Armstrong v. State, Case No. 1D08-6025 (Fla. App. 4/7/2010)

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JESSIE JAMES ARMSTRONG, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 1D08-6025.

District Court of Appeal of Florida, First District.

Opinion filed April 7, 2010.

An appeal from the Circuit Court for Alachua County, Martha Ann Lott, Judge.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

JAMES C. HANKINSON, Associate Judge.

This appeal concerns the denial of a motion to suppress all evidence obtained following the search and seizure of illegal drugs. Defendant argues the search and seizure was an intrusive government act which violated his Fourth Amendment rights. We disagree. Because the trial court's factual findings that the search was performed by an individual acting in a private capacity are supported by competent substantial evidence, we find no Fourth Amendment violation and affirm the trial court's decision.

FACTS

Defendant — Jessie James Armstrong — was charged by information in two separate cases with possession of marijuana with intent to sell. The first case arose when the postal service mistakenly delivered a package containing marijuana to the residence of Joseph Armstrong, an agent with the F.B.I. A few days later a second, similar package was delivered to Agent Armstrong's address. He notified the sheriff's office and a search warrant was obtained for the second package. This package contained a bundle of marijuana similar to that found in the first package and resulted in the second case.

Prior to the trial in either case, defendant moved to dismiss all statements and evidence stemming from Armstrong's seizure of the original package. Defendant claimed Armstrong had opened the package in his official capacity as an agent of the state, thereby violating the Fourth Amendment protection against unreasonable search and seizure. Defendant argued that all evidence flowing from the search of the original package — including the discovery of marijuana in the second package — was suppressible as fruit of the poisonous tree.

A suppression hearing was held during which Agent Armstrong testified:

• He received a package addressed to "J. Armstrong." The address listed on the package was similar to his personal address; the house number differed by only three digits and the street number by only one digit.

• Since he was unsure if the package was intended for him, he went to the address listed on the package, but no one was there.

• He returned home and opened the outer package, exposing a square bundle covered in plastic wrap and newspaper.

• Agent Armstrong worked on the "Joint Terrorism Task Force." Due to the nature of his work, Armstrong had some concerns that the package might contain a bomb or Anthrax. Because it was the holiday season, he also thought that the package might be a gift to him.

• In the course of his other duties, Agent Armstrong carried the package to work the following day. On the way, he wrote down the license numbers of the vehicles at the listed address.

• At work, he ran the package through an x-ray machine, which detected no metal objects.

• Agent Armstrong mentioned the package to Sheriff's Deputy Joseph Brannaman, with whom he worked on the task force. Brannaman suggested he should "open it up and see what it is, what's the big deal[?]"

• Agent Armstrong decided to open the package. Since Brannaman had a pen knife, he allowed Brannaman to cut through the plastic wrap and newspaper, at which time the officers detected the smell of marijuana.

• Agent Armstrong then ran a check on the tag numbers and turned the marijuana over to the authorities.

Given this testimony, the trial court found Agent Armstrong was acting in his capacity as a private citizen, not a government agent, when he opened the package. The trial court emphasized that at the time Armstrong opened the package, he was its actual recipient and feared he might be the victim of a crime. The trial court found any interaction between Armstrong and other law enforcement officers was in his private capacity as a concerned citizen, not in his official capacity as an F.B.I. agent. Since it found there was no government action, the trial court concluded there was no Fourth Amendment violation and denied the motion to suppress, which it found dispositive as to both cases.

On appeal, defendant raises two arguments. First, he claims Agent Armstrong was acting in his capacity as a government agent at the time he searched the package misdelivered to his address. Since the search was not justified under any of the exceptions to the warrant requirement, defendant concludes it violated his Fourth Amendment rights. Second, defendant claims that even if Armstrong's actions could be construed as those of a private citizen, the search became a government action due to the active participation of Deputy Brannaman. For the reasons that follow, we find neither argument persuasive.

ANALYSIS

Review of a motion to suppress presents a mixed question of law and fact. See State v. Leonard, 764 So. 2d 663, 664 (Fla. 1st DCA 2000). We must examine the trial court's factual findings to ensure they are supported by competent substantial evidence and examine its application of the law to the facts de novo. See Williams v. State, 721 So. 2d 1192, 1193 (Fla. 1st DCA 1998); Phuagnong v. State, 714 So. 2d 527, 529 (Fla. 1st DCA 1998). Here, since neither party disputes the facts essential to the case, we need only review the trial court's application of the law to the facts. See State v. Furr, 723 So. 2d 842, 844 (Fla. 1st DCA 1998). In particular, we must determine whether the search and seizure of the marijuana in the original package was accomplished by a government or a private actor.

The Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution guarantee the right to be free from "unreasonable searches and seizures." The opinions of the United States Supreme Court must be followed on all search and seizure issues, regardless of whether the claim of an illegal search is based on the Florida or United States Constitution. See Green v. State, 824 So. 2d 311, 313 (Fla. 1st DCA 2002).

For evidence to be excluded pursuant to the Fourth Amendment, the moving party must demonstrate the government has infringed upon his reasonable expectation of privacy.¹ See State v. Butler, 1 So. 3d 242, 246-47 (Fla. 1st DCA 2008). Importantly, the protection against unreasonable searches and seizures applies only to cases involving governmental action; it does not apply when the search or seizure was conducted by a private individual. See Smith v. Maryland, 442 U.S. 735, 740 (1979) (stating the Fourth Amendment can be invoked only when a person can claim that a "legitimate expectation of privacy [] has been invaded by government action"); Pomerantz v. State, 372 So. 2d 104, 108 (Fla. 3d DCA 1979) (stating neither the state nor federal constitution "affords any protection against purely private searches and seizures no matter how unreasonable"). The party objecting to the search or seizure has the burden to establish government involvement by a preponderance of the evidence. See Treadway v. State, 534 So. 2d 825, 827 (Fla. 4th DCA 1988).

Here, defendant argues Armstrong was acting in his capacity as an F.B.I. agent at the time of the search and seizure. Neither party has cited the Court to any binding precedent in the State of Florida that directly controls the issue presented. One court has used a two-pronged analysis in deciding whether an off-duty law enforcement officer is acting in his official capacity or as a private citizen. See U.S. v. Couch, 378 F. Supp. 2d 50, 55 (N.D.N.Y. 2005). The court in Couch set out its analysis:

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.

378 F. Supp. 2d at 55, quoting State v. Andrews, 637 A.2d 787, 790-91 (Conn. App. Ct. 1994) (emphasis added).² We find this to be a logical method of analyzing the issue presented.

The first prong of the analysis is self-explanatory. When considering the second prong of the analysis (i.e. the manner in which the off-duty officer conducted himself), a court must determine whether the off-duty officer's actions fell "outside [the] sphere of legitimate private action." Commonwealth v. Leone, 435 N.E.2d 1036, 1041 (Mass. 1982). Crucial to this consideration is the purpose behind the off-duty officer's decision to conduct the search. If the search is motivated by a legitimate private purpose, it retains its private character; if it is motivated solely by a governmental purpose, it becomes state action. Id. (finding that when an off-duty police officer's "conduct is justified by his legitimate private duties [as a security guard], it should not be treated as lawless, or `unreasonable,' search and seizure").

For example, in State v. Walker, 459 N.W. 2d 527, 532-33 (Neb. 1990), an off-duty police officer was found to have conducted a private search when, functioning in his capacity as a landlord, he entered a tenant's house. The court stated that although the officer apparently "was aware of suspected drug activity at the house," his actions were consistent with his stated purpose of entering the house solely to discuss tenancy issues. Id. at 533.

Likewise, in State v. Cole, 762 N.W. 2d 711, 716-17 (Wis. Ct. App. 2008), a letter from a defendant instructing family members to prevent a witness from testifying at trial was misaddressed and delivered to the home of a sheriff's officer. Believing the letter was intended for her, the officer opened and read it. Id. at 716. Upon realizing that the letter was not intended for her, she returned to work,...