Section by a private person

The constitutional guarantee against unreasonable searches and seizures protects against governmental actions. The rule that evidence obtained in violation of the Fourth Amendment was set forth to prevent the government from conducting unlawful searches and seizures. As such, evidence that is illegally obtained by private persons acting in a private capacity will ordinarily be admissible in court. However, as with any rule, there are exceptions.


In Krauss v. Superior Court (1971) 5 Cal.3d 418, a hotel maid was cleaning the Defendant’s room when she saw a cigarette package on the night stand. She opened the package to see if it was empty so she could throw it away. However, inside the cigarette package was a plastic baggy which contained marijuana. The maid put the baggy back into the cigarette package and called the police.

The officer arrived at the hotel and the manager allowed him into the room. The officer looked into the cigarette package and saw the marijuana. The officer left to obtain a warrant. The officer prepared an affidavit based upon the initial information provided by the hotel maid and left out any information regarding his own entry into the room. The officer obtained the warrant, returned to the hotel room, seized the marijuana, and arrested the Defendant.

The Court found that the officer’s initial entrance into the hotel room and inspection of the cigarette package were unlawful. However, the marijuana was not excluded from evidence because the warrant was issued solely based upon the facts presented to the officer by the hotel maid. In other words, the maid’s entry into the hotel room and search of the cigarette package was lawful, whereas the officer was not permitted to engage in the same conduct.

While the exclusionary rule does not ordinarily apply to private persons, it may apply to security officers based upon the circumstances of the particular case.

In People v Zellinski (1979) 24 Cal.3d 357, a store detective witnessed the suspect attempt to shoplift store merchandise. The detective arrested her and conducted a search of the suspect’s person and purse. The store detective found a vial containing heroin inside her purse. The store detective called the police who arrested the suspect for unlawful possession of heroin.

The Court found that the vial had been illegally seized by the store detective and that evidence should be suppressed.

The store detective had the right to detain and/or arrest the suspect under either the Shopkeeper’s Privilege (Penal Code §490.5) or the citizen’s arrest statute (Penal Code §846.) However, neither of these statutes permitted the store detective to conduct the search made in this case. Penal Code §490.5 permits the search of items in plain view which the person has probable cause to believe have been unlawfully taken. Penal Code §846 permits a search for weapons, but not a search for contraband. In this case, the store detective should have detained the suspect for the police to conduct a search rather than performing the search himself.

The fruits of an illegal search conducted by a security officer are ordinarily only excluded when the security officer is acting in concert with the police, or when the police are silently standing by. In this case, the store detective held the suspect for criminal process and conducted a search. The Court likened this to an action by the state and excluded the vial of heroin from evidence in the case.