People v. Mangiefico

• Decision Date: 02 June 1972
• Docket Number: Cr. 9703
• Citation: 102 Cal.Rptr. 449,25 Cal.App.3d 1041
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Santo J. MANGIEFICO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 449

102 Cal.Rptr. 449

25 Cal.App.3d 1041

PEOPLE of the State of California, Plaintiff and Respondent, v. Santo J. MANGIEFICO, Defendant and Appellant.

Cr. 9703.

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

June 2, 1972.

Hearing Denied July 26, 1972.

Romines, Wolpman, Tooby, Eichner, Sorensen, Constantinides & Cohen, by Norton Tooby, Menlo Park, for appellant (By appointment of Court of Appeal).

Evelle J. Younger, Atty. Gen. of California, Robert R. Granucci, H. F. Wilkinson, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction and sentence, ¹ following a jury trial, for violation of Insurance Code section 556 (false or fraudulent insurance claim), and Penal Code sections 548 (defrauding an insurer), 450a (arson of personal property with intent to defraud an insurer) and 448a (arson of a private building other than a dwelling).

Defendant contends that his conviction must be reversed because it is based upon evidence admitted in violation of his constitutional rights in two respects. First, he argues that the testimony of George Berdan, a consulting fire investigator, and certain photographs taken by him were improperly admitted as they were the product of a search conducted without a proper warrant and without defendant's consent. Second, defendant asserts that a tape recording of his interview with Berdan was improperly admitted as the statements contained therein were procured without first advising him of his rights under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694, which requires that an accused be advised prior to his being questioned that he has a right to remain silent, that any of his statements may be used against him, and that he has the right to the presence of an attorney, either retained or appointed. We have concluded that these contentions are without merit and, accordingly, that the judgment must be affirmed.

The instant case arose as a result of a fire which occurred on January 6, 1970, in the premises located in Santa Rosa used by defendant and Sol Kaye as a television and appliance store. A fire insurance policy insuring the contents of said premises was issued by Safeco Insurance Company. The fire was investigated by Alvis Austin, the local adjuster for Safeco, Michael Turnick, the fire marshal, and Berdan.

Berdan was a self-employed consulting fire investigator. He holds a private investigator's license and was hired by Safeco to determine the origin and cause of the subject fire. Berdan arrived in Santa Rosa on January 13 and he contacted Austin and Turnick. Several days later he contacted the police chief in order to inform him of the purpose of his presence. Berdan stated that he did not discuss the fire or its cause with anyone from the fire department prior to his investigation of the premises nor was he told anything prior to his investigation.

Berdan was at the scene of the fire on the 13th and 14th of January, and he returned for a few hours on the 21st, 22nd and 23rd. At various times while Berdan was conducting his investigation of the fire at the insured premises Austin and Turnick were also present as were Battalion Chief Young and Captain Stedman of the fire department. After Berdan had determined the origin of the fire he discussed the fire department's fire extinguishing procedure with Turnick, Young and Stedman in order to determine the time at which the fire started.

On January 21 Berdan interviewed defendant and Kaye at the offices of Safeco. Austin was present during the interview. The conversation was recorded. Defendant stated in the conversation that he began closing the store around quarter to nine on the evening of the fire and that he left the building at approximately ten to nine. ²

Berdan suggested that the fire department reenact what was done on the night of the fire so as to cross-check the conclusions reached as a result of their previous discussion. Young testified that after talking with Berdan and the fire chief he decided that it would be a good idea to 'try to reconstruct it.' By so doing, if he should be called to testify, he 'would be more than just guessing.' The reconstruction of the fire was conducted on February 4 under the supervision of Turnick.

Although Berdan may have taken some notes during his investigation, he no longer had them at the time of the trial. Berdan testified largely from numerous photographs he had taken. Berdan did not obtain laboratory analysis of any of the material he examined, nor did he retain the material for use as evidence. Upon completing his investigation, Berdan left the material which he had inspected at the scene of the fire. It was Berdan's opinion that the fire originated at two distinct places in the building. Berdan stated that in his opinion the cause was arson. He said that the fire ignited at both places at the same time and that paper products were used. Berdan had concluded from his examination that the fire started at 8:49 p.m. Berdan made a report and sent a copy to Turnick. Berdan received a copy of the report made by the City of Santa Rosa and he testified he 'may have' sent a copy to Austin.

Adverting to defendant's primary contention, we perceive it to be that a private investigator, licensed by the state, is in essence a public law enforcement official. From this premise, defendant goes on to assert that a private investigator is subject to the restraints of the Fourth Amendment and that evidence which he obtains in violation of the Fourth Amendment must be excluded. Defendant argues that this is compelled by the necessity of deterring lawless conduct on the part of private investigators. Defendant further asserts that he had a reasonable expectation of privacy with respect to his place of business, and that he neither expressly nor impliedly consented to the search of the premises by the private investigator.

Defendant asks us to hold that a private investigator is, in essence, a law enforcement official. This contention has never been expressly ruled upon by the California Supreme Court. In Stapleton v. Superior Court, 70 Cal.2d 97, 100--101, fn. 3, 73 Cal.Rptr. 575, 577, 447 P.2d 967, 969, the court observed that it was '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.' ³ This statement suggests that the exclusionary rule should be applied to private investigators, if at all, only where they are in fact primarily engaged in law enforcement. If the goal of the private investigator is to obtain evidence for a criminal prosecution it could well be argued that he is primarily engaged in law enforcement since, as noted in Stapleton, searches and seizures to assert criminal prosecutions may achieve the status of an 'inherently governmental task' so as to make the application of the exclusionary rule to such searches more of a deterrent than it would be in other cases of "private' searches.' (70 Cal.2d at p. 103, fn. 4, 73 Cal.Rptr. 575, 447 P.2d 967; see Gambino v. United States, 275 U.S. 310, 315--317, 48 S.Ct. 137, 72 L.Ed. 293.)

We are persuaded that it cannot be concluded that all private investigators are engaged in procuring evidence so as to facilitate the enforcement of the law. It is a matter of common knowledge that many investigators do not have as their primary mission the enforcement of the law or the procuring of evidence in aid of criminal prosecutions. (See People v. Wright, 249 Cal.App.2d 692, 694--695, 57 Cal.Rptr. 781.)

Turning our attention to Berdan's role, we observe, initially, that he testified that there is no suspicion of arson in 90 percent of the cases which he is called to investigate. Here he was called to inspect the subject fire by the insurance company. He was not called into the case by any law enforcement officials. Neither his employer nor the local enforcement official told him anything about the origin or the cause of the fire prior to his investigation. Under the state of the record it may be assumed that the insurance company's primary concern was protection against liability rather than the attainment of a criminal conviction. Berdan testified that insurance companies are interested in determining the origin and cause of fire in cases other than arson because if there is negligence on the part of someone there may be a subrogation right and because the information gathered is often useful in fire prevention programs. There is no indication in the record that Safeco requested that arson charges be brought against defendant, nor did it request that fraud charges be brought against him. In sum, the evidence is reasonably susceptible of the inference that the basic purpose of Berdan's investigation was to determine, as a private investigator, the cause of the fire as information for the benefit and use of Safeco, his employer, rather than for the enforcement of the law of the gathering of evidence for use in a criminal prosecution.

We are not unmindful that upon arriving in Santa Rosa Berdan contacted the fire marshal and, later, the police chief to advice them of his presence, that in the course of Berdan's investigation he requested a reenactment by the fire department of what was done on the night of the fire, and that after completing his report he sent a copy of it to the fire marshal. These actions do not per se require the inference that Berdan was basically engaged in law enforcement or in gathering evidence to assist a criminal prosecution. These activities are clearly consistent with the conduct of an independent investigation having for its objective the securing of information for the use and benefit of Safeco. The circumstance of the giving by Berdan of a copy of his report to the fire marshal, while it may have been...