The opinion
WERDEGAR, J., Concurring.
I agree with the majority that the monitoring and recording of defendant’s personal visits did not violate California law, despite our decision in De Lancie v. Superior Court (1982) 31 Cal.3d 865 [ 183 Cal.Rptr. 866 , 647 P.2d 142 ] (De Lancie). In my view, however, this is true not because the holding of De Lancie has been abrogated by intervening amendments to Penal Code section 2600, 1 but because De Lancie was erroneously decided.
In De Lancie , this court assumed that an incarcerated person had a reasonable expectation of privacy in his or her conversations, creating a privacy right upon which jail officials could, under section 2600, infringe *1012 only as necessary for institutional security. (De Lancie, supra, 31 Cal.3d at pp. 873-876.) Our error, as the dissenting justices explained, was in assuming that either the common law or constitutional right to conversational privacy persisted when a person entered prison or jail and became subject to the pervasive official surveillance that traditionally characterizes those environments. (See id. at p. 881 (dis. opn. of Richardson, J.) [“ ‘ “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” ’ ”]; id. at p. 882 (dis. opn. of Mosk, J.) [“The concept of one purporting to enjoy privacy while he is under legally authorized supervision would appear to be a monumental anomaly”].)
Though the court’s opinion in De Lancie displays some confusion on this point, that the versions of sections 2600 and 2601 then in force did not confer on prisoners a right of conversational privacy is clear; at most the statutes limited the extent to which jail officials could curtail an otherwise existing right. Section 2600 simply provided that prisoners could be “deprived of such rights, and only such rights,” as was necessary for institutional security. (De Lancie, supra, 31 Cal.3d at p. 870 .) Of course, no deprivation can occur if no right exists. Section 2601 guaranteed certain enumerated rights, including personal visits, but these did not include the right to conduct such visits, or other jailhouse conversations, in privacy. (De Lancie, at p. 870.)
As sections 2600 and 2601 did not themselves confer a right of privacy in jailhouse conversations, and as the court did not cite any other statutory basis, the right of privacy the De Lancie majority recognized could only have derived from the common law, the California Constitution’s privacy guarantee (art. I, § 1), or the constitutional prohibitions against unreasonable searches (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13). But all these sources require as a predicate to establishing an invasion of privacy or unreasonable search that the person had an objectively reasonable expectation of privacy in the invaded place, conversation or data source. (See Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 232 [ 74 Cal.Rptr.2d 843 , 955 P.2d 469 ]; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 36-37 [ 26 Cal.Rptr.2d 834 , 865 P.2d 633 ]; Donaldson v. Superior Court (1983) 35 Cal.3d 24, 28-30 [ 196 Cal.Rptr. 704 , 672 P.2d 110 ].) Courts have generally found no reasonable expectation of privacy in jailhouse conversations for purposes of search and seizure law (see Donaldson v. Superior Court, at pp. 30-34; U.S. v. Peoples (8th Cir. 2001) 250 F.3d 630, 636-637 ), and this court itself had, prior to De Lancie , recognized the general rule that “an inmate of a jail or prison has no reasonable expectation of privacy” in conversations while incarcerated (North v. Superior Court *1013 (1972) 8 Cal.3d 301, 311 [ 104 Cal.Rptr. 833 , 502 P.2d 1305 , 57 A.L.R.3d 155 ]).
Nevertheless, the De Lancie majority rejected the rule stated in North v. Superior Court, supra, and other cases, because in its view “[t]o deny a right of privacy on the ground that inmates, disabused by prior decisions, have lost their normal expectation of privacy would defeat the purposes of the statutes.” (De Lancie, supra, 31 Cal.3d at p. 876 .) This reasoning simply begged the question. The effect of prior decisions on prisoners’ subjective expectations aside, 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. The De Lancie majority, unlike the dissenters, closed its eyes to that fundamental fact. In so doing, it erred.
For these reasons, I concur in the judgment.
All further statutory references are to the Penal Code.