Commonwealth v. Yim

J-S37044-18, J-S37045-18
2018 PA Super 253COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN YIM :
:
Appellant : No. 3118 EDA 2017
Appeal from the Judgment of Sentence August 7, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003203-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN W. YIM :
:
Appellant : No. 3184 EDA 2017
Appeal from the Judgment of Sentence August 7, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003202-2016
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 12, 2018
Appellant, Justin Yim, appeals from the judgment of sentence entered
in the Court of Common Pleas of Delaware County, which, sitting as finder of
fact in Appellant’s consolidated non-jury trial on stipulated facts, found him
guilty on all drug-related charges he faced. Sentenced to three to 23 months’
incarceration, to be followed by 4 years’ probation, Appellant contends the
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* Former Justice specially assigned to the Superior Court.
J-S37044-18, J-S37045-18
trial court erred in denying his motion to suppress evidence obtained from his
college dorm room by university public safety officers and administrators.
We affirm.
The trial court sets forth the facts and procedural history as follows:
Villanova University currently has a University police department[,
which was established on August 1, 2016, after the relevant time
period in question]. However, on February 13, 2016, the Public
Safety Office oversaw security at the University.[] N.T. 12/19/16,
at 10, 23. Public Safety [o]fficers wore uniforms but did not carry
weapons or handcuffs and had no arrest powers. Id. at 23-26;
N.T. 4/8/17, at 20. They had no legal authority and did not
apprehend or arrest individuals. N.T. 4/8/17, at 20.
During the early morning hours of February 13[, 2016,] [P]ublic
[S]afety officers became engaged in violent confrontations with
two resident students and a female visitor who all admitted to
ingesting LSD. N.T. 12/19/16, at 11-12, 23-26, 27; N.T. 4/8/17
at 20. These individuals were restrained during the assaults and
Radnor Police responded and arrested the individuals. N.T
12/16/17, at 26. Due to her condition and the admission that she
had ingested LSD, the female visitor was transported to the
hospital. One of the resident students, Daniel Jin, lived in Good
Counsel Hall, Room 339, with the Defendant [hereinafter
“Appellant”]. Id. at 1. He was arrested and was taken to the
hospital as well. 4/8/17, at 40.
Good Counsel Hall is a student residence hall that is owned and
operated by Villanova University. Id. at 13. To obtain housing at
Villanova students enter a housing contract with the University
and consent to [the] search of [a] dorm room where it has been
determined administratively that items or individuals in a
particular room pose a possible safety or health risk to the
community. Id. See also Exhibit CS-1. Students agree [to]
comply with University policies, procedures, and regulations and
to comply with the University Code of Student Conduct, Residence
Life Policies and safety and security responsibilities that are set
forth in the Student Handbook. . . . Appellant agreed to the terms
and conditions of the housing contract on May 27, 2015, as
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evidenced by his electronic submission of the housing application.
Exhibit CS-2.
During the morning of February 13[, 2016,] the Villanova Director
of Public Safety, David Tedjeske, was advised of the assaults that
took place earlier and of the LSD consumption of the individuals
involved. Specifically, he learned that Daniel Jin and his juvenile
girlfriend were hospitalized after the assaults and that the pair had
consumed LSD. N.T. 4/8/17, at 21.
Director Tedjeske contacted the Vice President for Student Life
and the Dean of Students and requested authorization to search
Jin’s[ ] room out of concern that additional LSD would be on
campus. The administrators gave permission for a search and
Director Tedjeske contacted Thomas DeMarco, Executive Director
of Student Life, who met him at Good Counsel Hall, Room 339.
Id. at 22. Two additional public safety officers were present. Id.
at 24.
After two attempts to reach Jin by telephone, Director Tedjeske
and one of the other two officers unlocked the door with a master
key and entered the room. Id. Contraband and cash was strewn
throughout the small room. Id. at 26. In plain view, a syringe
was on top of a desk. Appellant’s passport was in a drawer of the
same desk. In another drawer a prayer book was found. Inside
the prayer book were two sheets of LSD “stamps” in cellophane.
“One hundred” was written on the cellophane and forty-five
stamps were left on one sheet. A bag of marijuana was found
along with packaging paraphernalia and large bundles of cash.
See id., at 17-22. See also C-1, C-21.
After the contraband was discovered, Director Tedjeske called the
Villanova University dispatcher and asked him to contact the
Radnor Police Department to report the discovery of the
contraband. N.T. 4/8/17, at 27. Officer Metzler, a Radnor police
officer, and his supervisor [arrived at the scene, but they]
remained in the hall outside the room. They never entered the
room and did not participate in the search. Id. at 27-28, 301-31.
After Director Tedjeske and his fellow Public Safety officers
completed their search, they turned the contraband and items
seized over to the Radnor Police officers. Id. at 31. Director
Tedjeske completed an investigative report, including
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photographs for future use in University administrative
proceedings. Id. at 31.
A warrant for Appellant’s arrest was issued. He was arrested on
February 14, 2016[, when] activity on his “Wildcat” card indicated
that he returned to campus from New York. See N.T. 12/19/16,
at 35-36; N.T. 4/8/17, at 33.
Trial Court Opinion, filed 10/17/17, at 4-6.
In Docket Number 3203-2016, Appellant was charged with one count of
Possession of a Controlled Substance, 35 Pa.C.S. § 780-113(a)(16), and one
count of Possession of Drug Paraphernalia, 35 Pa.C.S. §780-113(a)(32),
stemming from the marijuana and paraphernalia recovered from his person
on the date of his arrest. In Docket Number 3202-16, Appellant was charged
with two counts of Possession of a Controlled Substance with the Intent to
Deliver (“PWID”), 35 Pa.C.S. § 780-113(a)(16), one count of Possession of a
Controlled Substance, and seven counts of Possession of Drug Paraphernalia
stemming from the 26.96 grams of marijuana, 45 units of LSD, empty
baggies, scale, marijuana grinder, hypodermic needle, and $8,865.00 cash
recovered from his dorm room.
On September 20, 2016, Appellant filed a motion to suppress the
evidence seized from his person and dorm room. On May 1, 2017, after
conducting evidentiary hearings on December 19, 2016, and April 18, 2017,
the trial court denied Appellant’s motion.
On August 2, 2017, the court presided over a consolidated non-jury trial
on stipulated facts and found Appellant guilty on all charges. The court
sentenced Appellant to an aggregate term of three to 23 months’
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incarceration, to be followed by 4 years’ probation on Docket No. 3202-16.
On Docket No. 3203-16, the court imposed no further punishment. After the
denial of Appellant’s post-sentence motion for reconsideration on September
6, 2017, Appellant filed this timely appeal on September 15, 2017.1
Appellant presents the following question for our consideration:
WAS THE TRIAL COURT’S LEGAL CONCLUSION THAT MR.
YIM WAS NOT SUBJECT TO ANY STATE ACTION WHEN
VILLANOVA UNIVERSITY PUBLIC SAFETY OFFICERS
SEARCHED HIS DORM ROOM WITHOUT A WARRANT
ERRONEOUS?
Appellant’s brief, at 4.
In reviewing a trial court’s decision to deny a suppression motion, our
standard of review is as follows:
In reviewing the denial of a suppression motion, our
role is to determine [ ] whether the suppression
court's factual findings are supported by the record
and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth
prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record
as a whole. Where the suppression court's factual
findings are supported by the record, we are bound by
these findings and may reverse only if the court's legal
conclusions are erroneous. Where, as here, the
appeal of the determination of the suppression court
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1 On December 1, 2017, this Court issued a Rule to Show Cause why the
appeal at Docket No. 3118 EDA 2017 should not be quashed as untimely filed
on September 11, 2017, when judgment of sentence was imposed on August
7, 2017. As we accept Appellant’s response that his timely post-sentence
motion for reconsideration pertained to both docketed cases, we deem the
present appeal timely.
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turns on allegations of legal error, the suppression
court's legal conclusions are not binding on an
appellate court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts below
are subject to our plenary review.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654
(2010) (internal quotations and citations omitted). Our scope of
review is limited to the evidence presented at the suppression
hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1080 (2013).
Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa.Super. 2018).
Appellant’s challenge against the order denying his motion to suppress
centers on the argument that Villanova University’s Public Safety (“VUPS”)
officers were de facto state actors, subject to the dictates of the Fourth
Amendment, when they searched Appellant’s dorm room. This is so, he
maintains, either because the uniformed officers were the only University
agents with the authority to exercise police-like powers on Villanova’s campus,
or because they worked “in concert” with the Radnor Township Police
Department in conducting a search of Appellant’s dorm room, where LSD and
other contraband were found. We disagree.
The Fourth Amendment's protection against unlawful searches and
seizures applies only to actions by the government, as “[i]ts origin and history
clearly show that it was intended as a restraint upon the activities of sovereign
authority[.]” Burdeau v. McDowell, 256 U.S. 465, 475 (1921). It follows,
therefore, that “the proscriptions of the Fourth Amendment and Article I, § 8,
do not apply to searches and seizures conducted by private individuals.”
Commonwealth v. Faurelus, 147 A.3d 905, 909 (Pa.Super. 2016) (quoting
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Commonwealth v. Harris, 572 Pa. 489, 513, 817 A.2d 1033, 1047 (2002)
(citations omitted).
Where, however, private individuals act not of their own accord but,
instead, as an instrument or agent of the state, they will be deemed state
actors subject to the proscriptions of the Fourth Amendment. Coolidge v.
New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564,
595 (1971). Decisional law of this Commonwealth has examined the question
of what constitutes state action in such circumstances.
As set forth [in the Pennsylvania Supreme Court decision
Commonwealth v. Corley, 491 A.2d 829 (Pa. 1985)], therein,
the guiding principles are those first established by the United
States Supreme Court in Lugar v. Edmondson Oil Co., Inc, 457
U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). In Lugar, the
Supreme Court held that the conduct allegedly causing the
deprivation must be fairly attributable to the state. In explaining
the “fair attribution” test, the United States Supreme Court
stated:
[Our] cases reflect a two-part approach to the
question of “fair attribution.” First, the deprivation
must be caused by the exercise of some right or
privilege created by the state .... Second, the party
charged with the deprivation must be a person who
may fairly be said to be a state actor. This may be
because ... his conduct is otherwise chargeable to the
state.
Lugar, 457 U.S. at 937, 102 S.Ct. at 2754, 73 L.Ed.2d at 495.
The critical factor for purposes of determining whether state action
is involved is whether the private individual, in light of all the
circumstances, must be regarded as having acted as an
“instrument” or agent of the state. Corley, 507 Pa. at 548, 491
A.2d at 832, citing Coolidge[, 403 U.S. at 487.] This Court made
clear in Corley that mere cooperation with the authorities alone
does not constitute “state action.” In other words, the mere fact
that police and prosecutors use the results of an individual's
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actions does not, alone, elevate those actions to the level of state
action. Where, however, the relationship between the person
committing the wrongful acts and the State is such that those acts
can be viewed as emanating from the authority of the State, the
principles established in Corley dictate a finding of state action.
Price, 672 A.2d 280, 283–84 (Pa. 1996).
In the wake of an unprovoked, LSD-induced violent attack committed
by Appellant’s roommate and guests, who later required hospitalization for
LSD overdose, Villanova University’s administration determined its duties to
ensure student safety required it to ascertain whether LSD or other
contraband that could make its way elsewhere on campus remained in the
offenders’ dorm room. The University made this decision unilaterally, and it
initiated a search of Appellant’s dorm room in accordance with University
regulations,2 without input, oversight, or assistance from Radnor Township
Police.
As noted, supra, the initial plain view search conducted by
administrators and VUPS officers uncovered a grocery bag of what appeared
____________________________________________
2 On this point, the trial court found:
The evidence demonstrated that [Appellant] entered a housing
contract with the University and agreed to its terms and conditions
to secure on-campus housing. By the terms of the contract
[Appellant] is required to comply with all University policies,
procedures and regulations and the University reserved the right
to enter a dormitory room without prior permission if it has reason
to believe that an emergency exists or that violations of University
policy are occurring or may have occurred.
Trial Court Opinion, at 8.
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to be professionally packaged and sealed marijuana, a scale, a large
hypodermic needle on a desk, and a large sum of cash on a shelf above the
desk. Only then did the University contact Radnor Township Police to inform
them that an ongoing room search uncovered what appeared to be evidence
of illegal drug possession.
The police arrived and remained in the hall on stand-by while VUPS
officers completed their search, which uncovered LSD from inside Appellant’s
desk. According to testimony, Radnor police never participated in the search
or directed the actions of the VUPS officers in completing their search. N.T.
12/19/16, at 20-21; 4/18/17, at 30-31.
This evidence supports the trial court’s conclusion that the University
conducted its search on its own terms and in accordance with its own policies
aimed at preserving student safety.3 Proceeding in this way, it did not act
jointly with the police or at the behest of the police in carrying out its search.
Only after completing its task in this regard did the University then turn over
to police what it believed to be evidence of a crime.
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3 The University unilaterally conducted a search of Appellant’s dorm room in
a manner consistent with university policies and the housing contract into
which Appellant willingly entered. The housing contract provides that the
University may be permitted to enter and inspect rooms without prior
permission if there is reason to suspect there are unsafe conditions. The
Student Handbook repeats these provisions and provides that “a student’s
personal privacy should be maintained at all times unless the University has
reason to suspect that a dangerous situation exists or that violations of
University policy have occurred or are occurring.” See Supplemental
Memorandum of Law in Support of Motion to Suppress, filed 12/2/16, at 3.
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As explained above, the mere fact that police and prosecutors use the
results of a private actor’s search alone does not transform the private action
into state action. Price, 672 A.2d at 284. Because the present facts
demonstrate nothing more than the University’s conveyance of privately
obtained evidence to police, the University’s search is not attributable to the
state on this basis.4
Likewise, we reject Appellant’s alternate argument that VUPS had been
delegated a public function by the state. The “public function” test of private
actor conduct pertains to “where a private actor is performing activities or
services which traditionally have been the exclusive prerogative of the state.”
Hennessy v. Santiago, 708 A.2d 1269, 1276 (Pa.Super. 1998) (identifying
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4 Appellant cites federal decisions discussing circumstances when a private
actor works jointly with the state, making him a state actor for purposes of
Section 1983 liability, but he fails to demonstrate the existence of such
circumstances in his case. For instance, Appellant notes that in Fleck v.
Trustees of University of Pennsylvania, 995 F.Supp.2d 390 (E.D. Pa.
2014), the district court recognized Section 1983 jurisprudence has left open
the circumstances under which “private security officers may be held to have
performed public functions for purposes of § 1983 suits . . . . [if they] work[]
jointly with a township police officer” Id. at 402 (citing Padover v. Gimbel
Bros, Inc., 412 F.Supp. 920 (E.D. Pa. 1976) (denying § 1983 defendants’
motion to dismiss for want of state action where complaint alleged two private
security guards, one of whom was also municipal police officer, jointly arrested
and assaulted plaintiff)).
Here, the Radnor Township Police Department neither directed nor
participated in the search of Appellant’s room. Therefore, the cases upon
which Appellant relies to advance his claim that the University and the police
department worked jointly in performing the search are inapposite given the
facts of this case.
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“public function” test as one of several paradigms of state action by a private
individual developed by United States Supreme Court jurisprudence).
Appellant maintains that, “despite nominally referring to themselves as
mere ‘security’ officers, in fact, [VUPS] served the public function of a formal
police force and were state actors under the public function test.” Appellant’s
brief, at 21. Specifically, Appellant contends:
[T]he officers, who wore uniforms and were otherwise a formal
security force, were the only police force for the University at the
time. They responded to all emergencies or allegations of criminal
conduct, and were even “allowed to restrain” individuals
suspected of wrongdoing. Whatever their title, the VUPS officers
were the de facto police on campus at the time of the search.
Indeed, despite encountering the two students and the visitor who
had ingested LSD just after midnight, the VUPS officers were
solely responsible for the criminal investigation of the source of
the drugs well into the following afternoon when the search was
conducted. After all, Director Tedjeske was clear that the VUPS
officers did not call Radnor Township Police to the scene until after
they had discovered drugs in [Appellant’s] room. The VUPS had
therefore “been delegated a public function by the State,”
sufficient to render them state actors.
Appellant’s brief, at 21-22.
The record belies Appellant’s argument that the VUPS was a police
force—let alone the only police force, as the University resides in Radnor
Township and comes within the municipal jurisdiction of the Radnor Township
Police Department. Indeed, testimony offered at both suppression hearings
established that VUPS officers oversaw security on campus, but they carried
no weapon or handcuffs, and they possessed no arrest powers.
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Furthermore, when the administrative search of Appellant’s dorm room
discovered evidence of drug dealing, the University called the police for the
purpose of taking evidence retrieved from the room, arresting suspects, and
filing charges.
Hence, the record makes clear that no plenary police powers were
vested upon VUPS from state laws. As such, Appellant’s reliance on Fleck,
supra, and Henderson v. Fisher, 631 F.2d 1115 (3d Cir. 1980), two Section
1983 cases, to make the case that VUPS officers served the public function of
a formal police force is misplaced.
In Henderson, the Third Circuit Court of Appeals observed the
University of Pittsburgh campus police acted under color of state authority by
virtue of state legislation specifically stripping the University of Pittsburgh of
its wholly private character and deeming it “an instrumentality of the
Commonwealth to serve as a State related institution.” The Pennsylvania
legislature, therefore, declared the University of Pittsburgh derives its
authority from the state, the Third Circuit noted.
Furthermore, the legislature also delegated to the campus police the
very powers which the municipal police force of Pittsburgh possesses, the
Court continued. Therefore, because the campus police department was
endowed by the state with powers and functions governmental in nature, it
was a state actor. Id. at 1118.
In Fleck, the federal district court reasoned that Penn’s “state-actor
status rests not on its source of funds but on the police service performed[.]”
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Id. at 401. In this respect, Penn’s police department enjoyed plenary police
powers conferred upon it through Pennsylvania law, the district court found.
Thus having plenary powers in a patrol-zone territory once the “exclusive
prerogative” of the City of Philadelphia, the Penn police department was a
state actor, the court concluded.
In contrast, the powers vested unto VUPS officers were not tantamount
to those within the exclusive prerogative of the state. Instead, they derived
from the University and were limited in scope relative to municipal police
powers.
For these reasons, we conclude that the trial court committed no abuse
of discretion or error of law in making its determination that VUPS officers
were not state actors for purposes of the Fourth Amendment. As such, the
court appropriately refused to invoke the exclusionary rule under the Fourth
Amendment and denied Appellant’s motion to suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/18
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