O'Connor v. Municipality of Anchorage. (12/15/95) ap-1448
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL R. O'CONNOR, )
) Court of Appeals No. A-5002
Appellant, ) Trial Court No. 3AN-93-2771 Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1448 - December 15, 1995]
______________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, Natalie K. Finn
and Gregory J. Motyka, Judges.
Appearances: Christine S. Schleuss,
Anchorage, for Appellant. James L. Walker,
Assistant Municipal Prosecutor, and Mary K.
Hughes, Municipal Attorney, Anchorage, for
Appellee.
Before: Bryner, Chief Judge,
Mannheimer, Judge, and Andrews, Superior
Court Judge.* [Coats, Judge, not
participating.]
MANNHEIMER, Judge.
We renew our consideration of Michael R. O'Connor's
appeal of his conviction for driving while intoxicated, Anchorage
Municipal Code ' 9.28.020. Having considered O'Connor's claims,
we affirm his conviction.
To recapitulate the facts of the case: O'Connor was
detained by two private citizens, Mssrs. Hugo and Campbell, at a
7-Eleven convenience store. Hugo observed O'Connor pull into the
parking lot and concluded that O'Connor was intoxicated. Hugo
maneuvered his own car to prevent O'Connor from driving away. He
then asked Campbell, the store clerk, to call the police.
Campbell observed O'Connor and also concluded that O'Connor was
intoxicated. When O'Connor tried to secure a ride from a cab
driver, Campbell dissuaded the cab driver from accepting O'Connor
as a passenger. The police eventually arrived at the 7-Eleven
and arrested O'Connor. O'Connor v. Anchorage, Memorandum Opinion
and Judgement No. 2942 (Alaska App., July 13, 1994), pp. 1-2.
O'Connor asserts that the evidence against him should
be suppressed because he was subjected to an unlawful arrest by
the two private citizens. However, as we noted in our prior
opinion, the exclusionary rule does not apply to actions of
private citizens unless the private citizens acted in conjunction
with, or at the behest of, the government. O'Connor, Memorandum
Opinion at 2-3. We therefore remanded this case to the district
court for consideration of O'Connor's argument that Hugo and
Campbell had acted in conjunction with the police, so that their
detention of O'Connor should be considered government action for
purposes of the Fourth Amendment and the exclusionary rule.
Following an evidentiary hearing, District Court Judge
Gregory J. Motyka concluded that the Anchorage police "[n]either
instigated [n]or significantly participated in the actions of ...
Hugo and Campbell." Judge Motyka found that Hugo took action to
detain O'Connor (blocking the exit of O'Connor's car) before
anyone called the Anchorage police. Judge Motyka further found
that Hugo's action was motivated by his own "personal interest in
making sure [O'Connor] did not get into his car and drive away,
since [Hugo] and his family were on the road at the same time".
O'Connor argues that, even if Hugo and Campbell began
their detention of O'Connor without police instigation, their
actions later became government action for purposes of the Fourth
Amendment. O'Connor notes that, after Hugo and Campbell notified
the police of what was occurring at the 7-Eleven store, the
police did nothing to dissuade Hugo and Campbell from continuing
their detention of O'Connor.
According to testimony presented at the hearing on
remand, when the police receive a telephone call like the one in
this case (a private citizen informing the police that he or she
is holding a suspected drunk driver), the police dispatcher will
neither encourage the private citizen to continue the detention
nor suggest that the private citizen release the driver. Rather,
the dispatcher will merely say that the police are on their way.
O'Connor argues that this practice constitutes tacit
condonation of the private citizen's arrest. He contends that
the police, by failing to question the basis for O'Connor's
detention, tacitly encouraged Hugo and Campbell to hold O'Connor
until patrol officers could arrive to investigate. Therefore,
O'Connor argues, any evidence obtained through Hugo and
Campbell's actions should be suppressed if it later turns out
that Hugo and Campbell lacked probable cause to make an arrest.
O'Connor cites United States v. Reed, 15 F.3d 928, 930-
33 (9th Cir. 1994), for the proposition that a private citizen's
violation of Fourth Amendment rights becomes attributable to the
government when the police know of the private citizen's intended
search or seizure and acquiesce in it, intending to take
advantage of the fruits of the private citizen's actions. This,
however, is too broad an interpretation of Reed.
In Reed, the police waited outside a hotel room while
the hotel manager checked the room, ostensibly to make sure that
hotel property had not been damaged. However, the hotel
manager's search of the room far exceeded what was necessary to
determine that the room was in good order. As the police stood
in the doorway, the hotel manager rummaged through drawers and a
closed briefcase, concededly searching for evidence that the
hotel guest was engaged in drug dealing. 15 F.3d at 931. The
Ninth Circuit found that the hotel manager, "[by] opening Reed's
briefcase and dresser drawer[s]", exceeded the limits of whatever
legitimate private motive he might have had to search the room.
15 F.3d at 932. The Ninth Circuit further found that the police
officers who stationed themselves at the door to the room "knew
[that the hotel manager] was invading Reed's personal property,
knew that this conduct [was] prohibited by law, and helped [the
manager] do so anyway". Id. That is, the police knew that the
hotel manager was exceeding his authority, and they abetted him.
By contrast, in United States v. Cleaveland, 38 F.3d
1092 (9th Cir. 1995), the Ninth Circuit distinguished Reed and
refused to suppress evidence obtained during a private search.
In Cleaveland, an electric utility had received information that
one of its customers was illegally diverting electricity to
conduct indoor marijuana cultivation. The electric company
notified the police that it would be sending an agent to inspect
the electric meter at Cleaveland's residence. The police sent a
detective to accompany the electric company employee. When the
employee examined the wiring going into Cleaveland's house, he
discovered that Cleaveland had surreptitiously tapped the
company's electric lines. 38 F.3d at 1093.
The Ninth Circuit concluded that this had been a
private search:
It was [the electric company], not the
police, who initiated the plan to inspect the
meter. There was no reason why the detective
should have restrained [the electric company
employee] or discouraged him in his search,
Miller [v. United States], 688 F.2d [652,]
657 [(9th Cir. 1982)], because [the employee]
never exceeded his authority under the
Customer Service Agreement to go on the
property and inspect the meter. Compare
Reed, 15 F.3d at 931-32 (after confirming
hotel room's [good] condition, manager
proceeded to rummage unlawfully through
defendant's dresser drawers and luggage while
police watched).
Cleaveland, 38 F.3d at 1094 (internal quotations omitted). See
also
United States v. Jenkins, 46 F.3d 447 (5th Cir. 1995):
While the government agents clearly knew of
Boyd's [the private citizen's] actions, they
reasonably believed that Boyd had actual
authority over the [property], and therefore
[they] had no reason to believe that any of
Boyd's conduct violated the Fourth Amendment.
Based on their reasonable belief in the
propriety of Boyd's actions, we cannot say
that the government agents "knew of or
acquiesced in" conduct violative of the
Fourth Amendment.
Jenkins, 46 F.3d at 460.
This point (whether the police have a duty to intervene
in, or prevent, an ongoing private search) is addressed in Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
(2nd ed. 1987), ' 1.8(b). After quoting Stapleton v. Superior
Court, 447 P.2d 967, 970-71 (Cal. 1969) ("[Police] knowledge of
the [private citizen's] illegal search coupled with a failure to
protect the petitioner's rights against such a search suffices
[to establish government involvement in the search]"), LaFave
continues:
[W]hen are the police obligated to [instruct
a private person not to engage in a search]
or otherwise take steps to prevent a private
search? Although the issue is not well
developed in the decided cases, some
pertinent observations may be made. For one
thing, the reference in Stapleton is to an
"illegal search," and thus it may be said
that the police need not attempt to prevent a
search which the private party may lawfully
make merely because such a search could not
be undertaken by the police officer himself.
Secondly, it would appear to be of some
significance that in Stapleton the police put
the agent into the situation where he was in
a position to make the search. If, on the
other hand, police have been called to the
scene and are thus present while a private
person retrieves evidence of a crime which he
had uncovered before contacting the police,
and the private person's authority to make
the search is not obviously nonexistent,
courts do not appear to be concerned about
the failure of the police to prevent the
search.
LaFave, ' 1.8(b), Vol. 1, pp. 181-82.
Applying this discussion of private searches to the
facts of O'Connor's case (a private arrest), we conclude that
Hugo and Campbell's arrest of O'Connor was not government action
for Fourth Amendment purposes. The police did not instigate Hugo
and Campbell's detention of O'Connor, nor did they suggest to
Campbell that he dissuade the cab driver from accepting O'Connor
as a passenger. The testimony at the remand hearing indicated
that, even after the police were notified that Hugo and Campbell
had detained O'Connor on suspicion of drunk driving, the police
dispatcher gave no instructions to Hugo and Campbell but only
notified them that officers were on their way.
Private citizens are authorized to arrest suspected
lawbreakers if the crime is committed in their presence.
AS 12.25.030(a)(1). Campbell told the police that he and Hugo
were holding an intoxicated driver at the 7-Eleven store. Based
on this information, the police could reasonably conclude that a
criminal offense had been committed in Hugo and Campbell's
presence and that the two men had the authority to detain
O'Connor. The police therefore had no obligation to direct Hugo
and Campbell to release O'Connor.
O'Connor also argues that even if the police did not
instigate Hugo's and Campbell's actions, their detention of
O'Connor is nevertheless attributable to the government because
their only motive in detaining O'Connor was to aid the police in
law enforcement. O'Connor concedes that Hugo and Campbell might
have had a private interest in making sure that O'Connor did not
drive in an intoxicated state. Nevertheless, O'Connor asserts,
Hugo and Campbell had no private interest in stopping him from
leaving in a cab. O'Connor argues that Hugo and Campbell had
only one possible motive C aiding law enforcement C when they
dissuaded the cab driver from accepting O'Connor as a passenger.
This, too, in O'Connor's view, transformed Hugo's and Campbell's
actions into government action.
We reject O'Connor's argument. First, if a search is
indeed a private search (that is, if the government has not
instigated or cooperated in the search), then it makes no
difference whether the citizen's motive was to uncover crime or
aid law enforcement. LaFave, ' 1.8(a), Vol. 1, p. 177 & n.23.
Second, we disagree with O'Connor's assertion that citizens have
no personal interest in making sure that an apprehended drunk
driver is turned over to the authorities.
The judgement of the district court is AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant to Article IV,
Section 16 of the Alaska Constitution.
