The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION AND ORDER*fn1
Before this Court is a motion by Jeremy Couch ("Defendant")
requesting suppression of the physical evidence and statements
taken from him on May 14, 2004 as evidence obtained in violation
of the Fourth Amendment. For the following reasons, the motion is
The Schenectady Municipal Housing Association ("SMHA") is a
federally subsidized housing authority governed by the
United States Department of Housing and Urban Development ("HUD") and
subject to Congressional acts, applicable statutes, executive
orders, HUD rules and regulations, including Title 24 of the Code
of Federal Regulations. Transcript of Evidentiary Hearing held on
April 6, 2005 ("Tr.") at 8, 12, 57. Defendant's sister, Kenya
Rowe ("Rowe"), leased an apartment, 80 Steinmetz Homes, from SMHA
beginning on October 17, 2002. Gov't Ex. 1.*fn2 Article 18
of the lease allows the landlord to "enter a unit, during
reasonable hours, for routine inspections, repairs or
maintenance, making improvements, or to show the apartment for releasing." Id. Pursuant to Article 18 of the lease, written
notice of the entry must be given at least two days in advance.
On May 10, 2004, SHMA Tenant Investigator Denise Brucker
("Brucker") received numerous complaints concerning noise and
individuals not on the lease entering Rowe's apartment. Tr. at
98, 100. An "Incident Report" was prepared indicating in the
narrative section that: "lot of noise, people in/out. Several
comp. [complaints] about possible drug trafficking . . . Brother
may be living there recently released from prison." Gov't Ex.
2. As a result, Brucker believed that possible lease violations
were occurring, and on May 10, 2004, pursuant to Rowe's lease
agreement and 24 C.F.R. § 966.4(j), sent a "Two (2) Day Entry
Notice" to Rowe at 80 Steinmetz Homes by first class mail,
informing her that a lease inspection was going to occur. Tr. at
77-78, 95, 101; Gov't Ex. 3.
On the morning of May 14, 2004, the lease inspection of 80
Steinmetz Homes took place. No search warrant was obtained prior
to entry. Tr. at 126. Brucker was accompanied by Arthur Zampella
("Zampella"), the SHMA Security Coordinator and a Sergeant with
the City of Schenectady Police Department, William Gallop
("Gallop"), a SHMA representative and an officer with the
Glenville Police Department, and a Schenectady County Sheriff's
Department canine Zimmer, handled by Deputy David Leffingwell
("Leffingwell"). Tr. at 102-03, 138, 178-79. The group entered
through an unlocked back door after knocking and announcing their
presence, and observed Defendant sleeping on the coach in the
living room. Tr. at 105, 139, 178. The upstairs portion of the
apartment was inspected by Gallop, Leffingwell, and canine Zimmer
for lease violations. Tr. at 108, 140, 178. Defendant was then
asked by Zampella to move to the kitchen so that the couch and living room area could be
inspected, at which point Gallop observed that Defendant had a
handgun in his waistband. Tr. at 108, 141, 181-82. In response to
his observation, Gallop yelled "gun", the officers restrained
Defendent, took possession of the handgun, and placed Defendant
in handcuffs. Tr. at 108-09, 142, 182. Zampella then contacted
the City of Schenectady Police Department to arrest and transport
Defendant. Tr. at 143, 182. After the handgun was seized from
him, Defendant stated that the handgun was not his and that he
had found it the night before. Tr. at 109, 144; Def. Ex. 4.
Defendant was subsequently indicted on charges under
18 U.S.C. §§ 922(g) and 924(a)(2) for possession of a firearm after having
been previously convicted of a felony. Dkt. No. 11.
On January 7, 2005, Defendant filed this motion requesting
suppression of the physical evidence and statements taken from
him on May 14, 2004 as evidence obtained in violation of the
Fourth Amendment. Dkt. No. 14. A suppression hearing was held on
April 6, 2005. Dkt. No. 27.
Defendant asserts that the physical evidence should be
suppressed because Zampella, Gallop, and Leffingwell, as on or
off-duty law enforcement personnel, were investigating possible
criminal activity, and therefore were government actors required
to act in accordance with the Fourth Amendment. Def. Memo. (Dkt.
No. 28) at 3. Alternatively, Defendant contends that even if
Zampella and Gallop were functioning as private employees for
SMHA, their relationship with the Schenectady County Sheriff's
Department and the inclusion of Leffingwell made them agents or
instruments of the Sheriff's Department. Id. at 5. The
Defendant also states that oral statements he made to Zampella, Gallop, and
Leffingwell concerning ownership of the handgun should be
suppressed as fruit of an unconstitutional search.
The Government asserts that the inspection of Rowe's residence
was performed in conformity with Rowe's lease agreement and the
Code of Federal Regulations and that Zampella, Gallop, and
Leffingwell were not acting in their official capacities as law
enforcement officers, but rather as SMHA representatives at the
time of the lease inspection. Gov't Memo. (Dkt. No. 29) at 12.
A. Permissibility of Lease Inspection
The goal of SMHA is to provide safe, sanitary housing to
low-income individuals, elderly families, and families of
individuals with disabilities. Tr. at 8-9. To ensure such safe
and sanitary housing, the tenants' standard lease agreement
contains prohibitions on certain objectionable activities and
remedies to address suspected lease violations. In this
particular circumstance, Article 15 of Rowe's lease agreement
outlined various tenant obligations, including prohibitions on
providing accommodations to boarders or lodgers, engaging in
conduct that disturbs neighbors, engaging in illegal activity or
activity that impairs the physical or social environment of the
neighborhood, and engaging in unlawful or disorderly conduct that
is a hazard to safety. Gov't Ex. 1. Article 18 of Rowe's lease
creates a right for SMHA to inspect a tenant's apartment by
1. The Authority's representative shall be permitted
to enter a unit, during reasonable hours, for routine
inspections, repairs or maintenance, making
improvements, or to show the apartment for releasing.
2. Written notice, specifying reasons for entry and
delivered to the unit at least 2 days in advance,
constitutes "reasonable notification."
Gov't Ex. 1. This lease provision tracks the provisions found in
Title 24 of the Code of Federal Regulations § 966.4(j)(1).*fn3
On May 10, 2004, Brucker, a SHMA tenant investigator, after
receiving various complaints concerning Rowe's apartment
including noise, persons not on the lease being present, and
possible drug activity, sent Rowe a Two-Day Entry Notice stating
that an inspection for possible lease violations would occur. Tr.
at 77-78, 95, 101; Gov't Ex. 3. The Court finds that this notice
complied with Article 18 of Rowe's lease agreement and
24 C.F.R. § 966.4(j)(1). As a result, SMHA did have the authority to enter
Rowe's apartment to inspect for lease violations on May 14, 2004.
B. Capacity of Off-Duty Police Officers To Perform Lease
Regardless of SMHA's authority to perform a lease inspection,
it must also be determined whether Zampella, Gallop, and
Leffingwell were required to comply with the constitutional
requirements of the Fourth Amendment, such that the failure to
comply with those requirements tainted the evidence that was
obtained and requires its exclusion.
The first clause of the Fourth Amendment provides that the
"right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. CONST. amend. IV. Implicit in
that guarantee is the requirement that an agent of the government
perform those searches and seizures. Burdeau v. McDowell,
256 U.S. 465, 475 (1921). The Supreme Court has held that the
Fourth Amendment is "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 government official.'" United States v.
Jacobsen, 466 U.S. 109, 113 (1984) (citing Walter v.
United States, 447 U.S. 649, 662 (1976)); see also United States v.
Bennett, 709 F.2d 803, 805 (2d Cir. 1983).
The party objecting to the search has the burden to establish
by a preponderance of the evidence that the government
involvement was significant enough to change the character of the
search. See United States v. Feffer, 831 F.2d 734, 739 (7th
Cir. 1987); United States v. Snowadzki, 723 F.2d 1427, 1429
(9th Cir. 1984). Defendant must therefore demonstrate either that
Zampella, Gallop, or Leffingwell were in fact acting in their
capacity as police officers or were acting as agents ...