Alston v. United States

• Decision Date: 26 November 1986
• Docket Number: No. 84-1519.,84-1519.
• Citation: 518 A.2d 439
• Parties: LaAquanetta ALSTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

518 A.2d 439

LaAquanetta ALSTON, Appellant, v. UNITED STATES, Appellee.

No. 84-1519.

District of Columbia Court of Appeals.

Submitted September 27, 1985.

Decided November 26, 1986.

Enid Hinkes, Washington, D.C., appointed by this court, for appellant.

Joseph E. diGenova, U.S. Atty., with whom Michael W. Farrell, Thomas J. Tourish, Jr., and Lizabeth A. McKibben, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before FERREN, BELSON and STEADMAN, Associate Judges.

STEADMAN, Associate Judge:

Appellant was convicted in a bench trial of one count of shoplifting, in violation of D.C.Code § 22-3813 (1986 Supp.).¹ Appellant claims that the trial court erred in denying her motion to suppress the contents of her tote bag on the ground that the search was by a private citizen and therefore the Fourth Amendment did not apply. We conclude that the department store employee who searched her bag was, under the circumstances, subject to the Fourth Amendment, but that the search was nonetheless constitutional, since it was incident to a lawful arrest.² Accordingly, we affirm the conviction.

I.

Security officer³ Deidri Mitchell, employed by Woodward & Lothrop (a large department store), testified that she received a radio call to go to the women's sportswear area to look into a possible shoplifting. Mitchell, in plainclothes, turned off her radio and entered the fitting room across from appellant. When appellant left, Mitchell followed her. Appellant was carrying a blue tote bag over her shoulder and under her arm. The tote bag was open to view, similar to a shopping bag; by the way it was made, it could not be closed. Mitchell was able to see inside the bag a pink, white, and baby blue item, later proved to be a skirt, with a Woodward & Lothrop tag attached to it.

When appellant headed for the store exit on 10th Street, Mitchell started calling on the radio for her supervisor, Special Police Officer (SPO) Brenda Lee, also employed by the store. By the time she contacted Lee, appellant had walked past several cash registers, out the door, and was headed toward the small park across the street in front of the Martin Luther King Library. Appellant did not pay for any items while Mitchell was watching her.

Mitchell spoke with Lee on her radio as she followed appellant out of the store. When appellant turned and saw Mitchell using the radio, she began to run toward the park. By this time, other SPO's had joined Mitchell and all ran after appellant. She fell a short distance into the park and hurt her knee, at which point two SPO's caught her.⁴ The fall did not dislodge the bag from appellant's shoulder. Appellant was escorted back to the store's security office by the two SPO's, one of whom carried appellant's bag.⁵ Mitchell explained that "[t]he two SPO's that arrested Miss Alston took her back to the security office because she was hurt at that time and was not able to walk. So they were doing the best they could by helping her. She was not cuffed on the way to the office."

At the security office appellant was "informed of her rights and searched." A search of her person was made⁶ "for our safety and hers." After a photograph was taken of Mitchell holding the tote bag, Mitchell searched the bag and discovered $429.83 worth of women's clothing, including the skirt Mitchell had previously observed. At least three SPO's were present in the office when Mitchell searched the bag, including her supervisor, Lee; apparently appellant was also present or nearby. At the suppression hearing, the government asserted that the search of the bag without a warrant was justified on three grounds: first, that it was incident to a lawful arrest; second, that the Fourth Amendment did not apply to the store employee; and third, that it was a permitted inventory search. The trial judge accepted the government's argument that the security officer who searched the bag, Mitchell, was a private citizen to whom the Fourth Amendment did not apply, citing United States v. Lima, 424 A.2d 113 (D.C. 1980). He indicated he did not agree with the ether two arguments.

II.

At the outset we note that appellant does not contest the trial court's finding of probable cause to arrest; rather, she challenges the search as a violation of the Fourth Amendment. It is well established that, [a]lthough a private individual may act unlawfully and violate the privacy of another, no constitutional violation has occurred absent government involvement in the intrusion.

United States v. Lima, supra, 424 A.2d at 117. Thus, we must first determine whether there was sufficient "governmental involvement" in the search to bring into play the constraints of the Fourth Amendment.

We start with the proposition that Lima drew a clear distinction between security officers, such as Mitchell, and SPO's, such as her supervisor Lee. It held that a privately employed security officer with the same arrest powers as an ordinary citizen is not vested with any particular state authority even though licensed by the state. Id. at 119-20. Their actions, thus, are those of a private individual and not those of an agent or instrumentality of the state. The court distinguished a licensed security officer⁷ from a special police officer who has the same arrest powers within his or her jurisdiction as a regular police officer:

[W]here the security guard has powers akin to [those] of a regular police officer and is appointed by a governmental official, even though employed by a private company, sufficient trappings of state authority have been found to trigger Fourth Amendment restriction. Such is the case with a special police officer, commissioned in the District of Columbia under D.C. Code 1973 § 4-115.⁸

Id. at 118 (footnote omitted).⁹

Therefore, the action of the security officer in Lima —viewing the defendant through a louvered dressing room door— simply was not affected by Fourth Amendment considerations. The court noted an exception, however, where the circumstances of a case dictate that a private party "`must be regarded as having acted as an "instrument" or agent of the state.'" 424 A.2d at 117 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971)). At that point, the Fourth Amendment would apply to the party's actions. A private individual may become an agent or instrumentality of the state, the court explained, "if the government is involved in the development of a plan which is later carried out by private persons [citations omitted], or stands by while a private citizen seizes the desired evidence." Id. (citing Moody v. United States, 163 A.2d 337 (D.C.Mun.App. 1960)).

The situation that had confronted the court in Moody involved an unlawful entry and petit larceny case. The complaining witness gathered several items from the defendant's apartment which were plainly visible from the hallway, and handed them to the police officer who had remained in the hallway. According to the testimony, the door to appellant's apartment was open and the missing items were scattered around the room. The complainant entered the room, collected what he claimed as his, then handed the items to the officers who had remained in the hallway. The court held that the complainant "acted as an arm of the police in reducing the articles to possession," Moody, supra, 163 A.2d at 340, in spite of the fact that "[t]here was no indication in the record that the officer did anything to induce [complainant's] actions or that he made any effort to deter him." Id. at 339. The court wrote that:

The construction to be attached to the Fourth Amendment does not permit of evasion by circuitous means. The protection thus afforded may be violated just as effectively through the intervening agency of one not a policeman. While no objection can be raised to the propriety of the arresting officer's conduct in merely viewing the articles from the adjacent hallway, we cannot characterize him as a willing but innocent beneficiary in standing silently by while the appropriation was taking place. The officer certainly recognized the evidentiary value of the goods themselves.

Id. at 340. The court articulated the test as "whether there was such involvement on the part of the arresting officer . . . that responsibility for the search and seizure must be attributed to the police authorities." Id.

It is true that SPO's are not in all their actions equated with a regular police officer. See United States v. McDougald, 350 A.2d 375 (D.C. 1976) (no duty to discuss case with defense counsel). However, here the Fourth Amendment challenge involves the arrest of a suspect and actions related thereto—the broad SPO power which distinguishes the SPO from a private citizen. Id. at 378; see note 3, supra. Security Officer Mitchell testified that one of the SPO's carried appellant's bag from the place of arrest back to the store. There is no indication that Mitchell searched the bag solely on her own initiative. She searched the bag in the presence of at least three SPO's, including her supervisor. These facts bring her action under the Moody exception to Lima. See also Lucas v. United States, 411 A.2d 360, 362-63 (D.C. 1980) (state action found where SPO's involved in use of store's sensormatic device). To hold otherwise would mean that store security personnel could continually evade the Fourth Amendment by "circuitous means," simply by having a security officer or unlicensed employee conduct the search after a suspect had been apprehended.

III.

The trial court rejected the government's alternative argument that even if the Fourth Amendment applied, the search was made pursuant to a lawful arrest under United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). It did so on the ground that while an immediate search at the moment of seizure in the park would have been lawful,...