State v. Collins

⁷⁰³ CATHELL, Judge. The State of Maryland (petitioner) seeks review of a judgment of the Court of Special Appeals of Maryland remanding the case to the Circuit Court for Washington County for additional suppression hearing proceedings. The Court of Special Appeals held that the bail bond agents in the case sub judice were, in fact, acting as state actors for purposes of the Fourth Amendment due to the extent of the participation by the police officer who accompanied them as part of a “service to stand by” procedure that apparently exists in Washington County. On March 21, 2000, respondent was convicted of possession of marijuana with intent to distribute and simple possession after a bench trial in the Circuit Court for Washington County.

The Circuit Court sentenced respondent to five years imprisonment, all suspended, with three years probation, on the possession of marijuana with intent to distribute conviction. The Circuit Court imposed a concurrent one-year term, with concurrent probation, on the possession of marijuana conviction. On March 22, 2000, respondent noted an appeal from the ruling of the Circuit Court to the Court of Special Appeals. The Court of Special Appeals reversed the Circuit Court and remanded the case for reconsideration of the motion to suppress evidence.

On August 16, 2001, we granted the State’s Petition for Writ of Certiorari to review the holding of the Court of Special Appeals. Petitioner presents one question for our review: “Did the Court of Special Appeals err in finding that two bail bonds agents, who entered an apartment to look for their defaulting principal, were agents of the State for the purpose of the Fourth Amendment because an accompanying police officer initially knocked on the apartment door, was denied entry and remained outside of the apartment?” We affirm the intermediate court’s holding that the participation, beyond mere presence, of the accompanying police officer in this case conferred the status of state action for ⁷⁰⁴ purposes of the Fourth Amendment to the actions taken by the two bail bond agents toward respondent. While bail bond agents are generally not state actors for Fourth Amendment suppression purposes, in this case, because of the extent of participation by the police officer, they were acting as agents of the State and respondent is entitled to a further suppression hearing and a ruling on excluding the evidence gained initially and following the alleged illegal entry by the two agents. I. Facts In Collins v. State, 138 Md.App. 300 , 771 A.2d 478 (2001), as to the questions at issue here, the Court of Special Appeals adopted the evidence proffered at the suppression hearing as the facts of this case.

The facts, as set forth in the Court of Special Appeals’s opinion, are: “At the hearing on the motion to suppress, Officer Carl Hook [of the Hagerstown Police Department] was the only witness. He testified that he was advised by another officer [Officer David Long] to meet with two persons in the business of arranging bail bonds, Tanya Baer and Donna Morris. They advised him that they wanted to apprehend a ^wanted subject,’ Dale Michael Estep, and that he had been seen going into 126 East Avenue in Hagerstown. Officer Hook accompanied the bail bond agents to that residence.

He explained that he was performing a ‘service to stand by,’ which meant that he was not to intervene unless there was a criminal matter that took place. He testified that such service was routinely provided under the circumstances present here.[ 1 ] Officer Hook had no information other than that supplied to him by the bail bond agents. ⁷⁰⁵ “The residence at 126 East Avenue was an apartment house containing four apartments. There was a porch on the front of the residence with an entrance from the porch to the apartment in question. “After Officer Hook and the two agents arrived at the entrance to the apartment, Officer Hook knocked on the door. The door was opened by appellant, who came out and closed the door behind him.

Officer Hook stated that they were there for a ‘wanted subject’ and asked for permission to come in to check the residence. Appellant advised that Estep was not there, that he had not seen him for two weeks, and refused entry into the residence. Ms. Baer stated that she was going to enter the residence whether appellant liked it or not. Appellant again refused but called another person, who came outside to the porch.

Officer Hook testified that Ms. Baer spoke to that person and knew him as ‘Jimmy.’[ 2 ] ‘Jimmy’ stated that Ms. Baer could go inside and check the residence. Ms. Baer and Ms. Morris went inside. Although appellant was standing at the door, he did not object; nor did he try to stop them. Officer Hook stood near the door, which was still open.

The officer said that he detected an odor of burnt marijuana coming out of the residence. “When Ms. Baer and Ms. Morris exited the apartment [the record reflects they exited a few minutes later], Ms. Baer stated that she had seen approximately fifteen marijuana plants inside, ranging in size from ‘beginning plants’ to three feet in height [and that Mr. Estep was not in the apartment and it was at this time that respondent went back into the apartment]. Officer Hook testified that he called for backup and three officers responded [Officers Gilbert, Long, and Miller]. Officer Hook explained that he called for backup because of the odor of marijuana. After the other officers arrived, Ms. Baer advised Officer Hook ⁷⁰⁶ that she had just seen appellant running in the alley at the rear of the apartment.' Officer Hook then noticed appellant [respondent] running with a black plastic garbage bag.

Officer Hook pursued appellant on foot. Appellant dropped the bag, [went approximately ten more feet] and the police took him into custody. In the bag, although not visible prior to searching it, the police found ‘pot[s] of marijuana plants, high intensity lamp, electric scales, a multi-colored bag that contained marijuana seeds, and a pipe with marijuana residue.’ “A search warrant[ 3 ] was obtained for the apartment, and additional evidence was seized. Appellant moved to suppress the items seized from his person and the apartment, arguing that they were the fruits of the poisonous tree because his arrest was illegal and the warrant was based on information obtained during the bail bond agents’ prior illegal entry. “The suppression court ruled that (1) Officer Hook was credible; (2) the bail bonds agents were not State actors; and (3) Officer Hook had probable cause to arrest appellant and search the bag, based upon (A) the smell of marijuana emanating from the apartment, and (B) Ms. Baer’s statement that marijuana plants were inside the apartment.

Consequently, according to the suppression court, the subsequent search of the apartment pursuant to a warrant was also legal.” Id. at 303-05 , 771 A.2d at 480-81 (some alterations in original).

II

Discussion a. Standard of Review Our review of a Circuit Court’s denial of a motion to suppress evidence under the Fourth Amendment is limited, ⁷⁰⁷ ordinarily, to information contained in the record of the suppression hearing and not the record of the trial. See Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491, 497 (1999); In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691, 693 (1997); Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749, 755 (1987). When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990); Simpler, 318 Md. at 312 , 568 A.2d at 22 . In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to the weighing and determining first-level facts. Lancaster v. State, 86 Md.App. 74, 95 , 585 A.2d 274, 284 (1991); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356, 358 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his findings are clearly erroneous.

McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430, 435 (1992); Riddick, 319 Md. at 183 , 571 A.2d at 1240 . Even so, as to the ultimate conclusion of whether an action taken was proper, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Riddick, 319 Md. at 183 , 571 A.2d at 1240 ; Munafo v. State, 105 Md.App. 662, 669 , 660 A.2d 1068, 1071 (1995). b. Fourth Amendment Guarantee The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures by government, not private individuals.

See United States v. Jacobsen, 466 U.S. 109, 113 , 104 S.Ct. 1652, 1656 , 80 L.Ed.2d 85, 94 (1984); Waters v. State, 320 Md. 52, 60 , 575 A.2d 1244, 1247-48 (1990). The protections of the Fourth Amendment are applicable to the State of Maryland through the Fourteenth Amendment of the United States Constitution. See Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691 , 6 L.Ed.2d 1081, 1090 (1961); Owens v. State, 322 Md. 616, 622 , ⁷⁰⁸ 589 A.2d 59, 61 (1991). “The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568, 1573 , 84 L.Ed.2d 605, 613 (1985); see In re Tariq A-R-Y, 347 Md. at 490 , 701 A.2d at 693 . In addition, even where the police have some connection to a search and seizure by a private party, the Fourth Amendment has been held not to apply where the police do not attempt to coerce, dominate or direct the private party.

Coolidge v. New Hampshire, 403 U.S. 443, 489-90 , 91 S.Ct. 2022, 2049-50 , 29 L.Ed.2d 564, 596 (1971). So, generally, when a private party acts for his or her own purpose without police instigation or participation, and subsequently gives seized items to the police, there is no State action. Coolidge, 403 U.S. at 486-90 , 91 S.Ct. at 2048-50 , 29 L.Ed.2d at 594-96 . This general rule of non-agency, however, does not mean that private actors cannot become state actors based on the facts of a particular case.

Id. In the case sub judice, the burden rests upon respondent to establish government involvement and to thereby be entitled to suppress evidence that was seized in violation of the Fourth Amendment, as “the burden of establishing government involvement in a private search rests on the party objecting to the admissibility of the evidence.” Waters, 320 Md. at 60 , 575 A.2d at 1247-48 . Finally, when determining if a search or seizure by a private individual invokes the Fourth Amendment, the question is “if the private individual whose actions are in question, ‘in light of all the circumstances of the case, must be regarded as having acted as an “instrument” or agent of the state.’ ” Id. at 57 , 575 A.2d at 1246 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 487 , 91 S.Ct. 2022, 2049 , 29 L.Ed.2d 564, 595 (1971)). ⁷⁰⁹ c. Bail Bond Agents In Maryland, the bail bond system is governed by statute and Rule.

See Md.Code (2001), Title 5 Release, Subtitle 2 Pretrial Release of the Criminal Procedure Article; Md. Rules 4-216 and 4-217. Further, bail bond agents are subject to strict regulations and licensing requirements by various other provisions of the Maryland Code. 4 In Shifflett v. State, 319 Md. 275 , 572 A.2d 167 (1990), we affirmed the Court of Special Appeals and held that bail bond agents have broad common law powers to arrest principals, much greater than the powers normally possessed by private citizens. We stated: “The jury convicted the petitioner, and she was sentenced to three years’ imprisonment on the resisting arrest and battery convictions. The Court of Special Appeals affirmed the judgments.

Shifflett v. State, 80 Md.App. 151 , 560 A.2d 587 (1989). It held that the bail bondsmen’s authority under the common law to arrest the principal was broader than that of a private citizen to arrest. It quoted at length from Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371-72 , 21 L.Ed. 287 (1872), as follows: ‘When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment.

Whenever they choose to do so, they may seize him and deliver him up in their discharge, and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State, may arrest him on the Sabbath, and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process.

None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner____ In [Anonymous,] 6 Modern [231], it is said: ⁷¹⁰ “The bail have their principal on a string, and may pull the string whenever they please and render him in their discharge.” ’ ” Shifflett v. State, 319 Md. 275, 277 , 572 A.2d 167, 168 (1990) (alteration in original). 5 We have held that the fact that a private person must be licensed by the State to engage in their employment does not make that person a “State agent” for Fourth Amendment search and seizure purposes. In Waters v. State, 320 Md. 52 , 575 A.2d 1244 (1990), Waters argued that the cocaine taken out of his pocket by a security guard, Paul Madden, was seized in violation of the Fourth Amendment prohibition against unreasonable search and seizures because the security guard was acting as a State agent. Specifically, Waters contended that because private detective agencies were regulated and licensed by the State, private security guards that work for private detective agencies are similar to special police officers “who are commissioned by the Governor and exercise general police powers in the protection of their employer’s property.” Id. at 55 , 575 A.2d at 1245 .

Therefore, Waters alleged that Madden’s seizure of the cocaine from his pocket involved state action and should not be admissible at trial because it was unreasonable. We held that the mere licensing and regulation of the security guards, without being vested with arrest or other police powers, was not enough to qualify the security guards as State agents. We stated: “As employees of detective agencies engaged to guard the property of their employer’s clients, security guards have ⁷¹¹ not been granted police powers by statute and therefore are not state agents in any traditional sense for purposes of the Fourth Amendment. Without governmental powers, security guards are acting as private citizens when protecting property, and their private status is not altered because their interest in protecting property coincides with the public’s interest in preventing crime generally---Moreover, mere state licensing of a private individual’s occupation, without more, does not constitute sufficient state control to make the individual a state agent.

Nor does extensive state regulation of itself convert the actions of those regulated into state action. “The only evidence in the case'was that Madden was a licensed security guard at the time he seized the plastic bags, and the trial judge so held. Water’s argument that Madden was a state agent is wholly unconvincing. Consequently, Judge Goudy correctly determined that the seized cocaine was admissible in evidence, there being no showing (or even an allegation) that Madden was working in collusion with the police at the time of the search, or otherwise acted as an instrument of the State in the performance of his duties.” Id. at 59-60 , 575 A.2d at 1247-48 (citations omitted). Bail bond agents, who are licensed and regulated by the State, do not have police powers by statute and are not, generally, State agents.

Therefore, bail bond agents are generally not State actors for Fourth Amendment suppression purposes. In the case sub judiee, however, the facts demonstrate that due to the extensive participation by the officer in leading the attempt to effect entry into the apartment, the bail bond agents were working in substantial collusion with the police. d. “State Action” Status and Our Case i. State Action Analysis As we have stated, supra, when a private party acts for his or her own purpose without police instigation or participation ⁷¹² and obtains evidence, if the party later gives the seized evidence to the police, there is no State action. See Bowers v. State, 298 Md. 115, 138-40 , 468 A.2d 101, 113-14 (1983) (holding that the search of a hotel room by the hotel’s accounting supervisor did not amount to State action even though the motel had a State business license and did not necessitate suppression of evidence), superseded by statute on other grounds, Doering v. State, 313 Md. 384 , 545 A.2d 1281 (1988); Knight v. State, 59 Md.App. 129, 134-35 , 474 A.2d 947, 949-50 (1984) (trespassing roofer who reported information to police not a State actor); Ward v. State, 30 Md.App. 113, 116-17 , 351 A.2d 452, 454-55 (1976) (search and seizure by member of family not State action); Herbert v. State, 10 Md.App. 279, 290-91 , 269 A.2d 430, 435-36 (1970) (private parties, who acted as “criminal informers” for the police, who seized evidence at a party and turned it over to police, are not state actors).

In the federal circuits and some other states, there are even cases involving police “stand by” type services, the type of service involved in the case at bar, where various courts have declined to find “State action.” See generally United States v. Dahlstrom, 180 F.3d 677 (5th Cir.1999) (stating that third party search in a police officer’s presence was not State action where officer was present on a peacekeeping duty), cert. denied, 529 U.S. 1036 , 120 S.Ct. 1530 , 146 L.Ed.2d 345 (2000); United States v. Coleman, 628 F.2d 961 (6th Cir.1980) (holding that police accompaniment to a residence while third party effectuated repossession of vehicle, and third party gives evidence found in repossessed vehicle to police not to be State action); State v. Patch, 142 N.H. 453, 456-58 , 702 A.2d 1278, 1280-82 (1997) (concluding no state action where officer who served restraining order on third party, waited for the third party to gather belongings, which belongings included evidence of defendant’s criminal activity which was later given to the police by the third party). There, however, appears to be no bright-line test that determines government from private conduct in these types of situations. The Court of Special Appeals, while holding, generally, that bail bond agents are not State actors, recognized ⁷¹³ the authority outside of Maryland representing the proposition that bail bond agents may sometimes be State actors for certain purposes. The Court of Special Appeals, in its opinion in this case, mentioned the Fourth Circuit case of Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir.1987), wherein the Fourth Circuit Court of Appeals stated, in dicta, that in Maryland the bail system co-exists in a symbiotic relationship, making the bail bond agents vulnerable to civil liability under 42 U.S.C. section 1983 .

In the next sentence, however, the intermediate appellate court noted a line of federal cases, involving bail bond