People v. Shegog

• Decision Date: 22 August 1986
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clifton SHEGOG, Defendant and Appellant. Crim. 14415.

Page 345

229 Cal.Rptr. 345

184 Cal.App.3d 899

The PEOPLE, Plaintiff and Respondent, v. Clifton SHEGOG, Defendant and Appellant.

Crim. 14415.

Court of Appeal, Third District, California.

Aug. 22, 1986.

Review Denied Nov. 19, 1986.

Frank O. Bell, Jr., State Public Defender, and Cynthia A. Thomas, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi, Supervising Deputy Atty. Gen., and Ellen M. Peter, Deputy Atty. Gen., for plaintiff and respondent.

CARR, Associate Justice.

In this appeal we are asked to consider the parameters of section 7507.9, Business and Professions Code, ¹ in relation to Fourth Amendment and privacy rights. Section 7507.9 sets forth the statutory duties imposed on a repossessor of personal property in the care and disposition of personal effects or other personal property not covered by the security agreement which are contained in or on the repossessed property at the time it is recovered. It provides that any personal property contained in a repossessed vehicle "shall be removed from the vehicle, a complete and accurate inventory shall be made, and the personal effects shall be stored in a labeled container by the [repossessor] for a minimum of 60 days in a secure manner, ..." The section also requires "[d]eadly weapons and dangerous drugs shall be turned over to a local law enforcement agency for retention." (Subd. (b)(1).)

Defendant moved to suppress as the products of warrantless searches all personal property removed from his repossessed automobile by the repossessor and turned over to the sheriff's department and all evidence seized during a search of defendant's home. After denial of the motion, defendant pled guilty to second degree murder and was sentenced to prison for 15 years to life. On appeal he asserts error only in the denial of the suppression motion.

We conclude the motion was properly determined by the trial court and shall affirm the judgment.

FACTS

In the course of investigating the killing of one Ricky Jones, who died of 10 gunshot wounds from a .22 caliber gun, Detective Tony Kostella of the Sacramento Sheriff's Department interviewed Vicki Hart. She informed him that defendant might have been involved in the homicide, that defendant usually kept a .22 caliber handgun under the front seat of his vehicle, and that the vehicle had been repossessed earlier that day. Kostella immediately began calling repossession agencies in Sacramento and was advised by Stephen Larson of American Lending Service that his agency had repossessed defendant's Honda earlier that day. Kostella asked Larson if a gun had been recovered from the vehicle. Larson stated no gun was found, but that a .22 caliber clip with eight rounds of .22 caliber ammunition was retrieved. Kostella told Larson he would come to the repossession agency to talk to him. At this time Larson had completed an inventory of the vehicle's contents and placed the property in the repossession agency's storage bag. Later that day Kostella examined defendant's property which was on display in Larson's office and took custody of the .22 caliber magazine and a telephone.

The same day Kostella located defendant at his place of employment and drove him to Kostella's office for questioning. Kostella advised defendant of his Miranda rights. ² During questioning, defendant confirmed he owned a Honda that had recently been repossessed. When Kostella inquired about specific contents of the vehicle, defendant invoked his rights to remain silent and have an attorney present during questioning. Kostella then asked defendant if detectives could nevertheless search his residence. Defendant stated he had no problem with that. Defendant and Kostella proceeded to defendant's home where they met other detectives. They encountered a woman who shared a bedroom with defendant. After consulting with defendant, the woman signed a form consenting to a search of the bedroom. During the search, the detectives seized .22 caliber ammunition and a .22 caliber automatic pistol and nine spent cartridges, which they located in an athletic bag inside a laundry basket.

I

Defendant's initial challenge is to the court's denial of his motion to suppress the evidence turned over to the sheriff's department by the repossession agency. Defendant equates the removal, inventory and storage of personal property taken from a repossessed vehicle by a repossessor with a wrongful search by a private citizen. There is no violation of any Fourth Amendment rights in such search as the prohibitions against unreasonable searches found in both the United States and California Constitutions generally apply only to the government or its agents. (Burdeau v. McDowell (1921) 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; People v. De Juan (1985) 171 Cal.App.3d 1110, 1120, 217 Cal.Rptr. 642.) However, any warrantless examination, search or use by law enforcement officers of the results of a private search is limited to the scope of the private search, in the absence of a plain view or other exception to the warrant requirement. (Walter v. United States (1980) 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410.) Or as expressed by the United States Supreme Court in United States v. Jacobsen (1984) 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 "[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated." (Id., 466 U.S. at 117, 104 S.Ct. at 1659, 80 L.Ed.2d at p. 97.) Defendant reasons that section 7507.9 and related sections express a recognition by the Legislature that there is a reasonable expectation of privacy as to personal property situated on or in repossessed property as to all persons except the repossessor, and, as to the repossessor, the expectation of privacy is diminished only insofar as is required to inventory and secure the personal property. This legislative intent is allegedly demonstrated by the requirement that the repossessor remove, inventory and store for a minimum of 60 days in a secure manner any personal property found in the repossessed vehicle ( § 7507.9); that the repossessor is not empowered to do anything further with the personal property after inventory and storage and, in fact, is subject to fine or loss of license for use, appropriation or disposal of such property ( §§ 7508.2-7510.1). Thus, defendant concludes Detective Kostella's search and seizure of defendant's personal property at the repossessor's office was violative of defendant's Fourth Amendment rights and the evidence seized should have been suppressed.

Moreover, the provision of subdivision (b)(1) of section 7507.9 requiring repossessors to turn over to law enforcement agencies all deadly weapons and dangerous drugs is seen by defendant as demonstrating that a person's expectation of privacy as to any noncontraband property is not frustrated when the property is obtained through a lawful repossession. This argument is a non sequitur: by requiring repossessors to deliver contraband found in repossessed vehicles to law enforcement agencies, the Legislature did not prohibit repossessors from permitting law enforcement officials to inspect noncontraband items.

Neither party has directed our attention to any case law construing section 7507.9 or the Repossessors Act, of which section 7507.9 is a part and our independent research has not uncovered any. The legislative history, however, albeit skimpy, discloses a concern for the protection of the personal property rights of the owner of a repossessed vehicle rather than that owner's privacy rights in the personal property. The legislative purpose appears as one to safeguard the property from the larcenous hands of the repossessor's agents, not to shield the property from the probing eyes of law enforcement officers.

The Repossessors Act, sections 7500-7511, inclusive, was enacted in 1981, reportedly in response to abuses by repossessors, who, prior to the 1981 Act, were required to be licensed and were subject to discipline but were virtually unregulated because of the lack of a separate bureau, programs, staffing and funds. (See "Repossession Agency Program", Report of the Bureau of Collection and Investigative Services Department of Consumer Affairs, to the Senate Rules Committee, filed October 5, 1981, at pp. 1, 2, hereafter called Agency Report). ³ The new Act made important changes in the law governing repossessors. An important factor was gathering all laws relating to repossessors in one Act. Prior thereto the various laws were scattered...