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Okay, so obviously I haven’t made a new post in quite a while and there is a very good reason for that: I’m in summer school.

I managed to create a new logo for the blog to replace the default one that WordPress gives you automatically.  Other than that I haven’t done anything for SLIB.  As far as articles go I have two concepts that I’m incubating right now.  One concerns the California dog bite statute and the other will concern tribal disenrollment in California.  Both are interesting topics (in my opinion) that will hopefully spark interest in two seperate communities of people that like dogs or are interested in Native American politics and the legalities of tribal sovereignty.

Until then just know that the new stuff is coming and I’ll get on it soon.

See ya later!

I passed!

Woo-hoo!  Friend called me when I just gone done riding a horse and she told me she passed.  I made a fast pace back to the ranch house and checked my grades.  I made it!  I am officially a 2L and I feel great! 

Thank you, that is all.

Vacation

Off to Colorado, will be back in a week or so, just in time to start work and begin my summer semester at SJCL. 

Thanks to all my readers who’ve stopped by and listened to me spew boring law stuff.  Researching case law and statutes usually turns the stomachs of my law school friends, but there’s a few of us (me included) that actually eat this stuff up and really love it.  Even with new technological research advancements like WestLaw or Lexis I must admit that sometimes nothing beats heading into the library and pulling out the hardbound reporters and supplements, strolling through volumes of Witkin and California Jurisprudence.  If anyone from school is reading this I hope they’re not rolling their eyes ;)

In the realm of legal research blogging is my way of exhaling; just as one can’t hold all the air in them for fear of suffocating, I can’t just learn about all this cool stuff and not share it.  My inspiration to start this thing came from this blog post from the Frugal Law Student: Why Every Law Student Should Blog

I hope at the very least I have been informational and maybe, perhaps…entertaining?  But for whatever reason you came here and stuck around to read more than two words of my drivel I say thank you.

Thank you and keep reading!

A Possible Scenario
A wife suspects her husband of cheating on her. She’s had her suspicions for several weeks, or months, or years and finally she decides to find out if her suspicions are correct. The method and manner that she decides to employ will be different from other spouses in this situation. Perhaps she’ll install a second phone in a secret location in the house that he won’t know about and place a recording device onto it so that when someone calls the line the secret phone will automatically pick up and the device will begin recording. Now that the calls are recorded she goes to play back the tape one day when he’s not around and her worst fears are realized: her husband is cheating on her. She then decides to share the conversations on the tape to other people such as her family, his family and maybe even the mistress.

Based on what she’s heard she now decides to file for a divorce citing marital infidelity. She knows that divorces are expensive and draining but she cannot bear to live one minute longer with a man that has violated her trust. In some situations there may be children involved and aside from the usual divorce proceedings there is a child custody battle that needs to be fought.

What is the value of the tape recorded conversations? Are they admissible into evidence in a divorce proceeding? Is the mere fact that she possesses these recordings without the consent of her husband illegal? What does California and Federal law have to say regarding spousal eavesdropping?

The Status of Interspousal Wiretapping in California
In California, interspousal wiretapping via use of electronic devices such as tape recorders is illegal and its fruits inadmissible by statute. The California Family Code states:

(a) Evidence collected by eavesdropping in violation of Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1 of the Penal code is inadmissible. (b) If it appears that a violation described in subdivision (a) exists, the court may refer the matter to the proper authority for investigation and prosecution. (Fam. Code, sec. 2022.)

The Penal Code reference from section 2022 covers a range of situations regarding situations where wiretapping is excused or unexcused. For example, Penal Code section 633.5 excuses wiretapping when it relates to law enforcement officials tapping a phone to investigate crimes regarding extortion, kidnapping, bribery, or a felony involving violence to another person. Unexcused examples of tapping a phone amount to an invasion of privacy and are punishable by fine and imprisonment:

  1. Penal Code section 631 (Wiretapping): “Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically…or otherwise with any…telephone wire, line, cable or instrument…is punishable by a fine not exceeding [$2,500] dollars, or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison, or by both a fine and imprisonment in the county jail or in the state prison.”
  2. Penal Code section 632 (Recording): Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding [$2,500], or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

On top of a statutory violation, a wronged spouse who has been the victim of illegal wiretapping by another spouse can seek a civil action under 637.2:

Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts: (1) Five thousand dollars ($5,000); (2) Three times the amount of actual damages, if any, sustained by the plaintiff. The wronged spouse may also seek an injunction under the same statute against any future violation.

A Federal Exception?
While California relies on the statutory language of the Penal Code to define the limits of acceptable wiretapping, Congress has communicated its law through Title 18 of the United States Code sections 2510 through 2520. For example, relevant portions of section 2511 states:

(1)Except as otherwise specifically provided in this chapter any person who:
(a) intentionally intercepts…any wire, oral, or electronic communication;
(b) intentionally uses…any electronic, mechanical, or other device to intercept any oral communication when (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication…
(c) intentionally discloses…to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.
(e) …shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5). (The full text of the statute may be found here.)

In cases where plaintiffs are filing a cause of action that state the defendant violated this section they are allowed to seek recovery under 18 U.S.C. 2520. Federal courts, however, have twisted themselves into knots into interpreting whether §2511 applies to cases concerning interspousal wiretapping. For example, federal courts in the fourth, sixth and eleventh circuits (portions of the East Coast, Midwest, and South) have held that the intent of Congress was to involve 18 U.S.C. 2510 through 2520 in interspousal wiretapping and considers it a violation of those laws whenever a spouse eavesdrops on another. Other jurisdictions, however, have held the opposite: Congress did not intend federal law to involve itself into the affairs of interspousal wiretapping and therefore spouses can eavesdrop on their spouses without violating federal law. Among those jurisdictions was the Central District of California who, in 1988, decided that:

…it is unlikely that Congress intended [18 U.S.C. 2510 through 2520] to extend to such personal acts conducted within the marital home. Application of federal law to an interspousal domestic conflict would run counter to the tradition of leaving such matters to the realm of state courts. (Perfit v. Perfit (C.D.Cal. 198 8) 693 F.Supp. 851, 856.)

While the Perfit court ruled that it may not be a violation of federal law for a spouse to electronically eavesdrop on another spouse, it held that it may be a violation of a particular state’s law. In addition, in 1992, the Supreme Court of California declared:

No exception [to 18 U.S.C. 2510 through 2520] is specifically provided for family members or for interspousal or “domestic” wiretaps. Thus, the government essentially asks this court to create a new, unenumerated exception to the Act for interspousal wiretapping. … the history of Title III reveals an unmistakable congressional intent to prohibit all unauthorized electronic surveillance, including domestic wiretapping. (People v. Otto (1992) 2 Cal.4th 1088, 1099-1100 [9 Cal.Rptr.2d 596, 831 P.2d 1178].)

California’s position regarding interspousal wiretapping within the realm of federal law is aligned with the fourth, sixth and eleventh circuits despite an implied exception given in Perfit. What all of this means is that suppose a spouse electronically eavesdrops on the other and the wronged spouse decides to sue the other for invasion of privacy or to suppress the recorded evidence in a divorce proceeding. In addition to barring the recorded evidence in a divorce proceeding, the wronged spouse can sue under violation of the California Penal Code as well as 18 U.S.C. 2511 in a California state court. Prior to 1992, the sued spouse could raise a defense against federal violation citing Perfit in that her eavesdropping was excused because it did not fall under Congressional intent. After the Otto decision, however, anyone raising such a defense is barred from doing so.

Theoretically, the sued spouse could have the case removed to federal court in California where federal courts would not be bound by the Otto decision and continue to raise the Perfit defense to have the wiretapping excused (though there is still California Penal Code violations to contend with). I believe this would not hold up with the court because while the Perfit court allowed the eavesdropping to go unpunished, it did not ignore the fact that matters involving interspousal wiretapping were within “the realm of state courts.” The federal court hearing the case on removal could very easily kick the case back into state court on these grounds.

Parting Words
Interspousal wiretapping is seemingly illegal regardless of whether one decides to pursue a remedy through the California Penal Code or the United States Code, however enterprising lawyers may have yet to find some wiggle room in pleading a valid cause of action in federal court. I suspect however, that whatever room there may be to argue is severely limited and is most likely doomed to fail. Their arguments would have to revolve around an invasion of privacy argument to try to convince a federal court that they should interfere and spend court time, taxpayer money, and resources in what is essentially a domestic dispute. Given that federal courts are courts of limited jurisdiction and historically have always declined to hear domestic dispute cases, the prospect of pleading such a case described above is perilous.

If a spouse decides to eavesdrop on the other then they do so at their own risk. The best advice in a situation where a spouse suspects the other of marital infidelity or any other acts that might make the suspecting spouse wary of the integrity of their marriage is not to take illegal action. DO NOT TAP THE PHONE! There are other solutions to this kind of problem such as seeking marriage counseling or if necessary, seek the advice of an attorney. Most attorneys will give potential clients a free consultation to hear the merits of their case and to suggest possible courses of action.

Yesterday was my birthday and I am now the ripe old age of 27. Many happy returns. And congratulations to my extremely brilliant girlfriend who graduated Magna Cum Laude from CSU Fresno.

Been a little busy with all the graduation and after-grad schedules plus celebrating my own birthday at the Elbow Room. Working on the next blog article, hope to be done sometime this week. See you all later!

Introduction

The first weekend of April 2008 was a very good weekend. Finals were soon approaching and just having finished writing an appellate brief of behemoth proportions I was in desperate need for a break. Hopping on a plane to Las Vegas, I soon found myself forgetting my day to day troubles and basking in euphoria, hotly anticipating all the fun things I was going to do. I met up with my girlfriend who was already there ahead of me and we ended up going to the Fashion Show, a big in-door mall with lots of clothing stores and a big food court.

Long story short, I’m waiting outside Express while my girlfriend is inside trying some things on. I’m leaning with my back against the railing (I was on the second floor), calmly looking around at things and out of the corner of my eye I see a security guard wearing a white uniform with a patch on the left shoulder denoting what private security company he works for.

The security guard strolls past me and I don’t think anything of it until he suddenly stops and turns to face me. I’m still leaning against the rail, very relaxed, and I look at him – and he’s looking right at me.

Security Guard: “Good afternoon.”
Erick: “What’s up?”
SG: “You having a nice day today, sir?”
E: “Yes, I am.”

At that moment an employee from inside Express comes walking out to us. The Express employee is waving his hands in the air, saying, “No, no, that’s not him. That’s not him.” The security guard doesn’t apologize to me or anything and just turns around and follows the Express employee into the store.

Minutes later, the security guard comes out of the store and I’m assuming he’s done whatever it is the Express employee asked him to do and is now going to leave. Not the case. Instead, he walks over to where I’m standing and just stands there with his back to me, occasionally turning around to glance in my direction. This guy is making it real obvious that he has an interest in me and does not move for minutes on end. I fold my arms across my chest in a subtle psychological display that I’m not buying any of his dogging techniques and continue to just lean against the railing. Minutes pass like an eternity.

Finally, my girlfriend comes out of the store, walks up to me and we start talking. The security guard finally gets the hint that I’m not suspicious and starts to walk away. (Apparently, standing outside a department store with a clear, plastic shopping bag with only one item in it with the sales receipt clearly visible qualifies me as a suspicious character.)

But what if…?

What if the security guard felt he had enough probable cause to detain me based on the suspicion that I stole something? And what if this incident had happened in California? Could I have done anything?

The Theory of False Imprisonment

False imprisonment is an intentional tort, i.e., the person who falsely imprisons you is doing it with the intention of causing a harmful or offensive consequence or desiring the consequence of his actions to occur. In California, the tort of false imprisonment is defined by courts “as (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” (Easton v. Sutter Coast Hospital (2000) 80 Cal.App.4th 485, 496 [95 Cal.Rptr.2d 316].) It is also defined in the California Penal Code as “the unlawful violation of the personal liberty of another.” (Pen. Code, sec. 236.) And lastly, false arrest is also considered false imprisonment. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 735 [85 Cal.Rptr. 281]; Collins v. San Francisco (1975) 50 Cal.App.3d 671, 673 [123 Cal.Rptr. 525].)

Security Guards have no greater duty to uphold the law than the average citizen does; therefore, they do not hold the same status as police officers. (People v. Crowder (1982) 136 Cal.App.3d 841, 844 [186 Cal.Rptr. 469].)

Security Guards & the Shopkeeper’s Privilege

If charged with false imprisonment, a security guard (along with his company and the owner of the premises that hired the security company) can raise a particular type of defense known as the Shopkeeper’s Privilege. This privilege grew out from various common law jurisdictions that gave merchants the right to detain and investigate suspected shoplifters and thieves. Under this privilege, if charged with false imprisonment the merchant could raise this defense as long as the investigation of the suspected shoplifter’s person was conducted reasonably within a reasonable amount of time. In California, this privilege has been codified into statute:

“A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.” (Pen. Code, sec. 490.5, subd. (f).)

Security Guards & Probable Cause

If a security guard has probable cause that you stole an item from the owner of the premises then they will use that suspicion to detain you, search you and hand you over to the police. Probable cause is the pivotal point in the Shopkeeper’s Privilege and is the basis for any detention, arrest and search performed by a private security guard on your person. Courts have generally recognized this fact and are reluctant to impart any general definition of it, and rightfully so. What can be said of probable cause is that it is a matter of law, i.e., a decision best left to a judge based on the totality of the evidence submitted rather than letting a jury decide. The opinion of the Supreme Court of California, in Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 181 [54 P.2d 20], said of probable cause in a case involving a suspected shoplifter:

“What is probable cause, as has been often announced, is not a question of fact for the jury, but one of law for the court, to be decided in accordance with the circumstances at the time of the detention, unhampered by the outcome of the charge against the plaintiff of the public offense or by the conclusions of the trial court.”

The opinion of the Collyer court on this subject was rendered in 1936 and still stands to this day and has not yet been overturned. Penal Code section 490.5(f)(7), the statutory equivalent of the Shopkeeper’s Privilege, gives equally ambiguous boundaries on the requirement of probable cause:

“In any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances.”

One of the more concrete examples of probable cause arose in Sacramento County in 1963 in a department store that sold various items where a private security guard witnessed the plaintiff place a wrench into his pocket. When the plaintiff went to pay for the items he had not produced the wrench but paid for everything else. After the purchase the plaintiff walked towards another portion of the store and the security guard walked up to the plaintiff and questioned whether he paid for all his items. After some more questioning the plaintiff produced the wrench and was asked to accompany the security guard where he signed a statement stating he did not pay for it. The plaintiff then filed action in Superior Court for false imprisonment where the court ruled in favor of the defendant with a summary judgment. The plaintiff appealed to the Third District Court of Appeal of California where the decision was affirmed: “A storekeeper, ‘on probable cause to believe a theft has been committed, may Detain the suspected person for a reasonable time, to conduct an investigation in a reasonable manner.’ The trial court correctly concluded that ‘probable cause’ was so clearly shown no triable issue in this regard existed. Appellant does not seriously seem to contend otherwise.” (King v. Anderson (1966) 242 Cal.App.2d 606, 609 [51 Cal.Rptr. 561].)

Parting Words

So, in answering my original questions of what would have happened to me if this had occurred in a California shopping mall and I had been detained, what could I have done? With only the law I’ve discovered thus far my only hope of defeating the defendant’s use of the Shopkeeper’s Privilege on the merits would have been to plead their lack of probable cause.

Given my facts stated above and the totality of the circumstances my argument would have revolved around the following:

  • First of all, I will stoutly claim that I did not steal any items from the store and had made only one purchase that day from another store.
  • The security guard did not witness me stealing any items.
  • The Express employee specifically told the security guard that I was not the person he had been summoned for.
  • The security guard knew after he exited the clothing store that I was not the person suspected of shoplifting.
  • Knowing that I was not a person of interest anymore his detainment of me and the subsequent search would have to be based on his “reasonable” belief that I may have or was going to steal something. This would have entailed a search of the shopping bag that I had on my person.
  • The only bag I was holding had one item in it, a shirt purchased from MetroPark, wrapped in paper and held in place by a MetroPark sticker. The MetroPark shopping receipt was in the bag and clearly visible; their plastic shopping bags are brown but translucent enough to allow anyone with normal vision a clear and unobstructed view of what is inside from a reasonable distance and certainly from the distance between me and this security guard.
  • Unless I was able to steal only one item from Express, fool the employees into thinking that someone who looked similar to me had performed the crime, take the stolen item, wrapped it in another store’s wrapping paper with their sticker, in their bag, and forge another store’s sales receipt to cover my crime, then perhaps the security guard’s reasons for detaining me might hold water. I must have also been capable of having all of these items conveniently nearby for just such an occasion. This would have required planning and procurement of a substantial nature. And all this for just one item.

I have a firm suspicion that my claim would go forward and defeat their 490.5(f) defense. What damages I could be awarded range from actual and compensatory to lost wages, mental anguish (depending on the circumstances), humiliation and punitive, however each jurisdiction will handle this differently than others. (Cause of Action against a Retail Store or Its Employees for False Imprisonment or False Arrest of Suspected Shoplifter, 24 COA.2d 2.)

Finals are Approaching

Only one more week remaining of my first year in law school and the tension is beginning to mount. So far I’ve spent a lot of time in the library honing my skills and memorizing as many statements of the law as I can. My classmates are hard at work and all of us are worrying ourselves sick over our fate. Last week I felt deathly afraid of the exams and whether or not I’m going to pass, however those fears have given way to excitement; I’m more excited about the idea of getting past finals and enjoying some time off than I am taking the finals themselves.

Still, my concentration is focused firmly on torts, civil procedure and contracts (SJCL 1L’s take property and criminal law in their second year) while legal research and writing was completed a few weeks ago.

Wish us luck!

So it begins…

Hey there,

I am currently a 1L at San Joaquin College of Law in Fresno, CA and am loving law school.  Currently in my second semester and moving into our spring midterms - finals is just a month away!

This blog is going to showcase some research, thoughts, and examinations on current aspects of California law, most likely in tort law, and when I get around to it over the summer, employment law.  Who knows, might decide to sprinkle some federal law into this as well.

Thanks for reading!