People v. Johnson

• Decision Date: 18 September 1957
• Docket Number: Cr. 5933
• Citation: 153 Cal.App.2d 870,315 P.2d 468
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Andrew JOHNSON, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 468

315 P.2d 468

153 Cal.App.2d 870

The PEOPLE of the State of California, Plaintiff and Appellant, v. Andrew JOHNSON, Defendant and Respondent.

Cr. 5933.

District Court of Appeal, Second District, Division 1, California.

Sept. 18, 1957.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Los Angeles Dist. Atty., Jere J. Sullivan, Fred N. Whichello and Robert Lederman, Deputy Dist. Attys., Los Angeles, for appellant.

Gerald J. Levie and Maynard D. Davis, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal by the People from an order setting aside an information, pursuant to the defendant's motion, under Penal Code, section 995.

On February 13, 1957, an information was filed in Los Angeles County, Charging the defendant with grand theft, in violation of the provisions of section 487, subd. 1 of the Penal Code. The defendant was duly arraigned, and at the time of plea he made a motion to set aside the information under section 995 of the Penal Code, and such motion was granted.

A resume of the facts is as follows: Irwin Meyer is, and has been for several years, a merchant dealing in wearing apparel, doing business as the 'Nobby Knit Shops'. The defendant, for the last fourteen years, worked for Meyer as a combination janitor and truck driver. His duties as truck driver were largely in transporting merchandise from one to the other of the four stores operated by Meyer. A large part of the merchandise was received and stored at the Westwood store, and from there delivered to the other establishments. The defendant had a key to the various stores and access to all of the merchandise therein, but he had no permission to take any merchandise from any store for his own use without paying for the same.

A quarterly inventory taken in October, 1956, for the term from July to October, 1956, disclosed a loss at the Westwood store of about $8,500 worth of merchandise for the four-month period. There was no objection to the receipt of any of the evidence relating to the matters thus far related.

The defendant owned a 1957 model Chevrolet automobile, and on January 12, 1957, when the defendant and Meyer were at the Beverly Drive store, Meyer asked the defendant if he could drive defendant's car, and the defendant indicated that he could, and gave Meyer the keys thereto. Meyer told the defendant that he would like to drive it because some day he might want to buy such an automobile for his son. There was no discussion about any permission to Meyer to open up and look into the trunk of the car. Meyer then drove the automobile around the block, stopped it and opened up and looked into the trunk of the car and discovered a large carton of merchandise containing sweaters, skirts, blouses, peddle pushers, and other garments, with price tags thereon showing that it was all from his stores. Meyer then drove the car to the police station, talked to the officers, and reported what he had found. A policeman got into the car with Meyer and they drove back to the Beverly Drive store, where the defendant was. The defendant was then taken to a police station, where he freely admitted to Meyer, in the presence of the police, that he had been taking items for about two years; that during the last six months, he had 'stepped it up' some and that the value of the items stolen 'was around about $8000.00.' Meyer said to the defendant at that time, 'I suppose it could be seven or ten or twelve', and the defendant answered, 'Well it could be'.

Meyer, as a witness at the preliminary examination, identified three white paper envelopes containing wearing apparel with price tags thereon as a part of the clothing retrieved from the trunk of the car.

The defendant contended before the trial court that it was an unlawful search and seizure, and under the rule of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, the receipt of the evidence was improper, and further that under the Fourth Amendment to the United States Constitution, and under Article I, section 19 of the California Constitution, the search was unlawful and unreasonable, and therefore, the motion under section 995 of the Penal Code was proper and should be granted. The trial judge reluctantly granted the motion, saying,

'I think it is unfortunate that the Court will have to dismiss it, because this man undoubtedly * * * is guilty of the charge, because he admitted it.

'Here we have to dismiss it because some individual went into his car without authority.'

The main question to be determined is whether the exclusionary rule adopted in this state (People v. Cahan, supra, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513) applies to evidence obtained by a private person, not employed by or associated with a governmental unit. We believe that the answer to that question is that it does not so apply.

The Fourth Amendment to the United States Constitution was, in substance, adopted in this state in the Constitutional Convention of 1849. In the reports of the debates in that Convention it is set forth: 'Mr. Gwin said this section, as amended, was word for word from the Constitution of the United States, Fourth Article.' Browne, 'Debates in the Convention of California'. The question was then put to the convention, and the wording was adopted. The provision, as then written, was carried over into the Constitution of 1879, and remains in our present Constitution unchanged.

The courts of the federal government have had occasion to pass upon substantially the same question presented here in interpreting the Fourth Amendment to the United States Constitution. In Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159, McDowell filed a petition asking for an order directing the return to him of certain papers and correspondence in the possession of Burdeau, the special agent to the attorney general of the United States. The petition set forth that Burdeau intended to use the papers and documents in securing an indictment of McDowell for the fraudulent use of the mails, that the papers, etc., were unlawfully seized and stolen from petitioner's office, that the person who got the papers drilled petitioner's private safes and blew them open, broke the locks upon his private desk and broke into his private office and abstracted the documents from his private files. Petitioner contended that the possession by Burdeau, the government agent, 'was unlawful and in violation of the legal and constitutional rights of the petitioner' under the Fourth and Fifth Amendments to the Constitution of the United States. The trial court stated that it did not appear that the government had anything to do with the search and seizure of the papers and documents, but even so, held that the papers be returned to the petitioner upon the ground 'that the government should not use stolen property for any purpose after demand made for its return'. The Supreme Court, in reversing the trial court, said among other things (at page 474 of 256 U.S., at page 576 of 41 S.Ct., at pages 1050-1051 of 65 L.Ed.):

'The Amendments involved are the 4th and 5th, protecting a citizen against unreasonable searches and seizures, and compulsory testimony against himself. An extended consideration of the origin and purposes of these Amendments would be superfluous in view of the fact that this court has had occasion to deal with those subjects in a series of cases. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919; Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; and Gouled v. United States, decided February 28th, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, this term.

'The 4th Amendment gives protection against unlawful searches and seizures, and, as shown in the previous cases, its protection applies to governmental action. 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; as against such authority it was the purpose of the 4th Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.

'In the present case the record clearly shows that no official of the Federal government had anything to do with the wrongful seizure of the petitioner's property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded by the 4th Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting officers of the Federal government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are no now concerned.'

Or, as said in 45 Illinois Law Review 1 (Northwestern University School of Law) at page 23: 'This limitation is predicated upon the assumption that in terms of active peril to basic individual liberties an intelligible line of distinction may be drawn between illegal invasions of privacy by representatives of the public force and theft by private parties. That interests of a different order are involved may be indicated from the fact that the right of privacy protected by the Fourth Amendment proscribes only official invasion. While drawing such...