Dyas v. Superior Court

• Decision Date: 06 June 1974
• Citation: 114 Cal.Rptr. 114,522 P.2d 674,11 Cal.3d 628
• Court: California Supreme Court
• Parties: , 522 P.2d 674 Alvin Lee DYAS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30237. In Bank

Page 114

114 Cal.Rptr. 114

11 Cal.3d 628, 522 P.2d 674

Alvin Lee DYAS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 30237.

Supreme Court of California,

In Bank.

June 6, 1974.

Richard S. Buckley, Public Defender, Bernard J. Rosen and Harold E. Shabo, Deputy Public Defenders, for petitioner.

No appearance for respondent.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Daniel L. Bershin, Deputy Dist. Attys., for real party in interest.

MOSK, Justice.

Defendant Alvin Lee Dyas, petitioner herein, was charged with one count of possession of amphetamine for sale. (Health & Saf.Code, § 11351.) His motion to suppress the evidence on the ground of illegal search and seizure was denied, and he seeks review by statutory writ of mandate. (Pen.Code, § 1538.5, subd. (i).)

The motion to suppress was heard on the transcript of the preliminary examination. The sole witness testifying to the events in issue was Marvin E. Klepper, a uniformed patrolman of the Housing Authority of the City of Los Angeles. At 9:30 p.m. on May 1, 1973, Klepper went with a fellow officer to a public housing project to deliver certain legal papers. As he approached he saw defendant standing on a street corner talking with two other men and holding a wax paper bag in his hand. Defendant put the bag in his pocket. When Klepper emerged from the housing project a few minutes later he saw that defendant was still standing on the street talking with the other men and was again holding the paper bag. Defendant put the bag in his pocket a second time.

From this brief observation Klepper formed the opinion that 'possibly some type of narcotics' might be in the bag. On the witness stand he sought to justify his suspicion by the fact that defendant appeared to replace the bag in his pocket each time he saw Klepper, and by his belief that a wax paper bag 'is usually what they contain marijuana in, and it is pretty prevalent in the area.'

His curiosity aroused, Klepper radioed for a 'back-up unit' of the housing authority security force. He went up to defendant and his companion and 'told them to step over to the wall and to put their hands on the wall.' His purpose in ordering defendant to do so, he testified, was 'to pat him down to find out what was in his pocket, if anything.' Klepper patted down the left side of defendant's jacket, but when he began on the right side defendant elbowed him away. Klepper drew his revolver, grasped defendant at the waist, and 'pushed him back toward the wall.' Defendant then reached up and dropped the wax bag over the wall. Klepper left defendant in his partner's custody and recovered the bag, which contained a quantity of amphetamine pills. He placed defendant under arrest, handcuffed him, took him to the patrol car, and called for officers of the Los Angeles Police Department, into whose custody he delivered defendant and the evidence. When asked on cross-examination 'Under what authority' he made the arrest, Klepper replied, 'As a private citizen.'

At the hearing on the motion to suppress the evidence the superior court found that if Klepper and his partner 'had been acting as peace officers' their search of defendant would have been 'clearly unreasonable.' The People construe this to constitute a finding that the search lacked probable cause and do not challenge it. ¹ The court further ruled, however, that Klepper and his partner 'were not acting as peace officers at the time' of the search, and denied relief on that ground.

The exclusionary rule does not apply to evidence obtained in a search conducted by a person who is truly a private citizen. (See, e.g., People v. Buchanan (1972) 26 Cal.App.3d 274, 286--287, 103 Cal.Rptr. 66 (apartment house manager); People v. Houle (1970) 13 Cal.App.3d 892, 895--896, 91 Cal.Rptr. 874 (bail bondsman); People v. Baker (1970) 12 Cal.App.3d 826, 833--834, 96 Cal.Rptr. 760 (bowling alley manager); People v. Superior Court (1970) 3 Cal.App.3d 648, 659--660, 83 Cal.Rptr 732 (landlord); People v. Cheatham (1968) 263 Cal.App.2d 458, 461--462, 69 Cal.Rptr. 679 (tenant); People v. Katzman (1968) 258 Cal.App.2d 777, 786, 66 Cal.Rptr. 319 (roommate); People v. Botts (1967) 250 Cal.App.2d 478, 481--483, 58 Cal.Rptr. 412 (service station attendant); People v. Potter (1966) 240 Cal.App.2d 621, 630, 49 Cal.Rptr. 892 (tenant); People v. Johnson (1957) 153 Cal.App.2d 870, 315 P.2d 468 (defendant's employer).) The two-fold purpose of the exclusionary rule is to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct. (People v. Cahan (1955) 44 Cal.2d 434, 445, 448--449, 282 P.2d 905.) Although the latter purpose might to some extent be served by excluding evidence derived from an unlawful search by a private citizen, the former would not. As the court explained in Botts (250 Cal.App.2d at pp. 482--483, 58 Cal.Rptr. at p. 450), 'Where an exclusionary rule is directed to the police, we may assume that they will have knowledge of it, that there will result directives from the higher echelons designed to secure compliance and to institute acceptable alternative practices, and that both the discipline of an organized police force and the desire to secure convictions will produce compliance with those directives. But, except in unusual cases, we cannot assume that private citizens will be aware of an exclusionary rule, that they will be under any disciplinary compulsion to obey such a rule, nor that they will not be motivated in their conduct by reasons apart from, or in addition to, a desire to assist in securing a criminal conviction. The result of applying an exclusionary rule to cases such as the one at Bench would be to free a guilty man without any assurance that there would result any counterbalancing restraint of similar conduct in the future.' (Accord, People v. Houle (1970) supra, 13 Cal.App.3d 892, 895, 91 Cal.Rptr. 874.) ²

In several cases the courts have extended the 'private citizen' rationale to admit the fruits of a search by a person who, although specially trained and licensed as a security officer or investigator, was acting to protect either his personal interests (see, e.g., People v. Petersen (1972) 23 Cal.App.3d 883, 893--894, 100 Cal.Rptr. 590 (police trainee; search, for safety reasons, of storage area of apartment complex where he lived); People v. Wolder (1970) 4 Cal.App.3d 984, 993--994, 84 Cal.Rptr. 788 (policeman; search, for reasons of parental concern, of suspicious boxes stored by his daughter on her rented premises)), or the interests of a private employer (see, e.g., People v. Mangiefico (1972) 25 Cal.App.3d 1041, 1047--1048, 102 Cal.Rptr. 449 (fire insurance investigator); People v. Payne (1969) 1 Cal.App.3d 361, 365, 81 Cal.Rptr. 635 (store detective); People v. Randazzo (1963) 220 Cal.App.2d 768, 34 Cal.Rptr. 65 (same); cf. People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 74 Cal.Rptr. 294, 449 P.2d 230 (private detective); but see People v. Millard (1971) 15 Cal.App.3d 759, 761--762, 93 Cal.Rptr. 402 (off-duty policeman employed as store detective; search held governed by Fourth Amendment standards)).

The People rely on the latter decisions to justify the search of defendant by Klepper. But on the record of this case, as in Stapleton v. Superior Court (1968) 70 Cal.2d 97, 100, fn. 3, 73 Cal.Rptr. 575, 577, 447 P.2d 967, 969, 'We are not called upon to decide whether searches by private investigators and private police forces should be held subject per se to the commands of the Fourth Amendment on the ground that one of their basic purposes is the enforcement of the law.' Here it appears as a matter of law that the person who conducted the search did so neither as a private citizen nor for a private purpose.

To begin with, it is undisputed that Klepper was acting under color of authority. He testified that 'we are uniformed officers and the vehicles are marked. . . . The uniforms are the color of the marshals' uniforms . . . with the standard basket weave and leather belts, badge and tie, and standard police dress.' He was armed with a revolver, carried handcuffs, and had a two-way radio in his patrol car. Nor did he hesitate to use these indicia of authority in the manner in which they were intended. As we have seen, he radioed for a 'back-up unit,' ordered defendant to stand spreadeagled against a wall, conducted a pat-down search of defendant's clothing, drew his gun when defendant resisted, arrested and handcuffed defendant on finding contraband, and held him in custody in the patrol car until assistance arrived. Clearly these are the acts of a law enforcement officer. As the trial court accurately observed to counsel at the preliminary hearing, 'This wasn't an ordinary private citizen. I think we both recognize that.'

Secondly, Klepper was not acting to protect the interests of a private employer. He testified that 'I am a patrolman for the Housing Authority, City of Los Angeles. . . . I am employed by the City of Los Angeles, I am bonded and funded and controlled by the Federal Housing (Authority).' Each of these authorities is an arm of its respective government. The United States Housing Authority is an entity within the Department of Housing and Urban Development, and hence part of the federal executive branch. (42 U.S.C. § 1403.) The statute specifically declares the authority to be 'an agency and instrumentality of the United States.' It is represented in litigation by the Attorney General, has free use of the mails 'in the same manner as the executive departments of the Government,' and is exempt from all federal, state, and local taxation. (42 U.S.C. § 1405.)

No less governmental in origin and purpose is the Los Angeles Housing Authority. That entity is created by statute as 'a public body corporate and...