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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lloyd Anthony HAYDEL and Dorothy Barbara Haydel, Defendants and Appellants.

Cr. 6556.

Decided: September 18, 1973

Evelle J. Younger, Atty. Gen. by Charles P. Just, and David M. Blackman, Deputy Attys. Gen., Sacramento, for plaintiff and respondent. Harold D. Winingar, Sacramento, for defendants and appellants.

Defendants Lioyd and Dorothy Haydel are husband and wife. A jury found both guilty of grand theft. They were admitted to probation conditioned upon county jail service. Primary issue on appeal is the admissibility of four written confessions signed by Lloyd Haydel during the course of interrogation by privately employed security officers.

Lloyd Haydel was employed as a store supervisor in a downtown Sacramento department store. The store's security officers investigated the disappearance of merchandise, suspected Haydel and commenced shadowing him. At the rear of the store was a ‘will-call’ loading dock where customers picked up purchases by automobile. Shortly after noon Michael Kinney, a security officer, saw Dorothy Haydel drive up to the will-call entrance. Lioyd Haydel came out and loaded two boxes into the trunk of the vehicle. At that point Kinney accosted them. Startled, Lioyd slammed the trunk door shut. When Kinney told him that he wanted to see sales slips for the merchandise, Lioyd stuttered and indicated that he wanted Dorothy to leave. When Kinney told him that he knew what was going on, Lloyd said, ‘All right, all right, leave her alone.’ Lloyd then opened the trunk and threw the two boxes onto the loading dock. Kinney's examination of the two boxes disclosed a miscellaneous assortment of merchandise belonging to the store, worth in excess of $200. Kinney also saw on the loading dock other boxes of merchandise which did not belong there. These also contained merchandise worth in excess of $200.

At approximately 12:30 p. m. Kinney took the Haydels and their 3 1/2 year-old child upstairs to the third floor of the store. Dorothy and the child were taken to the office of Mrs. Carter, the store personnel manager. When Dorothy tried to leave, Kinney told her that she could not. He took her by the arm to restrain her when she tried to go past him. He told Dorothy that she was under arrest; that if she attempted to leave he would have to detain her physically. Mrs. Carter and later Kinney unsuccessfully attempted to question Dorothy about thefts of merchandise. Kinney instructed that Mrs. Haydel and the child were not to be released. Mrs. Haydel and the child were isolated in the store's personnel office for approximately 6 1/2 hours. Mrs. Haydel testified and the store personnel denied that she repeatedly requested them to call the police and to call someone to take the child home.

Lloyd Haydel was taken into the security office on the third floor of the store. Kinney called in Gary Pennock, a fellow security officer. During the course of the afternoon they interrogated Haydel in relays. Haydel made repeated requests to see his wife and child and to permit the child to be taken home; the child, nevertheless, was detained with the mother and only one brief contact between them and Mr. Haydel was permitted. Haydel said that the child was on medication. Kinney offered to contact a friend or neighbor to bring the medication to the store, but Haydel refused. During the course of the afternoon Kinney and Pennock presented four written statements to Haydel, all to the effect that he had taken merchandise without payment. He signed or initialed all four statements. About 6 o'clock p. m., more than five hours after taking the Haydels into custody, Kinney called the police. The policeman who first arrived spent an interval of time checking out the recovered merchandise; meanwhile the Haydels, including the child, were kept in the store. Except for a few minutes in the afternoon, the Haydels were not permitted to see one another until 7 o'clock in the evening. At approximately 8 o'clock the police took defendants into custody. A police officer suggested that they make arrangements to have someone pick up the child; he also gave then the standard ‘Miranda’ warning. They were then transported to jail.

Haydel's first written confession was signed after he had been in the security office for approximately 1 1/2 hours. In that document he admitted taking the merchandise found in the trunk of his car but asserted his wife's innocence. After another half hours, he signed a second document, admitting that there was additional merchandise at his home and authorizing the store's agents to enter his home to obtain the merchandise ‘providing my wife Dorothy and/or I are present.’ After Haydel signed the consent document, he was permitted to see his wife for approximately five minutes. Haydel testified that he signed the ‘and/or’ consent after being led to believe that his wife and child would be taken to the house. Kinney admitted that he did not disabuse Haydel of this belief until after Haydel signed the ‘and/or’ statement. Only after getting Haydel's signature did he inform Haydel that his wife and child would be detained at the store. Kinney and Pennock took Haydel alone to the house. There the security officers found a quantity of merchandise belonging to the store. Before leaving the residence to retun to the store, Lloyd signed a third statement, admitting that he had stolen the merchandise being removed from his home. Shortly before six o'clock he signed the fourth statement, admitting three separate thefts of merchandise. The police were them called.

At defendants' trial the court overruled defense objections to the four signed confessions and admitted them in evidence. Defendants contend that these confessions were coerced by intimidation and psychological pressure upon Lloyd Haydel emanating from the enforced detention of his wife and small child. To be admissible a confession must be voluntary, that is, a product of the accused's rational intellect and free will; a coerced confession is inadmissible; the coercion may consist of psychological pressure exerted by inducement and threat; a reviewing court must examine the uncontradicted facts to determine independently whether the trial court properly found voluntariness; the reviewing court must take into account the totality of circumstances in which the confession was given; on appeal, the prosecution has the burden of establishing the confession's voluntariness. (People v. Sanchez (1969), 70 Cal.2d 562, 571–572, 75 Cal.Rptr. 642, 451 P.2d 74; People v. Berve (1958), 51 Cal.2d 286, 291, 332 P.2d 97.) A confession's inadmissibility may stem from civilian as well as police coercion (People v. Berve, supra, 51 Cal.2d at p. 293, 332 P.2d 97).

We have appraised the totality of circumstances surrounding the confessions. The People have failed to establish the second, third and fourth confessions as the product of Haydel's free will. He signed the second statement (permitting a search of his home in the presence of him ‘and/or’ his wife) after being tricked into the belief that it would free his wife and child from captivity. (People v. Arguello (1967), 65 Cal.2d 768, 775, 56 Cal.Rptr. 274, 423 P.2d 202; People v. Hays (1967), 250 Cal.App.2d 96, 98, 58 Cal.Rptr. 241.) The third and fourth statements were signed under pressures emanating from the trickery combined with the continued detention of the wife and child. In overruling defense objections, the trial court impliedly found these confessions were the product of Haydel's rational intellect and free will. The finding was erroneous as a matter of law.

Admissibility of the first confession is governed by other factors. When an appellate court views the totality of circumstances to ascertain whether a defendant's statements were voluntary and the product of a rational intellect, it must accept the trial judge's resolution of conflicting evidence, provided that the evidence on which the judge relied is worthy of belief. (People v. Gurley (1972), 23 Cal.App.3d 536, 550, 100 Cal.Rptr. 407; People v. Stroud (1969), 273 Cal.App.2d 670, 676, 78 Cal.Rptr. 270.) During the voir dire inquiry into admissibility of the four signed statements, Kinney testified that at the outset of the interrogation Haydel orally admitted taking merchandise; that he, Kinney, reduced the recital to writing, had it typed and attached to it an inventory of the merchandise found on the loading dock; that he then presented it to Haydel, who initialed it at various places and signed it; that he, Kinney, made no threats or promises; that he made no offer to free Mrs. Haydel and the child in exchange for a written confession.1 Haydel, in contrast, testified that Kinney offered to let the wife and child go home if he, Haydel, signed the prepared statement. The trial judge admitted the confession in evidence without any explicit findings. His ruling was an implied finding of voluntariness, an implied acceptance of Kinney's version and an implied rejection of Haydel's conflicting version. (People v. Daniels, 1 Cal.App.3d 367, 374, 81 Cal.Rptr. 675.) We accept the trial court's resolution of conflicting evidence on the issue of coercion of the first confession.

Nevertheless, the first as well as the subsequent signed confessions were the inadmissible products of illegality. The store's security officers were not peace officers. They had taken the Haydel family into custody under authority of the citizen's arrest power conferred upon them by state law. Section 837 of the California Penal Code authorizes a citizen to arrest another for a public offense committed in his presence. Section 847 directs him to take the arrestee to a magistrate or peace officer without unnecessary delay.2

The security officers did not comply with their statutory duty to deliver Mr. and Mrs. Haydel to a peace officer without unnecessary delay. Instead, they delayed notifying the police for five hours. Actual delivery of the two prisoners to the police occurred approximately seven hours after their arrest. Penal Code section 847 is designed to limit the span of private captivity after a citizen's arrest to an unavoidable minimum. It is an expression of a policy which permits the arresting citizen a limited measure of self-help but frowns on detention of one citizen by another any longer than necessary.

The record contains no explanation for the five hours of delay. By inescapable inference, the security officers deliberately refrained from calling the police in order to conduct an incommunicado interrogation. The delay was a flagrant violation of Penal Code section 847. During five hours of illegal, incommunicado detention of the Haydel family, the department store's security officers extracted four signed confessions from Lioyd Haydel.3

Before the development of current admissibility criteria, a confession was admissible if voluntary, even though made during the suspect's illegal detention. (Rogers v. Superior Court (1955), 46 Cal.2d 3, 9–11, 291 P.2d 929; People v. Freeland (1963), 218 Cal.App.2d 199, 32 Cal.Rptr. 132.) Later decisions developed the ‘fruit of the poisonous tree’ doctrine. According to that doctrine the exclusionary rule which bars illegally seized evidence also bars the verbal product of such evidence, even though uncoerced. (Wong Sun v. United States, 371 U.S. 471, 485–486, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Bilderbach (1965), 62 Cal.2d 757, 766–767, 44 Cal.Rptr. 313, 401 P.2d 921.) California appellate courts have since viewed the ‘poisoned fruit’ doctrine as a modification of the rule this court pursued in People v. Freeland, supra. According to current holdings, lack of coercion is only factor in determining whether the confession is the direct product of an illegal detention or imprisonment. (People v. Green (1968), 264 Cal.App.2d 614, 621, 70 Cal.Rptr. 647; People v. Martin (1966), 240 Cal.App.2d 653, 655–656, 49 Cal.Rptr. 888.) When an illegally held suspect is informed of his right to remain silent, his freely made election to confess may dissipate the taint of illegal detention and permit evidentiary use of his confession. (People v. Lyons (1971), 18 Cal.App.3d 760, 773–774, 96 Cal.Rptr. 76; People v. Martin, supra.) If the confession is inextricably bound up with the illegal detention and cannot be segregated from it, the confession must be excluded. (People v. Green, supra, 264 Cal.App.2d at p. 622, 70 Cal.Rptr. 647; see also, People v. Johnson (1968), 68 Cal.2d 629, 632, 68 Cal.Rptr. 441, 440 P.2d 921; People v. Haven (1963), 59 Cal.2d 713, 718–719, 31 Cal.Rptr. 47, 381 P.2d 927.)

In this case the security officers violated their duty of timely delivery to the police and held Heydel and his family incommunicado without informing him of his right to silence and his right to be delivered from private captivity without delay. The signed statements were inextricably bound up with his continuing illegal captivity.

The ‘tainted fruit’ doctrine is one expression of the exclusionary rule which bars illegally acquired evidence from criminal trials. The exclusionary rule is designed to deter illegal conduct by public officials, hence is inoperative when the evidence is gained by a private citizen not acting as a public agent. (People v. Superior Court (Smith) (1969), 70 Cal.2d 123, 129, 74 Cal.Rptr. 294, 449 P.2d 230; Stapleton v. Superior Court (1968), 70 Cal.2d 97, 100, 73 Cal.Rptr. 575, 447 P.2d 967.) The California Supreme Court has recognized, nevertheless, that the well-trained and well-financed private security forces of business establishments are heavily involved in law enforcement; that state laws such as Penal Code section 837 (the citizen's arrest statute) ‘blur the line between public and private law enforcement.’ (Stapleton v. Superior Court, supra, 70 Cal.2d at pp. 100–101, fn. 3, 73 Cal.Rptr. at p. 577, 447 P.2d at p. 969.) The federal Supreme Court holds that constitutional barriers arise when the citizen acts ‘under color’ of state law, by participation in joint activity with the state itself or with its agents. (United States v. Price (1966), 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267.)

Here state law had armed the private security officers with authority to arrest. Only by first exercising their state-granted authority to arrest were they enabled to hold the arrestee in illegal detention. Had they performed their duty of immediate delivery to the police, their prisoner would have been entitled to constitutionally sanctioned police procedures. By delaying police entry the private captors indulged in a simplistic tactic to extract from the suspect what the police might not. The entire process of arrest, detention, incommunicado interrogation and extraction of signed confessions was the indissoluble product of the arrest made under color of state law.

Some of the decisions barring uncoerced confessions produced by illegal detention do not explicate their conceptual basis. Violation of a statute (Here, Penal Code section 847) does not trigger an ‘exclusionary rule’ which bars evidence produced by the violation. The exclusionary rule, of course, is a Fourth Amendment concept. That amendment declares: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ..’ Article I, section 19, of the California Constitution voices a substantially identical admonition. These fundamental guaranties may bar verbal as well as tangible evidence. (Wong Sun v. United States, supra, 371 U.S. at p. 486, fn. 12, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Bilderbach, supra, 62 Cal.2d at p. 767, 44 Cal.Rptr. 313, 401 P.2d 921.) They shield not only the sanctity of the home but also the inviolability of the person. (Wong Sun v. United States, supra, 371 U.S. at p. 484, 83 S.Ct. 407.) In commanding the arresting citizen to deliver the arrested citizen to the police without unnecessary delay, section 847 of the California Penal Code expresses the same concern for inviolability of the person. When the arresting citizen holds the arrestee in illegal detention, he utilizes his state-granted power to invade the sanctity of the latter's person. No less than an illegal invasion of the home, his act transgresses the constitutional bans on unreasonable searches and seizures. The exclusionary rule applied here; the verbal products of Haydel's illegal detention were inadmissible in evidence.4

We consider the effect of the erroneous ruling. Admissible evidence other than the illegally obtained confessions supplied substantial evidence for the verdict of guilt. Even so, the erroneous admission of Lloyd Haydel's involuntary confessions was reversible error per se, without regard to the independent evidence of guilt. (People v. Schader (1965), 62 Cal.2d 716, 736, 44 Cal.Rptr. 193, 401 P.2d 665; see Witkin, Cal. Criminal Procedure (1973 Supp.) § 361J.) The rule of automatic reversal applies in a multiple confession case ‘at least when the admissible evidence does not include an equally damaging confession.’ (People v. Price (1965), 63 Cal.2d 370, 377, 46 Cal.Rptr. 775, 780, 406 P.2d 55, 61.) Haydel's first written confession, although not coerced, was inadmissible for other reasons and cannot save his conviction from reversal.

The four confessions were hearsay as to Mrs. Haydel. Her husband's first signed confession asserted her innocence, but his second and third confessions disclosed the existence of quantities of stolen merchandise in her home, thus implicating her in the theft. Because of this inculpation she might have moved for a separate trial (Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; People v. Aranda (1965), 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265), or at the minimum, sought a limiting instruction. She did neither.

The attorney representing both defendants had objected to Mr. Haydel's confessions. The trial erred in overruling the objection. The erroneous admission of Mr. Haydel's confessions deprived Mrs. Haydel of her constitutional right of confrontation. (In re Hill (1969), 71 Cal.2d 997, 1009–1013, 80 Cal.Rptr. 537, 458 P.2d 449.) The absence of a motion for separate trials and of a request for a limiting instruction cost Mrs. Haydel nothing of value, for she had joined in objecting to her husband's confessions and these were indeed inadmissible; as to her, admission of her codefendant's confessions was error. The second and third confessions heavily implicated her; hence we cannot say the error was ‘harmless beyond a reasonable doubt.’ (Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Floyd (1970), 1 Cal.3d 694, 720–721, 83 Cal.Rptr. 608, 464 P.2d 64.)

Another claim of error revolves around the merchandise which the security officers found at the Haydel home. The merchandise was admitted into evidence over objection. The prosecution points out that the rule barring illegally seized evidence does not apply to evidence uncovered by private individuals. Another principle barred the evidence. The second statement signed by Haydel authorized the store's agents to enter his home ‘to obtain merchandise I have taken without payment . . . providing my wife Dorthy and/or I are present.’ The statement inextricably combined the elements of a confession of theft and a consent to search for stolen property. The confession-consent was illegally obtained for the two reasons stated earlier. The merchandise found at the Haydel home was the ‘tainted fruit’ of the illegally obtained statements and was itself inadmissible. (Harrison v. United States (1968), 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047; People v. Ditson (1962), 57 Cal.2d 415, 439, 20 Cal.Rptr. 165, 369 P.2d 714; see Pitler, ‘The Fruit of the Poisonous Tree’ Revisited and Shepardized, 56 Cal.L.Rev. 579, 619–620 (1968).

The orders of probation are reversed and the cause remanded for a new trial.


1.  Pennock did not enter the room where Haydel was detained until after the first confession had been signed.

2.  Penal Code section 837: ‘A private person may arrest another:‘1. For a public offense committed or attempted in his presence.‘2. When the person arrested has committed a felony, although not in his presence.‘3. When a felon has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.’ Penal Code section 847: ‘A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him to a peace officer. . . .’

3.  Although coercion was the prime ground of defendants' counsel's objection in the trial court, he also objected because ‘at no time were any police officers summoned to the store . . ..’ An adequate record was thus created for the question of admissibility we now explore.

4.  A caveat should be expressed at this point for the present case is not typical of the usual confrontation between theft suspects and private security agents. According to California tort law, an owner who catches a person stealing his goods has a common law right to detain the suspect ‘for a reasonable length of time for the purpose of investigation in a reasonable manner.’ (Collyer v. S. H. Kress & Co, (1936), 5 Cal.2d 175, 180, 54 P.2d 20, 23; see Prosser on Torts (3d ed.) pp. 115, 123; 46 Ill.L.Rev. 887 (1952).) Acting as the owner's agent, a store detective may temporarily detain a suspected shoplifter for a reasonable period; may question the suspect, provided that the latter is detained under no more compulsion than a threatened arrest. (Collyer v. S. H. Kress & Co., supra; Gibson v. J. C. Penney Co., Inc. (1958), 165 Cal.App.2d 640, 645, 331 P.2d 1057; see Rest., Second, Torts, § 132 comment d; 38 U.Chi.L.Rev. at pp. 573–575.) The situation changes sharply and encounters other legal standards when the security agent holds his suspect in prolonged custody and violates his statutory duty of timely delivery to the police.

FRIEDMAN, Acting Presiding Justice.

REGAN and JANES, JJ., concur.