STATE OF NEW JERSEY VS. ANTHONY R. COLEMAN (15-01-0198, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1309-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY R. COLEMAN,
Defendant-Appellant.
____________________________
Argued August 14, 2018 – Decided August 21, 2018
Before Judges Messano and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
15-01-0198.
Elizabeth C. Jarit, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Elizabeth C. Jarit, of counsel and on the
brief).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Steven A.
Yomtov, of counsel and on the brief).
PER CURIAM
Defendant Anthony R. Coleman appeals from a March 18, 2016
conviction of second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b), contending the trial court erred by denying
his motion to suppress evidence seized without a search warrant
from his locker at work. We affirm.
We derive the following facts from the record on appeal. On
September 29, 2014, an anonymous caller alerted both the Pennsauken
Police Department and defendant's employer, Menu Foods, Inc., that
defendant had a loaded handgun in his locker at Menu Foods. The
anonymous tip to Menu Foods was received by Sheila Campbell, its
Human Resources Manager. In turn, Campbell called the police and
verified the police were also aware of the anonymous tip. The
police told Campbell they could not act on the call or search the
locker because it involved private property. The police suggested
the locker search by company personnel be conducted in the presence
of a police officer for safety purposes. Campbell requested the
police be present when employees of Menu Foods attempted to
retrieve the handgun.
Officer Jeffrey Dinoto was dispatched to Menu Foods, where
he spoke to John Morris, Menu Foods' director of operations.
Accompanied by maintenance manager Will Hughes and operations
manager Daniel Wynn, Morris and Dinoto proceeded to the employee
locker room. Defendant had two lockers. As Dinoto stood by,
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Hughes used bolt cutters to cut off the lock and open the first
locker but no firearm was found inside. Hughes then cut the lock
off of defendant's second locker, which contained a backpack.
Morris removed the backpack and placed it on a bench. The backpack
made a "distinctive thud" when placed on the bench as if "something
very heavy" was inside of it. Morris reached inside the backpack
and removed a .380 caliber semi-automatic handgun loaded with ten
hollow point bullets and four ball rounds of ammunition. Morris
handed the gun to Dinoto. After securing the weapon, Dinoto
returned to police headquarters. Defendant was not present when
the lockers were opened; he was at his work station.
A grand jury charged defendant with second-degree unlawful
possession of a handgun (count one); third-degree receiving stolen
property, N.J.S.A. 2C:20-7(a) (count two); and second-degree
certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count
three).
Defendant moved to suppress the handgun. The motion judge
conducted an evidentiary hearing. Four witnesses testified. Wynn
testified the lockers were Company property and were subject to
inspection when necessary. The State introduced two documents
into evidence: an Employment Policies & Work Rules Handbook (the
Handbook) and a signed Handbook Acknowledgment Form, affirming
defendant had received a copy of the Handbook and that he
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understood that he should read it and become familiar with it.
Defendant signed the form as a condition of his employment. The
Handbook contains a "No Weapons Policy," which provides:
Weapons are prohibited on Company property,
in Company buildings, or in Company vehicles.
Weapons are prohibited in lockers, desks,
workspaces, storage areas, and employee
vehicles and on an employee's person, or in
employee's personal belongings (e.g., brief
case, backpacks, purses, and wallets, etc.)
whenever on Company property or elsewhere when
performing work on behalf of the Company.
Weapons may include, but ARE NOT LIMITED TO
guns. . . .
The Handbook further provides:
In enforcing the policy, Menu [Foods] reserves
the right to search Company property including
lockers, desks, workspaces, storage areas,
etc. and any items located on Company property
whether they belong to the Company employees,
contractors or visitors.
The Handbook also contains a Workplace Violence Policy, which
states: "Menu Foods employees have a responsibility to take steps
to ensure a safe work environment for all employees and visitors."
Defendant argued that the locker and backpack searches were
unconstitutional because they amounted to state action for which
probable cause was lacking. Defendant claimed there was sufficient
involvement or participation by police to qualify as state action
because the police had knowledge the employer would conduct the
search and the search was conducted in a police officer's presence.
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The State argued that the mere presence of a police officer
did not constitute state action because the officer was only
present for safety purposes to take custody of the weapon if one
was found and render it safe. Alternatively, the State argued
defendant had no reasonable expectation of privacy in his locker
or his backpack, while on Company property, in light of Menu Foods'
right to search the locker and its contents pursuant to its No
Weapon Policy.
In a written opinion, the motion judge denied the motion,
finding defendant was "not entitled to Fourth Amendment
protection, because he had no reasonable expectation of privacy
in the contents of his workplace locker." The judge noted
defendant's acknowledged familiarity with the contents of the
Handbook. Thus, defendant "knew that his locker and personal
belongings could be subject to search."
The motion judge further noted that "[w]hen private actors
act on their own, Fourth Amendment protections do not apply."
Instead, "Fourth Amendment protections are only implicated when
there is state action involved in a search or seizure."
Recognizing mere police presence while a private party is engaging
in a search does not make it a state search, the motion judge
found "there is no indication here that the Menu Foods employee
acted 'at the behest or suggestion, with the aid, advice or
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encouragement, or under the direction or influence' of the
Pennsauken police department." (quoting United States v. Clegg,
509 F.2d 605, 609 (5th Cir. 1975)). On the contrary, the motion
judge found once Campbell confirmed the anonymous tip regarding
the gun on Company property had also been reported to police, Menu
Foods "already knew [it was] going to search the locker." The
judge then recounted how the decision to search was carried out:
Menu Foods initiated the search and the police
offered to be present to ensure the safety of
their employees, but Menu Foods did not
initiate the search acting as an agent of the
State. Menu Foods employees cut the lock,
opened the defendant's backpack, and revealed
the presence of the firearm.
Additionally, the motion judge concluded suppressing the
results of the search would not deter the State from using private
parties to engage in illegal searches.
Following the denial of his motion to suppress, defendant
entered into a plea agreement with the State, pleading guilty to
count one in exchange for a recommended sentence of five years
imprisonment, subject to a forty-two-month period of parole
ineligibility and dismissal of the remaining charges. On March
18, 2016, defendant was sentenced in accordance with the negotiated
plea agreement. This appeal followed.
Defendant raises the following issues on appeal:
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THE WARRANTLESS SEARCH OF COLEMAN'S LOCKED
WORK LOCKER AND CLOSED BACKPACK VIOLATED HIS
CONSTITUTIONAL RIGHTS, REQURING SUPPRESSION.
A. Because Coleman had a possessory
interest in his locker and backpack,
the State was required, but failed,
to demonstrate an exception to the
warrant requirement in order to
justify the search; whether Coleman
had a reasonable expectation of
privacy was the incorrect inquiry
because courts have long-recognized
an expectation of privacy in the
workplace.
B. The search of Coleman's locker and
backpack amounted to state action.
C. The trial court's factual findings
are unsupported by the record and
deserve no deference.
"When reviewing a trial court's decision to grant or deny a
suppression motion, [we] 'must defer to the factual findings of the
trial court so long as those findings are supported by sufficient
evidence in the record.'" State v. Dunbar, 229 N.J. 521, 538 (2017)
(quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). "We will set
aside a trial court's findings of fact only when such findings 'are
clearly mistaken.'" Ibid. (quoting Hubbard, 222 N.J. at 262). "We
accord no deference, however, to a trial court's interpretation of
law, which we review de novo." Ibid. (citing State v. Hathaway, 222
N.J. 453, 467 (2015)).
"The New Jersey and Federal Constitutions guarantee the
rights of persons to be free from unreasonable searches and
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seizures." State v. Coles, 218 N.J. 322, 337 (2014) (citing N.J.
Const. art. I, ¶7; U.S. Const. amend. IV). However, the
constitutional prohibition against unreasonable searches and
seizures applies only to governmental action. State v. M.A., 402
N.J. Super. 353, 367 (App. Div. 2008) (citing State v. Evers, 175
N.J. 355, 368-69 (2003)); State v. Premone, 348 N.J. Super. 505,
511 (App. Div. 2002) (citing United States v. Jacobsen, 466 U.S.
109, 113 (1984); State v. Saez, 139 N.J. 279, (1995)). "It is
wholly inapplicable to a search or seizure, even an unreasonable
one, effected by a private individual not acting as the agent of
the Government or with the participation or knowledge of any
governmental official." State v. Navarro, 310 N.J. Super. 104,
107 (App. Div. 1998) (citations omitted); see generally 1 Wayne
R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment
(5th ed. 2012) § 1.8.
Following our review, we conclude defendant's argument lacks
evidentiary support. First, the record does not support
defendant's characterization of the search as a product of state
action. Although managerial employees of Menu Foods and the police
were simultaneously present during the search, no evidence shows
police prompted, directed, encouraged, or influenced the conduct
of Hughes or Morris.
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For state action to exist, facts must support "tacit
cooperation" between police and the third-party. State v.
Stelzner, 257 N.J. Super. 219, 230 (App. Div. 1992). In addition,
the act must be prompted by the State. Here, the record amply
supports the conclusion that the actions by Hughes and Morris were
independently motivated by Menu Foods' legitimate safety concerns
over the presence of a loaded firearm on Company property. There
is no indication that Menu Foods' employees acted "at the behest
or suggestion, with the aid, advice or encouragement, or under the
direction or influence" of the police. Clegg, 509 F.2d at 609.
On the contrary, the police stated to Campbell that they would not
act on the anonymous tip or search the locker because it involved
private property. By that point Menu Foods had already decided
to search defendant's locker. Moreover, although the results of
the private search were turned over to the police, the police did
not expand the scope of the private search. See Premone, 348 N.J.
Super. at 512.
Second, with respect to the actions of his private employer,
defendant had no objectively reasonable expectation of privacy in
his locker and items placed within his locker. The clear and
unambiguous terms of his employer's No Weapon's Policy rendered
defendant's locker and its contents subject to search by his
employer. Indeed, defendant concedes this case "does not concern
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whether, given the policy, [defendant] had a reasonable
expectation of privacy against intrusions by his private
employer."
Finally, once the handgun was located, the actions of the
police in securing the handgun constituted a reasonable exercise
of their community caretaking functions "totally divorced from the
detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute." Navarro, 310 N.J. Super.
at 108 (quoting Cady v. Dombroski, 413 U.S. 433, 441 (1973)).
There was nothing unreasonable in the actions of the police which
resulted in the seizure of the handgun after it was removed from
the backpack by Morris.
For the reasons outlined above, we affirm the denial of the
motion to suppress and the conviction that followed defendant's
guilty plea.
Affirmed.
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