Debroux v. Commonwealth

LEMONS, Judge.

Anthony Dion Debroux appeals his convictions for possession of marijuana and possession of cocaine. On appeal, he contends the trial court erroneously concluded that the search of his person resulting in the discovery of the drugs did not violate the Fourth Amendment. Finding no reversible error, we affirm.

I. BACKGROUND

On the evening of September 28, 1997, Sergeants Timothy Walker and Robert McMurtrie were employed by American International Security and were working as security guards at a McDonald’s Restaurant. That evening, a woman banged on the door and asked to use the restroom. At the time, the interior of the restaurant was closed and the doors were locked, but the “drive-thru” remained open. The woman was refused entry and left but returned a few minutes later with the same request. After this process repeated itself three or four times, Walker and McMurtrie and a third security guard went outside and asked the woman for identification. The woman said it was in her car. As the guards escorted her to her vehicle, Debroux and another man exited the vehicle and approached the officers. The woman got into her car and remained there.

Debroux and his companion were “loud and disorderly,” “yelling and screaming” profanities, and asked why the guards stopped the woman. Debroux had red and glassy eyes, slurred speech and an odor of alcohol about his person. He was “a little unsteady on his feet” and “didn’t know where he was, [or] what was going on.” The guards determined that he was slightly intoxicated but concluded they lacked the evidence necessary to secure a warrant. After Debroux became even more disorderly, McMurtrie patted him down for safety. McMurtrie felt a bulge in Debroux’s right pants pocket and removed the item, which included two small bags containing .82 grams of cocaine, two bags containing 3.29 grams of marijuana and a folded paper towel containing what appeared to be seeds.

At trial, Debroux moved to suppress the drugs. Debroux contended that the security guards admitted they were registered with the state and were, therefore, governmental actors. He also argued that the officers admitted they lacked probable cause and, even if McMurtrie was justified in patting down Debroux for weapons, he could not identify the bulge as a weapon and should not have removed it from Debroux’s pocket.

The Commonwealth’s attorney did not argue the state action issue but, rather, claimed that probable cause existed for an arrest for disorderly conduct or obstruction of justice and public intoxication and that the guards were entitled to conduct a full search incident to arrest.

A review of the record indicates that Walker was registered with the Commonwealth pursuant to Code § 9-183.3. There is no evidence that McMurtrie, who conducted the search, was so registered.

The trial court denied the motion to suppress and stated: Based upon [Debroux’s] actions in terms of being disorderly, I think the officers had the appropriate right and responsibility to conduct a pat down. While there was some question as to the definition of the item found, I do not think that the officers’ action in searching was unreasonable. I think it was justified by the case law.

Debroux entered a plea of guilty but reserved his right to appeal the denial of the suppression motion.

II. STATE ACTION

The Fourth Amendment is violated where an unreasonable search is conducted by state actors. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). “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), aff'd 251 Va. 437, 470 S.E.2d 862 (1996). In Duarte v. Commonwealth, 12 Va.App. 1023, 1025, 407 S.E.2d 41, 42 (1991), we stated,

“[T]he rule which excludes the evidence obtained by unlawful search because in violation of the Fourth Amendment does not apply where the unlawful search was made by a private individual acting on his own initiative.” Harmon v. Commonwealth, 209 Va. 574, 577, 166 S.E.2d 232, 234 (1969). Thus, fourth amendment protections against unreasonable searches and seizures are “wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official.’ ” United States v. Jacobsen, 466 U.S. 109, 113[-14, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85] (1984) (quoting Walter v. United States, 447 U.S. 649, 662[, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410] (1980)); See Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602[, 109 S.Ct. 1402, 103 L.Ed.2d 639] (1989).

Whether government action is implicated “necessarily turns on the degree of the Government’s participation in the private party’s activities, a question that can only be resolved ‘in light of all the circumstances.’ ” Id. at 1026, 407 S.E.2d at 42 (quoting Skinner, 489 U.S. at 613-14, 109 S.Ct. at 1411). “[T]o exclude evidence based on a fourth amendment violation, a defendant must demonstrate the contested search or seizure was conducted by an officer of the government or someone acting at the government’s direction rather than a private individual acting on his own initiative.” Duarte, 12 Va.App. at 1025, 407 S.E.2d at 42; See 5 W. LaFave, Search and Seizure § 11.2(b), at 37 (3d ed. 1996). The general rule is that private security guards registered with the state pursuant to Code § 9-183.3 are not, on that basis alone, state actors. See, e.g., Coston v. Commonwealth, 29 Va.App. 350, 353, 512 S.E.2d 158, 160 (1999).

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 Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible from it. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). The findings of the trial court will not be disturbed unless plainly wrong or without evidence to support them. See Mier v. Commonwealth, 12 Va.App. 827, 828, 407 S.E.2d 342, 343 (1991). When reviewing the trial court’s denial of a defendant’s motion to suppress evidence, “[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.” McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quotation marks and citations omitted).

At Debroux’s suppression hearing, the initial burden was on Debroux to establish that a search was conducted by state actors. See, e.g., Mills v. Commonwealth, 14 Va.App. 459, 464, 418 S.E.2d 718, 720 (1992) (“ ‘[I]t is the movant’s burden to establish by a preponderance of the evidence that the private party acted as a government instrument or agent’----”); Duarte, 12 Va.App. at 1025, 407 S.E.2d at 42. After the burden of going forward with the evidence has been met by a preponderance of the evidence, the burden shifts to the Commonwealth to establish that the search and seizure were constitutionally permissible. See, e.g., Mills, 14 Va.App. at 464, 418 S.E.2d at 720.

The Commonwealth could prevail on the motion to suppress by defeating a claim of state action or by proving an exception to the warrant requirement for a search. Here, the Commonwealth argued that the search was permissible as an exception to the warrant requirement. The trial court did not address the issue of state action.

In Driscoll v. Commonwealth, 14 Va.App. 449, 417 S.E.2d 312 (1992), we recognized that “[a]n appellate court may affirm the judgment of a trial court when it has reached the right result for the wrong reason.” Id. at 452, 417 S.E.2d at 313. We also noted that the “right result, wrong reason” rule does not apply where “the correct reason for affirming the trial court was not raised in any manner at trial” and “where, because the trial court has rejected the right reason or confined its decision to a specific ground, further factual resolution is needed before the right reason may be assigned to support the trial court’s decision.” Id. at 452, 417 S.E.2d at 313-14. On appeal, we may affirm on grounds different from those on which the trial court based its decision so long as the issue was addressed at trial, evidence exists in the record to support those alternate grounds, the trial judge’s decision does not reject those grounds, and no further factual resolution is necessary to support the decision. See Driscoll, 14 Va.App. at 452, 417 S.E.2d at 314; see, e.g., Thims v. Commonwealth, 218 Va. 85, 235 S.E.2d 443 (1977) (despite the trial court’s failure to specifically find exigent circumstances, the Supreme Court of Virginia held in the alternative that those circumstances existed and that the challenged search was lawful).

In this case, as in Driscoll, there is no conflicting evidence with respect to the state action issue. In fact, the evidence in this record clearly supports a finding that there was no state action. The record indicates that Debroux was detained by privately employed security guards, one of whom was registered with the Commonwealth pursuant to Code § 9-183.3. The evidence does not show that the security guard who searched Debroux was registered. Debroux offered no evidence that the guards acted under government direction or that the government participated in their activities. Walker and McMurtrie were privately employed to patrol the McDonald’s Restaurant, and their duty was to serve the restaurant and protect its interests. They were not police officers. No evidence proved that any law enforcement agencies knew about or exercised any power or control over their actions on the night in question. ‘While it was [McDonald’s] policy to invoke the protection of the law and the. police to vindicate its rights through public process, the duty of its agents did not necessarily require police involvement or criminal prosecution. The cooperation which those agents gave to the police was merely coincident to the performance of their private duties.” Mier, 12 Va.App. at 833, 407 S.E.2d at 346 (citations omitted).

From the initial contact with Debroux until the subsequent arrest and disputed search and seizure, the evidence showed that the security guards were acting pursuant only to their private employment, conduct which presents no Fourth Amendment issues. See, e.g., United States v. Francoeur, 547 F.2d 891, 893 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977); Coston, 29 Va.App. at 353, 512 S.E.2d at 160; Mier, 12 Va.App. at 833, 407 S.E.2d at 346; Duarte, 12 Va.App. at 1025, 407 S.E.2d at 42.

This case is distinguished from Johnson v. Commonwealth, 26 Va.App. 674, 496 S.E.2d 143 (1998), in one important respect. In Johnson we observed,

[biased on the parties’ representations and its own review of the relevant legal principles, the trial court held that the [Virginia Marine Resources Commission] had no administrative authority to conduct a warrantless inspection or search of the premises for untagged striped bass.

Id. at 681, 496 S.E.2d at 146. Because the Commonwealth conceded the issue at trial and the trial judge decided the issue accordingly, the Commonwealth was barred from raising the issue on appeal. We said,

[i]n this case, the Commonwealth’s attorney conceded in the trial court that “there is no regulatory scheme under Burger ” that would permit application of the administrative search exception to the warrant requirement. The trial court agreed. Therefore, the Commonwealth is barred from asserting the exception as a basis for affirmance on appeal. See, e.g., Manns v. Commonwealth, 13 Va.App. 677, 679-80, 414 S.E.2d 613, 615 (1992) (holding that a party, “having agreed upon the action taken by the trial court, should not be allowed to assume an inconsistent position”) (quoting Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979)).

Johnson, 26 Va.App. at 683, 496 S.E.2d at 147.

Here, the Commonwealth did not concede the issue of state action, nor did the trial judge decide the issue. The Commonwealth’s position and the trial court’s decision were not unlike the reasoning in many cases where the decision-maker bypasses an issue because the case can be resolved without addressing it. Often, appellate courts will preface such reasoning by stating, “assuming without deciding.” The record does not reveal a concession by the Commonwealth, nor does it reveal that the issue of state action was decided by the trial court.

This case also is distinguished from Moore v. Commonwealth, 14 Va.App. 198, 415 S.E.2d 247 (1992), cited by the dissent. In Moore, an appeal of a conviction for driving after having been declared an habitual offender, the Commonwealth on appeal asserted that Moore’s double jeopardy argument was procedurally defaulted because he did not offer proof at trial of his prior convictions for reckless driving, failing to stop and attempting to elude a police officer. We observed, “the Commonwealth conceded that appellant had ‘been tried’ on the prior ‘crimes.’ ” Id. at 200, 415 S.E.2d at 248.

The existence of prior “crimes” is a necessary element of double jeopardy analysis, and the record in Moore clearly supported our conclusion that the Commonwealth conceded the matter at trial. By contrast, the issue whether the officers were state actors did not have to be decided because the trial judge decided the case on alternative grounds.

Concluding that Debroux did not establish by preponderance of' the evidence that state action was involved, it is unnecessary to address the merits of the Fourth Amendment claim. Accordingly, we hold that the trial court did not err in denying the motion to suppress. The convictions are affirmed.

Affirmed.