Com. v. Cote

• Decision Date: 30 March 1983
• Citation: 15 Mass.App.Ct. 229,444 N.E.2d 1282
• Parties: COMMONWEALTH v. Andre COTE.
• Court: Appeals Court of Massachusetts

Page 1282

444 N.E.2d 1282

15 Mass.App.Ct. 229

COMMONWEALTH v. Andre COTE.

Appeals Court of Massachusetts,

Hampden.

Argued Dec. 14, 1982.

Decided Jan. 28, 1983.

Further Appellate Review Denied March 30, 1983.

Leonard E. Gibbons, Holyoke, for defendant.

William T. Walsh, Jr., Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, GREANEY and SMITH, JJ.

GREANEY, Judge.

The defendant, Andre Cote, appeals from convictions by a jury of six in a District Court of use of unmetered gas without the written consent of the supplier, the city of Holyoke Gas and Electric Department (company), G.L. c. 164, § 126, and larceny, G.L. c. 266, § 30. He asserts that his motion to suppress evidence of observations made by company employees, who discovered an unauthorized unmetered gas hookup on his premises, was improperly denied; alleges defects in the complaint procedure which were the subject of motions to dismiss denied by the motion and trial judges; and maintains that there was error in both the procedural handling and disposition of a motion for required findings of not guilty made upon the close of the Commonwealth's evidence. He also contends that the trial court improperly excluded an exculpatory statement and incorrectly instructed the jury as to the proof of intent necessary to support a conviction under G.L. c. 164, § 126. We affirm the convictions.

A hearing on the motion to suppress was held approximately two months prior to trial. Although the judge who heard the motion made no written findings (as he should have), our review of the transcript of the hearing discloses the following substantially undisputed facts. On June 3, 1981, Paul Pin, a meter reader for the company, was in the basement of Cote's Holyoke apartment block for the purpose of reading electric meters. Pin entered by use of a key which had been supplied for that purpose. While in the process of reading the building's approximately twenty-five electric meters with the aid of a flashlight, he heard a boiler start up near him in a sealed-off area behind a locked door. The door was constructed of slats with three to four-inch spaces between them. Playing his flashlight through the door, Pin observed the back of the boiler and some gas piping. He could see no gas meter. From the sound and smell of the burner, he concluded that gas was in use. He checked a book which he carried which indicated that there was no gas meter for the boiler on the premises. Pin then removed the door hinges with a pocket knife and entered the closed-off area. He confirmed that there was no meter. The boiler supplied hot water to the building's apartments. He noticed that the boiler had both an oil burner and a gas burner and that the oil line from an oil tank to the burner was turned off. He operated an aquastat on the boiler and observed the gas burner ignite. Pin then called a company foreman, Gordon Scott, who came to the scene immediately with another company employee, entered the area where Pin had been, took photographs and made observations. Scott called the Holyoke Police Department and two officers were sent to the building. One of the officers testified that they briefly surveyed the area and left during the time that Scott was present. Scott turned the gas off inside the building and it was later shut off in the street.

Complaints were issued upon the application of the company's manager. The testimony at trial of the observations made at the scene repeated the testimony at the suppression hearing, with the exception that the police officer who testified at that hearing did not testify at the trial. There was also trial testimony that the illegal piping showed signs of having been in place for some time.

1. Cote asserts that evidence of the observations by company employees of the unauthorized gas hookup should have been suppressed because it was obtained in violation of his Fourth Amendment rights. We disagree.

The Fourth Amendment's protections are "triggered only when either the Federal or State government is significantly involved in the search, either participating in it or directing it in some way." District Attorney for the Plymouth Dist. v. Coffey, 386 Mass. 218, 221, 434 N.E.2d 1276 (1982). See Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921); United States v. Winbush, 428 F.2d 357, 359 (6th Cir.1970), cert. denied, 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157 (1970). Assuming, without deciding, that the search here was "unreasonable" under Fourth Amendment standards, it is clear that its fruits would not have been subject to suppression if the company was a privately owned utility. The mere fact of State regulation of a public utility does not imply State action whenever the utility acts, in the absence of some relationship between the State and the challenged action. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350-351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974); District Attorney for the Plymouth Dist. v. Coffey, supra 386 Mass. at 222, 434 N.E.2d 1276. The city's ownership of the company is not sufficient alone to make the company a State agency for Fourth Amendment purposes. ¹

Cote's reliance on Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and its progeny is misplaced. In Camara, the United States Supreme Court held that the Fourth Amendment requires warrants for non-emergency administrative inspections. ² The company's employees who conducted the search in the present case are not like the administrative inspectors involved in the "municipal fire, health, and housing inspection programs" with which Camara dealt. See id. at 530, 87 S.Ct. at 1731. Unlike the housing inspector in Camara, or the fire inspector in Boston v. Ditson, 4 Mass.App. 323, 348 N.E.2d 116 (1976), appeal dismissed and cert. denied 429 U.S. 1057, 97 S.Ct. 779, 50 L.Ed.2d 773 (1977), the company's employees were not involved in the administration or enforcement of housing or fire codes, which usually carry criminal penalties. To the extent that the employees had authority to be on the premises, that authority arose under G.L. c. 164, § 116, which provides for access by company personnel "for the purpose of examining or removing the meters, pipes, wires, fittings and works for supplying or regulating the supply of gas or electricity and of ascertaining the quantity of gas or electricity consumed or supplied ...." This statute is not a tool of code administration and it makes no distinction between employees of publicly owned and privately owned utilities. Nor does it contain any provision requiring irregularities to be reported to the appropriate State authority. Rather, the statute is designed to facilitate the gathering of billing data and the inspection of the equipment used to supply gas and electricity to private premises. See generally, Reil v. Lowell Gas Co., 353 Mass. 120, 127-128, 228 N.E.2d 707 (1967). Since § 116 furthers only proprietary functions of utility companies without regard to their public or private ownership, it follows that company employees present on private property under color of the statute are not administrative inspectors, subject to the restrictions detailed in the Camara decision. ³

The remaining issue is whether the mere fact that company personnel are employed by a municipality is sufficient State action to require application of the Fourth Amendment exclusionary rule in this case. There is little uniformity among State and Federal courts as to the status of non-law enforcement public employees for purposes of the application of the Fourth Amendment. Virtually all the precedent in this area involves searches by public school teachers, the legal validity of which turn on factors unique to the school environment and the particular relationship among teachers, students, parents, and the State. See e.g., Bellnier v. Lund, 438 F.Supp. 47, 53 (N.D.N.Y.1977); In re Donaldson, 269 Cal.App.2d 509, 511, 75 Cal.Rptr. 220 (1969); State v. Baccino, 282 A.2d 869, 871 (Del.Super.1971); Mercer v. State, 450 S.W.2d 715, 717 (Tex.Civ.App.1970). Perhaps the single general principle which may be distilled from the cases is the precept that mere employment by an arm of government is not enough to make an actor a government agent for purposes of the Fourth Amendment. Rather, the nature of the actor's employment, his specific duties and authority to act for the State and the circumstances of the search are all taken into account in deciding whether a search was "private" or governmental in nature.

Looking at all the circumstances in this case, we think the following considerations are significant. The company personnel involved were not even occasionally engaged in a law enforcement capacity or in the administration of a local code. To the extent that they had a legal right to be on the premises, it was under a statute which allows access only for enumerated proprietary purposes (even when resort is had to its warrant procedures when access has been "hindered"). They were employed by an arm of government which, in another context, has been held not to be engaged in purely "public" function. See Whiting v. Mayor of Holyoke, 272 Mass. 116, 120, 172 N.E. 338 (1930). That arm of government is a distinct department of the city of Holyoke, involved solely in the provision of services which are commonly supplied elsewhere by private utilities. There was no significant participation by law enforcement personnel, who neither initiated nor directed the search, and who were not called upon to testify at trial. Finally, the search originated in a departure from an employee's primary assigned duties as a meter reader. We conclude that these factors are insufficient to make the search one which implicates Fourth Amendment restrictions on searches conducted by or at the behest of the government. See generally, Commonwealth v. Richmond, 379 Mass. 557, 561-562, 399 N.E.2d 1069 (1980); ...