State v. SandersState v. Sanders
- Reporters:
- ,
- Before:
- Morton I. Greenberg, Allcorn, Francis
Pursuant to leave granted, plaintiff appeals from an order dated November 23, 1981 suppressing evidence obtained from defendant as the result of a warrantless search conducted September
The facts on this matter were developed at an evidential hearing held on November 20, 1981 on defendant‘s motion to suppress. There were two witnesses at the hearing: Richard Martin, a security officer employed by Caesars Boardwalk Regency Casino Hotel, an Atlantic City casino hotel, and John Wild, a New Jersey state trooper, assigned at the time of the search and seizure to the casino investigation enforcement section in Atlantic City within the Division of Gaming Enforcement of the Department of Law and Public Safety. At the outset of the hearing the motion judge stated that he presumed that since the search was warrantless, the State had “the burden of going forward.” The assistant prosecutor acquiesced in this statement. Consequently, Martin and Wild were called as witnesses by the State and were cross-examined by defendant‘s attorney.1
The facts are not at all complicated. At about 4 p.m. on September 3, 1981 defendant was playing blackjack at Caesars. Martin, who was then a plainclothes sergeant in Caesars’ security force, was instructed by Shumsky, Caesars’ games manager, to eject defendant from Caesars’ premises. Shumsky gave this direction because defendant was thought to be a card counter. Martin and two uniformed security officers went over to the table where defendant was playing. They asked defendant to come with them and cash in his chips. Defendant then went to a cashier‘s cage and cashed in his chips. Defendant caused the security personnel no trouble then or, indeed, as far as the
When defendant was taken into the holding room he was subjected to a “pat down” search. The purpose of the search was to determine if defendant was armed. Martin conceived that the search was the “proper procedure.” In defendant‘s left front pocket Martin felt a square object. He reached into defendant‘s pocket to find out if the object was a weapon. It in fact was one of a pair of dice with a spoon on it. Martin also pulled out a small glass bottle. Martin thought that the contents of the bottle was cocaine. The record indicates that until this discovery was made no public employee was involved with defendant. It is also clear that absent the finding of the substance, no public employee would have become implicated in the matter.
Because of the discovery of the bottle, Martin determined to alert the State Police. At the time that the bottle was found, Wild was just outside the holding room. The record is not completely clear as to why Wild was at that location. It does show that at about the time that defendant was being taken to the holding room Wild had been talking to a Lieutenant Pacentrilli on the Caesars’ security force. Pacentrilli was apparently notified by radio that defendant was being ejected. Pacentrilli then went to a spot just outside of the security room. Wild went to the same place, but separately. There is not the slightest suggestion in the record, however, that Wild or any other public officer or employee directed that defendant be
Nevertheless, Wild was given the bottle. When he looked at it he thought that it contained cocaine. Defendant, Wild and Martin then went to Wild‘s office for the purpose of running a field test for cocaine. The test proved positive. Thereupon defendant was arrested. On October 1, 1981 defendant was indicted for possession of cocaine.
On this record the motion judge suppressed. The judge concluded that the search and seizure performed by Martin was unlawful. In reaching this conclusion he indicated that there was no probable cause to believe that defendant had been or was about to engage in any criminal activity. Further, the judge ruled that defendant was no real threat to the officers’ safety.
The more substantial issue confronting the motion judge was whether the search and seizure was at all subject to constitutional limitations. The reason for the doubt on this issue is that defendant was taken to the holding room and searched by Caesars’ employees rather than the State Police. No regularly employed public employee became implicated in the matter until the bottle with the cocaine was given Wild. The judge recognized that constitutional protections against unreasonable searches and seizures are generally inapplicable to searches performed by private parties. Thus, the exclusionary rule is not applicable to private searches and seizures.
The judge stated, however, that private searches and seizures have been recognized in some circumstances as involving such sufficient aspects of state action as to be held subject to constitutional restrictions and thus the exclusionary rule. In reaching this conclusion he cited State v. Droutman, 143 N.J. Super. 322 (Law Div. 1976). He noted that in Droutman the judge specified three situations in which state action could be found in the
The judge in this case laid the facts against the Droutman tests and ruled that the facts did not show there had been joint public-private participation in the search. He ruled, however, that because of the second and third aspects of the tests, state action was involved. He pointed out that each casino was mandated to have a security department and that the security personnel were empowered to enforce the law and to detain persons suspected of violating the law. See
... are virtually equivalent to those granted to the police, rendering casino security personnel de facto agents of the State when exercising these powers. At present, under the State‘s theory, any person in a hotel-casino who is suspected of an infraction or offense, criminal or otherwise, can be detained and searched with impunity by casino security. And while such conduct would be illegal on the part of duly constituted State or local police officers, it is not for casino security personnel due to the purported absence of state action.
It is the opinion of this court that the pervasive regulation over casino security departments and personnel, with the enhanced power it confers, constitutes sufficient involvement or encouragement by the State as to be state action within the purview of Droutman. While this factual setting may be novel by way of appellate decision in this State, its rationale finds support in the case law of other jurisdictions, which holds to the effect that similar extensive state regulation over private security officers, and the granting of enhanced police type powers constitutes state action, rendering the Fourth Amendment and the exclusionary rule applicable.
Our inquiry must therefore be whether the unlawful conduct of Caesars’ employees should result in evidence produced by such conduct being excluded. We see no reason to reach such a conclusion. As already noted in State v. Droutman, supra, 143 N.J. Super. at 322, the judge specified three circumstances in which a seemingly private search and seizure may involve such sufficient state action as to implicate the exclusionary rule. The circumstances specified in Droutman are: when there is joint participation between private citizens and police officers, when the State has significantly involved itself in the illegal search, or when the private search was sufficiently fostered or encouraged by the State. In United States v. Clegg, 509 F.2d 605 (5 Cir.1975), the court described the test of when governmental activity would implicate the exclusionary rule as follows:
It is only when the government has preknowledge of and yet acquiesces in a private party‘s conducting a search and seizure which the government itself, under the circumstances, could not have undertaken that the problem discussed in United States v. Mekjian, 505 F.2d 1320 (5th Cir.1975) arises. Preknowledge and acquiescence make a search by a private party a search by the government. Fourth Amendment standards must be complied with. Any evidence which, for Fourth Amendment reasons, would have been excluded had it been gathered by the government pro se would, of course, have to be excluded if gathered by the only nominally private party. It would be excluded with the aim of deterring the government from further attempts to utilize knowingly the services of a private party to do for it that which it is forbidden to do for itself. [at 609]
Burdeau v. McDowell, 1921, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 has made it clear that the fourth amendment was intended as a restraint on the activities of the government and its agents and is not addressed to actions, legal or illegal, of private parties. Where no official of the federal government has any connection with a wrongful seizure, or any knowledge of it until after the fact, the evidence is admissible. See United States v. Harper, 7 Cir.1971, 458 F.2d 891, cert. denied, 406 U.S. 930, 92 S.Ct. 1772, 32 L.Ed.2d 132; United States v. McGuire, 2 Cir.1967, 381 F.2d 306, cert. denied, 389 U.S. 1053, 88 S.Ct. 801, 19 L.Ed.2d 848; Barnes v. United States, 5 Cir.1967, 373 F.2d 517. No objection, therefore, has been raised or could be raised as to the admissibility of any records copied before the initial contact of Mrs. Jones with BS.
A much more difficult issue arises once the government is contacted. The fourth amendment is given a generous interpretation in order to insure that its safeguards are not evaded by circuities. Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. Fourth amendment protections can be effectively undercut by the intervening agency of non-governmental individuals. Accordingly, where federal officials actively participate in a search being conducted by private parties or else stand by watching with approval as the search continues, federal authorities are clearly implicated in the search and it must comport with fourth amendment requirements. [at 1327].
Our review of the record convinces us that there is no basis to find state action so as to require us to exclude the evidence on any basis. The trial judge made a finding that there was no joint participation in the search. We see no reason not to accept this factual finding which is fully supported in the record. See State v. Johnson, 42 N.J. 146, 161-162 (1964). As already noted, the entire process leading to the discovery of defendant‘s possession of cocaine was put in motion and executed by Caesars’ employees. There was no showing that Wild or any other state employee was aware of the situation concerning him. Wild became involved only after the search and seizure had been completed. Thus, Wild did not participate in the search. Nor was there such a preknowledge and acquiescence in Caesars’ actions by Wild or any other public employee that Martin could be characterized, in the term of United States v. Clegg, 509 F.2d at 609, as “only [a] nominally private party.” Martin and the other two security men were acting completely for their employer.
Finally, we can find no basis for the motion judge‘s conclusion that the State was involved in the illegal search or fostered or encouraged it. The Casino Control Act does require that the casino establish detailed security procedures.
Finally, we note that defendant may not be without other remedy. When the exclusionary rule was extended to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the Supreme Court of the United States was in part motivated by the futility of a trespass remedy against the offending officers. See 367 U.S. at 670, 81 S.Ct. at 1699, 6 L.Ed.2d at 1099 (Douglass, J., concurring). Here the search and seizure was by private persons. We are by no means certain that a tort action against them and their employer would be doomed to failure.4 From Caesars’ viewpoint, a tort remedy would be more of a restraint on its activity than would be an order for suppression. On the other hand, we cannot perceive of how such an order could in any way discourage future unlawful action by any public officer since no public officer was involved in the search and seizure.
The order of November 23, 1981 is reversed and the matter is remanded to the Superior Court, Law Division, Atlantic County, for further proceedings not inconsistent with this opinion.