Mills v. Com., 1497-90-3

• Decision Date: 19 May 1992
• Docket Number: No. 1497-90-3,1497-90-3
• Court: Virginia Court of Appeals
• Parties: David Wayne MILLS v. COMMONWEALTH of Virginia. Record

Page 718

418 S.E.2d 718

14 Va.App. 459

David Wayne MILLS v. COMMONWEALTH of Virginia.

Record No. 1497-90-3.

Court of Appeals of Virginia.

May 19, 1992.

Walter E. Rivers, Lonnie L. Kern, for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Robert Q. Harris, Asst. Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and ELDER, JJ.

COLEMAN, Judge.

David Wayne Mills was convicted in a jury trial of first-degree murder in violation of Code § 18.2-31; attempted burglary in violation of Code §§ 18.2-91 and 18.2-26; and use of a firearm in the commission of a felony, as a principal in the second degree, in violation of Code § 18.2-53.1. Mills challenges the convictions on grounds that the trial court erred in (1) failing to suppress evidence discovered during a warrantless search by a private citizen who was acting as an agent of the government and (2) failing to suppress incriminating statements he made after law enforcement officers disregarded his request for the assistance of counsel and continued to interrogate him while he was in custody.

The trial judge ruled that the private citizen was not an agent of the government and that Mills did not request counsel. Those findings are supported by credible evidence. Thus, we reject Mills' contentions and affirm his convictions.

On November 4, 1988, John Lee Martin, an on-duty Lee County, Virginia deputy sheriff, was shot. Before Martin died three days later, he described his assailant as a male in his early twenties, with a mustache and black hair, who was driving an automobile with Illinois dealer tags displayed in the rear window.

The family of David Wayne Mills had moved to Effingham County, Illinois in October, 1988. Soon thereafter, they contacted Floyd Barlow, who was in the home security business, and hired him to repair a burglary alarm system he had installed in the home and to install smoke detectors.

On December 27, 1988, while working in the Mills' home, Barlow discovered in the ceiling joists in the basement where he was installing wiring for a smoke detector a box of .44 calibre ammunition, a ski mask, a money bag from a bank in Middlesboro, Kentucky, and an Illinois automobile dealer's tag. While working in David Mills' bedroom, he also observed a .38 calibre handgun in an open top dresser drawer. Later that day, Barlow reported to Sheriff Art Kinkelaar of the Effingham County Sheriff's Department what he had seen and provided the sheriff with a sketch of the Mills' home and the location of the items he observed.

Barlow had known the sheriff for over thirty years. At one time, he had worked as a town police officer in the same county where Kinkelaar had been a deputy sheriff. After leaving law enforcement, Barlow had been an informant for the sheriff, providing information to him which had led to criminal convictions.

Sheriff Kinkelaar contacted law enforcement authorities in Middlesboro, Kentucky. Based on the information Kinkelaar relayed to them, they referred him to the authorities in Lee County, Virginia. From his contact with the Lee County Sheriff's Department, Sheriff Kinkelaar learned of the facts surrounding Deputy Martin's death, and he regarded Mills as a suspect in that homicide.

On January 4, 1989, Sheriff Kinkelaar again spoke with Floyd Barlow. Kinkelaar asked Barlow "if he was going to go back in the [Mills'] residence, if he would observe and see if [the items he saw initially] were still there." Barlow informed the sheriff that he had not completed his job at the Mills' home.

On January 5, 1989, Barlow reentered the Mills' home to complete his work. He was able to observe the items in the ceiling joists during the course of his work. Barlow related this information to the sheriff, and Kinkelaar obtained a search warrant for the Mills' home based, in part, on Barlow's information. Sheriff Kinkelaar executed the search warrant and seized the items that Barlow had seen. During the search, David Wayne Mills arrived home and was arrested for possession of stolen property.

At approximately 8:00 p.m. on January 5, 1989, Mills was interrogated in Sheriff Kinkelaar's office by the sheriff, Ed Hoopengarner of the Illinois State Police, Ed Hanko of the FBI, and Roger Hammons and Allen Schaeffer of the Lee County Sheriff's Department. Trooper Hoopengarner advised Mills of his Miranda rights. At 8:10 p.m., Mills executed a form acknowledging that he understood his rights and that he waived his right to counsel and his right to remain silent. Mills then gave a statement in which he admitted to having been involved in the shooting death of Officer Martin; however, he implicated another person as having fired the shots. Mills signed a second form waiving his Miranda rights at 9:43 p.m., after which he executed a written statement admitting his role in the death of Deputy Martin. He completed his written statement at 11:16 p.m. The next day, January 6, 1989, Mills executed a third written waiver of his Miranda rights, after which he again confessed in a tape-recorded interview to his role in the murder.

Mills was indicted in Lee County, Virginia for the murder of Deputy Martin, use of a firearm during the commission of a felony, and attempted burglary. Prior to trial, he moved to suppress the evidence seized from his home and his statements given to police in Effingham, Illinois. The trial court denied the motions.

Mills was convicted by jury trial of first degree murder, attempted burglary, and use of a firearm in the commission of a felony as a principal in the second degree. The trial judge sentenced Mills, in accordance with the jury's verdict, to life in the penitentiary plus twelve years.

I.

Mills contends that the trial court erred in denying his motion to suppress the evidence seized from his parents' home because it was discovered, and its continuing presence verified for the purpose of obtaining a search warrant, during a warrantless search by Floyd Barlow, who was acting as an agent of the police. The trial court found that Barlow was not acting as an agent of the state while he was in the Mills' home. That finding is supported by credible evidence, and, therefore, we reject Mills' contention.

The fourth amendment acts as a constraint only upon government or state action. It was intended to be a limitation only upon governmental agencies. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). Consequently, a private search, no matter how unreasonable, does not constitute a constitutional violation warranting the suppression of the evidence seized. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). See also United States v. Mehra, 824 F.2d 297, 299 (4th Cir.1987). If, however, a private individual "must be regarded as having acted as an instrument or agent of the state" while conducting the search, the fourth amendment is applicable. Skinner v. Railway Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989). Whether a person acted privately or as an agent of the state is a question of fact that must be decided on the circumstances of each case. Id. Resolution of the agency issue "necessarily turns on the degree of the Government's participation in the private party's activities." Id. (citations omitted).

Some courts have adopted a two-part test for determining whether an individual was acting as an agent of the state while conducting a search: (1) whether the government knew of and acquiesced in the search, and (2) whether the search was conducted for the purpose of assisting law enforcement efforts or for the purpose of furthering the private party's ends. United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987); United States v. Walther, 652 F.2d 788, 792 (9th Cir.1981). These criteria help focus the trial court's attention on the significance and impact of the government's involvement in a search. State v. Buswell, 460 N.W.2d 614, 618 (Minn.1990). However, they should not be viewed as an exclusive list of relevant factors because trial courts must consider the extent of the government's involvement in the search, as well, in resolving the agency issue. See Skinner, 109 S.Ct. at 1411. Moreover, because the agency determination is a question of fact to be resolved by the trial court, such factual determinations will be reversed on appeal only if clearly erroneous. United States v. Koenig, 856 F.2d 843, 849 (7th Cir.1988); Feffer, 831 F.2d at 739. "[I]t is the movant's burden to establish by a preponderance of the evidence that the private party acted as a government instrument or agent," in order to invoke the protection of the fourth amendment. Feffer, 831 F.2d at 739.

The evidence adduced at the suppression hearing supports the trial court's finding that Barlow was not acting as an agent of the state when he first entered the Mills' home on December 27, 1988, to repair and install the alarm systems. Barlow's entry into the Mills' home was an entry authorized by the owner for the sole purpose of performing work. Barlow had had no prior contact with the sheriff regarding David Mills or the Mills' home. Mills presented no evidence that anyone with the Effingham County Sheriff's Department knew of or acquiesced in or was involved in any way in Barlow's search of the Mills' home on December 27, 1988.

Mills also contends that Barlow was an agent of the police when he reentered the Mills' home on January 5, 1989, after having reported what he observed to Sheriff Kinkelaar. Mills did not establish that the sheriff or any other member of the sheriff's department knew that Barlow would be reentering the Mills' home on January 5, 1989. When Sheriff Kinkelaar contacted Barlow after talking with Lee County authorities, he did not instruct Barlow to go back into the Mills' home, nor did he request that Barlow do so. Instead, he asked Barlow that "if he was going to go back into the...