People v. Deborah C.

A second charge alleged that on or about October 22, 1979, she stole clothing from a Broadway store. Bernadette Laskowski, plainclothes security agent, testified that Deborah aroused suspicion because she was carrying a “large old plastic bag” and “walking around, looking around quite a bit.” She then stopped in the Junior World department, took several items off the racks, and went into a fitting room.

The fitting rooms adjoined a narrow aisle and apparently had doors three feet high, with two-foot gaps above the floor and below the ceiling. Laskowski looked over or under the door and saw Deborah put the merchandise in her plastic bag or purse. As Deborah left the store without paying, Laskowski followed, detained her, and took her to the store’s security office. While Laskowski was making out a “police report” Deborah volunteered that she was sorry and that her sister and brother told her she should do it to help pay the rent. Laskowski’s eyewitness testimony and Deborah’s statement were admitted over objection.

Miranda Warning

Counsel urges that the finding as to the Orbach’s theft is reversible per se because, before Deborah confessed to the detective, she was not advised as to her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ] (rehg. den., 385 U.S. 890 [ 17 L.Ed.2d 121 , 87 S.Ct. 11 ]).

Does Miranda govern custodial investigations by store detectives? That case concerned “the police” and “the authorities.” California courts have limited its requirements (and those of the predecessor case, People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], cert. den., 381 U.S. 937 and 946 [ 14 L.Ed.2d 702 and 710, 85 S.Ct. 1765 ]), to “law enforcement officials,” their agents, and agents of the court, while the suspect is in official custody. (In re Eric J. (1979) 25 Cal.3d 522 , 527 [ 159 Cal.Rptr. 317 , 601 P.2d 549 ]; see People v. Polk (1965) 63 Cal.2d 443 , 449 [ 47 Cal.Rptr. 1 , 406 P.2d 641 ], cert. den. (1966) 384 U.S. 1010 [ 16 L.Ed.2d 1016 , 86 S.Ct. 1914 ] [interrogation by prosecution psychiatrist]; In re Spencer (1965) 63 Cal.2d 400 , 410 [ 46 Cal.Rptr. 753 , 406 P.2d 33 ] [court-appointed psychiatrist]; see Estelle v. Smith (1981) 451 U.S. 454 , 466-469 [ 68 L.Ed.2d 359 , 371-373, 101 S.Ct. 1866 ] [same].)^[1] “‘A private citi

private security guards, when the conduct was illegal and deterrable in both situations. (P. 368.)

Zelinski 's “color of law” analysis responded to arguments that illegal searches by private guards are not state action and thus are unaffected by the Fourth Amendment and article I, section 13 of the California Constitution. (Pp. 366-367.)^[2] But the mere asking of questions is not illegal. And guarantees against self-incrimination do not turn solely on whether interrogators are state agents. Rather, they prevent the state from using involuntary answers as evidence (see Jackson v. Denno (1964) 378 U.S. 368 , 385-386 [ 12 L.Ed.2d 908 , 920-921, 84 S.Ct. 1774 , 1 A.L.R.3d 1205 ]; People v. Varnum (1967) 66 Cal.2d 808 , 812-813 [ 59 Cal.Rptr. 108 , 427 P.2d 772 ], app. dism. and cert. den. (1968) 390 U.S. 529 [ 20 L.Ed.2d 86 , 88 S.Ct. 1208 ]) whether obtained by government or private conduct (People v. Haydel (1974) 12 Cal.3d 190 , 197 [115 CaI.Rptr. 394, 524 P.2d 866 ]). Statements obtained without manifest physical or psychological coercion usually are deemed voluntary, though defendant never knew or waived his rights to silence and counsel.

For policy reasons Miranda established a stricter definition of voluntariness when answers are obtained in an “official interrogation” of a suspect in police custody by “law enforcement officials” or with their complicity. (See Estelle v. Smith, supra, 451 U.S. at pp. 466-469 [68 L.Ed.2d at pp. 371-373]; Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706]; Eric J., supra, 25 Cal.3d at p. 527.) That private security guards sometimes act under color of law when they conduct illegal searches neither makes them “law enforcement officials” nor establishes the complicity of those officials for purposes of Miranda. It does not render their detention of shoplifting suspects “police custody” nor their questioning “official.”

Miranda responded to the history of force, duress, and lengthy, incommunicado interrogation by some law enforcement agencies. (384 U.S. at pp. 444-456 [16 L.Ed.2d at pp. 706-713].) That abuse seems to have continued, at least in part. (See, e.g., People v. Pettingill, supra, 21 Cal. 3d 231 , 242-243.) The presence of overt police coercion is not, of

course, a prerequisite to application of Miranda. Courts recognize that nearly all police detention creates an atmosphere of compulsion. (Cf. Orozco v. Texas (1969) 394 U.S. 324 , 326-327 [ 22 L.Ed.2d 311 , 314-315, 89 S.Ct. 1095 ]; People v. Arnold, supra, 66 Cal.2d 438 , 447-448.)

We think that routine detention and questioning by plainclothes store detectives present a substantially different situation. Unless they represent themselves as police they do not enjoy the psychological advantage of official authority, a major tool of coercion. Moreover, there appears little evidence of abusive techniques by store detectives similar to those that Miranda charged against the police.

Under California statutes store employees have only limited powers of detention. (Pen. Code, § 490.5, subd. (e)(1) [merchant may detain for reasonable time and investigation on probable cause]; § 847 [arresting citizen must deliver suspect to police or magistrate without unnecessary delay].) There is evidence that retailers exercise restraint; more than half the store representatives contacted in a national study said that store policy was to release most shoplifters without police involvement. (Merchants’ Responses to Shoplifting: An Empirical Study (1976) 28 Stan.L.Rev. 589 , 604 (hereafter Merchants’ Responses).)^[3] Thus, though detentions by store personnel may at times seem frightening, the “compelling atmosphere” that Miranda deemed inherent in a custodial interrogation by police and other government personnel appears diminished.

Miranda criticized police preference for confessions over independent investigation. (384 U.S. at pp. 447-448 [16 L.Ed.2d at pp. 708-709].) But citizens may not arrest for misdemeanors not committed in their presence. (Pen. Code, § 837, subd. 1.) And the study referred to above indicated that stores discourage detention and arrest of suspects not actually seen by store employees leaving the premises with unbought merchandise. (Merchants’ Responses, supra, 28 Stan.L.Rev. at pp. 598-599.) That procedure was followed here. Before detaining Deborah, McGinnis saw her conceal several items, and then watched until she left the store without paying.

Thus it appears that shoplifting convictions routinely may depend more on eyewitness testimony and physical evidence than on the suspect’s inculpatory statements. Store detectives’ incentive to extract confessions is diminished even when the basic intent is to prosecute. Should psychological or physical abuse produce a confession, the exclusionary remedy is of course available. (Haydel, supra, 12 Cal. 3d at p. 197.)

Jurisdictions where the question now before us has arisen, including those that give to merchants the right to detain and question suspected shoplifters, generally have declined to extend Miranda to privately employed personnel.^[4]

We concur with those rulings. We hold that McGinnis, a plainclothes private detective, was not required to follow Miranda procedures before eliciting incriminating statements for use against Deborah. We therefore uphold the trial court order sustaining the Orbach’s petition.^[5]

Fitting-room Surveillance

Deborah also contends that the second petition, charging theft from a Broadway store, cannot be sustained. She urges that by watching her in the Broadway fitting room from the adjacent corridor, Laskowski, the store security guard, searched without probable cause, unconstitutionally. She seeks suppression of the fruits of Laskowski’s observations, including the stolen merchandise subsequently recovered outside the store.

We find it unnecessary to decide whether prearrest searches by private-store detectives raise constitutional issues or whether the exclusionary rule can be applied to evidence obtained in a search of that kind. (Cf. People v. Zelinski, supra, 24 Cal.3d 357 , 365-368; People v. Triggs (1973) 8 Cal.3d 884 , 891-892 [ 106 Cal.Rptr. 408 , 506 P.2d

232], disapproved on other grounds, People v. Lilienthal (1978) 22 Cal.3d 891 , 896 [ 150 Cal.Rptr. 910 , 587 P.2d 706 ].) The trial court apparently ruled that no search occurred here because Laskowski’s observations did not infringe Deborah’s reasonable expectation of privacy.^[6] The record provides substantial, factual support for that determination. (See People v. Rios (1976) 16 Cal.3d 351 , 357 [ 128 Cal.Rptr. 5 , 546 P.2d 293 ]; People v. Superior Court (1974) 10 Cal.3d 645 , 647, 649-650 [ 111 Cal.Rptr. 565 , 517 P.2d 829 ]; People v. Lawler (1973) 9 Cal.3d 156 , 160 [ 107 Cal.Rptr. 13 , 507 P.2d 621 ].)

Law enforcement officials make a search within the purview of constitutional prohibitions only when they jeopardize an individual’s expectation of privacy that society has recognized as justified. There is no reasonable expectation with regard to objects or events in plain view from a public place where the observer has a right to be. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626 , 634 [ 108 Cal.Rptr. 585 , 511 P.2d 33 ]; People v. Bradley (1969) 1 Cal.3d 80 , 84 [ 81 Cal.Rptr. 457 , 460 P.2d 129 ]; People v. Lovelace (1981) 116 Cal.App.3d 541 , 548 [ 172 Cal.Rptr. 65 ]; see Katz v. United States (1967) 389 U.S. 347 , 351-353 [ 19 L.Ed.2d 576 , 581-583, 88 S.Ct. 507 ].)

The record indicates that the fitting rooms at the Broadway store open off a three-foot-wide corridor. Each is about four by five feet square in area and has a door about three feet high from bottom edge to top edge, with approximately two-foot gaps above and below. Thus the door’s design allows substantial portions of the small room’s interior to be seen from the corridor.

When Laskowski began to suspect Deborah she followed her into the corridor, watching as she entered a fitting room and closed the door. On cross-examination she testified that Deborah hung her purse or shopping bag on the doorknob, then placed it on the floor and began stuffing it with clothing taken from the rack. Counsel pressed for an admission that Laskowski had seen this by walking up to the door, then stretching or bending to peer over or under it. Though susceptible to varying interpretations, Laskowski’s answers sustain the inference that once placed

on the floor the purse or bag was visible to a person standing normally in the corridor and was seen from such a position.^[7]

It appears that this was the dispositive basis of the trial court’s ruling. Seeking suppression, Deborah’s counsel argued that “[t]here is an expectation of privacy when one enters into a dressing room and closes the dressing room because the courts have held that that person upon entering the dressing room has an expectation of privacy; that a security officer looking into the room thereafter violates that expectation of privacy. ...” The judge responded that he knew of a case where a guard had looked into a dressing room with a slatted door; a suppression motion had been overruled there because “there was no expectation of privacy.” Though counsel and the judge also discussed differences between government and business security forces, we think the expecta

tion-of-privacy doctrine was an independent reason why the judge denied the suppression motion here.^[8]

What constitutes a “reasonable” expectation of privacy depends on the circumstances and is measured by common habits in the use of domestic and business properties. (E.g., North v. Superior Court (1972) 8 Cal.3d 301 , 308-312 [ 104 Cal.Rptr. 833 , 502 P.2d 1305 , 57 A.L.R.3d 155 ]; People v. Lovelace, supra, 116 Cal.App.3d 541 , 550; People v. Sneed (1973) 32 Cal.App.3d 535 , 540 [ 108 Cal.Rptr. 146 ].) The fitting room here adjoined a narrow common corridor through which customers and salesclerks must have passed frequently. They would not always keep strictly to the center of the passageway, and slight deviations must have brought them close to the fitting-room doors. The large gaps above and below the doors provided an obvious view of the interior of each room. Though designed perhaps to give minimal protection to modesty, the doors hardly could promote any reasonable feeling that all actions and objects behind them were insulated from public observation.

Citing People v. Triggs, supra, 8 Cal.3d 884 , counsel suggests that fitting rooms, like public restrooms, are zones of complete privacy regardless of their construction or the means of observation. But Triggs held only that a public restroom gives rise to a reasonable expectation of freedom from observation by a law enforcement officer who has assumed a clandestine, unexpected vantage point to spy indiscriminately on all who enter. In those circumstances it does not matter that a stall’s construction offers little privacy from normal view or that the officer could have seen the interior from a place open to the public. (Pp. 891-892; see also Britt v. Superior Court (1962) 58 Cal.2d 469 , 471-472 [ 24 Cal.Rptr. 849 , 374 P.2d 817 ]; Bielicki v. Superior Court (1962) 57

Cal.2d 602 , 605-607 [ 21 Cal.Rptr. 552 , 371 P.2d 288 ]; People v. Metcalf (1971) 22 Cal.App.3d 20 , 22-24 [ 98 Cal.Rptr. 925 ].)^[9]

The only California decision suggesting a limitation on surveillance of fitting rooms also involved observation from a hidden and unusual position. People v. Randazzo (1963) 220 Cal.App.2d 768 [34 Cal.LRptr. 65] concluded (in dictum) that police could not have watched a fitting room by lying on the floor of an adjacent cubicle to peer through a narrow gap below the dividing partition. (Pp. 769-770; cf. People v. Moreno (1976) 64 Cal.App.3d Supp. 23 , 29-30 [ 135 Cal.Rptr. 340 ].)

Retailers face a shoplifting epidemic. (See U.S. Law Enforcement Assistance Administration, Security and the Small Retailer (1979) p. 11; Merchants’ Responses, supra, 28 Stan.L.Rev. 589 .) The fitting rooms they often provide for customer convenience and modesty are particularly suited to concealment of stolen property. One way to fight that problem is to provide facilities that shield intimate body parts but are not entirely hidden from view. In effect, counsel asks us to hold that stores may not use evidence obtained by their employees’ normal-view observations through fitting room doors whose design and location almost invite inspection. That rule would comport with neither common habits in the use of property nor wise policy.^[10]

Custodial Credits

Deborah urges that the trial court erred in denying her 32 days of detention credit for time spent in juvenile hall before the disposition hearing. The contention has merit. The period of confinement under the Juvenile Court Law may not exceed the maximum term of imprisonment for a person convicted of the same offenses in adult court. (Welf. & Inst. Code, § 726.) Predisposition custodial credit therefore must be given to the extent the minor’s total period of confinement would otherwise exceed the statutorily defined “maximum term of imprisonment” for one convicted as an adult. (In re Eric J., supra, 25 Cal.3d 522 , 535-536.) Where sentences are aggregated for multiple offenses Eric J. provides that the maximum adult term is tb be computed under the determinate sentencing law whether the offenses be felonies or misdemeanors. (Id., at pp. 536-538.)

At the disposition hearing the court assessed a total of eight months’ confinement for the two petty thefts. Under Eric J. the maximum term of adult confinement for the same offenses would be six months (the “upper term” for the base offense (Pen. Code, §§ 488, 490.5, subd. (a)) plus two months (one-third of the “middle term” for the subordinate offense; id., § 1170.1, subd. (b); see Eric J., supra, at p. 538), or eight months, the period of confinement actually imposed. Thus we must modify the judgment to include the credit requested.

The judgment is modified to credit Deborah with 32 days of detention credit for time spent in juvenile hall prior to her dispositional hearing. In all other respects, the judgment is affirmed.

Tobriner, J., Richardson, J., and Wiener, J.,^[11] concurred.

I concur in the majority opinion. However, I write separately to emphasize that the principles herein enunciated do not apply to off-duty police officers who work part time as security guards for private businesses. The majority’s holding is limited to a determination that the policies which underlie the Miranda decision do not extend to private security guards.

Unlike the private security guard, a police officer is under a continuing duty to protect the public. (See Pen. Code, §§ 830.1 and 836;

People v. Derby (1960) 177 Cal.App.2d 626 [ 2 Cal.Rptr. 401 ].) The fact that police pfficers may work part time for private businesses should not relieve them of their obligation to give Miranda warnings before conducting a custodial interrogation.

The logic of this distinction is borne out when two sets of facts are compared.^[1] An off-duty police officer enters a store as a customer and sees someone in the act of shoplifting. The officer places the suspect under arrest. The Constitution requires that Miranda warnings be given before questioning the suspect about the incident. (See State v. Willadson (1978) — Minn. — [ 268 N.W.2d 546 , 546-547].) Similarly, an off-duty police officer, who is working as a security guard, observes someone shoplifting an item from the store and arrests him. In both instances the police officer seeks to question a suspect about criminal activity. If the second officer is not required to give Miranda warnings simply because he is working as a security guard, then the decision as to when basic constitutional principles apply will turn on who is paying the officer’s salary at the time he questions the arrestee. Surely, the constitutional rights of our citizens should not hinge on such a silly, irrational distinction.

I concur in the majority opinion. I also agree with the views expressed in the concurring opinion of the Chief Justice. However, I would add another caveat, consistent with the conclusion I expressed for this court in Dyas v. Superior Court (1974) 11 Cal.3d 628 [ 114 Cal.Rptr. 114 , 522 P.2d 674 ].

I would invoke the folk wisdom that if an object looks like a duck, walks like a duck and quacks like a duck, it is likely to be a duck. If a security officer in an establishment open to the public dresses like a peace officer, carries a gun and a simulated badge or shoulder emblem like a peace officer, and conducts himself in the authoritative manner of a peace officer, he surely will be deemed in the eyes of the public and detained suspects to be the equivalent of a peace officer. He should be held to the obligations imposed by law upon a peace officer.

In Dyas, for example, the uniformed private security officer “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. As we have seen, he 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. Clearly these are the acts of a law enforcement officer.” (Id. at pp. 633-634.)

Since no such circumstances appear in the instant case, I reach the same result as do my colleagues in the majority.

Staniforth, J.,^[1] concurred.