Com. v. Leone

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: 435 N.E.2d 1036,386 Mass. 329
• Parties: COMMONWEALTH v. Edward J. LEONE.
• Decision Date: 26 May 1982

Page 1036

435 N.E.2d 1036 386 Mass. 329 COMMONWEALTH
v.
Edward J. LEONE. Supreme Judicial Court of Massachusetts, Essex. Argued Feb. 1, 1982.
Decided May 26, 1982.

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Dyanne Klein Polatin, Asst. Dist. Atty., for the commonwealth.

Richard Berman, Lynn, for defendant.

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 Mass. 330] The defendant is charged with possession of a firearm and receipt of stolen goods (the firearm). At the time of his arrest, he was employed as a truck driver by an independent contractor which leased his services to General Electric Company. He drove exclusively for General Electric, and regularly traveled between General Electric plants in Lynn, Massachusetts, and Durham, North Carolina. On these trips the defendant used a truck bearing General Electric insignia and leased by General Electric from a truck rental company. Inside the cab of the truck was a sleeping compartment, which the defendant used as his personal living quarters while driving between Lynn and Durham.

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. ¹ On the bed in the defendant's sleeping

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quarters was a travel bag. It appears that the bag was closed, but not secured. ² 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. ³ 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. ⁴ 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

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search. ⁵ 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.

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 § 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 § 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 § 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

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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,...