PEOPLE v. NORTH

Reset A A Font size: Print

Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mark Harold NORTH, Defendant and Appellant.

Cr. 19393.

Decided: February 15, 1980

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Sheldon Portman, Public Defender, Kevin P. Morrison and Michael A. Kresser, Deputy Public defenders, Santa Clara County, San Jose, for defendant and appellant.

Mark Harold North was charged with burglary in the second degree (Pen.Code, s 459). A motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. This appeal follows the entry of his plea of guilty. (Pen.Code, s 1538.5, subd. (m).)

Appellant contends that entry of his car by a private citizen who was acting jointly with a police officer in a warrantless search was unlawful under both the California and United States Constitutions and that the evidence obtained thereby must be suppressed. We agree and reverse.

FACTS

The evidence adduced at the 1538.5 hearing is substantially as follows: at 6 p. m. on a Sunday, Pamela Turner returned to her parents' home after spending the weekend away with them. She found the side gate open and the back door ajar. Robert Turner, her father, later discovered that several bottles of liquor, some old coins, a quart jar full of nickels, a cigar box full of pennies, and an old railroad pocket watch were missing.

Robert called the police. Officer Dixon came to the house, dusted for fingerprints, filled out a burglary report, and departed. Robert had some discussion with his daughter as to possible perpetrators of the theft. Pamela knew appellant well. Robert and his daughter drove to Pomeroy Avenue in Santa Clara where appellant was staying. Pamela pointed out appellant's vehicle. Her father looked into the car, but could not see anything because his flashlight was too dim. He did not enter then because there were lights on in the nearby apartments and he was afraid someone would see him entering.

Then the Turners went to the police station and met Officer Dixon, who accompanied them on their return to the Pomeroy Avenue apartment. The officer told them he would need a warrant to enter the car but that he could look in from the outside to see if anything was in plain view.

Officer Dixon parked his police car some distance from the apartment parking lot and walked to appellant's car with the Turners. Using the officer's flashlight they looked in the right side of the car from the outside and saw two bottles of whiskey. Robert thought the whiskey was his because one bottle was Wild Turkey, a bottle of which had been taken from his liquor cabinet. They then went around to the other side of the car and began looking in. Pamela remarked that, in view of appellant's record, she would not be surprised if the car were stolen. Officer Dixon decided to run a check on appellant's car and walked to his patrol car, about 60 or 70 feet away. He left the flashlight with Robert.

As the officer was receiving the registration information, Robert returned and told him he had found his property in appellant's car. During Officer Dixon's absence, Robert had entered appellant's car, folded back a blanket and found his stolen property. Officer Dixon did not see Robert enter the car. After Robert told the officer about finding the stolen property, they returned to appellant's car. Where the blanket had been folded back, the flashlight revealed Robert's belongings.

Appellant sought to have all evidence taken from his vehicle suppressed, arguing that Robert Turner was a participant in a joint operation with the police when he entered appellant's car, rendering that entry state action. Respondent argued that because Dixon neither requested nor knowingly allowed Turner's search to take place, the entry was a private search for a private purpose outside the scope of the Fourth Amendment.

In People v. Zelinski (1979) 24 Cal.3d 357, 364-367, 155 Cal.Rptr. 575, 579, 594 P.2d 1000, 1004, the Supreme Court addressed the problem “whether searches by private individuals should be held subject to the constitutional proscriptions.”

“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 secured by the constitutional provision, has therefore been applied to exclude evidence illegally obtained by private citizens only where it served the purpose of the exclusionary rule in restraining abuses by the police of their statutory powers. (Stapleton v. Superior Court, supra, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967; People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513; Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933; cf. People v. Payne (1969) 1 Cal.App.3d 361, 81 Cal.Rptr. 635; People v. Randazzo, supra, 220 Cal.App.2d 768, 34 Cal.Rptr. 65; People v. Cheatham, supra, 263 Cal.App.2d 458, 461-462, 69 Cal.Rptr. 679; cf. People v. Millard (1971) 15 Cal.App.3d 759, 761-762, 93 Cal.Rptr. 402; People v. Superior Court (Smith), supra, 70 Cal.2d 123, 74 Cal.Rptr. 294, 449 P.2d 230; People v. Mangiefico (1972) 25 Cal.App.3d 1041, 1047-1048, 102 Cal.Rptr. 449.)“

(Id., at pp. 365, 155 Cal.Rptr. at pp. 579-80, 594 P.2d at pp. 1004-05.)

Of particular importance here is the first case cited by the Zelinski court, Stapleton v. Superior Court (1968) 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967. There a special agent for a credit card company accompanied policemen and two other private agents during the arrest of Stapleton, for whom an arrest warrant for credit card fraud was outstanding. Having assisted in the arrest, the agent, Bradford, joined the police in searching the house. Then Bradford, on his own initiative, asked if anyone had searched Stapleton's car, which he remembered having seen some distance down the street. Someone responded negatively. Another credit card agent handed Bradford the keys and Bradford searched the car. The Supreme Court ordered the fruits of the search suppressed:1

“The search of petitioner's car was clearly part of a joint operation by police and the credit card agents aimed at arresting petitioner and obtaining evidence against him. This official participation in the planning and implementation of the overall operation is sufficient without more to taint with state action the subsequent acts of such credit card agents.

The agency did not end nor Bradford revert to private status when as part of that operation, although without a specific instruction from the police, Bradford searched petitioner's car. (See People v. Fierro, supra, 236 Cal.App.2d 344, 347, 46 Cal.Rptr. 132; compare People v. Moran (1958) 166 Cal.App.2d 410, 415, 333 P.2d 243.) Accordingly, even though police officers did not direct Bradford to search the car, just as Adams had not directed Taylor to search the defendant's house in Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520, the evidence discovered by Bradford during that joint operation is inadmissible.“

(70 Cal.2d at pp. 100, 102, 73 Cal.Rptr. at pp. 577-78, 447 P.2d at pp. 969-70.)

What was said in Stapleton and reaffirmed in Zelinski applies here: “(O) fficial participation in the planning and implementation of the overall operation is sufficient without more to taint with state action the subsequent acts” of nonofficial participants. Robert Turner and Officer Dixon were engaged in a joint operation at the time Turner entered and searched appellant's car. As in Stapleton, the evidence discovered during that operation is inadmissible.

The joint character of the search operation is evident and was not contested. Instead, the thrust of respondent's argument is that because the trial court found that the citizen “would have searched the car in any event whether the officer was present or not, . . .” he was “acting as a private citizen to vindicate his private interest,” and therefore not furthering state interest. Implicit is the conclusion that the citizen's motives determine whether his conduct is part of a joint operation, subject to the constitutional restraints on state action. We disagree. Official participation, not the purpose of the private person, determines the character of the operation.

Additionally, the Zelinski decision makes untenable respondent's theory that Robert's actions amounted only to a private search for a private purpose. In Zelinski, the Supreme Court extended constitutional search and seizure limitations to private security personnel engaged in a statutorily authorized citizen's arrest and detention of a person in aid of law enforcement authorities. It considered the role of private motive for detention and search in deciding whether to extend the scope of Fourth Amendment protections:

“In the instant case, the store employees arrested defendant pursuant to the authorization contained in Penal Code section 837, and the search which yielded the narcotics was conducted incident to that arrest. Their acts, engaged in pursuant to the statute, were not those of a private citizen acting in a purely private capacity. Although the search exceeded lawful authority, it was nevertheless an integral part of the exercise of sovereignty allowed by the state to private citizens. In arresting the offender, the store employees were utilizing the coercive power 9 of the state to further a state interest. Had the security guards sought only the vindication of the merchant's private interests they would have simply exercised self-help and demanded the return of the stolen merchandise. Upon satisfaction of the merchant's interests, the offender would have been released. By holding defendant for criminal process and searching her, they went beyond their employer's private interests.”

(24 Cal.3d at p. 367, 155 Cal.Rptr. at p. 581, 594 P.2d at p. 1006.)

In the case at bench, the private citizen was promoting a state interest as well as vindicating his private interest. After Robert Turner entered the car and found his property, he did not merely repossess it; he turned it over to the police for use as evidence. Like the security guards in Zelinski, who went beyond the simple exercise of self-help and not only recovered the stolen merchandise, but also detained the suspect until police arrived, Turner exceeded the simple exercise of self-help. He, too, furthered a state interest in addition to his own, and therefore the Zelinski rationale applies:

“Persons so acting should be subject to the constitutional proscriptions that secure an individual's right to privacy . . . . Unrestrained, such action would subvert state authority in defiance of its established limits. It would destroy the protection those carefully defined limits were intended to afford to everyone, the guilty and innocent alike. It would afford de facto authorizations for searches and seizures . . . made by private individuals that even peace officers are not authorized to make. . . . We hold that exclusion of the illegally seized evidence is required by article I, section 13 of the California Constitution.”

(Zelinski, supra, at pp. 368, 155 Cal.Rptr. at pp. 581-82, 594 P.2d at pp. 1006-07.) Although the requisite state action in Zelinski derives from the assertion of state power by private security personnel and the state action in the case before us derives from joint operation, the abuse of constitutionally protected privacy is the same and so is its remedy.

The warrantless search of the car was invalid under the Fourth Amendment and under the California Constitution, article I, section 13.2 Exclusion of the illegally seized evidence is therefore required. (People v. Zelinski, supra, at p. 368, 155 Cal.Rptr. 575, 594 P.2d 1000.)

The judgment (order granting probation) is reversed.

I respectfully dissent.

The majority opinion summarizes its conclusion with the statement that the challenged evidence was obtained by a private citizen “who was acting jointly with a police officer in a warrantless search.” That statement is contrary to an implied finding, supported by substantial evidence, that the citizen entered appellant's car for the lawful purpose of retrieving his own property. Therefore the theory adopted by the majority is not a valid basis for reversing this judgment.

The Fourth Amendment does not generally apply to searches by private individuals. (Burdeau v. McDowell (1921) 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048.) The majority opinion appears to hold, on the basis of Stapleton v. Superior Court (1968) 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967 and People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000, that once a joint operation between the police and a citizen is established, all subsequent acts of the citizen so involved are to be regarded as state action.

The uncontroverted evidence was that a joint operation to obtain evidence against appellant was afoot when Turner's entry occurred. But the trial court could have inferred from Robert Turner's status as a burglary victim, and from his actions and his testimony, that although both he and Officer Dixon were interested in obtaining evidence, Turner had another purpose that to him was paramount: to recover his wrongfully taken property. In contrast, Stapleton involved a professional private agent with similar motivations as the police in arresting Stapleton and searching his house and car, i. e., arrest and conviction.

People v. Zelinski, supra, 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000, is similarly to be distinguished. There, the court considered the effect of private motive in conducting a search in deciding whether to extend Fourth Amendment protections to private activity. The court stated:

“In the instant case, the store employees arrested defendant pursuant to the authorization contained in Penal Code section 837, and the search which yielded the narcotics was conducted incident to that arrest. Their acts, engaged in pursuant to the statute, were not those of a private citizen acting in a purely private capacity. Although the search exceeded lawful authority, it was nevertheless an integral part of the exercise of sovereignty allowed by the state to private citizens. In arresting the offender, the store employees were utilizing the coercive power 9 of the state to further a state interest. Had the security guards sought only the vindication of the merchant's private interests they would have simply exercised self-help and demanded the return of the stolen merchandise. Upon satisfaction of the merchant's interests, the offender would have been released. By holding defendant for criminal process and searching her, they went beyond their employer's private interests.”

(24 Cal.3d at p. 367, 155 Cal.Rptr. at p. 581, 594 P.2d at p. 1006.)

The court focused on whether the private individuals were attempting to vindicate an important state interest by their activity. Since they were, in Zelinski, search and seizure rules were held applicable. Here, it could be inferred that Turner was not attempting to vindicate an important state interest when he entered appellant's car; instead, his actions were those of a private citizen vindicating his own rights. If Dixon had known that Turner was about to enter appellant's car to retrieve his belongings, Dixon would not have had any authority to intervene. Turner was privileged to peacefully recover his property. (Silverstin v. Kohler & Chase (1919) 181 Cal. 51, 53, 183 p. 451.) Moreover Turner, having wrongfully been deprived of his property, could use necessary force to retake it. (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, s 212, p. 2496; Rest.2d Torts, s 101.) Therefore it cannot be said that Dixon was “standing idly by” when he should have been preventing an unlawful search. (Cf. In re Eric J. (1979) 25 Cal.3d 522, 527-528, 159 Cal.Rptr. 317, 601 P.2d 549.)

There was no Fourth Amendment violation by Dixon. He told Turner he was unable to enter appellant's car without a warrant. He subsequently carried out a proper plain view examination of the car with his flashlight before leaving it momentarily to radio for information on the registration. Turner acted within his rights when, to vindicate his private interests, he entered appellant's car to repossess his property. There was thus no wrongdoing by either Dixon or Turner. The purpose of the exclusionary rule is to deter unlawful conduct on the part of the police. Suppression of the evidence in the present case would not deter unlawful police conduct. I cannot concur in an application of the exclusionary rule which appears to have no reasonable purpose. The trial court's implied finding that there was no unlawful search should be sustained. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)

I would affirm.

FOOTNOTES

1.  “Joint operation” as a mark of state action stands as an independent basis for the court's holding in Stapleton. But Stapleton was also decided on another ground: the court held that where the police, working with private individuals, have knowledge that an illegal private search is about to occur and stand idly by, the fruits of the private search must be suppressed. (70 Cal.2d at p. 103, 73 Cal.Rptr. 575, 447 P.2d 967.) The Supreme Court in People v. McKinnon (1972) 7 Cal.3d 899, 912, 103 Cal.Rptr. 897, 500 P.2d 1097, reiterated the Stapleton recognition of two separate and distinct grounds for finding state action.

2.  In light of this holding it is not necessary to reach other contentions raised by appellant. This opinion intimates no views on how the validity of the search in this case would be decided under section 1 of article I of the California Constitution. (See State v. Helfrich (1979) 600 P.2d 816, 819 (Supreme Court of Montana).)

POCHE, Associate Justice.

RATTIGAN, Acting P. J., concurs.