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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Michael Carrillo ORNELAS, Defendant and Appellant.

No. F009257.

Decided: November 18, 1988

John Doyle, under appointment by the Court of Appeal, San Francisco, Cal., for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jane Kirkland and Joel Carey, Deputy Attys. Gen., Sacramento, Cal., for plaintiff and respondent.


An information was filed alleging that defendant Michael Ornelas violated Penal Code section 666,1 petty theft with a prior burglary conviction and prison term. It was further alleged that defendant had served a prior prison term within the meaning of section 667.5, subdivision (b). Another information was filed against defendant alleging a violation of section 211, robbery. That information included an allegation that defendant had suffered a prior conviction within the meaning of section 667. The cases were consolidated for trial.

Defendant moved to suppress evidence related to the section 666 count. The motion was denied. Defendant also moved to bifurcate his trial and have the enhancements tried after the jury decided guilt on the other charges. That motion was granted. At trial, the court allowed the jury to receive evidence of defendant's prior conviction of first degree burglary over his offer to stipulate to the element of a prior theft-related conviction under section 666.

Defendant was found guilty as charged and sentenced to prison for a term of 10 years and 8 months. He appealed from the judgment of conviction, contending the trial court erred in denying his section 1538.5 motion to suppress and in allowing the jury to receive evidence of his prior conviction of first degree burglary over his offer to stipulate to the section 666 element of a prior theft-related conviction. For the reasons explained below, we find defendant's contentions lack merit and affirm the judgment.


On April 1, 1987, Timothy Whitaker, the assistant produce manager at Lucky's Market, was leaving work when he saw defendant remove two packs of cigarettes from the rack. Whitaker watched defendant as he walked down the aisle of the grocery store and put one packet in each pocket. Whitaker told his manager, Jules Deffes, what he had seen, and then observed defendant going out the door without going through a checkout stand. Whitaker and Deffes (jointly store employees) went outside and confronted defendant. After defendant denied taking anything, Whitaker reached into defendant's pockets and retrieved two packs of cigarettes. Defendant was detained in the back room of the store until the police arrived.

On April 13, 1987, Brenda Maniates went to the Osco drugstore to give her husband a ride home from work. She waited for her husband in her car, which was parked in the parking lot. While she was waiting, defendant opened her car door and asked for a quarter. She said “no,” and defendant then reached across her and grabbed her purse. Brenda and defendant struggled for possession of the purse for about a minute until the strap broke and defendant fled with the bag. Just before defendant left, Brenda's husband, Ted, came out of the store, heard his wife shouting, and saw her struggling with someone. He chased after defendant but was unable to catch him.

Later that evening Brenda and Ted were taken to a location where Brenda identified defendant as the person who had taken her purse. She positively identified defendant at the preliminary hearing, although she said his hair was different. She also positively identified defendant at trial. Ted was unable to identify defendant.


I. The Trial Court Did Not Err in Denying Defendant's Suppression Motion.A. Federal Law Does Not Require Exclusion of the Challenged Evidence.

Defendant made a section 1538.5 motion to suppress evidence of the cigarettes seized from his person and any statements made thereafter. The motion was denied.

Defendant urges that the trial court's ruling was error for several reasons. First, he contends the store employees were performing a public function in their action of searching and arresting him; therefore, under the authority of People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000, the search was illegal. Next, defendant asserts that section 490.5, subdivision (f)(1) defines what is “reasonable” in terms of action taken by a merchant and that any failure to follow these procedures is unreasonable per se. Finally, defendant argues that section 490.5 renders the merchant an agent or actor of the state and thus any acts done in the course of that agency constitute state action.

The People counter that the store employees were not acting as security agents and therefore do not come under the rationale of Zelinski. Further, the People submit, assuming arguendo the store employees were acting as security personnel, Proposition 8 mandates exclusion only when federal law requires it and because federal law does not require exclusion, it is not excludable here.

In People v. Nosler (1984) 151 Cal.App.3d 125, 130, 198 Cal.Rptr. 653, the court explained that the standard of review on appeal of the denial of a section 1538.5 motion to suppress evidence is dictated by the nature of the proceedings below. It encompasses a two-step process. The appellate court must first determine whether the trial court's findings of fact are supported by substantial evidence. It must then decide whether the trial court, in reaching its decision, properly applied constitutional standards to those facts.

The trial court here gave the following reasons for denying the motion:

“Article 1 Section 28(d) and In re Lance W., (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744] are the controlling law and no Federal Authority requires suppression of evidence in this matter.”

Pursuant to article I, section 28, subdivision (d) of the California Constitution, “questions about exclusion of evidence must be resolved under federal, and not state law.” (In re James D. (1987) 43 Cal.3d 903, 911, 239 Cal.Rptr. 663, 741 P.2d 161.)

Under the common law, merchants were given the privilege to detain “for a reasonable time for investigation in a reasonable manner ․ any person whom the merchant had probable cause to believe had unlawfully taken or attempted to take merchandise from the premises.” (People v. Zelinski, supra, 24 Cal.3d 357, 362, 155 Cal.Rptr. 575, 594 P.2d 1000.) This privilege is now part of section 490.5. (Id. at p. 363, 155 Cal.Rptr. 575, 594 P.2d 1000.) The limits of the merchant's authority to search included only items in plain view. Subdivision (f)(4), added to the statute in 1983, broadened the scope of the permissible merchant's search. It provides:

“(4) A merchant, a person employed by a library facility, or an agent thereof, having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises, may request the person detained to voluntarily surrender the item. Should the person detained refuse to surrender the item of which there is probable cause to believe has been unlawfully taken from the premises, or attempted to be unlawfully taken from the premises, a limited and reasonable search may be conducted by those authorized to make the detention in order to recover the item. Only packages, shopping bags, handbags or other property in the immediate possession of the person detained, but not including any clothing worn by the person, may be searched pursuant to this subdivision. Upon surrender or discovery of the item, the person detained may also be requested, but may not be required, to provide adequate proof of his or her true identity.”

In People v. Zelinski, supra, 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000 private security guards detained and searched an individual suspected of shoplifting. They discovered stolen items as well as a vial containing heroin. Police were called and the defendant was arrested. (Id. at pp. 360–361, 155 Cal.Rptr. 575, 594 P.2d 1000.) The California Supreme Court determined the question “whether searches by such private individuals should be held subject to the constitutional proscriptions.” (Id. at p. 365, 155 Cal.Rptr. 575, 594 P.2d 1000.) The court pointed to the “increasing reliance placed upon private security personnel by local law enforcement authorities for the prevention of crime and enforcement of the criminal law and the increasing threat to privacy rights posed thereby.” (Id. at p. 366, 155 Cal.Rptr. 575, 594 P.2d 1000.) It then noted the resulting threat to privacy rights from illegal conduct of such private security personnel and the expected deterrent effect of the exclusionary rule. (Ibid.)

The court concluded that the constitutional proscriptions should be applied to the private security personnel's search of the defendant while they were detaining her for delivery to a peace officer to arrest. The court considered the detention of the defendant as more than the exercise of the merchant's common law privilege (now embodied in § 490.5) to detain a person suspected of taking merchandise; the detention assumed the color of law when the merchant continued the detention for delivery of the defendant to a peace officer who may arrest. (Zelinski, supra, at pp. 367–368, 155 Cal.Rptr. 575, 594 P.2d 1000.)

In People v. Crowder (1982) 136 Cal.App.3d 841, 186 Cal.Rptr. 469 the principles of Zelinski were applied to a security guard who removed pills from the defendant. Because the security guard exceeded the statutory authority given to him pursuant to section 490.5, the search was found to be illegal and the trial court erred in denying the motion to suppress the pills under People v. Zelinski, supra.

If, as the People assert, the key to the application of Zelinski is whether the person who conducted the search is “security personnel,” then clearly Whitaker and Deffes do not fall into this category. But, in our view, Zelinski does not turn on the label given to the person conducting the search; it turns on the purpose of the search. If the search is conducted by the merchant or his agent for the purposes of self-help, there is no state action. Section 490.5 acts in this situation to define limits for possible civil liability if the merchant exceeds the limits of the authority given to him. Constitutional search-and-seizure proscriptions are not brought into play. If, on the other hand, the merchant or his agent searches the suspect and continues the detention for delivery of the suspect to a police officer for arrest, that merchant has exceeded the bounds of self-help, regardless of his title as a “security agent” or otherwise, and a state interest is brought into play. This results in the application of the constitutional proscriptions against unlawful search and seizure. Because the agent has exceeded the statutory authority given to him, the search is unlawful under state law. (People v. Crowder, supra, 136 Cal.App .3d 841, 186 Cal.Rptr. 469.)

Here, defendant's pockets were searched by Whitaker after defendant denied having anything that belonged to the store. He was detained until police arrived.

Although under the California rule established in Zelinski the search was illegal and the evidence should have been suppressed, article I, section 28, subdivision (d) of the California Constitution now requires that questions about exclusion of evidence be resolved under federal, and not state law. (In re James D., supra, 43 Cal.3d 903, 911, 239 Cal.Rptr. 663, 741 P.2d 161.)

The parties have not cited any counterpart to section 490.5 in the federal law, and we have not discovered any. Under federal law it is established that:

“The Fourth 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 Fourth 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 .” (Burdeau v. McDowell (1921) 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048.)

The People rely upon United States v. Francoeur (5th Cir.1977) 547 F.2d 891 to support their position that federal law is contrary to our Supreme Court's holding in Zelinski. In Francoeur a Disney World security guard detained three individuals suspected of passing counterfeit bills in the park. The three were taken to the Disney World security office and asked to empty their pockets. They complied, and the contents of their pockets were examined. The contents included a hotel key. The individuals were shown to salespersons to see if they could identify them. Each was identified by one or more of the salespersons as having passed counterfeit bills. (Id. at pp. 892–893.) The Secret Service then took over, obtained a search warrant and searched the hotel room opened with the key taken from the individual's possession, discovering a briefcase containing $48,000 in counterfeit bills. (Id. at p. 893.)

The federal court assumed that the activities of the security guards would have violated defendant's constitutional rights if carried out by government officials. The court recognized the federal principle that a search conducted by a private individual for purely private reasons does not fall within the ambit of the Fourth Amendment. It also took into consideration that no one was permitted into Disney World except by consent of the owners, and concluded that the private action of the security guards did not come under the protection of the Fourth Amendment.

“If the owners of this amusement park impose in an illegal manner on their clientele, such imposition, if in violation of statutes forbidding trespass, assault, false arrest, or any other offense, would subject the owners to a civil suit on behalf of the injured person. Such illegal conduct would not, however, give them the protection of the Fourth Amendment and the exclusionary rule which has developed from it. The exclusionary rule, itself, was adopted by the courts because it was recognized that it was only by preventing the use of evidence illegally obtained by public officials that a curb should be put on over-zealous activities of such officials. The Supreme Court has in no instance indicated that it would apply the exclusionary rule to cases in which evidence has been obtained by private individuals in a manner not countenanced if they were acting for state or federal government.” (United States v. Francoeur, supra, at p. 894.)

In an earlier case, United States v. Mekjian (5th Cir.1975) 505 F.2d 1320, 1327, the court limited the scope of the constitutional restraint as follows:

“Burdeau v. McDowell, 1921, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 has made it clear that the fourth amendment was intended as a restraint on the activities of the government and its agents and is not addressed to actions, legal or illegal, of private parties. Where no official of the federal government has any connection with a wrongful seizure, or any knowledge of it until after the fact, the evidence is admissible. [Citations.]”

It appears that the case of United States v. Dansberry (N.D.Ill.1980) 500 F.Supp. 140 espouses a different rule. In Dansberry, off-duty police officer Brown, employed part time as a security guard, detained two individuals he suspected of using a stolen credit card and asked them to come to the security office. He searched through Dansberry's wallet, finding false identification in the wallet. He called the police and the two were arrested. The products of Brown's search were given to the police. (Id. at p. 142.) Dansberry challenged the search and sought to suppress all evidence seized incident to his arrest. The court first discussed whether Brown was acting as a private security guard or as a police officer. Although the court found that Brown was acting as a police officer, lacked probable cause to make the arrest and therefore the search was unconstitutional, it went on to discuss whether the search was illegal assuming Brown was acting as a private security guard. (Id. at pp. 143–144.) The court first noted that the Illinois Retail Theft Act did not give a merchant the authority to search. (Id. at p. 144.) It then quoted Zelinski in finding that such a search was subject to the strictures of the Fourth Amendment and should be excluded.

It is clear from the foregoing cases that under federal law the store employees' search of defendant was illegal. However, we are compelled to follow the controlling circuit court cases which establish that federal law does not require exclusion of the evidence obtained by such search when no official of the government, federal or state, had any connection with the wrongful seizure or any knowledge of it until after the fact.

Although we share the concern expressed by the court in both People v. Zelinski, supra, 24 Cal.3d at page 366, 155 Cal.Rptr. 575, 594 P.2d 1000 and United States v. Danberry, supra, 500 F.Supp. at page 144 that an improper search by security personnel may pose a serious threat to privacy, the civil remedy available to the victims of such wrongful conduct against the offenders and their employees should provide a greater and more equitable deterrent than exclusion of the evidence. Exclusion of the evidence obtained through the illegal search is not required.

I.B., C—II **

The judgment is affirmed.


1.  Further statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.  See footnote *, ante.

HAMLIN, Associate Justice.

WOOLPERT, Acting P.J., and MARTIN, J., concur.

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