People v. Todd

Opinion

CLARK, J.

Defendant appeals from judgment of conviction for possessing a restricted dangerous drag in violation of section 11910 of the Health and Safety Code.

Facts

Believing them to be under the influence of either alcohol or drugs, police officers placed defendant and his brother in the rear of a patrol car while they searched the area for specific contraband. Defendant was neither told he was under arrest nor apprised of any constitutional right.

Unknown to defendant, a device was activated in the front seat of the vehicle for the purpose of recording conversation in the absence of the

[17]

searching officers. In consequence of a recorded admission that he had swallowed the contraband, drugs were removed from defendant’s stomach.

Issue

The sole contention on appeal is that the electronic recording of defendant’s conversation constituted an unreasonable invasion of privacy in violation of the protection afforded by the Fourth Amendment,

1

rendering the drugs inadmissible.

Discussion

Conceding there is not a California case precisely in point, defendant relies on

Katz

v.

United States

(1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507] which holds the test respecting permissibility of electronic surveillance to be twofold:

“First,

that the overheard person has exhibited an actual ‘subjective’ expectation of privacy and,

secondly,

that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”