People v. Zelinski

• Citation: 155 Cal.Rptr. 575,594 P.2d. 1000,24 Cal.3d 357
• Decision Date: 24 May 1979
• Docket Number: Cr. 20284
• Parties: , 594 P.2d 1000 The PEOPLE, Plaintiff and Respondent, v. Virginia Alvinia ZELINSKI, Defendant and Appellant.
• Court: United States State Supreme Court (California)

Page 575

155 Cal.Rptr. 575

24 Cal.3d 357, 594 P.2d 1000

The PEOPLE, Plaintiff and Respondent, v. Virginia Alvinia ZELINSKI, Defendant and Appellant.

Cr. 20284.

Supreme Court of California, In Bank.

May 24, 1979.

Rehearing Denied June 27, 1979.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Aurelio Munoz and Barbara L. Miner, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark

Moore, Asst. Atty. Gen., Howard J. Schwab and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

MANUEL, Justice.

Virginia Zelinski was charged with unlawful possession of a controlled substance, heroin (Health & Saf.Code, § 11350). A motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. She entered a plea of guilty and appeals. (Pen.Code, § 1538.5, subd. (m).) We reverse.

On March 21, 1976, Bruce Moore, a store detective employed by Zody's Department Store, observed defendant place a blouse into her purse. Moore alerted Ann O'Connor, another Zody detective, and the two thereafter observed defendant select a pair of sandles, which she put on her feet, and a hat, which she put on her head. Defendant also took a straw bag into which she placed her purse. Defendant then selected and paid for a pair of blue shoes and left the store.

Detectives Moore and O'Connor stopped defendant outside the store. Moore placed defendant under arrest for violation of Penal Code section 484 (theft) and asked her to accompany him and detective O'Connor into the store. Defendant was taken by O'Connor to the security office where Pat Forrest, another female store detective, conducted a routine "cursory search in case of weapons" on the person of defendant.

Moore testified that he reentered the security office when the search of defendant's person was completed, opened defendant's purse to retrieve the blouse taken form Zody's, and removed the blouse and a pill vial that lay on top of the blouse. ¹ Moore examined the vial, removed a balloon from the bottle, examined the fine powdery substance contained in the balloon, ² and set the vial and balloon on the security office desk to await the police who had been called.

Detective O'Connor, who testified to the search of defendant's person by Forrest, ³ was initially confused as to whether the pill vial containing the balloon had been taken from the defendant's purse or from her brassiere. On cross-examination, O'Connor was certain that she saw Forrest taking it from defendant's brassiere. According to O'Connor, the pill bottle was placed on the security office desk where detective Moore shortly thereafter opened it and examined the powdery substance in the balloon. Later the police took custody of the vial and defendant was thereafter charged with unlawful possession of heroin.

Defendant's appeal involves two questions (1) whether store detectives Moore, O'Connor and Forrest exceeded the permissible scope of search incident to the arrest, and (2) if they did, whether the evidence thus obtained should be excluded as violative of defendant's rights under federal or state Constitutions. We have concluded that the narcotics evidence was obtained by unlawful search and that the constitutional prohibition against unreasonable search and seizure affords protection against the unlawful intrusive conduct of these private security personnel.

Store detectives and security guards are retained primarily to protect their employer's interest in property. They have no more powers to enforce the law than other private persons. (See Private Police in California: A Legislative Proposal (1975) 5 Golden Gate L.Rev. 115, 129-134; cf. Stapleton v. Superior Court (1968) 70 Cal.2d 97, 100-101, fn. 3, 73 Cal.Rptr. 575, 447 P.2d 967.) Like all private persons, security employees can arrest or detain an offender (Pen.Code, § 837) and search for weapons (Pen.Code, § 846) before taking the offender to a magistrate or delivering him to a peace officer (Pen.Code, §§ 847, 849). ⁴ Store personnel Moore and O'Connorwere acting under this statutory authority when they arrested defendant and took her into custody for leaving the store with stolen merchandise.

Merchants have traditionally had the right to restrain and detain shoplifters. At the time of the incident at Zody's, merchants were protected from civil liability for false arrest or false imprisonment in their reasonable efforts to detain shoplifters by a common law privilege that permitted detention for a reasonable time for investigation in a reasonable manner of any person whom the merchant had probable cause to believe had unlawfully taken or attempted to take merchandise from the premises. (Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 54 P.2d 20.) That privilege has since been enacted into state as subdivision (e) of Penal Code section 490.5. ⁵

Thus, pursuant to the Penal Code or the civil common law privilege, store personnel Moore and O'Connor had authority to arrest or detain defendant. The question remains, however, whether they exceeded their authority in their subsequent search for and seizure of evidence.

The permissible scope of search incident to a citizen's arrest is set out in People v. Sandoval (1966) 65 Cal.2d 303, 311, fn. 5, 54 Cal.Rptr. 123, 128, 419 P.2d 187, 192.5: "A citizen effecting such an arrest is authorized only to 'take from the person arrested all offensive weapons which he may have about his person' (Pen.Code, § 846), not to conduct a search for contraband 'incidental' to the arrest, or to seize such contraband upon recovering it. (Citation.) We reject the suggestion of People v. Alvarado (1962) 208 Cal.App.2d 629, 631, 25 Cal.Rptr. 437, that the search of one private individual or his premises by another is lawful simply because 'incidental' to a lawful citizen's arrest." (See also People v. Cheatham (1968) 263 Cal.App.2d 458, 462, fn. 2, 69 Cal.Rptr. 679; People v. Sjosten (1968) 262 Cal.App.2d 539, 68 Cal.Rptr. 832; People v. Martin (1964) 225 Cal.App.2d 91, 94, 36 Cal.Rptr. 924.) ⁶ The rationale behind the rule is that, absent statutory authorization, private citizens are not and should not be permitted to take property from other private citizens. ⁷

The limits of the merchant's authority to search is now expressly stated in Penal Code section 490.5. Paragraph (3) of subdivision (e) provides that "During the period of detention any items which a merchant has reasonable cause to believe are unlawfully taken from his premises And which are in plain view may be examined by the merchant for the purposes of ascertaining the ownership thereof." (Italics added.) Neither the statute nor the privilege which it codified purport to give to the merchant or his employees the authority to search.

In the present case, instead of holding defendant and her handbag until the arrival of a peace officer who may have been authorized to search, the employees instituted a search to recover goods that were not in plain view. Such intrusion into defendant's person and effects was not authorized as incident to a citizen's arrest pursuant to section 837 of the Penal Code (Sandoval, supra, 65 Cal. fn. 5, at p. 311, 54 Cal.Rptr. 123, 419 P.2d 187), or pursuant to the merchant's privilege subsequently codified in subdivision (e) of section 490.5. It was unnecessary to achieve the employees' reasonable concerns of assuring that defendant carried no weapons ⁸ and of preventing loss of store property. As a matter of law, therefore, the fruits of that search were illegally obtained.

The People contend that the evidence is nevertheless admissible because the search and seizure were made by private persons. They urge that Burdeau v. McDowell (1921) 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 holding that Fourth Amendment proscriptions against unreasonable searches and seizures do not apply to private conduct, is still good law and controlling. (See People v. Randazzo (1963) 220 Cal.App.2d 768, 770-775, 34 Cal.Rptr. 65; People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 128-129, 74 Cal.Rptr. 294, 298, 449 P.2d 230, 234, (" . . . acquisition of property by a private citizen from another person cannot be deemed reasonable or unreasonable . . . "); cf. Stapleton v. Superior Court, supra, 70 Cal.2d at p. 100, fn. 2, 73 Cal.Rptr. 575, 447 P.2d 967.)

Defendant contends, on the other hand, that only by applying the exclusionary rule to all searches conducted by store detectives and other private security personnel can freedoms embodied in the Fourth Amendment of the federal Constitution and article I, section 13 of the state Constitution be protected from the abuses and dangers inherent in the growth of private security activities.

More than a decade ago we expressed concern that searches by private security forces can involve a "particularly serious threat to privacy" (Stapleton, supra, 70 Cal.2d at pp. 100-101, fn. 3, 73 Cal.Rptr. at pp. 577 n. 3, 447 P.2d at pp. 969 n. 3); in Stapleton and later in Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, 114 Cal.Rptr. 114, 522 P.2d 674, we left open the question whether searches by such private individuals should be held subject to the constitutional proscriptions. We now address the problem.

Article I, section 13 of the California Constitution provides in part that: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated . . . ." Although the constitutional provision contains no language indicating that the "security" protected by the provision is limited to security from governmental searches or seizures, California cases have generally interpreted this provision as primarily intended as a protection of the people against such governmentally initiated or governmentally directed intrusions. The exclusionary rule, fashioned to implement the rights...