State v. Bryan
457 P.2d 661
Or. Ct. App.
1969
Check Treatment
SCHWAB, C. J.

Defendant was indicted, tried and convicted by jury of the crime of illegal possession of narcotics (marihuana). Defendant appeals on the ground that the marihuana was illegally seized, and, therefore, should not have been received in evidence. The marihuana was discovered and turned over to the police by persons acting in their private capacities and not with the participation or knowledge of any governmental official. Thus, the question on appeal is when persons who are not law enforcement officers, and who are not acting with the participation or knowledge of law enforcement officers, “search and seize,” are the Constitutions of the United States or the State of Oregon violated.

The defendant parked his car in a shopping center parking lot and left it. Some time later, two men, employed by the shopping center to supervise the parking lot, noted that the vehicle had been oh the lot for what they deemed an unusual length of. time. Following their normal practice in such' instances, the parking lot attendants entered the car in an effort to determine the owner’s name by finding the vehicle registration certificate. They did not find it on the sun visor and looked in the glove compartment. There they found a package'of marihuana and letters addressed-to ■ the defendant. They called the police; and. defendant’s indictment, prosecution, and-conviction-foliowed. ■

The parking lot attendants, in entering the vehicle, *17 were not acting with the participation or knowledge of the police ot any other governmental officials, nor were they self-appointed investigators looking for marihuana or evidence of criminal conduct,

The Fourth Amendment of the United States Constitution does not give protection against searches and seizures by other than governmental agencies. As was said in Burdeau v. McDowell, 256 US 465, 41 S Ct 574, 65 L Ed 1048, 13 ALR 1159 (1921):

“The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies. * * *" 256 US at 475.

Article I, § 9, of the Oregon Constitution does not prohibit the admission of evidence so seized. State v. Olsen, 212 Or 191, 193-94, 317 P2d 938 (1957); Walker v. Penner, 190 Or 542, 548, 227 P2d 316 (1951).

Defendant, in effect, argues that Burdeau has been overruled by Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933 (1961) and Elkins v. United States, 364 US 206, 80 S Ct 1437, 4 L Ed 2d 1669 (1960). We find no jurisdiction which has so held. Wolf Low v. United States, 391 F2d 61, 63 (9th Cir), cert. den. 393 US 849 (1968); People v. Cheatham, 263 Cal App2d 458, 69 Cal Rptr 679, 681 (2d Dis, Div 5 1968); People v. Horman, 22 NY2d 378, 239 NE2d 625, 627-28 (1968), cert. den. 393 US 1057 (1969).

Affirmed.