People v. Crowson

BIRD, C. J., Concurring and Dissenting. Dissenting.—

I agree that only foreign convictions which include all of the elements of the corresponding California felonies may be used for purposes of sentence enhancement under Penal Code section 667.5, subdivision (f).

However, the clandestine tape recording of appellant’s conversation with Romero while the two were alone in the rear seat of the police car violated appellant’s constitutional right of privacy. (Cal. Const., art. I, § 1.) In reaching the opposite result, the majority simply assume, without offering any support for their conclusion, that the privacy protections guaranteed by article I, section 1 are coextensive with the search and seizure protections of article I, section 13 or the Fourth Amendment of the United States Constitution.

While the parameters of the constitutional right of privacy are as yet not fully defined, clearly they are broader than the scope of the constitutional protection against unreasonable searches and seizures. This is apparent from the history of the 1972 amendment which specifically added the right of “privacy” to the various “inalienable” rights of “all people” guaranteed by section 1 of article I. (See White v. Davis (1975) 13 Cal.3d 757, 773 [ 120 Cal.Rptr. 94 , 533 P.2d 222 ].)

A statement drafted by the proponents of the constitutional amendment was included in the election brochure mailed to all registered voters. (Id., at p. 774.) This statement explained that, “The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms. • •• [1] At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right of privacy for every Californian.” (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 26.) The argument in favor of the amendment continued: “The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.” (Id., at p. 27.)

Finally, the rebuttal to the argument against the amendment reiterated that, “The right to privacy is much more than ‘unnecessary wordage.’ (Sic.) It is fundamental in any free society. Privacy is not now guaranteed by our State Constitution.” (Id., at p. 28, italics added.)

*638 Thus, the creation of a specific and independent constitutional right of privacy was intended to be an expansion of those protections already existing under other provisions of the state Constitution. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829 [ 134 Cal.Rptr. 839 ].) By equating the scope of the right of privacy with the scope of the right to be free from unreasonable searches and seizures, the majority transform the 1972 amendment into “unnecessary wordage” in direct defiance of the provision’s expressly declared purpose and the people’s will. 1

The majority’s resolution of the privacy issue is also troubling since they fail to find any significance in the deliberately deceptive nature of the police conduct here. Appellant and Romero were ushered into the rear seat of a police cruiser. After closing the doors, the police moved away from the car leaving the two suspects alone for approximately thirty minutes. Although the police made no oral representations concerning confidentiality, their actions spoke as clearly as words. Nothing done by the police indicated that any conversation between appellant and Romero would be monitored. Rather, the police intentionally created the illusion that appellant’s conversation with his alleged accomplice would not be overheard. Under these circumstances, the surreptitious tape recording made by the police violated appellant’s privacy right.

Finally, any incursion into appellant’s right of privacy must be justified by a compelling state interest. (White v. Davis, supra, 13 Cal.3d at p. 775 .) Here, Officer Schreck testified that his purpose in tape-recording the conversation was “[t]o see if there was any involvement” of appellant in the robbery that had just taken place. While such an interest may have been legitimate, it did not provide adequate grounds for the invasion of appellant’s privacy. (See People v. Owens (1980) 112 Cal.App.3d 441, 450-451 [ 169 Cal.Rptr. 359 ] (conc, opn. of White, P. J.).) Less intrusive methods for criminal investigation were available to the police and should have been utilized.

Reynoso, J., concurred.

The majority appear to confine their holding concerning the scope of the privacy clause to situations involving “‘police surveillance in the criminal context.’” (Maj. opn., at p. 629.) Significantly, the ballot argument makes no similar distinction with respect to the parameters of this important constitutional right. Why the additional privacy protections of article I should not apply when one’s personal affairs are made the subject of police surveillance is neither explained by the majority nor immediately apparent to the reader.