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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Joseph GEARY, III, Defendant and Appellant.

Crim. B008124.

Decided: October 29, 1985

Law Offices of Wallace B. Farrell, San Bernardino, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Norman H. Sokolow, Supervising Deputy Atty. Gen., Mark Alan Hart, Deputy Atty. Gen., for plaintiff and respondent.

Eugene Joseph Geary III (defendant) was convicted on a plea of guilty to three counts of child molesting.  (Pen.Code, §§ 288, 288 subd. (a).)  He admitted, and the court found to be true, an allegation that he occupied a position of special trust as step-grandfather of the victim.  (Pen.Code, § 1203.066, subd. (a)(1).)   Pursuant to stipulation the court dismissed six other counts of child molestation and one count of furnishing cocaine to a minor.   The court sentenced defendant to 12 years imprisonment.   Defendant appeals.   We affirm.

The evidence against defendant consisted of the preliminary hearing testimony of defendant's nine year old grandson and a series of pornographic Polaroid photographs depicting, in various combinations, defendant, defendant's wife,1 defendant's grandson, defendant's son, defendant's daughter-in-law, and defendant's one-and-a-half year old granddaughter.   The photographs showed the children involved in sexual activity with the adults.   Defendant's grandson testified that during the photography sessions defendant touched the grandson's penis, and that he, defendant or defendant's wife operated the camera.   The grandson also testified that defendant and his wife used cocaine, and began supplying him with the drug when he was seven years old.   The child was very familiar with the methods of ingesting cocaine, including inhaling the substance and “free-basing.”

Prior to pleading guilty defendant moved unsuccessfully to suppress the photographs and his grandson's testimony on the ground that the evidence was the product of an unreasonable search and seizure.   The trial court's denial of the motion to suppress constitutes defendant's only claim of error.

The investigation which led to defendant's arrest and prosecution on the present charges was begun not by a police officer but by a private security guard at a Holiday Inn where defendant and his wife registered as guests at approximately 9:30 p.m. on October 14, 1983.   At about 2:30 a.m. the following day, while the guard was patrolling the roof in connection with an unrelated security matter for the hotel, his attention was attracted by the flickering of a flame through the window of a penthouse suite occupied by defendant and his wife.   Concerned about a potential fire hazard, the guard looked through the window and observed defendant place a white powdery substance into two glass smoking pipes, or “bongs,” which defendant and his wife then smoked by holding butane torches to the pipes.   The guard also observed on the nightstand a photograph of a nude 13 or 14 year old girl with her legs spread apart.   He reported his observations to the Buena Park Police Department.

Based upon the information supplied by the guard and upon his own extensive training and experience, an investigator from the Police Department Vice and Narcotics Bureau formed the opinion that the guard had witnessed cocaine use, and promptly sought and obtained a search warrant for defendant's person and hotel room.   During the subsequent search of the room, to which the guard was not a party, the police recovered, among other things, cocaine, paraphernalia for smoking cocaine, and pornographic pictures and movies of adults and juveniles.   Defendant and his wife were arrested.

When asked if there was more cocaine at his house defendant said no, and consented, in writing, to a search of his home.   At the residence were found hundreds of pornographic photographs of many children, fifteen of which were admitted into evidence during the preliminary hearing.   The officer who seized the photographs from the house used those that depicted defendant's step-grandson to locate the child who testified at the preliminary hearing.

Defendant attacks the search warrant on the theory that the hotel security guard was acting in a quasi-governmental role to achieve a police function, and therefore his conduct was subject to constitutional limitations with regard to defendant's right to privacy.  (See People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000;  U.S. Const. Amend., IV;  Cal.Const., art. I, § 13.)

We need not discuss the issue of whether the security guard's observations of defendant's hotel room violated any reasonable expectation of privacy, since the principles articulated in Zelinski, supra, are no longer viable following adoption by the voters of this state of Proposition 8.

Since 1955, the primary source of state judicial decisions requiring exclusion of evidence in criminal proceedings has been the state constitutional provision against unlawful searches and seizures.  Article I, section 13 of the California Constitution provides:  “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated;  and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”   This provision is, of course, the state parallel to the Fourth Amendment of the federal Constitution.   Nothing in its wording, however, expressly requires the exclusion of evidence as a remedy for violation of its mandate.   Indeed, for over a century, from the date of its initial adoption in 1849, the provision was interpreted as not requiring the exclusion of evidence.

In the seminal case of People v. Cahan (1955) 44 Cal.2d 434, 442, 282 P.2d 905, our Supreme Court held, as a “judicially declared rule of evidence,” that evidence obtained in contravention of section 13 would henceforth be excluded in criminal proceedings.   Although the United States Supreme Court later applied a similar rule to the states for the purpose of enforcing the Fourth Amendment (Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), California Courts continued to rely on the state Constitution under the doctrine of “independent state grounds” when they sought to expand on the more narrow application of the exclusionary rule under federal law.  (See People v. Norman (1975) 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237;  People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099.)

 Expansion of the exclusionary rule in this state reached its outermost limits in 1979 when the Supreme Court decided People v. Zelinski, supra.   In that case, the court elevated the status of department store security personnel to governmental agents while at the same time stating that “[t]hey have no more powers to enforce the law than other private persons.”  (Id. 24 Cal.3d at p. 362, 155 Cal.Rptr. 575, 594 P.2d 1000.)   Despite this seeming contradiction, the court found that when such “private police” conduct an illegal search or seizure any evidence derived therefrom must be excluded at trial in order to protect the defendant's constitutional privacy rights.

In the case at bench, defendant relies on Zelinski in support of his argument that the security officer's observations were unlawful.   His reliance is misplaced.

Believing that California courts had exceeded reasonable limits in using “independent state grounds” to avoid the impact of federal high court decisions in the Fourth Amendment area, the electorate amended the state Constitution in 1982 to provide that relevant evidence shall not be excluded in any criminal proceeding.2  Henceforth, “courts may not exclude evidence seized in violation of either the state or federal Constitution unless exclusion is compelled by the federal Constitution.”  (In re Lance W. (1985) 37 Cal.3d 873, 888, 210 Cal.Rptr. 631, 694 P.2d 744.)

Based upon the foregoing, we think it clear that the Supreme Court's decision in Zelinski was abrogated following the enactment of Article I, section 28, subdivision (d).   We must then look to federal decisional authority to determine whether defendant in our case may invoke whatever protections are afforded by the exclusionary rule.

 The very essence of the United States Constitution is the limitation of governmental power.   Nowhere does its language address the conduct of private citizens.   The United States Supreme Court recently held that the purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.  (New Jersey v. T.L.O. (1985) 469 U.S. ––––, ––––, 105 S.Ct. 733, 740, 83 L.Ed.2d 720, 730.)   Although the Supreme Court over the years has extended the coverage of the Fourth Amendment exclusionary rule to include the acts of governmental officials other than police officers (Id.), private individuals, acting as such, remain outside the scope of the rule.

Directly on point is United States v. Francoeur (5th Cir.1977) 547 F.2d 891.   In that case, the court rejected the argument that evidence illegally seized by privately employed security personnel could be excluded on Fourth Amendment grounds.   After reviewing the pertinent authorities, the court concluded:  “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.”  (Id. at p. 894.)

The evidence in the present case establishes that the private security guard was not a governmental official, nor was he acting in concert with the police or any government agency when he was patrolling the hotel roof.   His object in peering through the window of defendant's room was not to investigate a crime but to carry out his duty as a hotel employee, in this instance to safeguard the hotel from fire.   That he relayed his observations to the police, who acted to arrest defendant's criminal activities, did not convert him from a citizen informant into a police officer or other government agent.   There are no state constitutional standards for “search and seizure” by a private citizen who is not acting as an agent of the state or the governmental unit, therefore a motion to suppress evidence so obtained cannot be made on the ground that its acquisition constitutes an unreasonable search and seizure.  (People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 128–129, 74 Cal.Rptr. 294, 449 P.2d 230;  People v. McKinnon (1972) 7 Cal.3d 899, 911–912, 103 Cal.Rptr. 897, 500 P.2d 1097.))

 Because of our holding that a private security guard acting as such is not a governmental official and his actions are not subject to the exclusionary rule, we need not discuss whether the guard's observations of defendant's hotel room would have constituted an illegal invasion of privacy if he had been a government agent.

 Defendant further contends that the warrant was invalid because it was issued without probable cause.   He argues that the affidavit supporting it contained the conclusions of the police officer rather than objective information about which the magistrate could make an independent determination.   The opposite is true.   In fact the officer faithfully relayed to the court the nature and extent of the guard's observations, thus supplying a sufficient basis for issuance of the warrant.   When the magistrate asked the officer if the activities of the room occupants were consistent with cocaine use, he replied in the affirmative.   When requested to do so he supplied information on his extensive background and training as a vice and narcotics investigator.   The information in the affidavit was thus sufficiently factual, clear and reliable to support issuance of the search warrant.

 Defendant next argues that the photographs should not have been seized because there was no showing that the security guard was able to determine if the photograph he saw satisfied the legal standard for obscenity.  (See Miller v. California (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419.)   This argument ignores the fact that the photos in the present case were not seized because they were criminally obscene in themselves but because they were evidence of another crime, i.e., sexual abuse and exploitation of the children depicted.   The fact that the photographs in question were Polaroid snapshots rather than magazine pictures or professionally developed prints is a further reliable indication that the pictures were not merely obscene but were evidence of sexual abuse of children by defendant.   As described to the court this photograph constituted probable cause for seizure of all remaining photographs.

 Defendant finally contends that his consent to the search of his house was coerced.   He does not explain how, but he suggests that coercion is implicit when consent is obtained “under color of the badge.”  (Oliver v. Bowens (9th Cir.1967) 386 F.2d 688, 691.)

Consent is a question of fact to be determined in light of all of the circumstances.  (People v. James (1977) 19 Cal.3d 99, 107, 137 Cal.Rptr. 447, 561 P.2d 1135.)   The fact that defendant was in custody is not dispositive.  (Id. at p. 109, 137 Cal.Rptr. 447, 561 P.2d 1135.)   Nor is it necessary that consent be preceded by admonishment of the right to refuse consent.  (Id. at p. 114, 137 Cal.Rptr. 447, 561 P.2d 1135.)   The People in the instant case presented testimony that defendant was informed that the warrant to search the hotel room had been issued because of apparent cocaine use.   He was then asked if there was cocaine at his house, to which he replied “no, I don't have any there.   You're welcome to go with me.   I'll take you to my house and you can search it.”   Defendant then read and signed a consent form.   On this record we can only conclude that defendant's consent to the search of his house was freely and voluntarily given.   No coercion appears.

Based upon the foregoing, the court properly admitted the photographs into evidence along with the testimony of defendant's grandson.   There was no error.

The judgment is affirmed.


1.   Defendant's wife was charged jointly with defendant.   Released on bail after the preliminary hearing, she failed to make any further appearances.

2.   Article I, section 28, subdivision (d) of the California Constitution became effective June 9, 1982, following the passage of Proposition 8 by a wide margin.   It provides as follows:  “Right to Truth-in-Evidence.   Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”

COMPTON, Associate Justice.

ROTH, P.J., and GATES, J., concur.

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