State v. Buswell , 460 N.W.2d 614 ( 1990 )

KELLEY, Justice.

Resolution of this case requires that we examine the extent to which, searches of motor vehicles that turn up contraband seized by private security guards, who later turn the contraband over to government authorities for use in criminal prosecutions, constitute governmental actions subject to the limitations on unreasonable search and seizure of the Fourth Amendment to the United States Constitution. In denying the respondents’ motions to suppress the contraband seized by private security guards, the trial court ruled that, on the facts of these cases, the search and seizure of the contraband was the product of a private search and, therefore, not subject to Fourth Amendment constraints against unreasonable searches and seizures. The court of appeals disagreed. It held that there was sufficient governmental involvement in the search to transform it into government action, and remanded the case to the trial court for determination of whether the searches were reasonable. State v. Buswell, 449 N.W.2d 471 (Minn.App.1989).

Because the determination of whether sufficient governmental involvement exists to transform a private search into governmental action is a question of fact to be determined by the trial court, United States v. Koenig, 856 F.2d 843, 847 (7th Cir.1988); United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981), and because we are unable to conclude that the trial court’s holding that each of the searches here was private was clearly erroneous, we reverse the court of appeals, reinstate the trial court’s orders refusing to suppress the evidence, and affirm the convictions of these respondents.

The Brainerd International Raceway (BIR) operates an automobile racetrack on private property approximately six miles outside the City of Brainerd in Crow Wing County, Minnesota. The BIR was not within the jurisdiction of the City of Brainerd. In 1988 BIR contracted for security services at the track during the summer racing season with a company called North Country Security. Keith Emerson, whose primary employment was as a member of the City of Brainerd police force, owned and operated North Country Security. At the time, all City of Brainerd police officers, including Emerson, held appointments as special deputies for Crow Wing County. However, none of the Brainerd police officers, including Emerson, had independent powers of arrest outside the city limits of Brainerd except as directed by the Crow Wing County Sheriff or by a regularly deputized sheriff.

In 1988 North Country Security’s contract with BIR called for North Country Security to be paid a set figure for security on a given race weekend. In return, it was North Country Security’s responsibility to hire guards and manage all security arrangements at the track during a race meet. The weekend commencing August 18, 1988, was the largest weekend of that year’s racing season; approximately 78,000 persons attended the raceway between Thursday and Sunday. North Country Security employed 127 guards, only six or seven of whom were licensed police officers employed in any governmental jurisdiction, to provide security during this meet. None of the off-duty police officers employed that weekend were from law enforcement agencies having any jurisdiction covering the Brainerd International Raceway.

In May 1988, before the commencement of BIR’s 1988 racing season, Emerson had conferred in general terms with the Crow Wing County Sheriff and the local Minnesota Bureau of Criminal Apprehension agent relative to procedures to be employed for making arrests should security guards of North Country Security uncover illegal activity during a race meet. This conference resulted in agreement that if any incident encountered by North Country Security guards seemed to warrant an arrest for a crime, Emerson would first be notified, and, he, in turn, would decide whether to call in official law enforcement agencies. The arrangement was strictly procedural. No agreement was made relating to the type or number of searches by security personnel, nor were any official law enforcement personnel assigned to be present at the BIR during a race meet. However, if Emerson decided to report discovered criminal activity, a specific deputy or agent was “on call” to respond to the report.

Part of the responsibility of North Country Security on a race weekend was to see that only ticket holders entered the raceway grounds. North Country Security attempted to discharge that duty generally, and specifically on the weekend of August 18, 1988, by randomly stopping and searching vehicles seeking entry to the raceway to look for “stowaways.”

After the gates were opened on August 18, 1988, a number of vehicles, including those operated by these respondents, were searched by security guards before being permitted to enter the grounds. The primary motivation for the searches was to insure that persons without admission tickets not enter the track; a secondary reason was to prevent illegal drugs from entering the premises, and to keep other contraband such as mopeds and fireworks out of the race track grounds.¹ No written warning was given to entrants that their vehicles might be searched for “stowaways” or illegal drugs, firecrackers or other prohibited items. However, Emerson had established a policy for North Country Security employees that before a search took place, occupants of vehicles were to be provided an option to refuse to consent to a search and not enter the track premises.

Security guard Bruce Gateley, who was not an off-duty public police officer licensed or employed as a law enforcement officer in any jurisdiction, actually conducted the searches of the vehicles occupied by the respondents. At the time of the search of each vehicle he was wearing North Country Security standard uniform and was carrying a sidearm and handcuffs. Before making each search, however, contrary to the policy established by Emerson, Gateley failed to secure consent to the search or inform the occupants of the option to refuse.

On August 18, 1988, his procedure was to inform the occupants of each vehicle that the purpose of a search was to spot “stowaways,” after which he proceeded to search the inside of the vehicle. This procedure was followed when he searched Respondent Schmidt’s pick-up camper. After entering the camper, Gateley found no “stowaways,” but did open a small closet in which a fishing tackle box which contained what appeared to be cocaine was located. Thereupon Gateley handcuffed Schmidt to a fence, and contacted Emerson, who himself notified law enforcement officers pursuant to the protocol previously established in May of 1988.

Using the same procedure, Gateley later stopped and searched a converted Greyhound bus occupied by Respondents Bus-well and Schwartzman. While searching the bus for nonpaying persons, Gateley found cocaine, marijuana, and other drug paraphernalia in one of the closets. Both Schwartzman and Buswell were likewise handcuffed to the fence, and Emerson was again contacted so he could inform law enforcement officials of the situation.

The law enforcement official notified by Emerson was Crow Wing County Deputy Sheriff Bjerga, who, with other officers, responded by going to the race track. After further investigation they arrested all three respondents and charged them with possession of controlled substances.

After the trial court had denied the respondents’ motions to suppress the drugs seized in the search, the parties by agreement submitted the cases to the trial court on stipulated facts. The respondents were adjudged to be guilty and subsequently sentenced. This appeal followed.

The limited issue presented by this appeal is whether the trial court’s ruling that the searches were not governmental actions subject to the constraints of the Fourth Amendment to the United States Constitution was clearly erroneous.

Before addressing that issue, however, we deem it appropriate to note and briefly discuss a related but nondeterminative issue; to wit, whether the conduct of Gate-ley, had he been a governmental law enforcement official at the time, would have violated the “unreasonable searches and seizures” clause of the Fourth Amendment, thereby rendering the contraband seized subject to suppression. We have not the slightest doubt that these searches, which can charitably be characterized as being “outrageous,” would violate the Fourth Amendment and result in suppression had they been made by one exercising governmental action. See, Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684,1691, 6 L.Ed.2d 1081 (1961); see also State v. Mitchell, 285 Minn. 153, 172 N.W.2d 66, 73 (1969) (marijuana seized by police subsequent to a war-rantless, unconstitutional search of an entire house was suppressed). Indeed, the state concedes that if the searches by Gate-ley constituted state action, the Fourth Amendment rights of these respondents were violated.²

However, no matter how egregious the conduct of Gateley in making these searches, the contraband was properly admitted into evidence if, at the time, he enjoyed the status of a private citizen. The Fourth Amendment was intended as a restraint upon the activities of the government. It was never intended to be a limitation upon other than governmental agencies. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). Thus, a private search, even if unreasonable, will not result in evidence seized being suppressed because there is no constitutional violation. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); United States v. Pryba, 502 F.2d 391, 397-398, n. 39, 40, 42 (D.C.Cir.1974).³

However, the mere fact that a private individual made the search and seized the contraband does not always isolate his or her conduct from Fourth Amendment scrutiny. 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. Skinner v. Railway Executives Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989); Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). The determination of whether the private person acted as an agent of the state is one of fact to be decided on a case-by-case basis after consideration of all the facts and circumstances relative to the search. Skinner v. United States, 489 U.S. at-, 109 S.Ct. at 1411; United States v. Koenig, 856 F.2d 843 (7th Cir.1988); United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981). “Whether a private party should be deemed an agent or instrument of the government for Fourth Amendment purposes necessarily turns on the degree of the government’s participation in the private party’s activities.” Skinner, 489 U.S. at-, 109 S.Ct. at 1411.

Federal courts have considered a variety of factors to determine whether government participation recasts the private individual as an instrument or agent of the state. In United States v. Walther, 652 F.2d 788 (9th Cir.1981), the Ninth Circuit stressed two “critical factors”: (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. Walther, 652 F.2d at 792. Other circuits have adopted the Walther critical factor analysis either in whole or in part. See, e.g., United States v. Pierce, 893 F.2d 669, 673 (5th Cir.1990); Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir.1989); United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987).⁴

These Walther criteria, as well as criteria suggested by other cases, are helpful in that they direct the trial court to focus on the significance and impact of the government’s involvement in the search. The concern is whether the conduct of the government was such as to make the actions of a private individual the government’s actions for the purpose of a Fourth Amendment analysis. Although the criteria set forth in Walther are helpful, the diversity in factual settings involving private searches mandates an individual case-by-case analysis in which precedent plays but a small part. As previously noted, final determination of whether the government’s involvement was such as to transform a private search into a governmental search subject to the constraints of the Fourth Amendment is a question of fact to be resolved by the trial court. Moreover, such factual determinations will be reversed only if clearly erroneous. United States v. Walther, 652 F.2d 788 (1981) (dictum); United States v. Botero, 589 F.2d 430, 433 (9th Cir.1978), cert, denied 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979); United States v. Koenig, 856 F.2d 843, 849 (7th Cir.1988); United States v. Feffer, 831 F.2d 734 (7th Cir. 1987).

Respondents advance several arguments in support of their contention that Gateley and North Country Security were acting as instruments or agents of the state when the searches and seizures were made. We examine these arguments keeping in mind the two factor Walther test and watching for clear indices cf significant government involvement which would convert the conduct of the BIR security force into government action. First, respondents contend that the May meeting between Emerson and Crow Wing County law enforcement officials at which arrest procedures were formulated indicates that the state knew of, ordered, encouraged, and acquiesced in the vehicle searches by North County Security guards, and, therefore, the guards were instruments or agents of the government. In advancing this argument, respondents rely, in part, upon Walther, 652 F.2d 788, where the court concluded that an airline employee who had seized an overnight case, found drugs upon opening it, and then contacted narcotic agents from the Drug Enforcement Agency, who then arrested the owner, was an instrument of the government. There, unlike the cases before us today, the airline employee had been a paid Drug Enforcement Agency informant for at least five years before the search and expected compensation for the search there at issue.

Contrasted to Walther, the facts surrounding the searches here differ dramatically. The records in these cases contain nothing to indicate that law enforcement officials did anything to persuade North Country Security employees to conduct searches in any particular manner, or to search for any particular items.⁵ Law enforcement personnel did know that searches for stowaways would occur at entry gates. But, nothing in the record indicates that law enforcement officials knew the searches would violate BIR policy and be conducted without first obtaining the consent of the vehicle occupants. Furthermore, not only is the record devoid of evidence that law enforcement officials were aware of or encouraged the specific searches in question, but apparently, similar searches resulting in an arrest had not occurred during the 1988 racing season. The record contains not one reference to any search which occurred between the May meeting and the August 18, 1988 race at which Gateley, or any other officer searched for, found, or turned over contraband to law enforcement officials, or any evidence that he received, or even expected, compensation for so doing. In short, unlike Walther, there is no indication that Gateley or North County Security conducted the searches with the government’s objectives in mind. The government in no way “knew of” or “acquiesced in” the search. Walther, 652 F.2d at 792.

Mere antecedent contact between law enforcement and a private party is inadequate to trigger the application of the exclusionary remedy under the Fourth Amendment. United States v. Coleman, 628 F.2d 961, 965 (6th Cir.1980). It is only when the government takes some type of initiative or steps to promote the search, that a private citizen is deemed to be an agent or instrument of the government. Pleasant v. Lovell, 876 F.2d 787, 796-97 (10th Cir.1989). But when the extent of governmental involvement amounts to no more than responding to requests for arrests and discussions concerning arrest procedure, the Fourth Amendment exclusionary sanctions are not triggered. See, e.g., United States v. Koenig, 856 F.2d 843 (7th Cir.1988); United States v. Ramirez, 810 F.2d 1338 (5th Cir.) cert. denied, 484 U.S. 844, 108 S.Ct. 136, 98 L.Ed.2d 93 (1987); State v. Sanders, 185 NJ.Super. 258, 448 A.2d 481 (App.Div.1982); United States v. Capra, 372 F.Supp. 609 (S.D.N.Y.1974).

Respondents next focus upon the status of Emerson, whose primary employment was as a City of Brainerd police officer. They suggest that the government cannot avoid the constraints of the Fourth Amendment by directing a third party to perform an illegal search. See, e.g., United States v. West, 453 F.2d 1351, 1356 (3rd Cir.1972). This argument fails for two reasons. First, Emerson was not acting as a government agent; his duties at the BIR were not those of a government law enforcement agent. At the BIR he had only the power to make a citizen’s arrest because he was outside the jurisdiction in which he had any authority as a licensed public officer. The two jobs were distinctly separated. See, e.g., United States v. McGreevy, 652 F.2d 849 (9th Cir.1981); Commonwealth v. Leone, 386 Mass. 329, 334-36, 435 N.E.2d 1036, 1048-41 (1982).

Furthermore, nothing in the records of these cases suggests that Emerson directed a third party, the security guards, to conduct searches without first asking consent of the vehicle occupants, or to exceed the scope of that consent given, or to look for contraband outside the area in plain view. To the contrary, the evidence indicates Emerson’s policy was to ask vehicle occupants if guards could conduct a search, inform the occupants of the scope of the search, and inform the occupants that if the search was refused, the search would not be conducted and the vehicle occupants would be prevented from entering the raceway. In other words, no evidence points to Emerson as the original instigator of the searches. The evidence seems clear that it was the race track management who requested vehicle searches for nonpaying attendee, and for other items that might be used to disrupt the raceway weekend program. These facts support the trial court’s implicit findings that there was no significant government involvement in these searches.

That being so, we could end our analysis at this point. However, we proceed to examine the trial court’s findings that the searches were conducted by private persons and were for private rather than governmental purposes. This leads us to consider the second Walther factor— an analysis of the purpose of the search to see if the trial court’s conclusion that it was private has support in the evidence, keeping in mind that searches conducted for private purposes which turn up evidence of crime do not turn into state action merely because that evidence is later turned over to law enforcement officials. United States v. Bulgier, 618 F.2d 472 (7th Cir.1980). The trial court found legitimate private purposes for the search. Without doubt there exists evidence to support that conclusion. The BIR primarily sought to prevent people for entering the raceway without first paying admission. Additionally, the BIR had legitimate private reasons to prevent illegal drugs, mopeds, and fireworks from entering the raceway in order to minimize disruptive behavior of patrons, to prevent injury to or discomfort of other patrons, and to reduce the possibility of destruction to property.

Accordingly, we are unable to conclude that the trial court arrived at a clearly erroneous finding when it found that the searches and seizures in this case were private and, thus, not subject to Fourth Amendment constraints.⁶ Clearly, evidence existed to support that result. Therefore, we reverse the decision of the court of appeals, and the judgment of the trial court is reinstated.

YETKA, J., files dissenting opinion in which WAHL and KEITH, JJ., join.

1 . Crowd and patron conduct is difficult to control during a race of this magnitude, involving tens of thousand of patrons and extending over several days. In authorizing searches for illegal drugs, mopeds and fireworks, BIR hoped to minimize incidents that might result in damage to patrons or property. Although not specifically involving illegal drugs, fireworks, or small motorized vehicles, the “flavor" of the type of conduct some patrons engage in after overuse of mood altering substances (there alcohol), thereby endangering not only themselves, but, as well, other patrons, is presented in Rieger v. Zackoski, 321 N.W.2d 16 (Minn.1982). See also State v. Borden, 455 N.W.2d 482 (Minn.App.1990).

2 . Originally the state took the position (1) that each respondent had consented to the search made, and (2) that Gateley found the illegal contraband in plain view during each search. Both arguments were patently meritless — and the latter was absolutely opprobrious. The evidence revealed that under the guise of looking for "stowaways,” Gateley opened a small closet of Schmidt’s camper and saw a closed fishing tackle box which, when opened, contained the drugs found. Similarly, during a search of a small closet in the bus, Gateley found drugs and drug paraphernalia. It would have been obvious to anyone that neither closet (or the tackle box) could hide a “stowaway,” moped, or any other sizable items that the BIR had an interest in excluding from the track premises. Later, at oral argument the state altered its position, and conceded that if the searches constituted state action, suppression of the contraband would have been proper under the exclusionary rules.

3 . Our analysis today is limited to the public-private search dichotomy which, as indicated in the cases cited in the body of the opinion, arises from the Fourth Amendment to the United States Constitution. We do not reach the issue of whether this search violated Art. I, § 10 of the Minnesota Constitution. That issue has neither been raised nor discussed on appeal, and at the trial court level, at least one respondent failed to move that the evidence be suppressed under the Minnesota Constitution. We note, however, that Art. I, § 10 of the Minnesota Constitution like its federal counterpart, the Fourth Amendment, purports to constrain only unreasonable searches by governmental authority.

4 . In United States v. Luciow, 518 F.2d 298 (8th Cir.1975), the Eighth Circuit seemingly stressed a different factor, to wit, that before a private individual’s action can be attributed to the government, some degree of government instigation of the search must be shown. Id. at 300 Cciting United States v. Valen, 479 F.2d 467 (3rd Cir.1973), cert denied 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974)). See also United States v. Coleman, 628 F.2d 961, 965 (6th Cir.1980) (police did not instigate, encourage, or participate in search).

5 . The dissent suggests that at the May meeting Emerson and law enforcement officials "discussed the search and seizure of controlled substances at the gate of BIR.” Dissent at D-2. This is somewhat misleading as nothing in the record indicates that searches and seizures of controlled substances at the main gate were specifically discussed. Rather, the group determined that for any incident, not only those dealing with controlled substances, Emerson would be the sole contact with both the Crow Wing County Sheriffs Office and the BCA.

6 . As did the court of appeals, we express our concern that egregious searches by private security guards escape the penalty of suppression, whereas similar conduct by licensed law enforcement officers would not. We take notice that private security guards often possess professional police knowledge and skill, and may conduct searches with the goal of obtaining evidence of crime. See, e.g., State v. Keyser, 117 N.H. 45, 47, 369 A.2d 224, 225 (1977). The court of appeals in its opinion addressed this concern by determining that private security guards may be subject to Fourth Amendment constraints when they regularly engage in the "public function” of law enforcement. State v. Buswell, 449 N.W.2d at 475. See also People v. Holloway, 82 Mich.App. 629, 635, 267 N.W.2d 454, 459-60 (Kaufman, J. concurring). It offends our sense of rationality and proportionality that a person who performs acts similar to a law enforcement official is able to circumvent the constraints of the fourth amendment merely because the private sector pays the bill. But, we cannot ignore the clear line of precedents starting with Burdeau v. McDowell which hold that the fourth amendment only gives protection against unlawful government actions.