Appeal from the Superior Court of the District of Columbia (M-1116-05) (Hon. Stephen F. Eilperin, Trial Judge).
The opinion of the court was delivered by: Belson, Senior Judge
Before REID, Associate Judge, and WAGNER and BELSON, Senior Judges.
Appellant Jason Limpuangthip, a college student, was convicted after a bench trial of possession with intent to distribute marijuana, in violation of D.C. Code § 48-904.01 (a)(1) (2001), possession of drug paraphernalia, in violation of D.C. Code § 33-550 (2001), and possession of psilocylin (mushrooms), in violation of D.C. Code § 48-904.01 (d) (2001). Critical evidence supporting the charges was obtained from appellant's dormitory room at George Washington University, a private university, as a result of a warrantless search and seizure by Penny Davis, a community director at the University. Two University police officers from the George Washington University Police Department ("the University Police") and a residential assistant ("R.A.") were present at the time of the search. On appeal, appellant contends that the search that resulted in his arrest violated the Fourth Amendment of the Constitution. We conclude that the search, as it was conducted, did not violate appellant's rights under the Fourth Amendment and, accordingly, affirm the conviction.
Appellant brought a motion to suppress statements and tangible evidence, contending that the evidence supporting the charges against him -- i.e., statements, drugs, drug paraphernalia and cash -- was illegally obtained by Ms. Davis and the University Police. At a suppression hearing, Ms. Davis testified that she was in charge of supervising three dormitories, including one called the Ivory Tower where appellant lived. As part of her duties, she enforced the University's residential community code of conduct guidelines and conducted administrative searches. She testified that these searches were performed by administrators when there was a concern that activities in a room could endanger the health and welfare of the students. She received training in how to conduct these searches from the University Police.*fn1 The University Police are employees of the University who are appointed as Special Police Officers ("SPOs") by the Mayor of the District of Columbia for the purpose of protecting property on the premises of their employer, and are authorized to exercise arrest powers broader than that of ordinary citizens and security guards.
Ms. Davis testified that she conducted an administrative search in appellant's dorm room, which was initiated when the University Police received an anonymous tip on its website concerning drugs in Room 715 of the Ivory Tower building. The University Police contacted the community director "on call" about the tip, and that person contacted Ms. Davis regarding an administrative search of the room. Ms. Davis then called the University Police to request their presence during the search because she wanted them to provide evidence bags and security. The University Police were in "full uniform," and they were carrying batons and radios, but no firearms.
When Ms. Davis, an R.A. and two SPOs got to room 715, Ms. Davis knocked on the door, and then opened it with a master key which she obtained from one of the SPOs when there was no response. Ms. Davis testified that she "could have obtained the master key in another way." The dorm accommodation was a two-bedroom suite, with a bedroom on either side of a central living area. Ms. Davis testified that once inside, only she and no one else conducted the search. Appellant arrived after a few minutes, and Ms. Davis explained to him that she had information that there were drugs in the apartment and that she was there to perform an administrative search. She requested that he stay in the room until she finished conducting her search. She asked appellant if there was anything he wanted "to present at this time," and he retrieved a wooden case from his desk and a black bag from behind his bed. The case contained a green substance that looked and smelled like marijuana, and the bag contained a bong and two small pipes. Ms. Davis then proceeded to search appellant's bedroom, where she found more drugs and drug paraphernalia. She also found two wallets, which together contained around $5,860.*fn2 When she asked appellant why he had so much money, he replied that he had received the money as gifts or presents. According to Ms. Davis, appellant acknowledged that the contraband belonged to him.
Ms. Davis placed the contraband in evidence bags provided by the University Police. On cross-examination, she testified that the officers held the bags open for her while she collected the contraband. After the search, one of the University Police officers who was present telephoned the Metropolitan Police Department ("MPD") because he was concerned that the amount of marijuana and money recovered "could be constituted as distribution." When the MPD officers arrived, Ms. Davis showed them the evidence bags and told them what appellant had said.
Ms. Davis testified that the purpose of her search "was to identify any health or safety hazards, to identify any problematic activities that might be occurring in the residence hall," not to "collect evidence for a criminal case." The court admitted into evidence an unsigned "standard residence hall license agreement," which Ms. Davis identified as "the type of agreement" that all students must sign before they can live in a dormitory. The trial court found that appellant had signed the license agreement, and in so doing had agreed to allow authorized representatives of the University to inspect his room at any time for violations of University regulations, including the possession of illegal substances.*fn3 Thus, there is no contention in this case that the University community director, Ms. Davis, lacked any required reasonable or probable cause for an administrative search.
The trial court concluded that the search did not violate appellant's Fourth Amendment rights; rather, in conducting the search, Ms. Davis had a "legitimate purpose to take cognizance of what goes on in the dormitory rooms and to ensure that there are not illegal substances or . . . any other sort of criminal activities afoot there in addition to maintenance issues, in addition to health and safety issues." The court found that the University Police officers were SPOs "who had the commission that all [SPOs] in D.C. have which basically gives them the . . . limited authority to arrest and search within their jurisdiction." However, the SPOs "never needed to and never exercised any of that authority with respect to the search of appellant's dormitory room." Furthermore, the court found that it was Ms. Davis who made the decision to search room 715, and that she requested the company of the SPOs, questioned appellant, and "did all of the searching." The SPOs "only assisted in terms of providing bags and being able to take away what was recovered . . . ." Based on these factual findings the trial court denied the motion to suppress, concluding that "there was no state action involved in this search" and "the action . . . taken by the [SPOs] did not . . . turn this administrative search into a governmental search." Ms. Davis' motions-hearing testimony was later incorporated for purposes of the trial. At the conclusion of the trial, the court found appellant guilty of the charged offenses, noting that Ms. Davis "was a very credible witness" whose testimony the court credited "in its entirety."
On appeal from a denial of a motion to suppress, this court reviews the trial court's legal conclusions de novo and defers to the trial court's findings of fact unless they are clearly erroneous. See Ornelas v. United States, 517 U.S. 690, 699 (1996); see also In re T.H., 898 A.2d 908, 912 (D.C. 2006). We also view the evidence presented at the suppression hearing in the light most favorable to the government, drawing all reasonable inferences in the government's favor. See In re T.H., supra, 898 A.2d at 912; see also Womack v. United States, 673 A.2d 603, 607 (D.C. 1996).
The Fourth Amendment to the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. AMEND. IV. Evidence obtained by searches conducted in violation of the Fourth Amendment is inadmissible. Thompson v. United States, 444 A.2d 972, 973 (D.C. 1982) (citing Mapp v. Ohio, 367 U.S. 643 (1961)). "[T]he protection of the Fourth Amendment is applicable to intrusions of an individual's privacy interests by governmental officers and, not generally, to those made by private parties." United States v. Lima, 424 A.2d 113, 117 (D.C. 1980) (en banc). However, where "[a] private party, 'in light of all the circumstances of the case must be regarded as having acted as an "instrument" or agent of the state,' the Fourth Amendment is called into play." Id. (quoting ...