U.S. v. Coleman

• Decision Date: 18 August 1980
• Docket Number: No. 79-5236,79-5236
• Citation: 628 F.2d 961
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ronald James COLEMAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 961

628 F.2d 961

UNITED STATES of America, Plaintiff-Appellant, v. Ronald James COLEMAN, Defendant-Appellee.

No. 79-5236.

United States Court of Appeals Sixth Circuit.

Argued Jan. 29, 1980.

Decided Aug. 18, 1980.

James S. Brady, U. S. Atty., Grand Rapids, Mich., William C. Bryson, App. Section, Criminal Division, Washington, D. C., for plaintiff-appellant.

James J. Kobza, Muskegon, Mich., for defendant-appellee.

Before CELEBREZZE, KEITH and MARTIN, Circuit Judges.

CELEBREZZE, Circuit Judge.

In the course of repossessing defendant Coleman's truck, the private party conducting the repossession discovered a twelve-gauge shotgun which was handed over to the police who were present at the time. Coleman was subsequently charged in a two-count indictment with possession of a firearm after being convicted of a felony in violation of 18 U.S.C.App. § 1202(a)(1), and possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d), 5871. Prior to trial Coleman filed a motion to suppress the shotgun which formed the basis of the charges against him. After conducting a hearing on this motion, the District Court granted the motion to suppress the shotgun as evidence. For the reasons that follow, we reverse the suppression order.

On January 19, 1978, Richard Clarke, an employee of Midwest Auto Recovery, arrived in Elk Rapids, Michigan, with two companions for the purpose of repossessing appellee Coleman's pick-up truck. At that time Coleman was seven months behind in his payments on the truck. Clarke was conducting the repossession at the authorization and behest of Manufacturer's National Bank of Detroit, pursuant to M.C.A. § 440.9503. This "self-help" provision of Michigan law permits a secured creditor to repossess collateral if the repossession can be achieved without a breach of the peace.

When Clarke arrived in Elk Rapids he was unaware of the location of the truck. As was his usual practice, Clarke contacted the local police department to find out if the police knew where the truck was located. Clarke also asked the police if he could call for assistance in case any trouble arose in the course of the repossession. Clarke had made it his standard operating procedures to contact the local police officials when repossessing a vehicle both for his own protection and so that the police would be aware of the repossession if the owner of the vehicle reported it stolen. The Elk Rapids police informed Clarke that they did not know the location of the truck but that they would stand by in case of trouble.

After leaving the police station, Clarke spotted the truck parked on the side of the road but decided not to seize it at that time because there were people nearby. The next day Clarke located the truck parked in the driveway leading to Coleman's home. At 10:00 p. m. he returned to the police station to inform the police that he had located the truck and was going to repossess it that night. Clarke also noted that after repossessing the truck, he would stop off at the police station to deposit any personal effects of Coleman's that he might find in the truck. Two reasons motivated Clarke to deliver any personal belonging to the police station. First, his authority was limited to repossessing the truck; his authorization did not extend to the seizure of personal property inside the truck. Second, Clarke planned to return the truck to Detroit that evening a drive of some 200 miles from Elk Rapids. Depositing any personal effects at the police station would spare Coleman the inconvenience of traveling to Detroit in order to retrieve them.

Clarke then asked the police whether they would park nearby for his protection while he repossessed the truck. The police agreed to do so. After leaving the police station, Clarke drove to his motel to pick up his companions and together they went to Coleman's home. The police followed in their patrol car and parked down the street and around the corner from the Coleman residence. The police remained in their car while Clarke entered the truck, started the engine, and drove away without incident. When he entered the unlocked truck, Clarke noticed open beer cans, a quantity of what appeared to be marijuana on the seat, and the butt end of a rifle protruding from behind the seat. After traveling about one block, Clarke contacted the police by using the truck's C.B. radio to make certain that no one had followed him. He asked the police to rendezvous with him at the police station.

Clarke arrived at the police station several minutes ahead of the officers. When the officers arrived, Clarke told them that he had found a rifle in the truck. He pulled the seat up to show them the gun and then handed the gun to the officers. Clarke then opened a briefcase that he had found in the truck and discovered a shotgun inside that briefcase. Clarke then handed the open briefcase containing the shotgun to the officers.

After finding this shotgun, the police and Clarke decided to take the truck to the police garage for the purpose of conducting an inventory search. After Clarke drove the truck into the garage, the remaining contents were removed and inventoried. Clarke then drove the truck back to Detroit.

The District Court founded its suppression order on the conclusion that the shotgun was seized pursuant to an unlawful search. Although the court acknowledged that a secured party may lawfully take possession of collateral after default, it concluded that any police participation in the repossession would render the repossession unlawful, at least absent prior notice to the debtor and an opportunity to be heard. Because the police had agreed to "stand by in case of trouble" during the repossession, the court held that the repossession "was effected by virtue of state power." The court then concluded that the seizure was not the product of a private search; rather, it was the product of official action that brought the search within the ambit of the fourth amendment. Having found violations of both the fourth and fifth amendments, the court suppressed the shotgun.

The clearly erroneous standard of review contained in F.R.Civ.P. 52(a) applies to factual findings in a criminal case by a district judge considering a motion to suppress evidence. United States v. Breen, 419 F.2d 806 (6th Cir. 1969); United States v. Rose, 415 F.2d 742 (6th Cir. 1969), cert. denied, 396 U.S. 971, 90 S.Ct. 458, 24 L.Ed.2d 438 (1970). Here the district court concluded that Clarke would not have repossessed the truck at the time and place he did but for the police assurances of assistance. Finding that the collaboration between the police and Clarke was manifested in the "specific active involvement of state officers in the repossession of the truck," the court held that the repossession was accomplished by virtue of state power. Since we conclude that the district court's factual finding underlying its legal conclusion is clearly erroneous, we reverse the holding that the repossession was the product of state action.

The well-established law in this circuit is that the private creditor who alone repossesses secured collateral does not act under color of state law. Specifically, self-help repossession under U.C.C. § 9-503 does not constitute state action. Gary v. Darnell, 505 F.2d 741 (6th Cir. 1974); Turner v. Impala Motors, 503 F.2d 607 (6th Cir. 1974); see also Northrip v. Federal Mfg. Ass'n., 527 F.2d 23, 26-28 (6th Cir. 1975); Bosse v. Crowell, Collier and MacMillan, 565 F.2d 602, 608 (9th Cir. 1977).

Our starting assumption must be that Clarke's repossession was purely private action. The question is whether there are sufficient indicia of official involvement so as to convert the repossession into state action. More than official acquiescence is needed for such a conversion. Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) illustrates that where state involvement in private action constitutes no more than acquiescence or tacit approval, the private action is not transformed into state action even if the private party would not have acted without the authorization of state law. Indeed, under the standard articulated by the Supreme Court in Flagg Bros., the actions of a private party will not be attributed to the state unless the state actually compels the action.

The involvement of the police here falls far short of compulsion. The police neither encouraged nor directed Clarke to repossess the truck in a particular manner. Their presence at the scene was not an indispensible prerequisite for repossession of the truck. Their benign attendance was not designed to assist Clarke in repossession of the truck; rather, it was in furtherance of their official duties. ¹ The position assumed by the police was devised to anticipate and prevent any violent confrontation between debtor and creditor which repossession of collateral can entail. Under the facts of this case, mere acquiescence by the police to "stand by in case of trouble" was insufficient to convert the repossession of the truck into state action.

The issue remaining for decision is whether the "search" which resulted in the warrantless seizure of the shotgun was a private search (and, therefore, not governed by the Fourth Amendment) or a search by law enforcement officials subject to the warrant and probable cause requirements of the Fourth Amendment. In passing on this issue, we note as relevant the Supreme Court's observation that "an...