![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Thank You For Submiting Feedback!
The Fourth Amendment is applicable to the states through the Fourteenth Amendment which prohibits a state from depriving any person of life, liberty, or property, without due process of law. The conduct of a person not acting under the authority of a state is not proscribed by the Fourth or Fourteenth Amendments of the federal Constitution. There are no state standards for "search and seizure" by a private citizen who is not acting as an agent of the state or other governmental unit. Therefore, acquisition of property by a private citizen from another person cannot be deemed reasonable or unreasonable, and a motion to suppress evidence so obtained cannot be made on the ground that its acquisition constitutes an unreasonable search and seizure under Cal. Penal Code § 1538.5.
Defendant employed a private detective to install a voice-activated recording system to record all conversations in his offices in order to expose the source of an internal "leak." After installing the system, the detective tested it by recording conversations in defendant's office between defendant and other individuals. The detective later submitted the tape to the State as evidence of defendant's bribery of public officials. Upon defendant's motion to suppress the evidence, the trial court ordered that the tape and related testimony be suppressed under former Cal. Penal Code § 653j, which prohibited the third-party recording of confidential communications. The State sought a writ of mandate pursuant to Cal. Penal Code § 1538.5 commanding respondent, the Superior Court of Los Angeles County (California), to annul its order suppressing evidence in a criminal action against defendant, the real party in interest.
Should the evidence in question be suppressed, notwithstanding the fact that it was not obtained by a search or seizure?
On the State's petition for a writ of mandamus, the court determined that the trial court abused its discretion in suppressing evidence that was not obtained by a search or seizure. The court also indicated that the trial court must more specifically determine whether the detective "intentionally" recorded a confidential communication, and issued a peremptory writ of mandate to enter a new order denying defendant's motion to suppress the evidence under Cal. Penal Code § 1538.5.