IN RE: DEBORAH (1980)

The minor was charged, in two separate petitions, with being a person coming under section 602 of the Welfare and Institutions Code, in that, on two separate occasions, she had committed petty theft. After an adjudication hearing, she was found guilty as charged and ordered suitably placed in secure placement, with a maximum period of confinement of eight months (six months on one charge and two months on the other). We reverse the order.

The offenses involved were shoplifting, observed by store-employed security officers. Both offenses took place in 1979, one three months and the other five months after the filing of the Supreme Court's opinion in People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000. It is the contention of the minor that the conduct of the security officers herein involved violated the rule laid down in that case, rendering the evidence against her inadmissible.

The Broadway Theft

In this case, which occurred in October of 1979, a security officer saw the minor remove articles of clothing from a rack and proceed to a dressing room. That room had a door, which came only to within two feet of the ceiling and two feet from the floor. By looking under the door, the security officer saw the minor put the clothing in her purse; she then left the fitting room and, without paying for the clothing, left the store. The security officer followed the minor, returned with her to the security office, where the minor volunteered a statement that she was sorry she took the clothing but that she had been told by her sister and brother to do so.

The People argue: (1) that looking under the door was not a search; and (2) that the actions of the security officer, even if a search, were not the kind of state-related action proscribed by Zelinski. Neither contention is valid. The conduct of the security officer here is indistinguishable from that involved in People v. Randazzo (1963) 220 Cal.App.2d 768, 34 Cal.Rptr. 65, as to which the court said (at p. 770, 34 Cal.Rptr. 65): “ had government officers acquired evidence in this manner it would not be admissible.” Zelinski makes it clear that, while store employees are not subject to the search and seizure requirements of the state and federal constitutions where their sole purpose is to recover for their employer stolen goods, the restrictions apply where the employees act with the intent to institute prosecutions.¹ Here, the minor was taken to the security office and detained while a police report was prepared and police officers could arrive to make a formal arrest. Since the minor's confession was an obvious result of the illegal search, all of the evidence against the minor on that charge was inadmissible and the adjudication must be reversed.

The Orbach Theft

In this case, which occurred in July of 1979, a store-employed security officer saw the minor take items of jewelry, place them in her pocket and leave the store without paying. The minor was accosted outside the store, returned to the security office, placed under a citizen's arrest without being given Miranda warnings, and asked why she stole the jewelry; the minor then made a confession.

Here there is no contention that the security officer was not within the prescription of Zelinski if that case extends to Miranda as well as to searches. We conclude that it does. The evils discussed in Zelinski that led to the limitation on searches and seizures exist equally in cases of interrogation; the constitutional rights involved in Miranda are no less entitled to protection against police-oriented security activity than are those involved in search and seizure cases. The confession was inadmissible.

However, the People argue that, since the security officer saw the minor actually take the jewelry and abscond with it, the admission of the confession was nonprejudicial. The argument is without merit; admission of an illegally obtained confession is per se reversible error.

The order appealed from is reversed with directions to dismiss the petition filed October 24, 1979 (the Broadway case). The People are entitled to a new hearing on the petition filed July 13, 1979 (the Orbach case) if they be so advised.

FOOTNOTES

1.  “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.” (People v. Zelinski (1979) 24 Cal.3d 357, 367, 155 Cal.Rptr. 575, 594 P.2d 1000.)

KINGSLEY, Acting Presiding Justice.

WOODS and MUNOZ,* JJ., concur.