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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Leone, 386
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Dyanne Klein Polatin,
Asst. Dist. Atty., for the commonwealth.
Richard Berman,
Before HENNESSEY, C. J., and LIACOS,
ABRAMS, NOLAN and O'CONNOR, JJ.
HENNESSEY, Chief Justice.
This is an
interlocutory appeal by the Commonwealth, which objects to the suppression of
certain evidence in a criminal proceeding in a District Court. The issues posed are whether the Fourth
Amendment to the United States Constitution affects the admissibility of
evidence discovered by a special police officer privately employed as a plant
security guard, and if so, whether the officer's conduct constituted an unreasonable
search and seizure. We conclude that the
Fourth Amendment does apply, but that the officer's private function may affect
the constitutionality of his conduct.
Further, because of the incomplete record before us, we vacate the
judge's ruling suppressing the evidence, and we direct that further proceedings
be held.
[386
On January
29, 1981, John Vousboukis, a General Electric
security guard, stopped the defendant at the gate of General Electric's Lynn
plant to determine whether the defendant's cargo was properly authorized to
leave the plant. Vousboukis
first inspected the cargo section of the truck, checking the cargo against a
description on the defendant's gate pass.
Then, over the defendant's objection, he entered the cab of the
truck. ([FN1]) On the bed in the defendant's sleeping quarters
was a travel bag. It appears that the
bag was closed, but not secured.
([FN2]) Vousboukis
picked up the bag, and discovered a gun within.
[386 Mass. 331] After questioning the defendant concerning firearms
identification (the defendant stated that he had no Massachusetts
identification card but had a North Carolina card at his home), Vousboukis took custody of the gun. He then contacted another security officer,
who came to the gate and questioned the defendant further. The second officer contacted the Lynn police,
and learned that the gun had been stolen from a Lynn police officer. Vousboukis turned
over the gun to the police when they arrived.
The
defendant moved to suppress the gun on the ground that Vousboukis
had conducted an unreasonable search and seizure in violation of the United
States and Massachusetts constitutions.
([FN3]) At a hearing on the
defendant's motion, Vousboukis testified that he was
a "special police officer" for the city of Lynn, employed by General
Electric to patrol its Lynn plant. His duties
at General Electric included checking persons entering or leaving the plant to
determine whether they were company personnel, and inspecting vehicles, to
ensure that any "company materials" leaving the property were
authorized to leave. There was no
evidence explaining his status and duties as a special police officer.
Vousboukis stated that gate inspections of vehicles and
their contents, including the drivers' personal bags, were routine
practice. He also mentioned a company
regulation providing that security plant guards could inspect any items brought
onto or taken away from company property.
According to Vousboukis, all employees and
contractors were provided with a copy of the company regulations. ([FN4])
The defendant testified that security guards had never inspected his
truck or belongings during the eight years in which he [386 Mass. 332] had
driven to and from the Lynn plant. He
also stated that he had not received a copy of the company regulations, and had
no knowledge of the provision for inspections.
The judge
assumed that the Fourth Amendment governed the admissibility of the gun. He found that Vousboukis
had acted in accordance with plant custom in stopping the defendant at the
gate, but did not state whether he believed that further inspection was
customary. He ruled that Vousboukis "had the right and duty to inspect the
cargo, and the inside of the cab, but had no right to handle the travel
bag," and that Vousboukis' conduct had
"violated the reasonable expectation of privacy held by the
defendant." On this ground, he
suppressed the evidence.
There is
no suggestion that, before stopping the defendant's truck, Vousboukis
had probable cause to search the truck, or even reason to suspect that the
defendant was involved in crime. Under
the standards applied to ordinary police officers, he was not entitled to
conduct even a cursory search.
([FN5]) See, e.g., Commonwealth
v. Loughlin, 385 Mass. [386 Mass. 333] 60, 62,
430 N.E.2d 823 (1982); Commonwealth v. Silva, 366 Mass. 402, 404‑407, 318
N.E.2d 895 (1974); Robbins v. California, 453 U.S. 420, 101 S.Ct.
2841, 2844‑2847, 69 L.Ed.2d 744 (1981); Carroll v. United States, 267
U.S. 132, 155‑156, 45 S.Ct. 280, 285‑286,
69 L.Ed. 543 (1925).
Therefore, the admissibility of the evidence he discovered depends on
whether and in what manner the Fourth Amendment applies to privately employed
special police officers such as Officer Vousboukis.
(1) The
Fourth Amendment, and the accompanying rule of exclusion, apply only to
government action. Evidence discovered
and seized by private parties is admissible without regard to the methods used,
unless State officials have instigated or participated in the search. Commonwealth v. Richmond, 379 Mass. 557, ‑‑‑,
Mass.Adv.Sh.
(1980) 167, 171, 399 N.E.2d 1069; Commonwealth v. Weiss, 370 Mass. 416,
419‑420, 348 N.E.2d 787 (1976); Walter v. United States, 447 U.S. 649,
656, 100 S.Ct. 2395, 2401‑2402, 65 L.Ed.2d 410
(1980); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048
(1921). See generally, 1 W. LaFave, Search and Seizure s 1.6 (1978); Annot., 36 A.L.R.3d 553 (1971). This rule follows from the origins and design
of the Fourth Amendment as a restraint against arbitrary or lawless use of
sovereign power, with its great potential for intrusion upon the privacy of
individuals. See Burdeau
v. McDowell, supra at 475, 41 S.Ct. at 576; 1 W. LaFave, supra s 1.1(a).
Limitation of Fourth Amendment sanctions to government action is also
consistent with a major objective of the rule of exclusion‑deterrence of
unreasonable searches and seizures.
Private persons are not regularly involved in law enforcement, and those
who undertake searches generally do so for reasons other than to secure
criminal conviction. Therefore,
exclusion of the fruits of their activities will not have a significant
deterrent effect. See 1 W. LaFave, supra s 1.6, at 112‑113; Annot.,
36 A.L.R.3d 553, 558 (1971).
[386 Mass. 334] Privately employed security forces pose a difficult problem of
distinction between State and private action.
Most courts have held that the Fourth Amendment does not apply to
private security personnel who hold no special authority under State law. In reaching this conclusion, they have
reasoned that the primary function and concern of privately employed security
officers
is protection of their employers' property, rather than conviction
of wrongdoers. E.g., United States v. Francoeur, 547 F.2d 891, 893‑894 (5th Cir.), cert.
denied, 431 U.S. 918, 923, 97 S.Ct. 2182, 2197, 53
L.Ed.2d 228, 238 (1977); United States v. Lima, 424 A.2d 113, 118, 121
(D.C.1980); State v. McDaniel, 44 Ohio App.2d 163, 170‑174, 337 N.E.2d
173 (1975); State v. Robinson, 86 N.J.Super. 308,
318, 206 A.2d 779 (1965). Several courts
and commentators have taken a different view, pointing out that private
security forces have come into increasing use as supplements to police
protection, and perform functions much like those of ordinary police. Private security personnel investigate
criminal activity on a regular basis, and may well have an interest in the
outcome of criminal actions against persons who pose a threat to the employer's
property. See People v. Zelinski, 24 Cal.3d 357, 365‑368, 155 Cal.Rptr. 575, 594 P.2d 1000 (1979); People v. Holloway, 82
Mich.App. 629, 639‑641, 267 N.W.2d 454 (1978)
(Kaufman, J., concurring); People v. Eastway, 67 Mich.App. 464, 467‑468, 241 N.W.2d 249 (1976); 1 W. LaFave, supra s 1.6(d), at 128‑129; Note, Seizures by
Private Parties: Exclusion in Criminal Cases, 19 Stan.L.Rev.
608, 614‑617 (1967). See also
District Attorney v. Coffey, 386 Mass. 218, 434 N.E.2d 1276 (1982) (Liacos, J., concurring).
Cf. Marsh v. Alabama, 326 U.S. 501, 505‑510, 66 S.Ct. 276, 278‑280, 90 L.Ed.
265 (1946) (conduct of private entity exercising "public function"
may be treated as State action).
Nevertheless, the majority continue to view purely private security
officers as private actors. See 1 W. LaFave, supra s 1.6(d), at 126‑127.
A
different rule prevails when an officer possesses additional status as a
special or deputy police officer.
Specially commissioned officers are formally affiliated with the
sovereign and generally possess authority beyond that of an ordinary citizen in
matters such as arrest and the use of weapons. [386 Mass. 335] Therefore, they are treated as agents
of the State, subject to the constraints of the Fourth Amendment. See, e.g., United States v. Lima, supra at
118‑119; People v. Smith, 82 Misc.2d 204, 206‑208, 368 N.Y.S.2d 954
(N.Y.1975). See State v. Wilkerson, 367
So.2d 319, 321 (La.1979) (off‑duty police officer); Pratt v. State, 9 Md.App. 220, 224‑225, 263 A.2d 247 (1970) (Miranda
warnings). ([FN6]) Cf. Griffin v. Maryland, 378 U.S. 130, 135‑137,
84 S.Ct. 1770, 1772‑1773, 12 L.Ed.2d 754 (1964)
(action of amusement park guard who asserted his authority as deputy sheriff in
excluding and arresting black patrons was State action); Williams v. United
States, 341 U.S. 97, 99‑100, 71 S.Ct. 576, 578‑579,
95 L.Ed. 774 (1951) (beating of suspects by private
detective commissioned as special policeman and acting in company of regular
policeman, was action "under color of state law," for purpose of
criminal action against him). But see
State v. McDaniel, supra 44 Ohio App.2d at 174‑175, 337 N.E.2d 173.
(2) We
agree that a State officer privately employed as a security guard is bound to
comply with the Fourth Amendment when performing investigatory duties, and that
evidence he discovers through methods in violation of the Fourth Amendment is
subject to the rule of exclusion. ([FN7]) But this does not mean that the bounds of
permissible conduct are the same for the privately employed special officer as
they would be for an ordinary police officer.
The guard's private function adds a new aspect to his activities,
which we believe is relevant to the proper application of the Fourth
Amendment. The action he takes on behalf
of his employer may be a lawful and necessary means of protecting the
employer's [386 Mass. 336] property, although it would be
impermissible if taken on behalf of the State in pursuit of evidence. Cf. Restatement (Second) of Torts s 260
(1965) (privilege to interfere with another's property in defense of actor's
property). When the guard's conduct is
justified by his legitimate private duties, it should not be treated as
lawless, or "unreasonable," search and seizure.
Established
principles support the conclusion that the existence of a lawful private
purpose should be taken into account in applying the Fourth Amendment. The guard's position is similar to that of a
police officer who intrudes by lawful means upon an individual's privacy, and
then discovers unanticipated evidence.
See, e.g., Commonwealth v. Cefalo, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh.
(1980) 1877, 1888‑1889, 409 N.E.2d 719; Coolidge v. New Hampshire,
403 U.S. 443, 464‑471, 91 S.Ct. 2022, 2037‑2040,
29 L.Ed.2d 564 (1971). The subject of
the search, for his part, has reason to expect some scrutiny or interference by
the agents of the private party whose property he uses or handles. Cf. Katz v. United States, 389 U.S. 347, 351‑353,
88 S.Ct. 507, 511‑512, 19 L.Ed.2d 576
(1967). Moreover, when the guard takes
legitimate steps for the protection of his employer's property, there is no
cause for the deterrent sanction of the exclusionary rule. Cf. Terry v. Ohio, 392 U.S. 1, 12‑15,
88 S.Ct. 1868, 1875‑1876, 20 L.Ed.2d 889
(1968). Exclusion would serve only to
frustrate prosecution of those whose crimes happen to come to light in the
course of a routine inspection by a security guard.
(3) For these
reasons, we conclude that an investigation by a special police officer
privately employed as a security guard does not violate the Fourth Amendment
when it is conducted on behalf of the private employer, in a manner that is
reasonable and necessary for protection of the employer's property. If, on the other hand, the officer steps
outside this sphere of legitimate private action, the exclusionary rule applies
as it would to any State officer. The
burden of establishing the constitutionality of the officer's conduct rests
with the Commonwealth. See Commonwealth
v. Antobenedetto, 366 Mass. 51, 56‑58, 315
N.E.2d 530 (1974).
(4) The
present record does not afford sufficient basis for applying the principle we
have outlined. We have no information[386 Mass. 337] concerning Vousboukis' duties as a special police officer in the city
of Lynn. Nor does the record reveal the
nature of the private property he purported to protect. Neither the judge nor the parties could have
anticipated the requirements of our decision, and a new hearing is necessary.
(5) At the
new hearing, the propriety of the guard's action should be determined in light
of the reasons for special treatment of a privately employed special police
officer acting on his employer's behalf.
These reasons are the private nature and purpose of his conduct, the
legitimacy of the specific action he takes as a means of protecting private
property, and the diminished expectations of privacy of the subject of the
investigation. Several definite requirements
follow from these foundations.
(6) First,
the guard must have acted under the control of his private employer. See State v. McDaniel, 44 Ohio App.2d 163,
174‑175, 337 N.E.2d 173 (1975). If
the investigation exceeded his private duties or authorization, he must be
considered to have acted in his official capacity. Similarly, if the guard has received
instructions from State authorities, on a regular basis or in regard to the
particular investigation at issue, his conduct is not protected by his private
role.
(7)
Second, the guard's actions must be clearly related to his employer's private
purposes. An investigation that goes
beyond the employer's needs cannot be justified as an incident of the guard's
private function. If, for example, none
of the General Electric property to which the defendant had access could have
been concealed in a travel bag or sleeping compartment, Vousboukis
was not entitled to search these areas.
(8) Third,
the investigation must be a legitimate means of protecting the employer's
property, and so must be reasonable in light of the circumstances surrounding
it. Cf. Restatement (Second) of Torts s
278 (1965). Reasonableness depends in part
on the expectations engendered by the particular setting. If the employer has maintained the private
character of his property, those who use it must anticipate [386 Mass. 338] and
accept supervision. But if the employer
has exposed his premises and chattels to semi‑public use, the sense of
private prerogative to control its users is much diminished. Custom or advance warning may bear upon the
propriety of an investigation, but should not be determinative. See Commonwealth v. Storella,
6 Mass.App. 310, 315‑316, 375 N.E.2d 348
(1978); Gillett v. State, 588 S.W.2d 361, 366 (Tex.Cr.App.1979) (Roberts, J.,
dissenting); 2 W. LaFave, supra s 8.2(l) (1978). Finally, the judge should consider the
methods chosen and the manner in which they are carried out. Failure to employ available, less intrusive
alternatives may suggest that the methods employed were unwarranted, and an
offense to individual dignity is impermissible in almost any
circumstances. See Gillett v. State,
supra.
Accordingly,
we vacate the judge's decision. Further
evidence on the motion to suppress the gun from evidence is to be received in
the judge's discretion, and further proceedings shall be in accord with this
opinion.
So
ordered.
(FN1.) Vousboukis
testified that the defendant had told him angrily that he "did not want
(him) in (the) cab." Vousboukis also stated that he had noticed the defendant
holding first a wooden club and later a tire iron, and had feared that the
defendant would hit him. He added,
however, that the defendant had explained that he wished to check the tires,
and had relinquished both items upon request.
(FN2.)
Both Vousboukis' testimony at the hearing to suppress
and the judge's findings leave unclear the precise condition of the bag when Vousboukis came upon it.
Vousboukis stated that the bag was not
zippered shut. He also asserted at one
point that it was "open," but later contradicted this by stating that
he "was going to pull the bag over so (the defendant) could open
it." The judge found that Vousboukis "opened" the bag, but added that
"in picking up this bag, (he) noticed what he testified to was a butt of a
handgun." The defendant testified
at the suppression hearing, but was not asked whether the bag was open, closed,
or fastened in any way. The best
inference from the record is that the bag was closed, but not fastened shut,
and that Vousboukis caused it to open as he picked it
up.
(FN3.)
The motion referred only to the gun, and not to the statements made by the
defendant at the time of the search.
(FN4.)
The Commonwealth offered as evidence a booklet entitled "Code of Plant
Conduct," addressed to plant employees.
Appearing on the third page of the booklet was the statement: "We
recognize that plant guards have authority to examine all company property and
to inspect all items or vehicles being taken into, on, or ... from the
premises." The judge marked the
booklet for identification, but refused to allow it as an exhibit in the
absence of any evidence that the defendant had knowledge of it.
(FN5.)
The Commonwealth offers two arguments in an effort to justify Vousboukis' actions under traditional Fourth Amendment
standards applicable to police. First,
it contends that the gun was "in plain view" in the cab of the
truck. See Commonwealth v. Cefalo, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, Mass.Adv.Sh. (1980) 1877, 1888‑1889, 409 N.E.2d 719;
Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841,
2846‑2847, 69 L.Ed.2d 744 (1981); Coolidge v. New Hampshire, 403 U.S.
443, 464‑471, 91 S.Ct. 2022, 2037‑2040,
29 L.Ed.2d 564 (1971). The judge found,
however, that Vousboukis could not have seen the gun
until he had handled and examined the travel bag. Further, the rule permitting warrantless seizure of certain readily visible evidence
applies only when the police have come by lawful means to the place from which
they view the evidence. Commonwealth v. Cefalo, supra ‑‑‑ Mass. at ‑‑‑
‑ ‑‑‑, at 1887‑1888, Masss.Adv.Sh.
(1980), 409 N.E.2d 719; Coolidge v. New Hampshire, supra at 466, 91 S.Ct. at 2038.
Unless Vousboukis' presence in the cab could
be justified, the "plain view" doctrine could not operate.
Second, the
Commonwealth argues that "probable cause and exigent circumstances"
arose when the defendant picked up a wooden club and a tire iron. See note 1 supra. The judge excluded Vousboukis'
references to the club and tire iron, presumably on grounds of
irrelevancy. The Commonwealth argues
that the judge's ruling was erroneous, and that the defendant's handling of the
club and tire iron justified Vousboukis' search of
the cab and travel bag. Assuming, for
purposes of argument, that Vousboukis' testimony
concerning the club and tire iron tended to show exigency, nevertheless its
admission would not have justified the search.
Vousboukis stated that he had already climbed
into the cab, and looked into the sleeping area when he first saw the defendant
with a club. Thus the "probable
cause and exigent circumstances" of which the Commonwealth speaks could
not have supported the first stages of the search. Further, Vousboukis'
examination of the sleeping area and travel bag occurred after the defendant
had relinquished the club and tire iron, and in any event bore little relation
to the "exigency" at hand. Cf.
Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2313‑2314, 57 L.Ed.2d 290 (1978);
Michigan v. Tyler, 436 U.S. 499, 511, 98 S.Ct. 1942,
1950‑1951, 56 L.Ed.2d 486 (1978).
(FN6.)
The defendant in the present case has raised no claims based on the Fifth
Amendment or the rules established in Miranda v. Arizona, 384 U.S. 436, 467‑479,
86 S.Ct. 1602, 1624‑1625, 16 L.Ed.2d 694
(1966), and our discussion throughout this opinion is limited to the problem of
unreasonable search and seizure.
(FN7.) We express no opinion on the bearing of
the Fourth Amendment on the conduct of an individual who does not possess
official status, but functions in much the same manner as a police
officer. See District Attorney v.
Coffey, 386 Mass. 218, 226‑229, 434 N.E.2d 1276 (1982) (Liacos, J. concurring); People v. Zelinski,
24 Cal.3d 357, 365‑368, 155 Cal.Rptr. 575, 594
P.2d 1000 (1979); L. Tribe, American Constitutional Law s 18.3, at 1158
(1978). Whether or not the added status
is sufficient to distinguish the two cases, we believe that the combination of
official status and investigatory function brings the guard in this case within
the scope of the Fourth Amendment.