State v. Buswell, s. C5-89-555
| Decision Date | 31 August 1990 |
| Docket Number | CX-89-1166 and C5-89-1169,Nos. C5-89-555,s. C5-89-555 |
| Citation | 460 N.W.2d 614 |
| Parties | STATE of Minnesota, Petitioner, Appellant, v. Jeffrey Scott BUSWELL, Gary Leek Schwartzman, and Dale Jay Schmidt, Respondents. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
The trial court's finding that the actions of an employee of a private security agency who searched motor vehicles and seized contraband which was later delivered to law enforcement officials, who used it as evidence in a criminal case against the vehicles' occupants, was not governmental action triggering the exclusionary rule under the Fourth Amendment bar against unreasonable searches and seizures was not clearly erroneous.
Hubert H. Humphrey, III, Atty. Gen., William F. Klumpp, Jr., Asst. Atty. Gen., St. Paul, and Stephen C. Rathke, Crow Wing County Atty., Brainerd, for appellant.
Robert W. Owens, Jr., Heuer & Associates, Minneapolis, for Jeffrey Buswell.
Steven J. Meshbesher, John J. Leunig, Meshbesher, Birrell & Dunlap, Minneapolis, for Gary Schwartzmann.
Richard D. Genty, Winsted, for Dale Schmidt.
Heard, considered and decided by the court en banc.
Resolution of this case requires that we examine the extent to which searches of motor vehicles that turn up contraband seized by private security guards, who later turn the contraband over to government authorities for use in criminal prosecutions, constitute governmental actions subject to the limitations on unreasonable search and seizure of the Fourth Amendment to the United States Constitution. In denying the respondents' motions to suppress the contraband seized by private security guards, the trial court ruled that, on the facts of these cases, the search and seizure of the contraband was the product of a private search and, therefore, not subject to Fourth Amendment constraints against unreasonable searches and seizures. The court of appeals disagreed. It held that there was sufficient governmental involvement in the search to transform it into government action, and remanded the case to the trial court for determination of whether the searches were reasonable. State v. Buswell, 449 N.W.2d 471 (Minn.App.1989).
Because the determination of whether sufficient governmental involvement exists to transform a private search into governmental action is a question of fact to be determined by the trial court, United States v. Koenig, 856 F.2d 843, 847 (7th Cir.1988); United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981), and because we are unable to conclude that the trial court's holding that each of the searches here was private was clearly erroneous, we reverse the court of appeals, reinstate the trial court's orders refusing to suppress the evidence, and affirm the convictions of these respondents.
The Brainerd International Raceway (BIR) operates an automobile racetrack on private property approximately six miles outside the City of Brainerd in Crow Wing County, Minnesota. The BIR was not within the jurisdiction of the City of Brainerd. In 1988 BIR contracted for security services at the track during the summer racing season with a company called North Country Security. Keith Emerson, whose primary employment was as a member of the City of Brainerd police force, owned and operated North Country Security. At the time, all City of Brainerd police officers, including Emerson, held appointments as special deputies for Crow Wing County. However, none of the Brainerd police officers, including Emerson, had independent powers of arrest outside the city limits of Brainerd except as directed by the Crow Wing County Sheriff or by a regularly deputized sheriff.
In 1988 North Country Security's contract with BIR called for North Country Security to be paid a set figure for security on a given race weekend. In return, it was North Country Security's responsibility to hire guards and manage all security arrangements at the track during a race meet. The weekend commencing August 18, 1988, was the largest weekend of that year's racing season; approximately 78,000 persons attended the raceway between Thursday and Sunday. North Country Security employed 127 guards, only six or seven of whom were licensed police officers employed in any governmental jurisdiction, to provide security during this meet. None of the off-duty police officers employed that weekend were from law enforcement agencies having any jurisdiction covering the Brainerd International Raceway.
In May 1988, before the commencement of BIR's 1988 racing season, Emerson had conferred in general terms with the Crow Wing County Sheriff and the local Minnesota Bureau of Criminal Apprehension agent relative to procedures to be employed for making arrests should security guards of North Country Security uncover illegal activity during a race meet. This conference resulted in agreement that if any incident encountered by North Country Security guards seemed to warrant an arrest for a crime, Emerson would first be notified, and, he, in turn, would decide whether to call in official law enforcement agencies. The arrangement was strictly procedural. No agreement was made relating to the type or number of searches by security personnel, nor were any official law enforcement personnel assigned to be present at the BIR during a race meet. However, if Emerson decided to report discovered criminal activity, a specific deputy or agent was "on call" to respond to the report.
Part of the responsibility of North Country Security on a race weekend was to see that only ticket holders entered the raceway grounds. North Country Security attempted to discharge that duty generally, and specifically on the weekend of August 18, 1988, by randomly stopping and searching vehicles seeking entry to the raceway to look for "stowaways."
After the gates were opened on August 18, 1988, a number of vehicles, including those operated by these respondents, were searched by security guards before being permitted to enter the grounds. The primary motivation for the searches was to insure that persons without admission tickets not enter the track; a secondary reason was to prevent illegal drugs from entering the premises, and to keep other contraband such as mopeds and fireworks out of the race track grounds. 1 No written warning was given to entrants that their vehicles might be searched for "stowaways" or illegal drugs, firecrackers or other prohibited items. However, Emerson had established a policy for North Country Security employees that before a search took place, occupants of vehicles were to be provided an option to refuse to consent to a search and not enter the track premises.
Security guard Bruce Gateley, who was not an off-duty public police officer licensed or employed as a law enforcement officer in any jurisdiction, actually conducted the searches of the vehicles occupied by the respondents. At the time of the search of each vehicle he was wearing North Country Security standard uniform and was carrying a sidearm and handcuffs. Before making each search, however, contrary to the policy established by Emerson, Gateley failed to secure consent to the search or inform the occupants of the option to refuse.
On August 18, 1988, his procedure was to inform the occupants of each vehicle that the purpose of a search was to spot "stowaways," after which he proceeded to search the inside of the vehicle. This procedure was followed when he searched Respondent Schmidt's pick-up camper. After entering the camper, Gateley found no "stowaways," but did open a small closet in which a fishing tackle box which contained what appeared to be cocaine was located. Thereupon Gateley handcuffed Schmidt to a fence, and contacted Emerson, who himself notified law enforcement officers pursuant to the protocol previously established in May of 1988.
Using the same procedure, Gateley later stopped and searched a converted Greyhound bus occupied by Respondents Buswell and Schwartzman. While searching the bus for nonpaying persons, Gateley found cocaine, marijuana, and other drug paraphernalia in one of the closets. Both Schwartzman and Buswell were likewise handcuffed to the fence, and Emerson was again contacted so he could inform law enforcement officials of the situation.
The law enforcement official notified by Emerson was Crow Wing County Deputy Sheriff Bjerga, who, with other officers, responded by going to the race track. After further investigation they arrested all three respondents and charged them with possession of controlled substances.
After the trial court had denied the respondents' motions to suppress the drugs seized in the search, the parties by agreement submitted the cases to the trial court on stipulated facts. The respondents were adjudged to be guilty and subsequently sentenced. This appeal followed.
The limited issue presented by this appeal is whether the trial court's ruling that the searches were not governmental actions subject to the constraints of the Fourth Amendment to the United States Constitution was clearly erroneous.
Before addressing that issue, however, we deem it appropriate to note and briefly discuss a related but nondeterminative issue; to wit, whether the conduct of Gateley, had he been a governmental law enforcement official at the time, would have violated the "unreasonable searches and seizures" clause of the Fourth Amendment, thereby rendering the contraband seized subject to suppression. We have not the slightest doubt that these searches, which can charitably be characterized as being "outrageous," would violate the Fourth Amendment and result in suppression had they been made by one exercising governmental action. See, Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961); see also State v. Mitchell, 285 Minn. 153, 172 N.W.2d 66, 73 (1969) ()....
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