Court OKs Taping of Inmates

Conversations between jailhouse inmates and their visitors may be secretly tape-recorded in California to gather criminal evidence, the state Supreme Court decided unanimously Monday.

Ruling in a matricide case, the high court said that prosecutors may order the taping of communications during jailhouse visits and play the tapes at the inmate’s trial as evidence. A 1982 state Supreme Court precedent that barred such eavesdropping is no longer valid, the court said Monday.

“California law now permits law enforcement officers to monitor and record unprivileged communications between inmates and their visitors to gather evidence of crimes,” Justice Janice Rogers Brown wrote for the court.

The ruling comes at a time of increasing debate over efforts by authorities to listen in on jailhouse conversations.

The federal government recently granted federal law enforcement officers limited authority to listen to inmates’ conversations with their lawyers in cases of suspected terrorism.

Communications between inmates and their lawyers will remain privileged in California jails and prisons and are illegal to tape. The 1982 precedent that prohibited the taping of other communications in jail, De Lancie vs. Superior Court, was based on a state law that previously gave inmates greater rights than they have today, the court said.

“Now in the wake of Sept. 11, when [Atty. Gen. John] Ashcroft is attempting to tape visits between defendants and even their own lawyers, we have come a long way since the day that De Lancie was decided,” said Michael McMahon, who represented an association of criminal defense lawyers in Monday’s case.

An Alameda County prosecutor who had ordered the taping in the case that was decided Monday said the ruling proves that he acted ethically.

“I feel vindicated and exonerated by the Supreme Court opinion,” said Assistant Dist. Atty. Thomas Rogers, whom a lower court had previously found committed misconduct by seeking the surveillance. “They have held that not only was there no misconduct, but also that I was correct in my belief that De Lancie had been overruled” by the Legislature.

In 1975, the Legislature passed a prisoners’ bill of rights that gave inmates the right to private visits. The Supreme Court, presided over by the liberal Chief Justice Rose Bird, based its decision in De Lancie on that law, ruling that taping could be done only for penal safety--to prevent escapes, for example. The Legislature changed that part of the law in 1994, paving the way for Monday’s ruling.

Rogers prosecuted Christine Loyd, 57, who was sentenced to 55 years to life for the 1991 murder of her mother and the 1994 killing of a friend whose finances Loyd managed.

Loyd was in an Alameda County jail on the 1994 murder charge when Rogers, suspicious about the death of Loyd’s mother three years earlier, ordered the taping of Loyd’s calls and visits.

The death of Myrtle Loyd, 76, had been classified an accident. She was found in a bathtub with several cuts on her head. Rogers believed that Christine Loyd killed her mother for money, although friends and family members said the two had enjoyed good relations.

Without obtaining a warrant from a judge, Rogers had Loyd’s communications with visitors and her outgoing telephone calls taped for three months in 1996. He said prosecutors frequently did such taping in jails.

Loyd objected to the tapes at trial, but the judge ruled for the prosecution. A Court of Appeal in San Francisco later held that Rogers had committed prosecutorial misconduct by ordering the taping but left Loyd’s convictions intact and imposed no sanctions on Rogers.

The state Supreme Court rejected the charge of prosecutorial misconduct. “We find the prosecutor’s request for and use of the tape did not constitute misconduct under the law,” Brown wrote for the court.

The court declined to decide whether the taping of Loyd’s calls to her brother and a friend outside the jail might have violated federal law. Loyd’s lawyer did not object on that point, and the issue was not procedurally before the court.

Although the court majority was silent on the federal law, Justice Carlos R. Moreno wrote separately to warn that law enforcement still must comply with Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968. That law prohibits the wiretapping of inmates’ telephone calls to people outside the institution unless the prisoners have been told that such monitoring may occur.

Notice could include warnings posted by jailhouse telephones, a signed acknowledgment form or a recorded message that is heard by the inmate when he or she picks up the telephone, said Moreno, who was joined by Justice Joyce L. Kennard.

In Loyd’s case, a recorded warning system was malfunctioning at the jail during the time some of her telephone calls were recorded.

Although all inmates were supposed to have received pamphlets warning them that their calls might be recorded, it was unclear whether Loyd received the admonishment, Moreno wrote.

Although prosecutors may now tape in-house conversations between inmates and their visitors, which often occur between glass barriers and with the aid of a telephone, law enforcement still must comply with the federal law monitoring telephone calls inmates make to the outside, Moreno said.

“The demise of De Lancie does not signal a death knell for the protections afforded under federal law,” he wrote.

Alameda County Deputy Dist. Atty. A. Mark Hutchins said most California jails and prisons now have signs warning that outgoing calls may be monitored, making it possible to tape conversations without violating the federal law.

Loyd even confirmed that she was aware that her calls might be taped when she mentioned that possibility to a woman she called from jail, Hutchins said.

Hutchins, who represented a statewide association of prosecutors in the case, said the ruling will make the state’s prisons and jails safer.

“It makes it more difficult for gang members to communicate to the outside and will cut down on smuggling attempts,” Hutchins said. “Gang members who are up to things like intimidating or killing witnesses or communicating gang instructions in and out--those are the people who will be hurt by this. And I say fine.”

Justice Kathryn Mickle Werdegar, in a separate opinion, agreed with the result reached in the Loyd case but offered another legal analysis.

She said she believes that Loyd should have lost not because state law on inmate rights has changed since the 1982 ruling but because the court decision was incorrect at the time.

“No objectively reasonable expectation of conversational privacy can be maintained in prison or jail because of the pervasive and constant monitoring to which incarcerated persons are subject,” Werdegar wrote.

Kennard, in another separate opinion, said Alameda County prosecutors took a “considerable risk in instituting a surveillance practice that this court had condemned in De Lancie.”

But Kennard said she agreed that the prosecution should not be sanctioned because the Legislature changed the law before Loyd was taped.

Deputy Atty. Gen. William Kuimelis, who argued on behalf of the prosecution in the case, praised Monday’s ruling in People vs. Loyd, S092653. “The impact is that prosecutors are going to be able to collect the information they need to prosecute some of these cases,” Kuimelis said.