People v. Holmberg

• Decision Date: 09 December 1999
• Docket Number: No. 98CA1953.,98CA1953.
• Citation: 992 P.2d 705
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven HOLMBERG, Defendant-Appellant.
• Court: Colorado Court of Appeals

992 P.2d 705

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven HOLMBERG, Defendant-Appellant.

No. 98CA1953.

Colorado Court of Appeals, Div. V.

December 9, 1999.

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Rodney G. Loomis, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

Defendant, Steven Holmberg, appeals from the judgment of conviction entered after he was found guilty in a bench trial of three counts of possession of a controlled substance, one count of possession of one ounce or less of marijuana, and one count of possession of marijuana concentrate. The issues on appeal relate only to the trial court's denial of defendant's motion to suppress. We affirm.

Defendant filed a pretrial motion in which he alleged that the search of his fanny pack by private security officers when he attempted to enter a rock concert was unlawful, and that the contraband found in his bag should therefore be suppressed. He also claimed that the police lacked probable cause to arrest him.

The evidence presented at the suppression hearing established that defendant had purchased a ticket to a rock concert held at a facility owned by the town of Vail and leased to the tax-supported Vail Recreation District (District). The District leased the facility to the private promoter that sponsored the concert.

The District requires promoters to provide security during events held at the facility. Security for the concert defendant attempted to attend was provided by a private company. Several uniformed off-duty police officers were included in the private company's security force the night of the event. One of those police officers testified that the officers were paid by the private company, and that their primary function was to provide "security," not to investigate criminal activity.

The security personnel stationed at the entrance to the facility checked patrons' bags for weapons and alcohol. There were signs indicating that backpacks and similar items were not permitted at the concert and patrons were told that, to avoid a search, they could return their packs to their cars and then be readmitted to the concert. Most of the individuals who conducted the searches were civilians employed by the private security company; the off-duty police officers were not involved in searching patrons' belongings.

The person who discovered the contraband in defendant's fanny pack testified that he had not been hired by the private security company, but was a "weekend supervisor" for the arena and was paid by the District. During the concert he was a "floater," and performed various odd jobs including providing "backup security." He indicated that, prior to the concert, the private security company held a meeting at which it briefed its security staff regarding their duties and security issues which might arise at the concert. The witness and the off-duty police officers attended the meeting with the civilian security personnel, but neither the District nor the local police department participated in the briefing.

The District employee testified that after defendant was patted down by a private security guard at the "first wave" of security, he was referred to the "second wave," where the District employee was stationed. He testified that he asked defendant to open his fanny pack, and that when defendant complied, a baggie fell out. When the District employee shone his flashlight on the baggie, he saw that it contained mushrooms, which, based on the earlier briefing, he thought to be a controlled substance. One of the off-duty police officers who had observed the employee's encounter with defendant then came forward and escorted defendant away.

Defendant testified that after he went through the "first wave" of security, a uniformed police officer told him to open his fanny pack, and that when he did so, the officer reached in and removed the baggie, then immediately handcuffed and arrested him.

In its order, the trial court made findings of fact consistent with the testimony of the District employee who had searched defendant's fanny pack. Based on these factual findings, the court concluded that the District employee was not an agent of the state for purposes of law enforcement, and that, because it did not involve state action, the search was not illegal. The court also concluded that the police had probable cause to arrest defendant. Accordingly, the court denied defendant's motion to suppress, and defendant appeals from that ruling.

In ruling on a motion to suppress, the determination of the credibility of the witnesses and the weight of the evidence is solely within the province of the trial court. See People v. Williams, 908 P.2d 1157 (Colo. App.1995)

. Thus, if the trial court's factual findings are adequately supported by the record and the court applied the correct legal standard in reaching its conclusion, we will not disturb its determination. People v. Robledo, 832 P.2d 249 (Colo.1992).

I.

Defendant contends that the trial court erred in its determination that the search of his fanny pack did not implicate the Fourth Amendment because it was not conducted by an agent of the police. We conclude that there was no agency relationship between the District employee and the police and, therefore, we disagree. If a person is an agent of the police for purposes of criminal investigation, evidence obtained from an unlawful, privately conducted search must be suppressed. This rule prevents police authorities from circumventing constitutional requirements by directing a third party to perform a search that would be improper if conducted by the police. People v. Chastain, 733 P.2d 1206 (Colo.1987); People v. Loggins, 981 P.2d 630 (Colo.App.1998).

Conversely, private or non-law enforcement government actors come within the purview of the Fourth Amendment only when their searches of individuals have no other purpose but to aid law enforcement investigatory or administrative functions. See United States v. Attson, 900 F.2d 1427 (9th Cir.1990),

cert. denied, 498 U.S. 961, 111 S.Ct. 393, 112 L.Ed.2d 403 (1990) (Fourth Amendment was designed to apply to the conduct of law enforcement officials engaged in criminal investigations or breaches of other statutory or regulatory standards); see also People v. Loggins, supra (Fourth Amendment applies only to searches and seizures conducted by state officials and designed to elicit a benefit for the government in an investigatory or administrative capacity); Commonwealth v. Cote, 15 Mass.App.Ct. 229, 444 N.E.2d 1282 (1983) (mere employment by an arm of government is not enough to make an actor a government agent for purposes of the Fourth Amendment).

The fact that the person conducting a search might have intended to assist law enforcement does not transform him or her into a law enforcement agent so long as he or she had a legitimate independent motivation for engaging in the challenged conduct. See United States v. Shahid, 117 F.3d 322 (7th Cir.1997);

cert. denied, 522 U.S. 902, 118 S.Ct. 254, 139 L.Ed.2d 182 (1997); see also State v. Ellingsworth, 966 P.2d 1220 (Utah App.1998) (although search may benefit law enforcement, test is whether actor has an independent intent and purpose in conducting the search).

Similarly, the fact that the challenged conduct took place at a public facility, such as here, does not affect the character of what otherwise is non-law enforcement conduct. See Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442 (10th Cir.1995)

(searches conducted by private security company at concert promoted by private company held at a public facility leased from state university did not constitute state action under civil rights statutes).

Here, the record indicates that security at the concert was provided by a private entity and that the private security company, not law enforcement officials, were responsible for training the personnel who worked the night of the concert, including the District employee who searched defendant's fanny pack.

The record further indicates that, although the District required the promoter to provide security at all functions held at the arena to protect the District's liquor license, security was also necessary at these events to protect the private interests of the promoter in ensuring the safety of its patrons.

And, although the District employee acted, in part, to further the District's interests, he was also acting in furtherance of the promoter's...