People v. Randazzo

• Decision Date: 30 September 1963
• Docket Number: Cr. 9259
• Citation: 220 Cal.App.2d 768,34 Cal.Rptr. 65
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Victoria RANDAZZO, Defendant and Respondent.

Page 65

34 Cal.Rptr. 65

220 Cal.App.2d 768

The PEOPLE of the State of California, Plaintiff and Appellant, v. Victoria RANDAZZO, Defendant and Respondent.

Cr. 9259.

District Court of Appeal, Second District, Division 2, California.

Sept. 30, 1963.

Rehearing Denied Oct. 28, 1963.

Hearing Denied Nov. 27, 1963.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran, Nowland Hong and Charles Luke McKissack, Deputy City Attys., for appellant.

Tweedy & Thompson and James R Tweedy, Panorama City, for respondents

A. L. Wirin and Fred Okrand, Los Angeles, amici curiae on behalf of respondent.

FOX, Presiding Justice.

This case has been certified to this court by the Appellate Department of the Superior Court of Los Angeles County. The defendant was charged in the Municipal Court with a violation of section 484 of the Penal Code (theft). After pleading not guilty she was tried by a jury and found guilty. A new trial was granted on the ground that certain evidence admitted during the trial had been illegally obtained. The case was subsequently dismissed due to the suppression of said evidence. On appeal by the People to the Appellate Department the court affirmed the order granting a new trial and the judgment of dismissal.

On December 21, 1962, defendant removed several garments from a display rack in a May Company store in Los Angeles and took them into a dressing, or fitting room. Mrs. Wade, a store detective employed by the May Company to detect shoplifters, and not connected in any way with a law enforcement agency, saw the defendant and entered the dressing room adjacent to the one occupied by defendant. Each dressing room was enclosed on three sides and had a curtain that could be drawn over the entrance. The partition which separated the dressing rooms extended to within eight or nine inches from the floor. By lying down on the floor of her dressing room Mrs. Wade was able to look under the partition and watch the defendant in the next enclosure. In so doing she observed defendant roll up a blouse and put it in her purse. Defendant then left the dressing room, returned the remaining garments to the rack, and walked out of the store without paying for the blouse. She was apprehended and arrested outside the store.

Mrs. Wade testified that it was normal procedure for her to watch customers in the manner complained of here, and that it was the only way that persons inside the dressing room could be observed. She also indicated that she had no reason to suspect this particular defendant and that she had made many arrests as a result of her observations in this fashion in the past.

The sole question certified to this court is: 'Do the 4th amendment to the constitution of the United States and sec. 19 of Article I of the constitution of California which provide, 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches * * *, shall not be violated' apply to unreasonable searches by state action only or do they apply to unreasonable searches by private persons as well as by state action?'

In view of the rulings in Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 and Britt v. Superior Court, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817, it appears to be the law of this state that had government officers acquired evidence in this manner it would not be admissible.

It must now be determined whether the exclusionary rule is to be extended to evidence obtained by private searches which, if carried on by the police, would render the evidence inadmissible.

In 1921 the Supreme Court in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, announced the rule that evidence obtained in an unreasonable search and seizure by a private citizen and subsequently delivered to federal prosecuting authorities was admissible. This case was a civil action for the return of the evidence that had been wrongfully taken from the plaintiff, based on a claim of violations of the 4th and 5th amendments. The plaintiff was denied relief. Speaking of the 4th amendment the court said: 'Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; * * *' (p. 475 of 256 U.S., p. 576 of 41 S.Ct., 65 L.Ed. 1048.) Justices Brandeis and Holmes dissented, pointing out that if the evidence were still in the hands of the original taker, it would be returned to the plaintiff, and saying in effect that since the evidence was wrongfully acquired, the mere fact that the government did not participate in the taking would not justify its use.

The decision in the Burdeau case is the only Supreme Court holding that bears directly on the issue of private unreasonable search and seizure. The case has never been expressly overruled, nor has it ever been reconsidered. Several federal cases, prior to 1960, mentioned the rule without questioning it. (See, e. g., Hall v. U. S., 9 Cir., 41 F.2d 54; United States v. Jordan, D.C., 79 F.Supp. 411.)

In 1960 the Supreme Court decided the case of Elkins v. U. S., 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. The Elkins case overruled the 'silver platter' doctrine which had previously been announced in Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. No longer could the federal prosecutors avail themselves of evidence obtained illegally by state authorities, even though federal agents took no part in obtaining it. Defendant in the instant case now argues, as does amicus curiae, that the decision in Elkins also overruled Burdeau.

Some support for defendant's proposition is found by way of dicta in two recent federal cases: Williams v. U. S., 6 Cir., 282 F.2d 940; United States v. Williams, 6 Cir., 314 F.2d 795. In these cases the defendant argued that certain evidence was obtained by a city police officer through an illegal search and seizure, and was therefore inadmissible in a federal trial under the rule of the Elkins case. The court, in discussing the Elkins decision, lumps together the Weeks and the Burdeau cases and refers to both as representative of the 'silver platter' doctrine that Elkins had overruled. The court then decided that Elkins was not applicable to the facts being considered because there had been no illegal search and seizure. No mention was made of the fact that Elkins specifically overruled Weeks and did not discuss Burdeau; not of the fact that Weeks involved unauthorized searches and seizures by government officials, while Burdeau was limited to private persons.

Appellant's contention that the Burdeau case is still controlling in the present circumstances receives direct support from two recent Federal District Court decisions. In Geniviva v. Bingler (1961), D.C., 206 F.Supp. 81, the petitioners made a motion to suppress evidence that had been stolen from them by a burglar and which was later turned over to the Department of Internal Revenue when the burglar was caught. The court rejects the argument that Burdeau has been overruled, and states at page 83: 'The rule as to the exclusion, in both federal and state courts, of evidence obtained by an unreasonable search and seizure in violation of the Fourth or the Fourteenth Amendment has been broadened and expanded since Burdeau v. McDowell, supra. The rule, however, has not been expanded to the extent that evidence obtained by persons not acting in concert with either state or federal officials must be excluded.'

In United States v. Goldberg (1962) 206 F.Supp. 394, defendant's employees stole certain corporate records and turned them over to the government. The records were admitted over the defendant's objection that the evidence was the product of an illegal search and seizure. The court said, at pp. 400-401: 'Defendant contends that the principle of the Burdeau dissent was accepted as law in Elkins v. U. S., 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). We disagree. In Elkins, tape and wire recordings and a recording machine, which had been seized by state law enforcement officers as the result of an unlawful search and seizure, had been admitted in evidence in a Federal criminal trial. No Federal officer had participated in the unlawful search and seizure. A majority of the Court held that evidence so obtained could not be used and set aside the conviction. The Court's ruling condemned lawless official action, not private wrongdoing, in the procuring of evidence. * * * So far as our rather exhaustive research has disclosed, the principle of the Burdeau case remains intact.' (Emphasis the court's.)

Many state courts have followed the rule of the Burdeau case on the 4th amendment, and also as applied to their particular state constitutional provision against unreasonable searches and seizures. Citation of the numerous cases decided prior to Elkins would serve no useful purpose other than to show that Burdeau was accepted as the general rule in most states. Consideration will instead be focused on the few post-Elkins decisions that have been discovered, none of which have been cited by the parties in their brief.

A recent New York case held that in an action for divorce based on adultery, evidence obtained by the plaintiff in an illegal manner (breaking into defendant's apartment) was nevertheless admissible. In so holding the court reversed a previous decision in the same case, saying, 'However, the Federal and State constitutional protection against unreasonable search and seizure by governmental action is not intended to be a limitation upon other than governmental agencies. Where evidence is gathered by private individuals in a manner which would be unlawful if done by governmental authority, there is no invasion of the constitutional security and the evidence is admissible [citing Burdeau]. The Burdeau case, although decided some forty years ago, has never been...