United States District Court, N.D. New York
July 6, 2005.
JEREMY COUCH, Defendant.
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 or
instruments of the Government at the time of the lease
inspection, and were therefore subject to Fourth Amendment
1. Acting As Police Officers
To determine whether an off-duty police officer is acting in
his or her official capacity or acting as a private citizen, the
Court must apply a twofold test. "First, we must examine the
capacity in which the off-duty police officer was functioning
when the officer initially confronted the situation and second,
we must examine the manner in which he or she conducted himself
or herself from that point forward." State v. Andrews,
637 A.2d 787, 790-91 (Conn.App.Ct. 1994); see also In re Albert S.,
664 A.2d 476, 484-85 (Md. Ct. Spec. App. 1995) ("[w]hether state action exists [for purposes of constitution] in a given
case is not measured by the primary occupation of actor, but by
the capacity in which he or she acts at the time in question."
(citation omitted)); State v. Graham, 927 P.2d 227, 233 (Wash.
1996) ("If an off-duty officer conducts a search or performs an
arrest pursuant to his or her authority as a police officer, the
officer would be acting on behalf of the state and would,
therefore, be required to comply with the constitution.");
Commonwealth v. Leone, 435 N.E.2d 1036, 1041 (Mass. 1982) (the
Fourth Amendment must be applied to the conduct of an off-duty
officer whenever the officer "steps outside [the] sphere of
legitimate private action.").
Numerous courts addressing the issue have held that a search by
an off-duty law enforcement officer in his or her capacity as a
private citizen, and not as a law enforcement officer, does not
violate the prohibition against unreasonable searches and
seizures. See, e.g., United States v. Abney, No. 03-CR-60,
2003 WL 22047842, at *6 (S.D.N.Y. Aug. 29, 2003) (off-duty
officer employed as a store security guard was not acting as a
police officer when he questioned a customer concerning
counterfeit bills and seized such bills after the customer
emptied his pockets); State v. Walker, 459 N.W.2d 527, 532
(Neb. 1990) (finding that off-duty law enforcement officer who
was also a landlord was not acting as a law enforcement officer
at the time he observed drug paraphernalia while visiting a
tenant's apartment to check on the status of repairs); State v.
Pearson, 514 P.2d 884, 887 (Ore.Ct.App. 1973) (upholding a
search where an off-duty police officer discovered marijuana in a
car on which he was working in his employment as a mechanic);
Goodwin v. State, 474 S.E.2d 84, 86 (Ga.Ct.App. 1996)
(off-duty officer working as a security guard at a hotel was not
acting as a police officer when, pursuant to employer's
instructions, he stopped each car driving onto the premises to
ask whether the occupants were hotel guests).
Among the decisions that have found that an off-duty police
officer was acting in his or her official capacity are: Ex Parte
Kennedy, 486 So.2d 493, 495 (Ala. 1986) (off-duty police officer
employed as an exterminator acted as a police officer when he
removed a leaf from a plant he suspected to be marijuana in a
home while working as an exterminator); State v. Woods,
790 S.W.2d 253, 257 (Mo.Ct.App. 1990) (off-duty police officer
acted in his capacity as a law enforcement officer when he
searched a cabin after observing marijuana in plain view while
employed as a caretaker of the property); State v. LeGassey,
456 A.2d 366, 367 (Me. 1983) (off-duty Baxter State Park ranger
who happened upon defendant, after defendant had plunged his car
into snowbank, was acting in his official capacity when the
ranger placed defendant in his ranger truck which bore a state
insignia and told him to stay there); State v. Brothers,
478 P.2d 442, 444 (Ore.Ct.App. 1970) (off-duty chief of police, who
was called to the scene of a shooting in his capacity as an
ambulance driver, was acting within his official capacity as a
police officer when he returned to the scene of the shooting,
after taking the victim to a hospital, and entered an apartment
without permission and conducted a search of the premises);
Commonwealth v. Eshelman, 383 A.2d 838, 842 (Pa. 1978)
(off-duty police officer who came across an abandoned car while
looking for a friend in the woods was acting in his capacity as
an police officer when he retrieved a package he suspected
contained marijuana and gave it to the local sheriff).
2. Instruments or Agents of the Government
Numerous other courts have addressed the issue of whether an
off-duty police officer is constrained by the Fourth Amendment by
analyzing whether the officer was acting as an agent or
instrument of the Government at the time of the search or
seizure. See, e.g., United States v. Abney, No. 03-CR-60, 2003 WL 22047842, at *3 (S.D.N.Y. Aug. 29,
2003); United States v. McGreevy, 652 F.2d 849, 850 (9th Cir.
1981); United States v. Moniz, 14 F. Supp. 2d 1194, 1196 (D.
In other words, even if Zampella, Gallop, and Leffingwell were
acting in their private capacities as SMHA representatives at the
time of the lease inspection, they would still be subject to the
requirements of the Fourth Amendment if they were acting as
agents or instruments of the Government at the time of the lease
inspection. Coolidge v. New Hampshire, 403 U.S. 443, 487
(1971); United States v. Bennett, 709 F.2d 803, 805 (2d Cir.
1982) ("Although the surreptitious search of premises by a
private party does not violate the Fourth Amendment, if, in
conducting the search, the searcher is acting as an instrument or
agent of the Government, there is a Fourth Amendment
To determine whether a private individual acts as an instrument
of the state, courts look to (1) whether the government was aware
of and acquiesced in the conduct; and (2) whether the individual
intended to assist the police or further his own ends. See
United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.
1994); see also United States v. Bennett, 709 F.2d 803, 805
(2d Cir. 1982).
"Whether a private party should be deemed an agent or
instrument of the Government for Fourth Amendment purposes
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 the circumstances." Skinner v. Rwy. Labor
Executives Assoc., 489 U.S. 602, 614 (1989) (citations omitted).
For example, in United States v. McGreevy, 652 F.2d 849 (9th
Cir. 1981), the Ninth Circuit concluded that an off-duty police
officer who was working for Federal Express was not acting as an instrument of the state when he opened a package and
found contraband. McGreevy, 652 F.2d at 851. The Ninth Circuit
commented that, "[the off-duty police officer] did not hold his
Federal Express position because he was a police officer. He
carefully separated the two jobs. He knew of no understanding
between Federal Express and the DEA for the disposal of
contraband." Id. Contrast this case with State v. Carter,
267 N.W.2d 385, 386 (Iowa 1978), where the court held that off-duty
police officers who conducted a search were not private
individuals because "[t]he men were police officers, they were in
uniform, they carried sidearms. The record shows arrests were
made by these guards as Des Moines police officers. Most
significant of all, the whole arrangement was effected in
cooperation with the Des Moines Police Department." Carter,
267 N.W.2d at 386.
3. Zampella and Gallop
The Court first examines whether Zampella or Gallop were acting
in their official capacities as police officers or as agents of
the Government at the time of the lease inspection.
The testimony at the suppression hearing demonstrated that
Zampella has had a contractual relationship with SMHA to serve as
the Security Coordinator since 2002. Tr. at 34. This employment
was approved by the City of Schenectady Police Department. Gov't
Ex. 5. Gallop has had a contractual relationship with SMHA for
approximately seven or eight years and is paid a per inspection
stipend. Tr. at 38. This employment was approved by the Glenville
Police Department. Tr. at 184. As part of their contractual
relationship with SMHA, both Zampella and Gallop were responsible
for performing lease inspections to determine whether any lease
violations existed. Tr. at 133, 176. At all times while working
for SMHA, Zampella and Gallop are not also on-duty for their law
enforcement employers, and thus identify themselves as SMHA representatives. Tr. at 135, 137, 184. Zampella and Gallop
carefully separated their part-time employment for SMHA from
their duties as police officers.
At the time of the lease inspection at 80 Steinmetz Homes on
May 14, 2004, Zampella and Gallop were proceeding with a lease
inspection in response to complaints and information received by
Brucker, SMHA's tenant investigator, on May 10, 2004. Neither
Zampella nor Gallop were in uniform or armed with their law
enforcement firearms.*fn4 Tr. at 121-22, 137, 179. They both
identified themselves as being SMHA representatives and not as
police officers. Tr. 104, 137. Although the lease inspection
arose based on possible criminal conduct, i.e. drug trafficking,
their actions were aimed at the discovery of lease violations.
See United States v. Abney, No. 03-CR-60, 2003 WL 22047842,
at *4 (S.D.N.Y. Aug. 29, 2003) ("[T]here is no authority cited
that stands for the proposition that every interaction between an
off-duty police officer and a possible crime requires the police
officer to intervene as a police officer."); United States v.
Moniz, 14 F. Supp. 2d 1194, 1197 (D. Haw. 1998) ("[T]he mere
fact that an off-duty police officer conducts a search to find
evidence of a crime does not render a search government action
. . ."); United States v. McGreevy, 652 F.2d 849, 851 (9th Cir.
1981). Upon restraining the Defendant, Zampella contacted
uniformed officers of City of Schenectady Police Department to
transport Defendant to the precinct. Tr. at 143, 183.
Taking into account the capacity in which Zampella and Gallop
were acting when they initially entered the apartment and their
conduct during the lease inspection, the Court finds that both Zampella and Gallop were acting as SMHA representatives, not
as police officers, and were exercising SMHA's authority to
perform a lease inspection. Zampella and Gallop were off-duty
from their law enforcement employment and entered the apartment
pursuant to SMHA's legitimate instructions to its contractual
The Court also concludes that Zampella and Gallop were not
acting as agents or instruments of the Government at the time of
the lease inspection. Although it appears that the Government
possessed some knowledge of the inspections and the suspicion of
drug activity,*fn5 Zampella and Gallop both stated that
their intention was to perform their duties as SMHA
representatives, which constitutes a legitimate independent
motivation for conducting an inspection or search. See United
States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981) (stating
that a private party carrying out a legitimate business purpose
of his employer constitutes an independent motivation for the
search and seizure); United States v. Chukwubike, 956 F.2d 209,
212 (9th Cir. 1992) (a doctor extracting and testing heroin-laden
balloons from a patient was not acting as an agent of the
government because the medical reasons for the search and seizure
constituted a legitimate independent motive).
Because Zampella and Gallop were acting in their capacity as
private individuals, not police officers, and not as agents or
instruments of the Government, the Fourth Amendment does not
apply to their actions as SMHA representatives.
4. Leffingwell and Canine Zimmer
The decision of SMHA and Zampella to procure the assistance of
Leffingwell and canine Zimmer when performing the lease inspection at 80 Steinmetz Homes
also potentially implicates the Fourth Amendment. An examination
of the background of Leffingwell and canine Zimmer's
participation in the lease inspection for SMHA deeply troubles
this Court and leads to the conclusion that Leffingwell was
acting in his capacity as a police officer or as an agent of the
Government at the time he participated in the lease inspection.
At the suppression hearing, Gallop testified that approximately
seven to eight years ago, he owned and cared for a canine that
had been retired from law enforcement. Tr. at 185. At that time,
a SMHA representative approached Gallop to inquire whether he and
his canine would be interested in working for SMHA. Tr. at 177.
His duties would be to participate in lease inspections with his
canine to search and identify controlled substances prohibited by
SMHA. Id. Approximately one to one and a half years later,
Gallop's canine was put down, but Gallop continued to work for
SMHA, participating in lease inspections and utilizing his
knowledge to identify and test for controlled substances. Id.
To fill SHMA's need for a new canine unit, Zampella contacted
Sheriff Buffardi of the Schenectady County Sheriff's Department.
Tr. at 43, 66. The Sheriff's Department agreed to provide SHMA
with canine units when needed in order to further train the
canines. Tr. at 43, 66, 186. The canine units and their dog
handlers have no contractual relationship with SMHA and are
considered to be volunteering their time. Tr. at 42, 64. When a
lease inspection is related to possible drug activity, Brucker or
Zampella will contact the Schenectady Sheriff's Department and
request that a canine unit be brought to the housing authority.
Tr. at 111, 119.
At some point prior to the lease inspection on May 14, 2004,
either Zampella or Brucker contacted Leffingwell to arrange the
presence of a canine unit for the lease inspection at 80 Steinmetz Homes.*fn6 Leffingwell had no contractual or
employment relationship with SMHA and the was volunteering his
time in order to train canine Zimmer. Tr. at 42-43, 63. Zampella
anticipated that Leffingwell would arrive in his police uniform,
armed with a firearm, and possess handcuffs. Tr. at 150.
Leffingwell did indeed have on his police uniform, and carried
his handcuffs and service revolver during the lease inspection.
Tr. at 122, 144. At the suppression hearing, Richard Homenick
("Homenick"), assistant executive director of SMHA, testified
that he was unsure whether Leffingwell was being paid by the
Schenectady Sheriff's Department at the time of the lease
inspection. Tr. at 63-64.
A completed "K-9 Utilization Report" for the Schenectady County
Sheriff's Department indicates Leffingwell and his canine Zimmer
were utilized by SMHA on May 14, 2004. Def. Ex. 2. The Report
also indicates that Leffingwell was dispatched at 8:28 A.M.,
arrived at 8:36 A.M., and was cleared at 9:00 A.M. Id. The
stated utilization was for a "drug search". Id.
As a result of this arrangement, the Court finds that
Leffingwell was acting in his capacity as a police officer at the
time of the lease inspection of 80 Steinmetz Homes on May 14,
2004. While Zampella and Gallop maintained an independent
contractual relationship with SMHA, participated in the lease
inspection pursuant to SMHA's legitimate instructions, and
distinguished their duties between their law enforcement
employers and SMHA, Leffingwell had no such independent reason to
participate in the lease inspection. Leffingwell's participation
derived from an existing arrangement or understanding between
SMHA and the Schenectady County Sheriff's Department, not an
independent existing contractual relationship with SMHA. Leffingwell was in effect the representative of the Schenectady
County Sheriff's Department pursuant to the arrangement made
between Zampella and Sheriff Buffardi, not an individual acting
in his private capacity.*fn7 Simply defining Leffingwell as
a volunteer on a training exercise does not eliminate the regular
involvement of the Schenectady County Sheriff's Department
through a previously arranged and ongoing relationship with SMHA
Additionally, nothing concerning Leffingwell's participation in
the actual lease inspection supports the conclusion that he was
acting in a capacity other than as a police officer. He was in
full uniform, armed with a firearm and handcuffs while performing
the lease inspection. Tr. 122, 144. He completed a Schenectady
Sheriff's Department K-9 Utilization Form indicating that the
stated reason for the search was a "drug search". Def. Ex. 2. The
simple fact that Leffingwell felt compelled to complete a K-9
Utilization Form is indicative of his perception that he was
performing the duties of a police officer and not acting in his
The Government's stated reason or motivation for Leffingwell's
participation in the lease inspection, to further train his
canine Zimmer, does not clearly support the proposition that
Leffingwell was participating in the lease inspection in his
private capacity. The training of a law enforcement canine still
serves to benefit the Schenectady County Sheriff's Department, by improving the canine's abilities for future use by law
enforcement.*fn8 Such training could be done without
potentially intruding into the Fourth Amendment rights of private
Alternatively, the Court finds that Leffingwell acted as an
agent or instrument at the time of the lease inspection.
According to the testimony of Homenick and Brucker, the
Schenectady County Sheriff's Department was aware that SMHA
representatives were requesting and receiving the assistance of
law enforcement canines and dog handlers from the Sheriff's
Department for the purpose of searching for controlled
substances. Tr. at 42-43, 65, 111. The timing of the searches and
their results were regularly conveyed to the Sheriff's
Department. Tr. at 111-12. Therefore, the Schenectady County
Sheriff's Department is deemed to have knowledge of and
acquiesced to Leffingwell's involvement in the inspections
performed by SMHA. As noted above, the stated intention of
Leffingwell's participation, to further train the canine, still
serves as a benefit to the Schenectady County Sheriff's
Department. For purposes of determining whether an individual is
acting as an agent or instrument of the Government, the Court
does not recognize the further training of a law enforcement
canine with respect to drug detection skills a legitimate
independent motivation to conduct the search. See United
States v. Reed, 15 F.3d 928, 932 (9th Cir. 1993) (finding that a
hotel owner's interest in snooping or finding evidence of
criminal activity is not a legitimate independent motive).
Where police officers "actively participate in a search being
conducted by private parties or else stand by watching with
approval as the search continues, . . . authorities are clearly implicated in the search and it must comport with
Fourth Amendment requirements." Fries v. Barnes, 618 F.2d 988, 991 (2d
Cir. 1980) (quoting United States v. Mekjian, 505 F.2d 1320,
1327 (5th Cir. 1975)). "The presence of law enforcement officers
who do not take an active role in encouraging or assisting an
otherwise private search has been held insufficient to implicate
Fourth Amendment interests, especially where the private party
has had a legitimate independent motivation for conducting the
search." United States v. Walther, 652 F.2d 788, 792 (9th Cir.
1981). "[D]e minimis or incidental contacts between the citizen
and law enforcement agents prior to or during the course of a
search or seizure will not subject the search to Fourth Amendment
scrutiny." Id. at 791.
In this case, while SMHA had a legitimate motivation to inspect
the apartment for lease violations, Leffingwell's presence was
more than incidental. Leffingwell was a direct and active
participant in the lease inspection. As a result of Leffingwell's
involvement and direct participation in the lease inspection and
the Schenectady County Sheriff's Department acquiescence to such
involvement, the Court concludes the lease inspection constituted
government action, and thus required compliance with the
C. Exceptions To The Warrant Requirement
Having found that the lease inspection constituted government
action, the Court must also determine whether any exception to
the Fourth Amendment's warrant requirement exists.
Warrantless searches conducted by instruments of the state are
per se unreasonable unless the search falls within one of a few
specifically established and well delineated exceptions.*fn9
Katz v. United States, 389 U.S. 347, 357 (1967). Absent exigent
circumstances and probable cause, or consent, a warrantless entry
and search is per se unreasonable, and violates the
Fourth Amendment. Payton v. New York, 445 U.S. 573, 586 (1980). In the
present case, the Government does not contend that exigent
circumstances existed to justify the warrantless search and the
Court does not find such circumstances. Chambers v. Maroney,
399 U.S. 42, 51 (1970).
The Government has the burden of proving that the necessary
consent was obtained and that it was freely and voluntarily
given, a burden that is not satisfied by showing a mere
submission to a claim of lawful authority. Florida v. Royer,
460 U.S. 491, 497 (1983). For a warrantless search to be
justified by consent, such consent must have been given by the
defendant or a third party who possessed common authority over,
or other sufficient relationship to, the premises or effects
sought to be inspected. United States v. Matlock, 415 U.S. 164,
"Generally, a landlord is not seen as having actual authority
to consent to a warrantless police search of the premises
occupied by a tenant." State v. Licari, 659 N.W.2d 243, 251
(Minn. 2003); see also United States v. Warner, 843 F.2d 401,
403 (9th Cir. 1988). "[A] landlord lacks actual authority even
when she has `by express agreement or by implication reserved the
right to enter for some special and limited purpose.'" Licari,
659 N.W.2d at 251 (quoting 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE
§ 8.5(a) at 739 (1978)). Here, while Rowe consented to an
inspection by SMHA in her lease agreement, such consent does not
provide SMHA with actual authority to consent to a warrantless search by law enforcement
officials of the premises exclusively occupied by Rowe.
The Court finds that no exception to the warrant requirement is
applicable in the present case and that the entry therefore
violated Defendant's Fourth Amendment rights.
Lastly, the Government's argument that the plain view exception
applies is misplaced. The plain view exception assumes that the
article seized is in plain view to an officer who is lawfully in
a position to see the article. See Coolidge v. New Hampshire,
403 U.S. 443, 465-66 (1971); Texas v. Brown, 460 U.S. 730,
738-39 (1983). Since the initial entry into the apartment was
performed without a warrant and in violation of the
Fourth Amendment, Leffingwell and canine Zimmer were not lawfully in
Rowe's apartment, and the plain view exception does not apply.
See United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir.
To give effect to the Fourth Amendment's guarantee against
unreasonable searches and seizures, and to deter illegal police
conduct, the Court must apply the exclusionary rule and suppress
any evidence unconstitutionally obtained. See Nix v.
Williams, 467 U.S. 431, 442-43 (1984); Weeks v. United States,
232 U.S. 383, 398 (1914). Therefore, evidence of Defendant's
possession of the handgun is suppressed.
The Supreme Court's fruit-of-the-poisonous-tree doctrine also
bars the use of evidence obtained either during or as a direct
result of an unlawful invasion. See Wong Sun v.
United States, 371 U.S. 471, 488 (1963). As a result of the application
of the fruit-of-the-poisonous-tree doctrine, statements made by
Defendant on May 14, 2004 after the unlawful entry with regards
to ownership of the gun are also suppressed. III. CONCLUSION
Accordingly, it is hereby
ORDERED that Defendant's Motion to Suppress the physical
evidence and statements taken from him on May 14, 2004 is
GRANTED; and it is further
ORDERED that physical evidence concerning the handgun seized
from Defendant on May 14, 2004 and statements made by Defendant
concerning ownership of the handgun are SUPPRESSED; and it is
ORDERED that the Clerk of the Court shall serve copies of this
order by regular mail upon the parties to this action.
IT IS SO ORDERED.