails and prisons may intercept and read incoming and outgoing mail (except letters to or from an attorney). 31 If such action was conducted pursuant to a policy that was reasonably necessary to maintain institutional security. 32 This means that two requirements must be met: (1) the policy must actually further the security of the facility, and (2) the interception or restrictions on mail must be no greater than is reasonably necessary. 33
For example, the Court of Appeal upheld the policy of the Contra Costa County Sheriff’s Department that all correspondence between jail inmates be read. The court reasoned that such action was reasonably necessary to discover threats to inmates, determine whether any inmates had been given “snitch jackets,” and to detect escape plans. 34
The opening of a prisoner’s mail might also be based on consent if, at the time the prisoner sent the letter, he or she was aware that prisoners’ mail may be intercepted. 35
28 See Illinois v. Perkins (1990) 496 US 292, 296; People v. Guilmette (1991) 1 Cal.App.4th 1534; People v. Plyler (1993) 18 Cal.App.4th 535, 545.
29 See People v. Guilmette (191) 1 Cal.App.4th 1534, 1541.
30 See Massiah v. United States (1964) 377 US 201; United States v. Henry (1980) 477 US 264; Kuhlmann v. Wilson (1986) 477 US 436,438; Maine v. Moulton (1985) 474 US 159; People v. Catelli (1991) 227 Cal.App.3d 1434, 1442.
31 NOTE: Prison authorities may open and inspect mail sent to a prisoner from an attorney but they may not read it. Furthermore, the prisoner must be present when the mail is opened and inspected. See Penal Code 2601 (b); Title 15 Cal code Regs 3144; People v. Poe (1983) 145 Cal.App.3d 574.
32 See Stroud v. United States (1919) 251 US 15, 21-2; Procunier v. Martinez (1974) 416 US 396, 412-4; People v. Phillips (1985) 41 Cal.3d 29, 80; People v. McCaslin (1986) 178 Cal.App.3d 1, 7; People v. Manson (1976) 61 Cal.App.3d 102, 152. Also see Bell v. Wolfish (1979) 441 US 520, 546-7; U.S. v. Cohen (2nd Cir. 1986) 796 F.2d 20, 22.
33 See Proncunier v. Martinez (1974) 416 U.S. 396, 413; Also see People v. Garvey (1979) 99 Cal.App.3d 320 (county jail regulations that authorized the monitoring of all incoming and outgoing prisoner mail in order to protect jail security upheld under Procunier).
34 People v. Caslin (1986) 178 Cal.App.3d 1, 7. Also see Turner v. Safley (1987) 428 US 78 (permissible to prohibit all mail between prisoners in different facilities because, among other things, such mail can be used to communicate escape plans and arrange assaults and other violent acts.)
35 Seethe discussion and reasoning of the cases in the section on intercepting prisoner telephone conversations, supra.
Searching A Prisoner’s Cell
As a general rule, jail and prison cells may be searched at any time without a warrant or consent. This is because it would be unreasonable for inmates in jails and prisons to expect the contents of the cells would remain private. In the words of the United States Supreme Court, “ A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.” 36 The Court’s conclusion was “bottomed on common sense because if drugs, weapons and contraband are to be ferreted out of jail cells, then prison officials must have unrestricted access to those places to accomplish that objective.” 37
There may, however, be limits on the right to search a prisoner’s cell. In the U.S. v. Cohen 38, the court invalidated a warrantless search of an inmate’s cell where the search was initiated by a federal prosecutor to determine if there was anything in the cell that might help him prepare his case for trial. Said the court, “In this case it is plain that no institutional need is being served…In our view, this kind of warrantless search of a prisoner’s cell falls well outside the rationale of the decided cases.”
Suggestions for Conducting Electronic Surveillance
Use high-quality equipment: The purpose of such an operation is to hear and understand what was said. Don’t take chance with poor quality equipment.
Test the equipment: Before monitoring a conversation, make sure the equipment is working properly.
Record both sides of the conversation: It is usually impossible to make sense out of a conversation if all you can hear is half of it.
Limit the number of parties involved: If possible, only two people should take part in the conversation. This will make it much easier to determine who said what.
Prepare for use in court: If the recording may be used in court, make sure an officer can testify as to the identities of all the parties to the conversation. If multiple conversations will be recorded, it is best if one officer can authenticate all recordings.