Faulkner v. State

RODOWSKY, Judge. At issue here is the constitutionality of the warrantless search of an employee’s workplace locker conducted with the police present by a private employer. We shall uphold the search as reasonable under all the circumstances, including particularly appellant’s denial that the locker was being used by him. Brandon Faulkner (Faulkner), the appellant, was employed by the Parks Sausage Company (Parks) at its plant in the Camden Industrial Park in Baltimore City.

Parks’s management had received complaints from employees about widespread use of drugs and alcohol on the job, particularly during the night shift. Parks engaged Security America, a company which had previously furnished guard service for Parks, to conduct a private investigation on those shifts. Marvin Jones (Jones) was one of the representatives of Security America with whom Parks’s management primarily dealt. Security America placed an undercover operative at Parks in September 1987.

The operative reported that drugs were both dealt and consumed during the second shift. ⁴⁴³ The Parks plant is a union shop where there are published work rules. One of the work rules, as orally described in the testimony, warned that the sale, trade or delivery of illegal drugs by an employee was cause for termination of employment and for referral of the offending employee to law enforcement authorities. Parks’s management determined to search the lockers of all of the approximately thirty employees on the second shift. After one or more postponements, the search was eventually scheduled for December 4, 1987, to begin at approximately 6:00 p.m.

Reginald Haysbert (Haysbert), the Vice President for Human Resources of Parks, was to participate in the search. Haysbert asked Jones to arrange to have Baltimore City police officers present during the search. Safety concerns were at least one reason for this request inasmuch as management expected to find some narcotics and possibly some firearms. Haysbert also asked Jones to have a pair of bolt cutters available in the event an employee refused to open a locker which management wanted to search.

Pursuant to the request from Parks, Officer Irvin Bradley (Bradley) and five other Baltimore City police officers from the Southern District were present at the Parks plant when the search began. They also brought a pair of bolt cutters which someone at Parks had requested and which the Southern District officers had obtained from “CP-12.” Haysbert, Jones, a Mr. Johnson who was Parks’s production manager, and a union shop steward participated in the search of the men’s locker room where at least some of the police officers, including Bradley, were standing by. Management asked the employees, one at a time, to come to the locker room and to open their lockers. One of the first male employees asked to come to that locker room was Faulkner.

Lockers at Parks are used by the employees both to keep personal items and to store company items. Parks has more lockers available than there are employees. Each employee is permitted to select the locker which that em ⁴⁴⁴ ployee will use, but it is not company policy to permit an employee to use more than one locker. When Faulkner came to the locker room he pointed to a locker in the second row from the door as being his and unlocked it.

Johnson searched the locker and found nothing indicating a violation of any company rule. According to Haysbert, “[ajcross from” the locker which Johnson first searched was another locker with Faulkner’s name on it. Faulkner said that that was not his locker. Haysbert testified that Faulkner said “[h]e didn’t have knowledge of the locker.” Thereupon, Haysbert, utilizing the bolt cutters, cut the lock on the second locker. 1 In the locker Haysbert observed a man’s jacket.

In a pocket of the jacket Haysbert found a box. In the box was a used hypodermic syringe with needle. Haysbert showed the hypodermic to the police officers and backed away. Officer Bradley took the hypodermic and placed Faulkner under arrest.

Bradley then searched the locker and found, inter alia, a plastic ziplock baggie containing a white powder which was later chemically analyzed to be cocaine. After Faulkner had been arrested, but before he had been removed from the premises, Faulkner told the police that he did not want anything to be missing from the locker on which the lock had been cut. The police allowed Faulkner to turn the jacket over to someone for safekeeping. Four other employees of Parks were also arrested during the search of lockers that night.

All of those who were arrested were suspended from employment pending a disciplinary hearing in the grievance procedure. Faulkner’s suspension was continued after his disciplinary hearing. The State charged Faulkner with possession of cocaine and of paraphernalia, and Faulkner moved in the Circuit Court for Baltimore City to suppress the items seized from ⁴⁴⁵ the locker. A suppression hearing was held at which only Haysbert and Bradley testified.

Faulkner argued that there was sufficient participation by the police in the search to make the fourth amendment applicable. The State, in opposition, raised three points: (1) Faulkner’s motion was not timely; (2) Faulkner had no standing to claim a constitutional violation because he disclaimed any interest in the locker; and (3) the initial search by Haysbert in the second locker bearing Faulkner’s name did not involve state action while the further search by the police in that locker was incident to a valid arrest. The circuit court applied the third of the State’s arguments, denied the motion to suppress, and did not find it necessary to rule on the other two grounds advanced by the State. Faulkner was convicted after a plea of not guilty on an agreed statement of facts and appealed to the Court of Special Appeals.

We issued the writ of certiorari on our own motion prior to consideration of the case by the intermediate appellate court. In his appellate brief in chief Faulkner exclusively argued the state action issue. The State’s brief advanced its rebuttal to Faulkner’s arguments in chief, and, in the event that the State did not prevail on the merits of the state action issue, the State urged that this case be remanded for determinations by the trial court on the other issues raised by the State at the suppression hearing. In his reply brief Faulkner points out, correctly in our view, that “there is no dispute as to the facts which premised the question of standing,” Appellant’s Reply Brief at 6, and that the issue “can readily be determined on the record.” Id. at 7.

Faulkner’s reply brief then argues, for the reasons discussed below, that he has “standing” to claim a fourth amendment violation despite his denial that the subject locker was his. Faulkner’s argument begins by recognizing that his standing turns on whether he had a reasonable expectation of privacy in the locker which was forcibly entered. See Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978). Faulkner then turns to the opinion by Judge Moy ⁴⁴⁶ Ian for the Court of Special Appeals in Ruffin v. State, 77 Md.App. 93 , 549 A.2d 411 (1988), holding that a thief had no standing to claim that a car stolen by him had been illegally searched.

Ruffin distinguishes between fourth amendment applicability and fourth amendment satisfaction. Id. at 100 , 549 A.2d at 414 . It classifies standing to object as an instance of fourth amendment applicability. Id. at 102 , 549 A.2d at 415 .

In that context Ruffin states: “When we shift issues from that of Fourth Amendment satisfaction to that of Fourth Amendment applicability, our criteria for measuring change dramatically. The concern shifts from the merits of litigation to the entitlement to litigate. The focus shifts from the subjective viewpoint of the policeman to the objective appraisal of the trial judge. The timeframe shifts from the moment of search or seizure to the moment of the suppression ruling.

The object of measurement shifts from reasonable appearances to historic reality. What finally matters shifts from what the policeman reasonably believed out on the street to what the suppression hearing judge ultimately knows in the courtroom.” Id. Seizing on this approach, Faulkner submits that at the time of the suppression hearing in the instant case it was undisputed that Faulkner’s belongings (those possessed legally as well as illegally) were in the locker. Consequently, says Faulkner, he enjoyed a reasonable expectation of privacy in the locker, had standing to object, and the State’s standing argument lacks merit.

This argument attempts to isolate the relevance of a reasonable expectation of privacy solely to standing when the concept is relevant as well to the reasonableness of a search. This was made plain in Rawlings v. Kentucky, 448 U.S. 98 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980), where Rawlings, anticipating an imminent search of his person by the police, dumped thousands of dollars worth of illegal drugs into the purse of a woman whom he had known for only a few days. The lower courts concluded that Rawlings had ⁴⁴⁷ no legitimate expectation of privacy in the purse, a conclusion with which the Supreme Court agreed. It explained: “Had [Rawlings] placed his drugs in plain view, he would still have owned them, but he could not claim any legitimate expectation of privacy.

Prior to Rakas , [Rawlings] might have been given ‘standing’ in such a case to challenge a ‘search’ that netted those drugs but probably would have lost his claim on the merits. After Rakas , the two inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by [Rawlings].” 448 U.S. at 106 , 100 S.Ct. at 2562 , 65 L.Ed.2d at 642 . Thus, even if we assume that Faulkner’s reasonable expectation of privacy for standing purposes is to be determined as of the time of the suppression