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Brian Roberts v. Commonwealth ( 1995 )


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  •                      COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
BRIAN ROBERTS
v.           Record No. 1975-94-1        MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA                   OCTOBER 31, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
J. Warren Stephens, Judge
David B. Olson for appellant.
Thomas D. Bagwell, Assistant Attorney General,
(James S. Gilmore, III, Attorney General; Monica
S. McElyea, Assistant Attorney General, on brief),
for appellee.
Brian Roberts (defendant) was convicted by the trial court
for possession with intent to distribute marijuana in excess of
one-half ounce but less than five pounds in violation of Code
§ 18.2-248.1.    Defendant complains on appeal that the trial court
erroneously declined to suppress evidence obtained through an
"illegal seizure."    Finding no error, we affirm the conviction.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to a disposition
of this appeal.
On appeal from a trial court's denial of a motion to
suppress, we must review the evidence in the light most favorable
to the prevailing party below, the Commonwealth in this instance,
granting to it all reasonable inferences fairly deducible
therefrom.     Commonwealth v. Grimstead,
    12 Va. App. 1066
    , 1067,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
    407 S.E.2d 47
    , 48 (1991); Reynolds v. Commonwealth,
    9 Va. App. 430
    , 436,
    388 S.E.2d 659
    , 663 (1990).   The findings of the trial
court will not be disturbed unless "plainly wrong," Grimstead, 12
Va. App. at 1067, 407 S.E.2d at 48, and the burden is upon the
appellant to show that the denial constituted reversible error.
Reynolds, 9 Va. App. at 436, 388 S.E.2d at 663.
The record discloses that the defendant was arrested for
trespass by a privately employed security guard.    During a
subsequent consent search of defendant's person, the guard
detected a bulge in defendant's pants and, "inside . . . found
. . . 11 little small bags" of marijuana.   This evidence was
admitted at trial, despite defendant's objection and related
motion to suppress.
"Evidence obtained in violation of the Fourth Amendment is
inadmissible in a criminal prosecution for a charged criminal
violation pertaining to the seized evidence."     Anderson v.
Commonwealth,
    20 Va. App. 361
    , 363,
    457 S.E.2d 396
    , 397 (1995).
However, the Fourth Amendment is implicated only in government
action, not in searches and seizures undertaken by private
actors.   United States v. Jacobsen,
    466 U.S. 109
    , 113 (1984);
Morke v. Commonwealth,
    14 Va. App. 496
    , 503,
    419 S.E.2d 410
    , 414
(1992).   "[A] private search, no matter how unreasonable, does
not constitute a constitutional violation warranting the
suppression of the evidence seized."    Mills v. Commonwealth,
    14 Va. App. 459
    , 463,
    418 S.E.2d 718
    , 720 (1992).    Thus, evidence
obtained in contravention of Fourth Amendment protections is
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excluded only when an accused "demonstrate[s] the contested
search or seizure was conducted by an officer of the government
or someone acting at the government's direction . . . ."     Duarte
v. Commonwealth,
    12 Va. App. 1023
    , 1025,
    407 S.E.2d 41
    , 42
(1991).
Here, there is no evidence that the guard acted under color
of governmental authority.   From the initial contact with
defendant until the subsequent arrest and disputed search and
seizure, the guard was pursuing duties related only to his
private employment, conduct which clearly presents no Fourth
Amendment evidentiary issues.   Accordingly, we affirm the
conviction.
Affirmed.
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