State v. Buswell, CX-89-1166
| Decision Date | 26 December 1989 |
| Docket Number | Nos. C5-89-555,CX-89-1166,CX-89-1166 and C5-89-1169,s. C5-89-555 |
| Citation | 449 N.W.2d 471 |
| Parties | STATE of Minnesota, Respondent, v. Jeffrey Scott BUSWELL, Appellant, (C5-89-555) Gary Lee Schwartzman, Appellant, () Dale Jay Schmidt, Appellant. (C5-89-1169). Nos. C5-89-555, and C5-89-1169. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
When considering whether random search and seizure activity of security company employees is public or private, we must liberally construe constitutional provisions for the security of persons and property. Factors affecting a conclusion of public policing activity include (1) official police involvement; (2) service of public policing function; (3) boundaries of reasonable private policing; and (4) use of police personnel.
Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, Stephen C. Rathke, Crow Wing County Atty., Brainerd, for State.
Robert W. Owens, Jr., Heuer & Associates, Minneapolis, for Jeffrey Scott Buswell.
Steven J. Meshbesher, Meshbesher Birrell & Dunlap, Minneapolis, for Gary Lee Schwartzman.
Richard D. Genty, Winsted, for Dale Jay Schmidt.
Heard, considered and decided by PARKER, P.J., and CRIPPEN and BOWEN, * JJ.
Appellants contend their fourth amendment rights were violated by security agent searches at the gateway to Brainerd International Raceway. The trial court concluded the policing activity was private. We reverse and remand.
Each appellant was charged with possession of controlled substances. After a consolidated omnibus hearing, the trial court determined that the evidence seized was the product of a private search and denied appellants' motions to suppress the evidence. Appellants waived their rights to a jury trial and were found guilty as charged by the trial court.
Appellant Dale Jay Schmidt was stopped in his borrowed pickup camper by Bruce Gately, a private security agency employee outside the entrance to Brainerd International Raceway on August 18, 1988. Gately asked Schmidt to unlock the back door of the camper portion of his vehicle so Gately could see if any persons were attempting to enter the race without paying the admission fee. After Schmidt unlocked the back door, Gately looked into the rear of the camper, entered it, opened a closet and discovered a small, green tackle box which contained cocaine. Gately then handcuffed Schmidt and his passenger to a fence pending the arrival of law enforcement officials.
Appellants Jeffrey Scott Buswell and Gary Lee Schwartzman were also stopped by Gately upon their arrival at the racetrack on August 18. While searching their converted bus, Gately discovered contraband inside a closet and a closet drawer. Subsequently, Buswell and Schwartzman were handcuffed to a fence and law enforcement officials were summoned. More contraband was found after the bus was seized and searched, and cocaine was discovered on appellants after they were taken into custody.
In each instance, the searches were conducted by a private security guard employed by North Country Security. North Country Security is owned by Keith Emerson, a Brainerd police officer and a special deputy for the Crow Wing County Sheriff's office.
Emerson contracted with the Brainerd raceway to provide security at the track, which is located on private property about six miles outside Brainerd, in Crow Wing County. He was responsible for hiring security guards and managing the security arrangements. For the weekend at issue, Emerson employed 127 guards, seven of whom were police officers.
In May of 1988, prior to the racing season, Emerson conferred with the Crow Wing County Sheriff and a local Bureau of Criminal Apprehension agent to determine the procedures that would be employed when his security guards seized contraband or uncovered other illegal activity. It was agreed that if any circumstances encountered by Brainerd security guards seemed to warrant an arrest, Emerson would be called first. After reviewing the situation, he would then decide whether to call in law enforcement officers. Arrangements were made for Emerson to contact Dave Bjerja, a Crow Wing County deputy sheriff and a special BCA agent, when someone was held for further police action.
At approximately 6:00 a.m. on the day of the searches, Emerson convened a meeting with his employees to discuss security arrangements for the weekend's races. At this meeting, Emerson told his employees that vehicles were to be searched for nonpaying persons. Emerson testified, however, that there was also a standing rule that vehicles are checked on a random basis for contraband.
Did the searches conducted by private security personnel at the entrance to Brainerd International Raceway constitute public police action, governed by fourth amendment limitations?
Appellants contend the random searches at issue were not private activity and should have been subject to the constraints set forth by the fourth and fourteenth amendments. They argue that there was sufficient evidence of public action to implicate the constitutional prohibitions against unreasonable and warrantless searches and that evidence obtained was illegally seized and should have been suppressed.
It is well-settled that the fourth amendment applies only to governmental action. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). This rule of law has been followed in Minnesota. See State v. Kumpula, 355 N.W.2d 697, 701 (Minn.1984); State v. Hodges, 287 N.W.2d 413, 416 (Minn.1979). The difficulty often arises, however, as it does here, in determining when governmental action occurs. There is no single authority directly bearing on this issue.
The public-private classification is made with awareness that constitutional rights of the citizen must be protected. We are to liberally construe those constitutional provisions which provide for the security of person and property. See Coolidge v. New Hampshire, 403 U.S. 443, 453-54, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971). Courts have recognized the dangers in creating a simplistic division between private and public sectors when interpreting the fourth amendment.
To err on the side of a restrictive interpretation of the Fourth Amendment would be to sanction the possibility of widespread abuse of the privacy rights of individuals by private security guards.
* * * * * *
Ill-trained in the subtleties of the law of search and seizure, private security guards are more likely than public law-enforcement officials to conduct illegal searches and seizures. In addition, private security guards have accoutrements of office that tend to radiate an air of authority not possessed by other private individuals. Of particular importance are the uniform and badge, both regulated by the state.
People v. Holloway, 82 Mich.App. 629, 634, 267 N.W.2d 454, 459 (1978) (Kaufman, Judge, concurring).
The Supreme Court formulated the following standard in Coolidge:
The test * * * is whether [the private citizen], in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the state * * *.
Coolidge, 403 U.S. at 487, 91 S.Ct. at 2049. The Court recently reiterated this position and stated that the fourth amendment does not apply to a private search or seizure unless the private party acted as an instrument or agent of the government. Skinner v. Railway Labor Executives Ass'n, --- U.S. ----, ----, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989).
Case law identifies several determinants of public involvement. Our consideration of these factors leads us to the conclusion that the searches in the present case were public. As these factors are examined here, we review the record with respect for the additional rule of law that appellants have the burden to show by a preponderance of evidence that the security searches here were not private in nature. United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987).
Whether a private party should be considered an agent or instrument of the government for purposes of the fourth amendment turns initially on the degree of the government's participation in the private party's activities. Skinner, --- U.S. at ----, 109 S.Ct. at 1411. "The fact that the government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one." Id. Governmental participation may be found where the government does something more than adopt a passive position toward underlying private conduct. Id.
Before a private party's actions can be attributed to the government, some degree of government instigation must be shown. United States v. Luciow, 518 F.2d 298, 300 (8th Cir.1975). This may be in the form of governmental direction, authorization, or knowledge of the illegality. Id. The fourth amendment may apply if the government participates in a search or encourages a private party to conduct a search. Gundlach v. Janing, 536 F.2d 754, 755 (8th Cir.1976).
A search is not private in nature if it has been ordered or requested by a government official. 1 W. LaFave, Search and Seizure Sec. 1.8(b), at 178 (2d ed. 1987). Similarly, governmental involvement has been found to exist when private security guards act pursuant to customary procedures agreed to in advance by the police. See Murray v. Wal-Mart, Inc., 874 F.2d 555, 559 (8th Cir.1989); El Fundi v. Deroche, 625 F.2d 195, 196 (8th Cir.1980).
In the instant case, a meeting occurred where public officials and private security personnel reached an understanding regarding arrest procedures to be utilized upon the discovery of contraband by the private guards. Although this meeting dealt with the aftermath of searches, and not the manner of searching, the meeting produced a standing arrangement for contacts by the supervising security agent with police during the hours of operation, and a police...
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