Deborah C., In re

• Citation: 177 Cal.Rptr. 852,30 Cal.3d 125,635 P.2d 446
• Decision Date: 05 November 1981
• Docket Number: Cr. 21768
• Court: United States State Supreme Court (California)
• Parties: , 635 P.2d 446 In re DEBORAH C., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. DEBORAH C., a Minor, Defendant and Appellant.

Page 852

177 Cal.Rptr. 852

30 Cal.3d 125, 635 P.2d 446

In re DEBORAH C., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. DEBORAH C., a Minor, Defendant and Appellant.

Cr. 21768.

Supreme Court of California, In Bank.

Nov. 5, 1981.

[635 P.2d 447] Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Janice L. Feinstein, Deputy State Public Defender, and William Wesley Patton, Los Angeles, for defendant and appellant

John K. Van de Kamp, Dist. Atty., Harry B. Sondheim and John W. Messer, Deputy Dist. Attys., Wilbur F. Littlefield, Public Defender, Los Angeles, Dennis A. Fischer and Norma Mitchell, Deputy Public Defenders, as amici curiae on behalf of defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty, Gen., Anthony D. Blankely, Norman H. Sokolow and Howard J. Schwab, Deputy Atty, Gen., for plaintiff and respondent.

Paul Arthur Turner, Robert T. Harris, Joan S. Sheppard, Los Angeles, Julia Bell and Jones, Hall, Arky & Mckenney, Alhambra, amici curiae on behalf of plaintiff and respondent.

NEWMAN, Justice.

Each of two wardship petitions charges 15-year-old Deborah with a count of petty theft. (Welf. & Inst. Code, § 602; Pen. Code, §§ 484, subd. (a), 488, 490.5, subd. (a).) In a consolidated proceeding the juvenile court sustained both petitions. Deborah appeals, asserting that physical evidence and confessions obtained by store security guards should have been suppressed.

One charge involves shoplifting at an Orbach's store on July 12, 1979. At the adjudication-and-suppression hearing Joseph McGinnis, plainclothes security agent, testified that several times he saw Deborah palm costume jewelry from a display counter and hide it in her pocket. He followed her when with a friend she left the store without paying. McGinnis and his partner stopped her, took her to the store's security office, and placed her under citizen's arrest. Without giving a Miranda warning he asked her why she did it. She replied that her friend had told her it was easy to steal A second charge alleged that on or about October 22, 1979, she stole clothing from a Broadway store. Bernadette Laskowski, plainclothes security agent, testified that Deborah aroused suspicion because she was carrying a 'large old plastic bag" and 'walking around, looking around quite a bit." She then stopped in the Junior World department, took several items off the racks, and went into a fitting room.

so she thought she would. Over counsel's objection the jewelry and confession were admitted.

The fitting rooms adjoined a narrow aisle and apparently had doors three feet high, with two-foot gaps above the floor and below the ceiling. Laskowski looked over or under the door and saw Deborah put the merchandise in her plastic bag or purse. As Deborah left the store without paying, Laskowski followed, detained her, and took her to the store's security office. While Laskowski was making out a 'police report" Deborah volunteered that she was sorry and that her sister and brother told her she should do it to help pay the rent. Laskowski's eyewitness testimony and Deborah's statement were admitted over objection.

MIRANDA WARNING

Counsel urges that the finding as to the Orbach's theft is reversible per se because, before Deborah confessed to the detective, she was not advised as to her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct.1602, 16 L.Ed.2d 694 (rehg. den., 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121).

Does Miranda govern custodial investigations by store detectives? That case concerned 'the police" and 'the authorities." California courts have limited its requirements (and those of the predecessor case, People v. Dorado (1965) 62 Cal.2d 338, 42 Cal. Rptr. 196, 398 P.2d 361 cert. den., 381 U.S. 937 and 946, 85 S.Ct. 1765 and 1793, 14 L.Ed.2d 702), to 'law enforcement officials," their agents, and agents of the court, while the suspect is in official custody. (In re Eric J. (1979) 25 Cal.3d 522, 527, 159 Cal.Rptr.317, 601 P.2d 549; see People v. Polk (1965) 63 Cal.2d 443, 449, 47 Cal.Rptr. 1, 406 P.2d 641, cert. den. (1966) 384 U.S. 1010, 86 S.Ct. 1914, 16 L.Ed.2d 1066[interrogation by prosecution psychiatrist]; In re Spencer (1965) 63 Cal.2d 400, 410, 46 Cal. Rptr. 753, 406 P.2d 33 [court-appointed psychiatrist]; see Estelle v. Smith (1981) 451 U.S. 454, 466-469, 101 S.Ct. 1866, 1875-76, 68 L.Ed.2d 359, 371-373 [same].) ¹ 'A private citizen is not required to advise another individual of his rights before questioning him. Absent evidence of complicity on the part of law enforcement officials , the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees [Citations]..." ( Eric J., supra, 25 Cal.3d at p. 527, 159 Cal.Rptr. 317, 601 P.2d 549, quoting People v. Mangiefico (1972) 25 Cal.App.3d 1041, 1049, 102 Cal.Rptr.449.)

Nongovernmental security employees that act without police cooperation have been regarded as private citizens unaffected by Miranda. (People v. Payne (1969) 1 Cal.App.3d 361, 365, 81 Cal. Rptr. 635; Peoplev. Crabtree (1969) 239 Cal.App.2d 789, 790, 49 Cal.Rptr. 235; but cf. In re Victor F. (1980) 112 Cal.App.3d 673, 680-681, 169 Cal.Rptr. 455.) Police complicity in the usual sense is not at issue in this case. There is no evidence that McGinnis acted under any arrangement with the authorities, at their direction, or with their approval.

Counsel cites People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000 for the proposition that security guards who routinely use state-conferred powers of detention and arrest act under color of law as Zelinski, however, avoided holding that security guards are police surrogates for all juridical purposes. There, store detectives trespassed by exceeding the limited powers of private search granted by statute. We stressed that private security personnel "are not police" and have only the powers and privileges of other private persons, except as provided by statute. (P. 365, 155 Cal.Rptr. 575, 594 P.2d 1000.)

police agents. Therefore, it is argued, confessions they extract in custodial settings without Miranda protection must be excluded.

Nonetheless we saw state involvement where security personnel, acting routinely in aid of law enforcement, exceeded the narrow, state-conferred citizen's search privilege; and exclusion seemed an appropriate and effective way to deter such unlawful invasions within the growing private-security sector. (Pp. 366-368, 155 Cal. Rptr. 575, 594, P.2d 1000.) To hold otherwise, we said, would penalize police for wrongful searches but immunize those of private security guards, when the conduct was illegal and deterrable in both situations. (P. 368, 155 Cal.Rptr. 575, 594 P.2d 1000.)

Zelinski's "color of law" analysis responded to arguments that illegal searches by private guards are not state action and thus are unaffected by the Fourth Amendment and article I, section 13 of the California Constitution. (Pp. 366-367, 155 Cal.Rptr. 575, 594 P.2d 1000.) ² But the mere asking of questions is not illegal. And guarantees against self-incrimination do not turn solely on whether interrogators are state agents. Rather, they prevent the state from using involuntary answers as evidence (see Jackson v. Denno (1964) 378 U.S. 368, 385-386, 84 S.Ct. 1774, 1785, 12 L.Ed.2d 908; People v. Varnum (1967) 66 Cal.2d 808, 812-813, 59 Cal.Rptr. 108, 427 P.2d 772, appeal dismissed and cert. den. (1968) 390 U.S. 529, 88 S.Ct. 1208, 20 L.Ed.2d 86) whether obtained by government or private conduct (People v. Haydel (1974) 12 Cal.3d 190, 197, 115 Cal.Rptr.394, 524 P.2d 866). Statements obtained without manifest physical or psychological coercion usually are deemed voluntary, though defendant never knew or waived his rights to silence and counsel.

For policy reasons Miranda established a stricter definition of voluntariness when answers are obtained in an "official interrogation" of a suspect in police custody by "law enforcement officials" or with their complicity. (See Estelle v. Smith, supra, 451 U.S. at pp. 466-469, 101 S.Ct. at pp. 1875-76, 68 L.Ed.2d at pp. 371-373; Miranda, supra, 384 U.S. at p. 444, 86 S.Ct. at p. 1612; Eric J., supra, 25 Cal.3d at p. 527, 159 Cal.Rptr. 317, 601 P.2d 549.) That private security guards sometimes act under color of law when they conduct illegal searches neither makes them "law enforcement officials" nor establishes the complicity of those officials for purposes of Miranda. It does not render their detention of shoplifting suspects "police custody" nor their questioning "official."

Miranda responded to the history of force, duress, and lengthy, incommunicado interrogation by some law enforcement agencies. (384 U.S. at pp. 444-456, 86 S.Ct. at pp. 1612-18.) That abuse seems to have continued, at least in part. (See, e. g., People v. Pettingill, supra, 21 Cal.3d 231, 242-243, 145 Cal.Rptr. 861, 578 P.2d 108.) The presence of overt police coercion is not, of course, a prerequisite to application of Miranda. Courts recognize that nearly all police detention creates an atmosphere of compulsion. (Cf. Orozco v. Texas (1969) 394 U.S. 324, 326-327, 89 S.Ct. 1095, 1096-97, 22 L.Ed.2d 311; People v. Arnold, supra, 66 Cal.2d 438, 447-448, 58 Cal.Rptr. 115, 426 P.2d 515.)

We think that routine detention and questioning by plainclothes store detectives present a substantially different situation. Unless they represent themselves as police Under California statutes store employees have only limited powers of detention. (Pen.Code, § 490.5, subd. (e)(1) (merchant may detain for reasonable time and investigation on probable cause); § 847 (arresting citizen must deliver suspect to police or magistrate without unnecessary delay).) There is evidence that retailers exercise restraint; more than half the store representatives contacted in a national study said...