State v. Jamison

• Decision Date: 22 March 2021
• Docket Number: A20-0003
• Parties: State of Minnesota, Respondent, v. Marcus Dupree Jamison, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent, v. Marcus Dupree Jamison, Appellant.

A20-0003

STATE OF MINNESOTA IN COURT OF APPEALS

March 22, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed

Reilly, Judge

Hennepin County District Court

File No. 27-CR-18-29033

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Florey, Judge; and Frisch, Judge.

NONPRECEDENTIAL OPINION

REILLY, Judge

Appellant challenges his conviction for unlawful possession of a firearm on the grounds that (1) the district court erred by denying his motion to suppress, (2) the jury instructions were plainly erroneous, and (3) he is entitled to relief on the merits of his pro se claims. We affirm.

FACTS

On November 24, 2018, at around 11:20 p.m., appellant Marcus Dupree Jamison was standing outside the Mayo Clinic Square Building, a private building in Minneapolis. Mayo hires security guards through Allied Universal Security Services (Allied), a privately held security company. An Allied employee smelled "a strong odor of marijuana" coming from appellant and saw that appellant was rolling a marijuana cigarette in his hands. The employee reported his observations to two of Allied's security guards.

The security guards located appellant on a live-feed security camera and confirmed that he was using marijuana on the building's property. Mayo has a "[zero] tolerance policy for illegal activities around the building," and Allied's security guards generally issue trespass notices to people violating this policy. The security guards approached appellant outside the building to issue a trespass notice to appellant. The security guards placed appellant in handcuffs and took him to the security office inside the building. It is standard practice for the security guards to perform "a simple pat down for officer safety" any time they escort someone to their office. During the search, the security guards found a firearm in appellant's front jacket pocket.

A Minneapolis police officer was providing off-duty security for Allied at the building on November 24. The police officer does not typically get involved in security matters at the building unless the security guards request his assistance. The police officer was not involved in the initial interaction between the security guards and appellant outsidethe building, and was not involved in the pat-down search. The police officer was in the security office when he "saw them pull a gun" off appellant. The police officer called the Minneapolis Police Department to request police assistance.

Respondent State of Minnesota charged appellant with possession of a firearm or ammunition by a prohibited person, in violation of Minn. Stat. § 624.713, subd. 1(2) (2018). Appellant moved to suppress the evidence on the ground that the security guards did not have authority to conduct a citizen's arrest. The district court denied the suppression motion and the matter proceeded to a jury trial.

Appellant testified in his own defense at trial. Appellant stated that he was downtown with his brother, who originally had the firearm. Appellant testified that he persuaded his brother to give him the firearm and was on his way to the public safety building to turn in the firearm to an officer. Appellant stated he was near the Mayo building because he was trying to get internet access on his tablet. Appellant testified that he did not speak with the security guards about the trespass notice before they grabbed him and detained him.

Following witness testimony, the district court provided final instructions to the jury. The district court instructed the jury that the parties had stipulated that appellant was ineligible to possess a firearm, and that this element of the offense was satisfied. The jury found appellant guilty of the offense and the district court imposed sentence.

This appeal follows.

DECISION

I. The district court did not err in denying appellant's motion to suppress.

Appellant argues that the district court erred by denying his motion to suppress evidence of the firearm because the security guards were acting as agents of the state when they searched him. When reviewing a pretrial order denying a motion to suppress evidence, we independently review the facts and determine whether, as a matter of law, the district court erred in not suppressing the evidence. State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004). We review the district court's factual findings for clear error and its legal determinations de novo. State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008).

The United States and Minnesota Constitutions protect against "unreasonable searches and seizures." U.S. Const. amend. IV; Minn. Const. art. I, § 10. But these constitutional protections apply only to state action and do not apply to searches conducted by private persons. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984). Ordinarily, the state may use evidence obtained through a private search. State v. Dexter, 941 N.W.2d 388, 394 (Minn. 2020). But if a private person acts as an agent of the state when conducting a search, then the protections of the Fourth Amendment apply. State v. Buswell, 460 N.W.2d 614, 618 (Minn. 1990) ("If in the light of all the circumstances of the case the private individual must be regarded as having acted as an instrument or agent of the state when conducting the search, the search is subject to Fourth Amendment constraints." (quotation omitted)).

Whether a person acts as a state agent must be decided on a "case-by-case basis after consideration of all the facts and circumstances relative to the search." Id. Minnesotacourts consider two factors in a state-agency analysis: (1) "whether the government knew of and acquiesced in the search," and (2) "whether the search was conducted to assist law enforcement efforts or to further the private party's own ends." Id. "If the government does not know of and acquiesce in the search, the search cannot be attributed to the government and the inquiry ends." State v. Jorgensen, 660 N.W.2d 127, 131 (Minn. 2003). Whether a private person acts as a state agent is a question of fact for the district court. Id.

Here, the district court found that there was "no involvement of [the police officer] prior to [the security guards] finding the firearm" on appellant. The police officer was off-duty and was working as a part-time Allied employee. The district court noted that the police officer did not instruct the security guards to conduct a citizen's arrest, and did not instruct the security guards to perform a pat-down search of appellant in the security office. The police officer was not involved in the initial interaction with appellant outside the building, and he did not take part in the search. Based on these findings, the district court found that the two Buswell factors were not satisfied because the government did not know of or acquiesce to the search, and the search was not conducted to assist law-enforcement efforts.

The record supports the district court's findings, which are not clearly erroneous. See id. (noting that district court's factual findings are reviewed for clear error). The security guards testified that they are not licensed peace officers and are not employed by any police jurisdiction. The security guards do not carry deadly weapons and, for that reason, typically perform a pat-down search to check for weapons when they bring a person into the security office. While the security guards receive "standard Minnesota protectivetraining" through Allied, they are not specially trained as peace officers. The security guards approached appellant after they located him on their security feed and saw him using drugs on their property. There is no evidence that the police officer instructed the security guards to approach appellant. The security guards brought appellant to their office and found a firearm in his jacket pocket during the pat-down search. The police officer was sitting nearby when he saw the security guards remove the firearm from appellant's jacket pocket. The police officer, who was off-duty at the time, called a Minneapolis police officer to transport appellant to the county jail and secure the firearm. These facts support the conclusion that the government did not know of or acquiesce to the search. Thus, the first Buswell factor is not satisfied.

Nor is there any evidence in the record showing that the search was conducted to assist law-enforcement efforts, rather than to further the private party's own ends as required by the second Buswell factor. The security guards provide security services for Allied, a private company. The security guards do not carry deadly weapons and, for their own safety, perform a pat-down search any time they bring someone into their office. There is no evidence that the security guards searched appellant to assist law enforcement and the second Buswell factor is not satisfied.

The facts in the record support the district court's factual findings that the police officer was not involved in the detention and search, and that the security guards were not acting as agents of the state during their interactions with appellant. Therefore, the constitutional protections do not apply. Because the security guards were not acting asstate agents when they searched appellant, the district court did not err in denying his motion to suppress.

II. The district court did not err in its instructions to the jury.

Appellant argues that the district court erred by directing a verdict on an element of the offense. Appellant did not object to the district court's jury...