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IN RE: Nina S.

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

IN RE: Nina S., A Person Coming Under the Juvenile Court Law. The PEOPLE, Petitioner and Respondent, v. Nina S., Appellant.

No. CR. 34471.

Decided: August 27, 1979

Russell Iungerich, Los Angeles, under appointment by the Court of Appeal, for minor-appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Vincent J. O'Neill, Jr., Deputy Attys. Gen., for petitioner and respondent.

A minor appeals from a juvenile court finding her to be a person coming under section 602 of the Welfare and Institutions Code in that she had committed petty theft, in violation of section 484 of the Penal Code,1 and ordering her suitably placed. We affirm.

A security officer employed by a store observed a minor and another girl taking items of clothing, draping them over their arms and carrying them into a dressing room. They left the dressing room carrying shopping bags with the store company name on them, but not carrying any of the items they had been seen to take into the fitting room. They left the store, carrying the bags and without paying for anything. An immediate search of the dressing room did not disclose any of the items the girls had taken into it. The girls were detained outside the store, taken to a security office and the bags were searched, disclosing the items in question. Inquiry by the security officer resulted in a confession. No Miranda warning had been given.

The minor's motion to suppress was denied and that denial is the sole ground urged on us for reversal.

In People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000, the Supreme Court, overruling earlier cases, held that, although subdivision (e) of section 490.5 of the Penal Code, authorizes similar store security officers to seize and examine suspected stolen articles if they are in plain view,2 it did not authorize a search such as the one herein involved of closed containers and that, although an unauthorized search which resulted only in recovery of the stolen articles violated no constitutional prohibition,3 a search intended to and resulting in delivery to the police was state action falling under the constitutional prohibition against unreasonable searches.

The People contend that Zelinski should not be given any retroactive effect. We agree. Although, in some situations, a newly announced rule is given either a whole or a partial retroactivity, in Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, the Supreme Court had before it the question of the retroactivity of Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which, like Zelinski, dealt with the constitutional protection against unlawful searches and seizures. After a lengthy discussion of the considerations involved in the retroactivity issue, the court held that Mapp was not retroactive.4 We see no reason to distinguish or reject application of that case to the case at bench.

The order appealed from is affirmed.

FOOTNOTES

1.  The original charge was grand theft, in violation of section 487 of the Penal Code; the trial court reduced it to the misdemeanor violation of section 484.

2.  “(e)(1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.”

3.  “Thus, when a merchant exercises his common law privilege (now embodied in Pen.Code, § 490.5), to detain a person suspected of taking merchandise, the merchant is exercising a purely private and self-interested right to protect his property. His conduct does not assume the color of law until he formally arrests the suspected thief, as any citizen is empowered to do (Pen.Code, § 837), or, alternatively, continues the detention for delivery of the suspect to a peace officer who may arrest. Detention and search of a shoplifter, followed by release by the merchant, brings into play no state interest that concerns us here.”

4.  See the discussion of Linkletter in Witkin, California Evidence (2d ed. 1966), § 53, pp. 57-58.

KINGSLEY, Associate Justice.

FILES, P. J., and ALARCON, J., concur.

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