Sullivan v. District Court of Hampshire

• Decision Date: 16 December 1981
• Citation: 429 N.E.2d 335,384 Mass. 736
• Parties: . 1 Supreme Judicial Court of Massachusetts, Hampshire
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 335

429 N.E.2d 335

384 Mass. 736

James R. SULLIVAN v. DISTRICT COURT OF HAMPSHIRE et al. ¹

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Sept. 18, 1981.

Decided Dec. 16, 1981.

Richard M. Howland, Amherst, for plaintiff.

William L. Pardee, Asst. Atty. Gen., for defendants.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

In August of 1972, the plaintiff was discharged from his position as a nurse at Northampton State Hospital after he was accused of bringing marihuana to work. This appeal, which we transferred here on our own motion, is the last stage in a long series of hearings and appeals stemming from this discharge.

We review briefly the procedural history of the case. On August 15, 1972, the plaintiff was convicted in the District Court of Hampshire under G.L. c. 94C, §§ 31 & 34, for possession of a certain quantity of marihuana found on the grounds of the Northampton State Hospital on August 8. He was placed on probation for one year. An appeal was filed but apparently later withdrawn. On August 24, 1972, the plaintiff was dismissed from his job by the acting superintendent of Northampton State Hospital (appointing authority) after the hearing required by G.L. c. 31, § 43(a ), as it then read. ² He appealed his dismissal to the Civil Service Commission (commission) pursuant to G.L. c. 31, §§ 43(b) & 46A. A hearing was held before a hearing officer, who subsequently issued a report recommending that the plaintiff's discharge be upheld. ³ The commission voted to accept the hearing officer's report and affirmed the appointing authority's discharge of the plaintiff. The plaintiff then filed a complaint in the District Court of Hampshire seeking review of the commission's decision pursuant to G.L. c. 31, § 45. The District Court judge found prejudicial error in certain of the hearing officer's rulings and remanded the case for the taking of further testimony.

A hiatus of over a year ensued at the end of which the plaintiff brought a civil action in the Superior Court for Hampshire County against the commission and the appointing authority seeking damages and reinstatement to his position at the hospital. A judge of the Superior Court denied the commission's motion to dismiss and ordered the commission to proceed with the additional hearings already ordered by the District Court judge. On March 19, 1976, further testimony was taken by a hearing officer. He summarized the testimony given at both hearings, made certain findings of fact, and found insufficient justification for the plaintiff's discharge. He recommended instead a six-month suspension.

On March 23, 1978, the commission voted to accept certain of the hearing officer's findings and reject others as being "conclusions." Specifically, the commission rejected the hearing officer's conclusions as to the sufficiency of the facts found to support the plaintiff's discharge and found the discharge proper. ⁴ The commission's decision was based both on the plaintiff's testimony in the second hearing about his conviction for possession of the marihuana he brought to work in 1972 and on the threat posed to patients by the presence of marihuana at the hospital.

On a second appeal by the plaintiff, a District Court judge affirmed the commission's decision. Although he found error in the admission of the evidence of the plaintiff's criminal conviction for possession of marihuana, the District Court judge concluded it was harmless error because there was substantial evidence that the plaintiff had brought marihuana into the hospital, and the discharge was justified on this basis. The plaintiff then brought a complaint in the nature of certiorari in the Superior Court for Hampshire County under G.L. c. 249, § 4. The Superior Court judge, finding no error in the District Court decision, ordered the entry of a judgment dismissing the complaint. It is from this action that the plaintiff brings his final appeal. We affirm.

The plaintiff's principal contention on appeal is that the marihuana which was found in his jacket by a hospital security guard was the product of an unconstitutional seizure and thus could not be used against him in the proceedings to terminate his employment.

The testimony concerning the events which precipitated the plaintiff's discharge was substantially as follows. The plaintiff was employed by Northampton State Hospital as a male nurse attendant in a ward for suicidal and other violently disturbed patients. On August 7, 1972, he was assigned to work the 11 P.M. to 7 A.M. shift. Soon after he arrived at work on the night of August 7, the plaintiff went to a canteen area to get a cup of coffee. From approximately 10 P.M. until 8:30 A.M. this canteen area was kept locked and closed to patients. Only employees had keys to the canteen. When the plaintiff left the canteen, he inadvertently left behind an army fatigue jacket which he had worn to work.

Shortly after midnight Raymond A. Zeitler, a special police officer at Northampton State Hospital, ⁵ entered the canteen in the course of making his rounds. Zeitler testified that he found an army fatigue jacket on a pool table in the canteen, that the pockets of the jacket were open, and that there was a pouch in one of the pockets filled with "a green substance" which he "assumed to be marijuana." Zeitler admitted that he had never seen marihuana before this night. After finding the jacket in the canteen, Zeitler telephoned his supervisor, William J. Senical, who advised him to report the incident to the hospital's business manager and steward, William J. Goggins. Zeitler took the jacket to Goggins' home and Goggins identified the contents of the pouch as marihuana. Goggins instructed Zeitler to return the jacket to the canteen and keep it under surveillance. About 4:30 A.M. William A. McGrath, supervisor for attendant nurses at the hospital, entered the canteen, identified the jacket as belonging to the plaintiff, and offered to return it to him. After McGrath returned the jacket, the plaintiff apparently placed it in a locked nurses' station.

When the plaintiff finished work at 7 A.M., he was approached by Senical and told that Goggins wished to speak with him. Sullivan was allowed to lock up his jacket in his Volkswagen bus and then went with Senical and Zeitler to Goggins' home. There he denied having marihuana with him at the hospital and was eventually placed under arrest. The plaintiff was taken back to the hospital parking lot where he apparently refused to open his vehicle. He was then brought to the Northampton State police barracks, and later to the District Court for arraignment. Zeitler applied for and was granted a search warrant for the plaintiff's vehicle. In his affidavit in support of the application for a search warrant, Zeitler stated that on August 8, 1972, at 12:05 A.M., he had "observed a plastic bag of plant fragments which (he) identified as marijuana." In the subsequent search of the plaintiff's vehicle, Zeitler and three State police officers found what was later scientifically identified as marihuana.

The hearing officer made the factual finding, which the commission adopted and which the District Court judge concluded was substantially supported by the testimony, that during the time the plaintiff's jacket was in Northampton State Hospital no patient ever had access to the jacket. Although the hearing officer made no express finding that the plaintiff brought marihuana into the hospital, ⁶ such a finding is implicit in his recommendation that the plaintiff be suspended for six months.

We hold that special police officer Zeitler acted lawfully in taking the plaintiff's jacket from the canteen and that the subsequent discharge of the plaintiff based on the marihuana found in the jacket violated none of his constitutional rights. ⁷ In so holding we assume, without deciding, that special officer Zeitler's conduct is subject to Fourth Amendment scrutiny, leaving for another day the issue of when security guards will be considered the equivalent of police officers for various constitutional purposes. See, e.g., 1 W. Ringel, Searches & Seizures, Arrests and Confessions § 2.3(a) (2d ed. 1980).

We have previously held, as a matter of Massachusetts law, that illegally obtained evidence may not be used by the government in a Civil Service Commission proceeding to support the discharge of a public employee. Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass. 783, 787-788, 369 N.E.2d 1145 (1977). See Commonwealth v. Nine Hundred and Ninety-Two Dollars, Mass.Adv.Sh. (1981) 1420, 1421 n.2, 422 N.E.2d 767. Thus, if the plaintiff were correct that his Fourth Amendment rights were violated, the evidence of the marihuana found in his jacket should not have been used against him in the dismissal proceedings.

The facts outlined above, however, disclose no "search" in a Fourth Amendment sense. A person cannot claim to have been the victim of a search violative of the Fourth Amendment unless he had a legitimate expectation of privacy in the particular circumstances. Commonwealth v. Simmons, Mass.Adv.Sh. (1981) 576, 584, 417 N.E.2d 1193. Commonwealth v. Hall, 366 Mass. 790, 794, 323 N.E.2d 319 (1975). Rawlings v. Kentucky, 448 U.S. 98, 104-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980). United States v. Salvucci, 448 U.S. 83, 92-93, 100 S.Ct. 2547, 2553-2554, 65 L.Ed.2d 619 (1980). Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Katz v. United States, 389 U.S. 347, 352-353, 88 S.Ct. 507, 512-513, 19 L.Ed.2d 576 (1967). The decisive question is not whether the place where an alleged "search" was conducted is "public" or "private" in a property law sense. Commonwealth v. Simmons, supra. The protection afforded by the Fourth Amendment attaches to people, not places. Katz v. United States, supra at 351, 88 S.Ct. at 511. However, "the place involved...