Request By:
Honorable Frederick G. Neikirk
Pulaski County Attorney
104 West Columbia Street
Somerset, Kentucky 42501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question was stated as follows:
"Would a closed circuit television system (county jail) violate any constitutional provisions such as 'Invasion of Privacy' ?"
A jailer is vested with a certain amount of discretion concerning the discipline and security of his prisoners. See KRS 71.020 and 71.040. Thus his acts, in this regard, would be upheld by the courts, if found to be reasonably necessary to carry out the aforementioned purposes of imprisonment. 72 C.J.S., Prisons, § 18, p. 872. Of course he cannot misuse his power for the purpose of oppression. Ibid.
The right of privacy is the right to be let alone. Judicially it has been further characterized as "the right to be free from the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities." 62 Am.Jur.2d, Privacy, § 1, p. 677. See §§ 1 and 2, Ibid., for the nature and history of this right.
However, this right of privacy must give way to a reasonable exercise of the police power. See § 17, Ibid., pages 701-702. Thus, in connection with the 4th amendment [federal constitution], relating to the proscription against unreasonable searches and seizures, Justice Stewart, in Lanza v. New York, 370 U.S. 139, 8 L. Ed. 2d 384, 82 S. Ct. 1218 (1962) wrote that:
"It is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day."
The California case of People v. Chandler, 68 Cal. Rptr. 645 (1968) 648, relied upon Lanza, above, in holding that the recording of a conversation between defendant and an accomplice while alone in a police car after their arrest did not violate defendant's constitutional right of privacy. The court pointed out that the inmates of prisons [or jails] do not have the usual array of federal and state constitutional rights guaranteed to nonincarcerated citizens. See Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356, 1369 (1947). Thus prison and jail authorities may subject inmates to intense surveillance and search unimpeded by fourth amendment barriers. See Lanza, above, and People v. Hernandez, 229 Cal. App.2d 143, 149, 40 Cal. Rptr. 100, 8 A.L.R.3d 1092.
In People v. Morgan, 197 Cal. App.2d 90, 92-94, 16 Cal. Rptr. 838 (cert. den. 370 U.S. 965, 82 S. Ct. 1606, 8 L. Ed. 2d 830) it was held that an electronic recording of conversation between a county jail prisoner and his sister was not an illegal search and seizure nor an unlawful invasion of the prisoner's privacy. The court stated as follows: "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. " (P. 93, 16 Cal. Rptr., p. 838, 840).
In People v. Lopez, 60 Cal.2d 223, 248, 32 Cal. Rptr. 424, 438, 384 P.2d 16, 30, it was held that "except only insofar as concerns consultation with his attorney in a room designated for that purpose, a prisoner has no right of privacy in a jail. "
Based upon the above authorities and analysis, it is our opinion that the county jailer can operate a closed circuit television system in the county jail for security purposes. As we said above, in the interest of the state's police powers, as derivative down to the jailer, the usual privacy considerations must give way to the reasonable exercise of the police power.