IN RE: REYNALDO R. (1983)

Reynaldo R. appeals from an order declaring him a ward of the juvenile court (Welf. & Inst.Code, § 602) based on his admitted possession of a billy club (Pen.Code, § 12020).   He contends the court erred in denying his motion to suppress evidence (Welf. & Inst.Code, § 700.1).

The evidence adduced at the hearing on appellant's motion to suppress established that at approximately 9:30 p.m. on May 19, 1982, off-duty South Gate Police Officer Jerry Villanueva was working as a security guard for the South Gate Adult School, a part of the Los Angeles Unified School District, when he observed appellant and a companion loitering outside the door of a classroom then in session.   Villanueva questioned the two individuals and ascertained that they were juveniles who were not enrolled in the school, but claimed they were there “looking for a friend.” ¹

Villanueva decided to take the youths to the school office because of the school's policy “to identify juveniles, take them to the Adult School office and have their parents come down to pick them up or arrange transportation through the Police Department to have them taken home.”   According to Villanueva, juveniles were not generally prosecuted for so trespassing or loitering on school grounds.

Before proceeding to the office, Villanueva patted down the youths for weapons in accordance with his “common practice.”   He felt an object he believed to be a weapon in appellant's right front pants pocket, removed it, and discovered that it was a “mace.” ²

Appellant urges that inasmuch as Villanueva was employed as a police officer during his regular working hours, his conduct while acting as a school security agent during his off-duty hours should be governed by Fourth Amendment standards.³

In Cervantez v. J.C. Penney Co., Inc. (1979) 24 Cal.3d 579, 156 Cal.Rptr. 198, 595 P.2d 975, it was held that in view of Penal Code section 70,⁴ making it illegal for any public officer to receive any reward for doing an official act, it would have been illegal for an off-duty police officer to have acted as such when, in the course of his private employment as a store security guard, he arrested a customer.   Therefore, the off-duty officer was acting as a private citizen when he arrested the customer, and the standards applicable to an arrest by a peace officer did not apply to his conduct.

In Cervantez, the court disapproved inter alia the decision of this court in People v. Millard (1971) 15 Cal.App.3d 759, 93 Cal.Rptr. 402, to the extent it was inconsistent with the opinion in Cervantez.   In Millard, we found that an off-duty police officer working as a store security agent had the authority to arrest and search a customer in his capacity as a police officer, rather than a private person, and that the officer had in fact ostensibly and expressly done so.   Therefore, we concluded that the complained of search was subject to the requirements of the Fourth Amendment.

The decision in Cervantez, supra, makes it clear that Villanueva could not legally have acted in his capacity as a police officer when he patted down appellant for weapons on May 19, 1982.   There remains a question whether Villanueva in fact ostensibly and expressly so acted.   Appellant cites Dyas v. Superior Court (1974) 11 Cal.3d 628, 114 Cal.Rptr. 114, 522 P.2d 674, as supportive of his position.  Dyas is inapposite.   There, a search conducted by a uniformed patrolman of the Housing Authority of the City of Los Angeles was held subject to the Fourth Amendment because the authority was an arm of both state and federal governments (11 Cal.3d at p. 634, 114 Cal.Rptr. 114, 522 P.2d 674), because one of the patrolman's duties was “to enforce penal statutes and regulations on or about housing authority property․” (p. 636, 114 Cal.Rptr. 114, 522 P.2d 674) and because housing authority patrolmen wore uniforms that were “ ‘the color of the marshal's uniforms ․ with the standard basket weave and leather belts, badge and tie, and standard police dress.’   He was armed with a revolver, carried handcuffs, and had a two-way radio in his patrol car.   Nor did he hesitate to use these indicia of authority in the manner in which they were intended․  [H]e radioed for a ‘back-up unit,’ ordered defendant to stand spreadeagled against a wall, conducted a pat-down search of defendant's clothing, drew his gun when defendant resisted, arrested and handcuffed defendant on finding contraband, and held him in custody in the patrol car until assistance arrived.”  (Pp. 633–634, 114 Cal.Rptr. 114, 522 P.2d 674.)

There is no evidence in the instant matter that Villanueva was similarly equipped as a law enforcement officer.   Moreover, Villanueva's purpose was not to “enforce the law” (In re Victor F. (1980) 112 Cal.App.3d 673, 681, 169 Cal.Rptr. 455;  see also People v. Zelinski (1979) 24 Cal.3d 357, 366, 155 Cal.Rptr. 575, 594 P.2d 1000), but merely to detain appellant so as to arrange his transportation home.   The record does not demonstrate that Villanueva acted under arrangements with the police, at their direction, or with their approval when he detained and searched appellant.  (In re Deborah C. (1981) 30 Cal.3d 125, 131, 177 Cal.Rptr. 852, 635 P.2d 446.)

In In re Guillermo M. (1982) 130 Cal.App.3d 642, 181 Cal.Rptr. 856, Dyas was held inapplicable to a school security agent acting within the scope of his employment.   As the court there stated:  “Under Education Code section 39670,⁵ school agents are responsible for insuring ‘the security of school district personnel and pupils and the security of the real and personal property of the school district.’  Education Code section 39671 and Penal Code section 830.4, subdivision (g) confer ‘peace officer’ status on the agents in carrying out their duties, giving them the authority to prevent violations of the law and to arrest where probable cause exists.  (Pen.Code, § 836, In re Ruth H. (1972) 26 Cal.App.3d 77, 81 [102 Cal.Rptr. 534].)”  (130 Cal.App.3d 642, 645, 181 Cal.Rptr. 856.)   The court also pointed out that under Education Code sections 39670 and 39671 school security agents are not to have general police powers and that school district security departments are supplementary to local law enforcement agencies.  (See 58 Ops.Cal.Atty.Gen. 363 (1975).)

In the instant case, as in In re Guillermo M., supra, “the concern is with security agents maintaining the security of school personnel and pupils as well as school property.”  (130 Cal.App.3d 642, 647, 181 Cal.Rptr. 856.)

In addition, the fact that Villanueva was “not maintaining the security of children—but of adults” attending an adult school is without significance.   Education Code section 39670 generally provides that school security guards are responsible for insuring the security “of school district personnel and pupils,” and does not specify any age limitations.  (Emphasis added;  see also In re Guillermo M., supra, at p. 647, 181 Cal.Rptr. 856.)

Moreover, the court could reasonably infer from Villanueva's testimony that the presence of juveniles on the adult school property was a recurring problem for school security agents, and the issue here is the propriety of agent Villanueva's treatment of such a trespassing juvenile.  (See also In re Christopher W. (1973) 29 Cal.App.3d 777, 105 Cal.Rptr. 775;  In re Fred C. (1972) 26 Cal.App.3d 320, 102 Cal.Rptr. 682;  In re Thomas G. (1970) 11 Cal.App.3d 1193, 90 Cal.Rptr. 361.)

Finally, there is a question whether one who is primarily employed as a police officer should be held subject to the constitutional constraints which apply to an on-duty police officer during his off-duty hours regardless of the nature of his off-duty secondary employment as a school district security agent.   We think not.⁶  In each of the cases holding that a police officer may not “stand silently by,” i.e., knowingly permit a private citizen to conduct an illegal search and make no effort to protect the rights of the person being searched (e.g., People v. North (1981) 29 Cal.3d 509, 515–516, 174 Cal.Rptr. 511, 629 P.2d 19;  People v. McKinnon (1972) 7 Cal.3d 899, 912, 103 Cal.Rptr. 897, 500 P.2d 1097;  Stapleton v. Superior Court (1968) 70 Cal.2d 97, 103, 73 Cal.Rptr. 575, 447 P.2d 967), the private citizen conducted the search for the purpose of assisting the police in enforcing penal statutes.   (See also People v. Zelinzki, supra, 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000;  cf. In re Byran S. (1980) 110 Cal.App.3d 144, 167 Cal.Rptr. 741;  People v. Superior Court (Harris) (1979) 100 Cal.App.3d 386, 160 Cal.Rptr. 880.)   Here, agent Villanueva's purpose in accosting appellant was to determine his status as a trespassing juvenile and to thereafter see to his removal to the adult school office.   The complained of cursory weapons search was conducted as a routine part of this procedure and in furtherance of this nonpenal purpose.   Moreover, although it is true that Villanueva, because of his police training, was aware of the constitutional standards governing the conduct of police officers, he would not be under any compulsion to comply with those standards in his capacity as a school security guard;  nor, as we have noted, was his purpose to enforce a criminal law.  (Dyas v. Superior Court, supra, 11 Cal.3d 628, 632, 114 Cal.Rptr. 114, 522 P.2d 674.)

We are satisfied that Villanueva was properly acting within the scope of his employment as a school security guard in patting down appellant for weapons, and that appellant's motion to suppress evidence was properly denied.

The order of wardship is affirmed.

I respectfully dissent.

In my opinion, the school security guard was a governmental agent whose authority and conduct included the exercise of police powers.   Constitutional restraints therefore apply, and the evidence seized must be suppressed.   Because of my resolution of this issue, I find it unnecessary to decide whether the evidence should also be suppressed because Villanueva was a police officer acting in his off-duty hours as a school security guard.  (See In re Deborah C. (1981) 30 Cal.3d 125, 140–141, 177 Cal.Rptr. 852, 635 P.2d 446, concurring opinions of Bird, C.J. and Mosk, J.)

The situation in the case at bench is analogous to that in Dyas v. Superior Court (1974) 11 Cal.3d 628, 114 Cal.Rptr. 114, 522 P.2d 674, where our Supreme Court held that a search by a uniformed patrolman of the Housing Authority of the City of Los Angeles is subject to the exclusionary rule.   The court in Dyas, supra, 11 Cal.3d at pages 632–633, 114 Cal.Rptr. 114, 522 P.2d 674, after explaining the rule that “[t]he exclusionary rule does not apply to evidence obtained in a search conducted by a person who is truly a private citizen ․,” ¹ states that the patrolman who conducted the search “did so neither as a private citizen nor for a private purpose.”   Instead, he was “acting under color of authority” (id., at p. 633, 114 Cal.Rptr. 114, 522 P.2d 674);  he wore standard police dress, was armed with a revolver, carried handcuffs, and had a two-way radio in his patrol car.   In addition, he “was not acting to protect the interests of a private employer.”  (Id., at p. 634, 114 Cal.Rptr. 114, 522 P.2d 674.)   While it may be argued that the Los Angeles Housing Authority's primary purpose is not to enforce penal laws, but to clear slum areas and provide safe and sanitary dwelling accommodations for persons of low income, the court held “[t]he controlling question, ․ is not the ‘mission’ of the governmental agency.   Whether the exclusionary rule should be invoked depends instead on whether to do so would deter the particular governmental employee, and others similarly situated, from engaging in illegal searches of private citizens.   And that question, in turn, depends on such considerations as the training or experience, responsibilities or duties of the employee in question.”  (Id., at p. 635, 114 Cal.Rptr. 114, 522 P.2d 674.)

Moreover, as noted by the court in Dyas, “the People have the burden of justifying this warrantless search ․”  (Ibid.)   It is clear from the record that Villanueva, in detaining and patting down the minors, was providing the security for school district personnel and pupils envisioned in Education Code section 39670 (see majority opinion, p. 240, fn. 5).   As stated in In re Guillermo M. (1982) 130 Cal.App.3d 642, 645, 181 Cal.Rptr. 856, “Education Code section 39671 and Penal Code section 830.4, subdivision (g), confer ‘peace officer’ status on the agents in carrying out their duties, ․”  Unlike the court in Guillermo M., at pages 645, 647, 181 Cal.Rptr. 856, I do not think it highly significant that the agents do not have general police powers or that their powers are supplementary to local law enforcement.²  As stated in Dyas, supra, 11 Cal.3d at pages 635–636, 114 Cal.Rptr. 114, 522 P.2d 674, footnote 3, “the fact that a public housing authority patrolman is not included in the several lists of ‘peace officers' contained in the Penal Code (§§ 830.1–830.11) [is] not determinative of the problem at hand.   Their purpose is merely to authorize the named persons to exercise the statutory powers of a peace officer.   It does not follow that a person who is not thus listed is not bound by the exclusionary rule․”

Villanueva is in a similar position.   He worked at the South Gate Adult School, part of the Los Angeles Unified School District, as a security guard;  he was a governmental employee, not a private citizen.   The very nature of employment as a security guard implies police-like duties.  (See In re Ruth H. (1972) 26 Cal.App.3d 77, 81, 102 Cal.Rptr. 534.)   Performing such duties, in the case at bench, included detaining and patting down minors he saw loitering outside a classroom.   Because of the nature of his employment as a governmental security agent, Villanueva's conduct is subject to Fourth Amendment restraints.³  The motion to suppress should have been granted.

I would reverse the order appealed from.

FOOTNOTES

1.   Appellant was seventeen years old at the time of the incident described herein.

2.   The weapon was described in court as a “ball attached to a chain and a wooden handle capped at one end with a device which permits the chain and ball to be attached.”   Appellant's companion carried a sheathed knife.

3.   Respondent apparently concedes the merits of appellant's claim that the weapon would be inadmissible if Villanueva's conduct were subject to constitutional restraints.

4.   At the time of the events described in Cervantez, and the incident here in question, Penal Code section 70 provided:“Every executive or ministerial officer, employee or appointee of the State of California, county or city therein or political subdivision thereof, who knowingly asks, receives or agrees to receive any emolument, gratuity or reward, or any promise thereof excepting such as may be authorized by law for doing an official act, is guilty of a misdemeanor.  [¶] This section shall not be construed to prohibit deputy registrars of voters from receiving compensation when authorized by local ordinance from any candidate, political committee, or statewide political organization for securing the registration of voters.”The legislature has since amended the section by adding to it the following language:“Nothing contained in this section shall preclude a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, from engaging in, or being employed in, casual or part-time employment as a private security guard or patrolman for a public entity while off duty from his or her principal employment and outside his or her regular employment as a peace officer of a state or local agency, and exercising the powers of a peace officer concurrently with such employment, provided that such peace officer is in a police uniform and subject to reasonable rules and regulations of the agency for which he or she is a peace officer and within the provisions of subdivisions (l) and (m) of Section 7522 of the Business and Professions Code.   Notwithstanding the above provisions, any and all civil and criminal liability arising out of the secondary employment of any peace officer shall be borne by such officer's secondary employer.   It is the intent of the Legislature by this paragraph to abrogate the holdings in People v. Corey, 21 Cal.3d 738, 147 Cal.Rptr. 639, 581 P.2d 644, and Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 156 Cal.Rptr. 198, 595 P.2d 975, to reinstate prior judicial interpretations of this section as they relate to criminal sanctions for assault on peace officers who are employed, on a part-time or casual basis, by a public entity, while wearing a police uniform as private security guards or patrolmen, and to allow the exercise of peace officer powers concurrently with such employment.”  (Stats.1982, c. 1300, p. ––––, § 1.)

5.   [At the time of the events here in question] Education Code section 39670 provide[d] in relevant part:  ‘The governing board of any school district may establish a security department and employ ․ such personnel as may be necessary to ensure the security of school district personnel and pupils and the security of the real and personal property of the school district and to cooperate with local law enforcement agencies in all matters involving the security of the personnel, pupils, and real and personal property of the school district.   It is the intention of this provision that a school district security department shall be supplementary to city and county law enforcement agencies and shall under no circumstances be vested with general police powers.”

6.   In a separate concurring opinion, in In Re Deborah C., supra, Chief Justice Bird noted that our Supreme Court had never addressed the obligation of an off-duty police officer to conform his actions to our Constitution.  (30 Cal.3d 125, 141 (fn. 1), 177 Cal.Rptr. 852, 635 P.2d 446.)

1.   In In re Deborah C., supra, 30 Cal.3d at page 131, 177 Cal.Rptr. 852, 635 P.2d 446, our Supreme Court noted “[n]ongovernmental security employees that act without police cooperation have been regarded as private citizens unaffected by Miranda.  [Citations.]”  (Emphasis added.)   By implication, governmental security guards are subject to the restraints protected by the exclusionary rule.

2.   While I disagree with the language in Guillermo M. relating to whether security guards come within the penumbra of the Fourth Amendment, such language is dicta;  the court in that case concluded that even if the security guard were to be considered a peace officer for search and seizure purposes, he was acting properly.   In the case at bench, on the other hand, respondent apparently concedes the weapon would be inadmissible if the security guard's conduct is subject to constitutional restraint.  (See majority opinion, p. 239, fn. 3.)

3.   This court is not unaware of the serious problems of safety and security confronting our schools.   However, those employed to insure security must, for the protection of all students and employees, comply with the constitutional protections given citizens against unreasonable searches and seizures.

DANIELSON, Associate Justice.

KLEIN, P.J., concurs.