Debroux v. Commonwealth

528 S.E.2d 151, 32 Va. App. 364, 2000 Va. App. LEXIS 331
CourtCourt of Appeals of Virginia
DecidedMay 2, 2000
DocketRecord 2737-98-1
StatusPublished
Cited by29 cases

This text of 528 S.E.2d 151 (Debroux v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Debroux v. Commonwealth, 528 S.E.2d 151, 32 Va. App. 364, 2000 Va. App. LEXIS 331 (Va. Ct. App. 2000).

Opinions

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 [368]*368violate 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 [369]*369cause 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 [370]*370private 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 [371]*371denial 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.

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Bluebook (online)
528 S.E.2d 151, 32 Va. App. 364, 2000 Va. App. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debroux-v-commonwealth-vactapp-2000.