This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-389

 

 

State of Minnesota,

Respondent,

 

vs.

 

Sherrod Tarrom Means,

Appellant.

 

 

Filed January 7, 2003

Affirmed

Halbrooks, Judge

Dissenting, Hudson, Judge

 

 

Ramsey County District Court

File No. K7013066

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414† (for appellant)

 

 

 

††††††††††† Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

††††††††††† Following his conviction of possession of a firearm by an ineligible person, appellant challenges the denial of his pretrial motion to suppress the handgun found when his duffel bag was searched by private citizens.† Because the trial court did not err in its ruling, we affirm.

FACTS

††††††††††† On the morning of August 28, 2001, two squad cars from the St. Paul Police Department responded to a domestic-disturbance call.† Officer Paul Bydzovsky went directly to 699 Prebble Street where he found appellant Sherrod Means seated in a vehicle with his two sons.† Marilyn Marshall, mother of Meansís fiancť, Angela Harrison, and Marshallís two sisters were also there, standing outside the house.† Marshall, who was visiting from Chicago, and her sisters had gone to the home at Harrisonís request.† Harrison, in tears, had called her mother to say that Means had been beating her up in their car before she jumped out of it.† Harrison asked Marshall to go to her house to make certain that Means did not remove her things.†

In a second squad car, Officer Distel picked up Harrison and brought her to the house she shared with Means.† Harrisonís account to Officer Distel differed from what she had told Marshall.† Harrison told the officer that she did not know what had happened in the car, but thought that the car door had accidentally opened.† Harrison had a black eye and facial bruises and swelling.

††††††††††† The officers spoke with Means, and it was agreed that he would leave in order to diffuse the situation.† Means, accompanied by a couple of officers, was permitted to go into the house to pack some things for himself and his sons.† Means walked out of the house with a blue duffel bag and was told by the officers to wait down the street for his ride to pick him up.† Means waited on the sidewalk in front of a house approximately 200 feet to the north of his house.

††††††††††† As Officer Bydzovsky talked outside the home with Marshall about her concerns that Harrison was being abused by Means, Harrison and one of her aunts came out of the house.† The aunt informed Officer Bydzovsky that Means had just called Harrison on his cell phone and threatened to harm her because she had called the police.

††††††††††† The officers started walking to where Means was standing and talking on his phone, but Means and his sons took off running between houses, leaving the duffel bag on the sidewalk.† While Officer Bydzovsky stayed in front of 699 Prebble Street, two other officers chased and caught Means.

††††††††††† In the same time frame, Marshall approached Officer Bydzovsky and said that, after talking with her daughter, Marshall was concerned that Means might have put items in the duffel bag that belonged to Harrison.† She also stated that she thought there might be drugs in the bag.† Bydzovsky responded that he had no probable cause to search the bag.† When asked at the suppression hearing whether Marshall asked him more than once to look in the bag, Officer Bydzovsky testified:

She asked me a couple times and I told her that I had no probable cause to go in the bag, I could not search the bag.† I told her I am not telling you that you canít go in the bag and get the property.† If you did find something illegal, you can come back and talk to me, but I am not telling you to search the bag, Iím not telling you you canít go in the bag.† The property is out there and if you want to get some of your daughterís belongings, you want to do something thatís on your behalf.† If there is something illegal, as an officer, I would take your complaint.

 

††††††††††† Marshall and one of her sisters then talked between themselves and decided to open the bag and look through its contents.† The two women searched the bag while Officer Bydzovsky stood approximately 200 feet away.

††††††††††† Marshall returned to Officer Bydzovsky and told him that they had found some drugs and a gun inside a sock in the bag.† They also found clothing and shoes that belonged to Harrison.† Officer Bydzovsky took possession of some marijuana and a handgun.† Means, previously convicted of multiple felonies in Illinois, was arrested and charged with possession of a firearm by an ineligible person.† Means brought a pretrial motion to suppress the gun on the ground that the search was a violation of his Fourth Amendment rights.† The trial court denied the motion and Means was convicted.† This appeal follows.

D E C I S I O N

††††††††††† Both the Minnesota and United States Constitutions provide protection against unreasonable searches conducted by government actors.† U.S. Const. amend. IV; Minn. Const. art. I, ß 10.† Searches conducted by private individuals will not be subjected to constitutional scrutiny.† State v. Buswell, 460 N.W.2d 614, 617-18 (Minn. 1990).† At times, however,

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 the Fourth Amendment constraints.†

 

Id. at 618 (quotations omitted).

Whether a private citizen has acted as an agent of the state is a question of fact that must be determined on a case-by-case basis considering the particular facts and circumstances surrounding the search in question. †Id.

[D]etermination 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.†

 

Id. at 615 (citing United States v. Koenig, 856 F.2d 843, 847 (7th Cir. 1988)) (other citation omitted).† Considering the wide assortment of factual situations in which searches by private persons occur, each case must be viewed individually, with precedent playing only a small part in the final determination.† Id. at 618.

††††††††††† The trial court is the fact-finder at a suppression hearing.† In re Welfare of M.E.P., 523 N.W.2d 913, 922 (Minn. App. 1994), review denied (Minn. Mar. 1, 1995).† A trial courtís factual determinations are given deference and will not be overturned unless they are clearly erroneous.† State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).† Further, it is the province of the trial court to make credibility determinations.† Id.† When the underlying facts concerning a pretrial motion to suppress evidence are not in dispute, a reviewing court analyzes the trial courtís legal ruling de novo.† State v. Caldwell, 639 N.W.2d 64, 67 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002).†

In determining whether a private actor has become, for purposes of a Fourth Amendment analysis, an agent of the state, a court looks at (1) knowledge of, and acquiescence in the search by the government; and (2) whether the purpose of the search was to advance private interests or to aid law enforcement efforts.† Buswell, 460 N.W.2d at 618.† The trial court must decide on a case-by-case basis if the governmental involvement went beyond mere antecedent contact with the private searching party to the point where the search was, in fact, initiated or promoted by the government.† Id. at 619.† When a private motivation is the basis for a search, no matter how egregious, it will not be subject to constitutional scrutiny.† Id. at 617-18.†

††††††††††† The trial court determined that the search of Meansís bag was made by private citizens and that any ďantecedentĒ contact between Officer Bydzovsky and Marshall did not convert Marshall or her sister into an agent of the government.† The courtís legal conclusions are supported by the record from the suppression-motion hearing.† The trial court specifically found that the idea to search the duffel bag originated with Marshall and not with the police officers.† When specifically asked how many times Marshall asked him to search Meansís duffel bag, Officer Bydzovsky said ďa coupleĒ of times.† Both times Officer Bydzovsky responded unequivocally that he did not have probable cause to do so.†

††††††††††† The inference in Meansís brief that Officer Bydzovsky tacitly encouraged Marshall to search the bag is unsupported by the record.† As Marshall testified, her reason for wanting to look in the duffel bag was because she suspected that Means had taken some of her daughterís belongings.† That is consistent with Harrisonís initial request to Marshall to go to the house and, in fact, Marshallís suspicion was accurate.† She and her sister found her daughterís shoes and clothing in the bag.† Additionally, Marshall testified that she would have searched the bag whether or not Officer Bydzovsky had told her he wouldnít stop her from doing so.† On this record, the trial court did not err in denying Meansís motion to suppress evidence.

††††††††††† Affirmed.


 

 

HUDSON, Judge (dissenting)

 

†††††††††††

††††††††††† I respectfully dissent.† Although I agree with the majorityís statement of the law, I disagree with its application of the law to the particular facts of this case.† The record reflects that Officer Bydzovsky unequivocally knew about Marshallís search of the bag and essentially endorsed it.† Marshall testified that she was sick of appellant beating her daughter up and told the officer she thought there were drugs in the bag.† The officer emphasized repeatedly that although he could not search the bag, she was free to do so, telling her that if she found anything illegal in the bag she could tell him.† After she consulted with her sister to determine whether to search the bag, Officer Bydzovsky told the officers who were holding appellant to hang onto him because there might be something in the bag.† These actions strongly suggest more than mere antecedent contact, as determined by the majority.† Rather, they show overt police involvement and encouragement, which, I would hold, transformed a private search into a governmental search subject to Fourth Amendment constraints.† See State v. Lieder, 449 N.W.2d 485, 488 (Minn. App. 1989) (holding that the opening of a parcel by a private carrier was a public search, subject to constitutional scrutiny, when the carrier sought to assist police after overt police involvement, police-initiated suspicion, and encouragement by the police).† In this case, but for the officerís repeated statements that she could look in the bag, Marshall probably would not have conducted the search at all.† Thus, I believe that the police were implicated in the search, and that the district court committed clear error in denying the motion to suppress.