People v. Carter

Opinion

ASHBY, J.

Appellant pleaded guilty to grand theft, and was sentenced to state prison. His appeal is limited to search and seizure issues pursuant to Penal Code section 1538.5, subdivision (m).

Appellant and codefendant Hipólito Leiva were caught shoplifting from the Gemco store in Cerritos. On January 9, 1979, a plainclothes store security officer, Vickie Caine, observed them enter the store. Appellant placed seven boxes of electric drills in his shopping cart. He took the shopping cart to the patio area, placed the seven drill boxes inside a large cardboard box in the shopping cart and closed the flaps.

Appellant returned with the cart to aisle 10 and talked to Leiva. They separated; appellant remained in the variety section while Leiva, with another shopping cart, selected two items from the toy section and went to the cash register to purchase them. One of the toys was bagged, then Leiva requested that the other, a children’s kitchen set, not be bagged because it might be smashed. The checkstand supervisor taped a Gemco security strip, along with the receipt, her initials and date, to the kitchen set.

Leiva then returned to the variety section and conversed with appellant. Leiva put his two toy items in appellant’s cart. Leiva removed the Gemco security strip from the kitchenware set and placed it on the large cardboard box. Leiva then pushed the cart out the exit, walking 10 feet behind appellant. The shopping cart also contained a garage door opener box. Neither the garage door opener nor the drills were paid for.

With the assistance of sheriff’s officers whom she had already alerted, Ms. Caine stopped appellant and Leiva and informed them they were under arrest. She seized the cardboard box and opened it to inventory its contents.

[738]

Discussion

Appellant contends the evidence against him was obtained as a result of an unlawful search of the large cardboard box in the shopping cart. This argument is wholly without merit.

The seizure of the cardboard box and inventorying of its contents were authorized by the merchant’s privilege contained in Penal Code section 490.5, subdivision (e). That section provides in pertinent part that a merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises (subd. (e)(1)), and that during the period of detention any items which a merchant has reasonable cause to believe are unlawfully taken from the premises “and which are in plain view may be examined by the merchant ... for the purposes of ascertaining the ownership thereof.” (Subd. (e)(3).)