JERALD DOUGLAS NORTH, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 8 Cal. 3d 301

Opinion BURKE, J. Petitioner North is charged with kidnapping and assault with. a deadly weapon. Pursuant to Penal Code

section 1538.5, petitioner moved the superior court to suppress certain evidence linking him to the crimes charged. His motion was denied and he now seeks mandate to review that denial. (Pen. Code, § 1538.5, subd. (i).) We have concluded that petitioner’s motion was properly denied with respect to evidence obtained following a seizure of petitioner’s automobile subsequent to his arrest.

We further hold, however, that evidence of a “jailhouse” communication between petitioner and his wife which was secretly tape-recorded by police officers should have been ordered suppressed as an impermissible invasion of marital privacy. Accordingly, mandate should issue with respect to such evidence. According to evidence presented at the preliminary hearing, the victim, a school girl, told Detective Neesan, the arresting officer, that on October 4, 1971, as she was walking home from school, she was pulled into a car at knifepoint by the driver.

According to Neesan, the victim described the car as “a light blue two-door car. She thought it was a Ford fastback. . . .” The victim indicated that the car was “higher” than ordinary, had two front bucket seats separated by a center console containing a gear shift and glove box, and was equipped with what appeared to be custom carpeting of a “shag type, with long pile, possibly multi-colored yellow and brown.” Following the alleged incident, the officers showed the victim a series of 13 photographs, from which she selected 2 persons as possible suspects; petitioner was one of the suspects she chose.

Detective Neesan had known petitioner and was aware that he had been arrested on two prior occasions involving female victims “picked up in a vehicle while they were on the street.” Neesan obtained and drove to petitioner’s address where he observed a vehicle (a light blue two-door 3 964 Ford) matching the description given by the victim. Neesan then determined that the vehicle was registered to a “female subject” but that a transfer notice was on file dated July 29, 1971. Neesan next asked the victim to review a police “mug book” containing photographs of automobiles and to try and pick out the suspect vehicle.

She picked out a 1964 Ford as the car within which she had been abducted. On October 5, at 8:30 p.m., Neesan drove back to petitioner’s residence and arrested petitioner inside his apartment. Petitioner’s wife was also present in, the apartment. Petitioner asked Neesan if he could give his car keys to her, but Neesan refused since the car was to be towed to the police station. Later that night, the car was examined for fingerprints and various tests made and measurements taken.

Although the fingerprints taken at this time were “negative,” subsequent tests made on October 7, disclosed “positive” prints of the victim. The October 5, tests did indicate that the left rear tire was similar in design to’ the impression left at the crime scene, and that the car’s “wheel span” matched measurements taken at the scene. Apparently, examination of the vehicle turned up additional evidence linking petitioner with the crime. No search warrant was obtained by the officers who seized and examined petitioner’s car.

On October 6, petitioner’s wife visited petitioner at the Palm Springs Police Department where he was incarcerated. This visit, which occurred during ordinary visiting hours, took place in Detective Neesan’s own office, which was in the same building as the jail. According to Neesan, it is a frequent and normal practice to permit such visits to take place in a detective’s office. Neesan was present during the initial “contact” between petitioner and his wife; he then left the room and closed the door behind him.

The subsequent five-minute conversation between petitioner and his wife was secretly monitored and tape-recorded. Following his arraignment, petitioner moved the superior court to suppress (1) all evidence obtained as a result of the seizure and examination of his car; and (2) the tape-recorded conversation with his wife. The court denied his motion in its entirety. 1. The Seizure and Subsequent Examination of Petitioner’s Car The People rely primarily upon our decision in People v.

Teale, 70 Cal.2d 497 [75 Cal.Rptr. 172, 450 P.2d 564], wherein we upheld the validity of a seizure and subsequent examination of a vehicle under similar circumstances. In Teale, defendant sought to exclude incriminating evidence derived from a scientific examination of the car in which the victim had been shot. F.B.I. officers arrested defendant in his car and thereupon seized, locked and stored the car until California authorities were able to examine it 10 days later.

A subsequent scientific examination of the car, performed without the authority of a search warrant, indicated that the victim had been in the car at the time he was shot. Defendant in Teale contended that the police examination of the car constituted an unreasonable search and seizure. We concluded otherwise.

First, we noted that the; automobile itself was properly seized following defendant’s arrest “as evidence connecting defendant with the alleged crimes” and that “it is plainly within the realm of police investigation to subject objects properly seized to scientific testing and examination [citation] . . . .” (70 Cal.2d at p. 508.) Next, we explained that the cases had already acknowledged the implication that “when the police lawfully seize a car which is itself evidence of a crime rather than merely a container of incriminating articles, they may postpone searching it until arrival at a time and place in which the examination can be performed in accordance with sound scientific procedures.” (70 Cal.2d at p. 508; see People v.

Talbot, 64 Cal.2d 691 [51 Cal.Rptr. 417, 414 P.2d 633]; People v. Miller, 245 Cal.App.2d 112 [53 Cal.Rptr. 720]; Johnson v.

State, 238 Md. 528 [209 A.2d 765].) We concluded by setting forth the following principle “distilled” from the foregoing cases: “When officers, incidental to a lawful arrest, seize an automobile or other object in, the reasonable belief that such object is itself evidence [fn. omitted] of the commission of the crime for which such arrest is made, any subsequent examination of said object undertaken for the purpose of determining its evidentiary value does not constitute a ‘search’ within the meaning of the Fourth Amendment.

Thus, that evidence in the instant case which was obtained as a result of the criminalist’s examination of Mrs. Chapman’s automobile was properly admissible.” (70 Cal.2d at p. 511.) Here, as in Teale, petitioner’s car was seized, contemporaneous with petitioner’s arrest, as evidence of the alleged kidnapping; the car was believed to be the very instrumentality used to commit the kidnapping.

Of course, since petitioner was arrested in his apartment, a search of the car could not have been made as “incident to arrest”; such searches must be limited to the area within the suspect’s immediate control. (E.g., Chimel v. California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034].) We are concerned, however, with a seizure of evidence in plain sight of arresting officers rather than a search for such evidence. As is made clear by its reliance upon such cases as People v.

Talbot, supra, 64 Cal.2d 691, the court in Teale (a pre-Chimel case) did not intend to limit the seizure of evidence in plain view only to those objects within the immediate reach of the person arrested. On the contrary, this court has recognized an important exception to the rule announced in the Chimel case, supra, namely, that “objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure and maybe introduced in evidence.” (People v. Sirhan, 7 Cal.3d 710, 742 [102 Cal.Rptr. 385, 497 P.2d 1121]; People v.

Block, 6 Cal.3d 239, 243 [103 Cal.Rptr. 281, 499 P.2d 961].) Thus, in Block, supra, we upheld the seizure of contraband found in plain view of officers conducting a post-arrest house search for additional suspects. Although the instant case involves the seizure of evidence of an offense rather than contraband itself, the cases no longer recognize a distinction between contraband and “mere evidence” for purposes of applying the Fourth Amendment. (Warden v. Hayden, 387 U.S. 294, 300-308 [18 L.Ed.2d 782, 788-793, 87 S.Ct. 1642]; see Harris v.

United States, 390 U.S. 234 [19 L.Ed.2d 1067, 88 S.Ct. 992] [seizure of vehicle registration card in plain sight]; People v. Sirhan, supra, 7 Cal.3d 710, 742-744 [seizure of envelope in plain sight].) Petitioner’s car was parked on a public street, in plain view of the arresting officers. Under Teale and other authorities cited above, the officers properly seized the car as evidence of the alleged kidnapping. Petitioner contends, however, that our holding in Teale must be reexamined and modified in the light of the subsequent decision of the United States Supreme Court in Coolidge v.

New Hampshire, 403 U.S. 443 [29 L.Ed.2d 564, 91 S.Ct. 2022]. Coolidge, properly understood, leaves Teale undisturbed. In Coolidge, the police arrested a murder suspect in his house and thereupon seized his automobile and searched it later 'at the police station, finding physical evidence that the victim had been inside the vehicle. The record disclosed that the police had known for some time of the probable role of the car in the crime, and there were no “exigent circumstances” to justify a warrantless search.

Accordingly, the plurality opinion of Justice Stewart concluded that the seizure could not be justified on the theory that the vehicle was itself the “instrumentality” of the crime and was discovered “in plain view” of the officers.

Justice Stewart was of the opinion that the “plain view” doctrine is applicable only to the inadvertent discovery of incriminating evidence. (403 U.S. at pp. 464-473 [29 L.Ed.2d at pp. 581-587].) If the plurality opinion in Coolidge were entitled to binding effect as precedent, we would have difficulty distinguishing its holding from the instant case, for the discovery of petitioner’s car was no more “inadvertent” than in Coolidge.

However, that portion of Justice Stewart’s plurality opinion which proposed the adoption of new restrictions to the “plain view” rule was signed by only four members of the court (Stewart, J., Douglas, J., Brennan, J., and Marshall, J.). Although concurring in the judgment, Justice Harlan declined to join in that portion of the opinion (see 403 U.S. at p. 491 [29 L.Ed.2d at p. 597]), and the four remaining justices expressly disagreed with Justice Stewart on this point (id. at pp. 505-510 [29 L.Ed.2d at pp. 605-608], dis. opn. by Black, J., joined by Burger, C.

J., and Blackmun, J.; id. at p. 522 [29 L.Ed.2d at p. 615], dis. opn. by White, J., joined by Burger, C. J.). It follows that the “plain view” issue raised by the plurality opinion was in fact considered by an equally divided court, and hence was not actually decided in Coolidge. (See People v.

McKinnon, supra, 7 Cal.3d at p. 911.) As stated in McKinnon, involving a different aspect of the Coolidge plurality opinion, “under settled doctrine, the judgment of an equally divided United States Supreme Court ‘is without force as precedent.’ [Citation.] Thus we are bound to apply the [vehicle search] rale according to our present understanding of its scope.” (Id.) We conclude that our decision in Teale correctly sets forth the present law regarding warrant-less seizures of evidentiary items in plain view of arresting officers, and that the superior court in the instant case properly denied petitioner’s motion to suppress evidence derived from the subsequent police examination of petitioner’s vehicle. 2.

The Tape-recorded Conversation Petitioner contends that the recorded conversation with his wife should have been suppressed as the product of an unreasonable search and seizure, a contention properly within the scope of Penal Code

section 1538.5 (see People v. Coyle, 2 Cal.App.3d 60 [83 Cal.Rptr. 924]). We have held that one appropriate test for determining the validity of a particular search or seizure made without the prior issuance of a warrant is whether the defendant had exhibited a reasonable expectation of privacy, and if so, whether that expectation was violated by an unreasonable governmental intrusion. (People v. Bradley, 1 Cal.3d 80, 84 [81 Cal.Rptr. 457, 460 P.2d 129]; People v. Edwards, 71 Cal.2d 1096, 1104-1105 [80 Cal.Rptr. 633, 458 P.2d 713].) The foregoing principle was adopted from language in Katz v.

United States, 389 U.S. 347, 353 [19 L.Ed.2d 576, 583, 88 S.Ct. 507], wherein the United States Supreme Court, in an eavesdropping case, held that “The Government’s activities in electronically listening to and recording the petitioner’s words [in a public telephone booth] violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment,” and that in the absence of prior judicial authorization the search and seizure were unreasonable.

In Katz, the defendant was held to have a reasonable expectation of privacy in a public telephone bodth. On the other hand, prior California cases have uniformly held that an inmate of a jail ordinarily has no right of privacy. (See People v. Lopez, 60 Cal.2d 223, 248 [32 Cal.Rptr. 424, 384 P.2d 16]; Halpin v.

Superior Court, 6 Cal.3d 885, 900, fn. 21 [101 Cal.Rptr. 375, 495 P.2d 1295], and authorities cited.) The rationale underlying this general rule is based upon a policy favoring the use by jail authorities of reasonable security measures. “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. . . . To censor and in certain circumstances to forbid communication to and from a prison is inherent in its administration. Such authority is necessary to protect against escape.’ ” (People v.

Morgan, 197 Cal.App.2d 90, 93 [16 Cal.Rptr. 838].) None of the prior cases, however, have involved confidential marital communications, and consequently the courts have not yet had occasion to consider the issue of jailhouse privacy in the light of the strong policy favoring “complete freedom of communication” between husband and wife. (See Comment, 57 Cal.L.Rev. 1182, 1229.) This court has previously acknowledged an inmate’s right to privacy “insofar as concerns consultation with his attorney in a room designated for that purpose . . . .” (People v.

Lopez, supra, 60 Cal.2d 223, 248, italics added.) Moreover, it is a felony in this state to eavesdrop upon or record a conversation between a prisoner (or other person in legal custody) and his attorney, religious advisor or licensed physician. (Pen. Code, § 63 6.) Thus, California law does recognize some exceptions to the broad rule that a prisoner has no right of privacy in a jail, exceptions which focus upon the special relationship between the communicants. As stated by the United States Supreme Court in Lanza v.

New York, 370 U.S. 139, 143-144 [8 L.Ed.2d 384, 387-388, 82 S.Ct. 1218], acknowledging these exceptions: “In prison, official surveillance has traditionally been the order of the day. [Fn. omitted.] Though it may be assumed that even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection, [fn. omitted] there is no claimed violation of any such special relationship here [between defendant and his brother].” (Italics added.) In California, the law has “endowed with particularized confidentiality” the relationship of attorney-client (Evid.

Code, § 950 et seq.), physician-patient (Evid. Code, § 990 et seq.), psychotherapist-patient (Evid. Code, § 1010 et seq.), and husband-wife (Evid. Code, § 980 et seq.), by creating a statutory privilege in favor of the client, patient, penitent or husband/wife to refuse to disclose, and to prevent another from disclosing, a confidential communication with his attorney, physician, psychotherapist, clergyman or spouse. As noted in the comment of the Law Revision Commission to

section 980, “The [marital communication] privilege may be asserted to prevent testimony by anyone, including eavesdroppers.” (Evid. Code, § 980, comment; italics added.) Further a communication between such persons “is presumed to have been made in confidence and the opponent of the claim of privilege has the burden to establish that the communication! was not confidential.” (Evid. Code, § 917; see 8 Wigmore, Evidence, § 2336 [McNaughton rev. ed. 1961]; Blau v.

United States, 340 U.S. 332, 333-335 [95 L.Ed. 306, 308-309, 71 S.Ct. 301].) Thus, if the conversation between petitioner and his wife was “made in confidence,” the substance of that conversation would be privileged and inadmissible under

section 980. The People evidently take the position that, by reason of the general rule set forth above, no jailhouse communication can ever be “made in confidence.” We reject that position for, as stated in a recent case, “it is conceivable that in a given case the police might make representations to even an incarcerated defendant that would cause him to have a right of privacy. As the Supreme Court stated in Katz v.

United States, [supra,] 389 U.S. 347, 351 . . . , ‘What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection. [Citations.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.’ ” (People v. Blair, 2 Cal.App.3d 249, 256 [82 Cal.Rptr. 673]; see Comment, supra, 57 Cal.L.Rev. at pp. 1206-1208; but see People v.

Stadnick, 207 Cal.App.2d 767, 772-774 [25 Cal.Rptr. 30, 99 A.L.R.2d 766].) Of course, ordinarily the fact that a communication is made “under circumstances where others could easily overhear is a strong indication that the communication was not intended to be confidential and is, therefore, unprivileged. [Citations.]” (Evid. Code, § 917, comment, supra; see People v. Santos, 26 Cal.App.3d 397, 402 [102 Cal.Rptr. 678]; People v.

Cox, 263 Cal.App.2d 176, 188 [69 Cal.Rptr. 410].) In view of the general rule that an inmate of a jail or prison has no reasonable expectation of privacy, it would follow that an ordinary jailhouse conversation between spouses could not be deemed to have been “made in confidence,” as required by Evidence Code

section 980 to establish the privilege. In the instant case, however, the conversation occurred in a detective’s private office under circumstances which strongly indicate that petitioner and his wife were lulled into believing that their conversation would be confidential. Although the record does not disclose whether or not Neesan made any representations to that effect, his admitted conduct spoke as clearly as words—first by surrendering to petitioner and his wife Neesan’s own private office so that they might converse and then by exiting and shutting the door, leaving them entirely alone.

Certainly, nothing in Neesan’s actions indicated that petitioner’s conversation would be monitored. The foregoing circumstances, coupled with the statutory presumption that a conversation between spouses is presumed to have been made in confidence (Evid. Code, § 917, supra), constituted a sufficient showing by petitioner to establish a reasonable expectation of privacy. We emphasize that nothing in our opinion should be deemed a disapproval of the common practice of monitoring inmates’ conversations with others, including their spouses, in visiting rooms or similar places.

That practice seems reasonably necessary in order to maintain jail security and (with the exceptions set forth in Pen. Code, § 636, supra), is not proscribed by law. But jail security can be adequately maintained without resorting to the deliberate creation of a situation in which marital privacy could reasonably be expected to exist. We cannot sanction the device of secretly exploiting marital confidences, as was done under the circumstances of this case, for the sole purpose of gathering possibly incriminating evidence.

Such a device constitutes, we believe, an “unreasonable governmental intrusion” of the sort condemned in our prior cases. We conclude that, under the. circumstances of this case, petitioner had a reasonable expectation that his conversation was, and would remain, private. Accordingly, the “search” conducted by the officers by means of the tape recording was an unlawful one, and the superior court should have suppressed all evidence obtained therefrom under Penal Code

section 1538.5. Let a writ of mandate issue to the superior court commanding further proceedings consistent with this opinion. Mosk, J., concurred. As the seizure and examination of the vehicle was proper under Teale, we need not consider whether that seizure might also have been proper upon the ground that the officers had probable cause to believe that the vehicle contained evidence of the kidnapping. (See People v. McKinnon, 7 Cal.3d 899 [103 Cal.Rptr. 897, 500 P.2d 1097].)

Section 636 is one of several statutory provisions enacted in 1967 to protect against invasions of privacy through eavesdropping and wiretapping. (See Pen. Code, § 630 et seq.) For example,

section 632 forbids eavesdropping upon or recording any “confidential communication,” as defined therein, and declares inadmissible any evidence obtained as a result of such eavesdropping or recording.

Section 632 does not, however, avail petitioner herein, for its provisions are inapplicable to “any communication which [law enforcement officers] could lawfully overhear or record prior to the effective date of this

chapter [i.e., 1967].” (Pen. Code, § 633.) Since pre-1967 law did not forbid officers from eavesdropping upon or recording communications between a person in legal custody and his spouse (see former Pen. Code, § 653i), the prohibitions of

section 632 would not apply. As neither petitioner nor the People has relied upon the provisions of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520), we do not consider whether that act might provide a further basis for suppressing the conversation recorded by the police herein, or to what extent, if any, the act’s provisions have preempted the provisions of Penal Code

section 630 et seq., as applied to the interception of oral communications. (Cf. Halpin v. Superior Court, supra, 6 Cal.3d 885, 896-900.) See also Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of “Law and Order,” 67 Mich.L.Rev. 455, 466-468; Comment, supra, 57 Cal.L.Rev. 1182, 1228-1229; American Bar Association Project on Minimum Standards for Criminal Justice: Standards Relating to Electronic Surveillance, sections 5.10. 5.11; and Commentary, pages 156-158.

Section 980 provides that “Subject to

Section 912 [waiver of privilege] and except as otherwise provided in this article, a spouse . . . has a privilege ... to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.” Under

section 981, the privilege is unavailable if the communication was made “in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud.” In Santos, defendant was arrested on suspicion of robbery and later “rebooked” for murder. Subsequently, his wife visited him in the jail visiting room, and they conversed by means of a telephone intercom system. During the monitored conversation, defendant stated, “I’m in for murder.” His wife asked whom he had killed.

Defendant responded, “Careful, they’ve got these phones bugged.” He then whispered what sounded like “get rid of it.” His wife replied, “Okay, I’ll sell it.” Defendant whispered, “Be quiet.” His wife said, “No, no, I meant the TV.” Defendant contended that the conversation with his wife was confidential and therefore privileged, and that the monitoring of his conversation violated his constitutional rights.

The Court of Appeal properly rejected the contention, holding, inter alia, that “Electronic surveillance does not constitute an unwarranted invasion of privacy when there is no subjective expectation that the monitored conversation will be private. [Citation.] [Par.] The parties’ realization at the time they spoke that their conversation was being monitored disposes also of defendant’s contention that the conversation was protected by the confidential marital communications privilege. (Evid.

Code, § 980.)” (26 Cal.App.3d at p. 402.) As noted above (fn. 2), nothing in the Penal Code provisions regarding invasion of privacy (Pen. Code, § 630 et seq.) expressly forbids eavesdropping upon or recording a jailhouse communication between spouses, and the marital communications privilege (Evid. Code, § 980) only affects the admissibility of such communications. Note, however, the proscriptions of the Omnibus Crime Control and Safe Streets Act, supra, footnote 2.