United States v. Lima

• Decision Date: 26 November 1980
• Docket Number: No. 79-502.,79-502.
• Citation: 424 A.2d 113
• Parties: UNITED STATES, Appellant, v. Adelaide R. LIMA, Appellee.
• Court: D.C. Court of Appeals

424 A.2d 113

UNITED STATES, Appellant, v. Adelaide R. LIMA, Appellee.

No. 79-502.

District of Columbia Court of Appeals.

Argued en banc June 9, 1980.

Decided November 26, 1980.

John R. Fisher, Asst. U.S. Atty., Washington, D.C., for appellant.

Mozart G. Ratner and Peter J. Messitte, Washington, D.C., for appellee.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges.

NEBEKER, Associate Judge:

Upon the granting of appellee's petition for a rehearing en banc, the panel decision reversing the trial court order in this case was vacated. The en banc court now reaches the same result as did the division, and reverses.

The government appeals a Superior Court ruling which granted appellee's motion for suppression of evidence (a blouse) seized by an employee of a store. It argues that the Fourth Amendment does not apply to such an employee — a guard — and that her viewing of appellee through a louvered dressing room door was not an unreasonable search. The appellee seeks to have us dismiss this appeal and the information on which the prosecution is based. She argues that a judgment awarded to her in a civil proceeding, which was based in part on a verdict of conversion of the same blouse sought to be suppressed in the criminal proceeding, collaterally estops the government from seeking to prove that she in fact stole the blouse. We hold that mere employees performing security duties are neither officials nor agents or the government. Consequently, the proscriptions of the Fourth Amendment are not applicable in the case. In addition, we conclude that the civil judgment for the appellee does not preclude the government from proving in a criminal proceeding that she stole the blouse. The appellee's motion to dismiss this appeal accordingly is denied, and the trial court order suppressing the evidence is reversed.

I

After an information was filed charging appellee with petit larceny (D.C. Code 1973, § 22-2202), a motion to suppress evidence was heard and granted by an opinion and order. The trial court found:

On November 3, 1978, Lynn Johnson was employed as a private security officer by the Lord & Taylor department store at 5225 Western Avenue, Northwest. She had been so employed since August, 1978. She was not commissioned as a special police officer pursuant to D.C. Code § 4-115 (1973), nor was she certified as a security officer as provided by law. . . . . She was not in uniform and she carried no weapon, although she did possess a pair of handcuffs. During the course of her employment on November 3, Johnson saw the defendant remove clothing from display racks and take it to a fitting room. After the defendant had entered the fitting room and closed the door, Johnson approached and observed the defendant through louvers in the door, as was her custom with most shoppers. As she watched, the defendant removed the tags from one of the blouses that she had taken and placed the blouse in her purse. The defendant left the fitting room, replaced several items on the display racks, and left the store. Johnson then approached her, identified herself as a "store detective" and physically restrained her. The defendant made several exculpatory statements during this encounter. The two arrived at the security office, where the defendant refused to sign a waiver of her rights to counsel and against self-incrimination. Following the refusal, the defendant made other statements. While in the office, the defendant was searched and the blouse was recovered from her purse. Approximately one hour after the "arrest", police officers arrived and took the defendant into custody.

II

While this appeal was pending, appellee successfully prosecuted a civil action against Lord & Taylor in the United States District Court for the District of Columbia. That action was based on the incident relevant here. After trial, a jury returned a verdict for the appellee which was based in part on a count for the security officer's conversion of the blouse appellee is alleged to have stolen. Judgment was entered on November 30, 1979. No appeal was taken. Appellee argues that since the ownership of the blouse was conclusively determined by the jury when it awarded her damages for conversion, the government is collaterally estopped from further litigation of the issue of ownership. Appellee contends that since ownership of the blouse is an essential element of petit larceny, the charge cannot be proved and the case is moot. If she is correct on the issue preclusion argument, the case is indeed moot, for we are limited to deciding actual cases and controversies. See United States v. Cummings, D.C.App., 301 A.2d 229, 231 (1973).

The doctrine of collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be relitigated between the same parties in any future law suit." Harris v. Washington, 404 U.S. 55, 56, 92 S.Ct. 183, 184, 30 L.Ed.2d 212 (1971). Collateral estoppel may apply to sequential criminal as well as sequential civil litigation. See Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948).

In recent years collateral estoppel has been applied on the basis of a prior criminal conviction to a subsequent civil action. E.g., Ross v. Lawson, D.C.App., 395 A.2d 54 (1978) (defendant found guilty of criminal assault is estopped from contesting liability in civil action); Palma v. Powers, 295 F.Supp. 924 (N.D.Ill.1969) (conviction of gambling charges estopped plaintiff, in subsequent civil action for damages resulting from removal of telephones, from contesting liability for misuse of utilities).

In this appeal, however, appellee argues that an estoppel against the government, not the defendant, should result from a determination in a prior civil proceeding. Appellee reasons that a fact determined favorably in civil litigation by a preponderance of the evidence cannot be logically determined to the contrary in a subsequent criminal prosecution at a higher standard of proof. The basic problem with appellee's argument is that when, as in this case, the government is not a party in the civil proceeding, the determination of the issue will depend on a third party. There is no assurance that the government's interests will be represented. The third party might present a less than adequate defense on the issue or simply decide that the burden of defending against a charge outweighs the benefits of prevailing on the merits, and thus, abandon or concede the issue. "It is a violation of due process for a judgment to be binding on a litigant who was not a party, nor a privy, and therefore, has never had the opportunity to be heard." Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58 L.Ed.2d 552 (1979). To be sure, constitutional limitations are not designed to benefit the government; however, this observation does not preclude the ordinary application of collateral estoppel to determine the issue. The government did not have a full opportunity and incentive to have the matter determined on its merits where it was not a party to the civil action. Cf. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980) (considerations of full and fair opportunity to litigate the issue barred the application of the doctrine of non-mutual collateral estoppel against the government in a prosecution for aiding and abetting where the issue had been decided in a previous prosecution of the principal of the crime); Jackson v. District of Columbia, D.C.App., 412 A.2d 948 (1980) (collateral estoppel may be asserted by different defendants against the same plaintiff in successive actions where the plaintiff had full and fair opportunity to litigate the issue). It had no control over the civil litigation, nor an interest in its resolution. See Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Preclusion from litigating the issue would thereby "deprive the state of its day in court and could present the danger of collusive civil suits instituted solely to provide a bar to prosecution." 1B Moore's Federal Practice ¶¶ 0.418[1] n. 5 (1974) (citing Note, Res Judicata — What Judgments are Conclusive, 64 Harv.L.Rev. 1376, 1378 (1951)). "To forge another bar to prosecution, when the constitutional rights of the defendant are not even arguably implicated, is both unnecessary and unwise." United States v. Standefer, 610 F.2d 1076, 1093 (3d Cir. 1979) (en banc), aff'd, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). Accordingly, appellee's motion to dismiss is denied.

III

As to the merits of the appeal, the trial error necessitating reversal in this case is the conclusion of law that "those who are regularly employed as retail store security guards, as was Lynn Johnson, are subject to the Fourth Amendment prohibition against unreasonable searches and seizures."¹

It is well established that the protection of the Fourth Amendment is applicable to intrusions of an individual's privacy interests by governmental officers and, not generally, to those made by private parties. Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921); Hawkins v. United States, D.C. App., 411 A.2d 378, 380 (1980); Budd v. United States, D.C.App., 350 A.2d 742, 744, cert. denied, 429 U.S. 840, 97 S.Ct. 113, 50 L.Ed.2d 108 (1976); Bunter v. United States, D.C.App., 245 A.2d 839, 842 (1968); Moody v. United States, D.C.Mun.App., 163 A.2d 337, 340 (1960). But see State v. Brecht, 157 Mont. 264, 270, 485 P.2d 47, 50-51 (1971) (the Fourth Amendment...