J-S37044-18, J-S37045-18

                               2018 PA Super 253

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JUSTIN YIM                              :
                                         :
                   Appellant             :   No. 3118 EDA 2017

           Appeal from the Judgment of Sentence August 7, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0003203-2016



 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JUSTIN W. YIM                           :
                                         :
                   Appellant             :   No. 3184 EDA 2017

           Appeal from the Judgment of Sentence August 7, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0003202-2016


BEFORE:    OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                   FILED SEPTEMBER 12, 2018

      Appellant, Justin Yim, appeals from the judgment of sentence entered

in the Court of Common Pleas of Delaware County, which, sitting as finder of

fact in Appellant’s consolidated non-jury trial on stipulated facts, found him

guilty on all drug-related charges he faced. Sentenced to three to 23 months’

incarceration, to be followed by 4 years’ probation, Appellant contends the



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S37044-18, J-S37045-18



trial court erred in denying his motion to suppress evidence obtained from his

college dorm room by university public safety officers and administrators.

     We affirm.

     The trial court sets forth the facts and procedural history as follows:

     Villanova University currently has a University police department[,
     which was established on August 1, 2016, after the relevant time
     period in question]. However, on February 13, 2016, the Public
     Safety Office oversaw security at the University.[] N.T. 12/19/16,
     at 10, 23. Public Safety [o]fficers wore uniforms but did not carry
     weapons or handcuffs and had no arrest powers. Id. at 23-26;
     N.T. 4/8/17, at 20. They had no legal authority and did not
     apprehend or arrest individuals. N.T. 4/8/17, at 20.

     During the early morning hours of February 13[, 2016,] [P]ublic
     [S]afety officers became engaged in violent confrontations with
     two resident students and a female visitor who all admitted to
     ingesting LSD. N.T. 12/19/16, at 11-12, 23-26, 27; N.T. 4/8/17
     at 20. These individuals were restrained during the assaults and
     Radnor Police responded and arrested the individuals.         N.T
     12/16/17, at 26. Due to her condition and the admission that she
     had ingested LSD, the female visitor was transported to the
     hospital. One of the resident students, Daniel Jin, lived in Good
     Counsel Hall, Room 339, with the Defendant [hereinafter
     “Appellant”]. Id. at 1. He was arrested and was taken to the
     hospital as well. 4/8/17, at 40.

     Good Counsel Hall is a student residence hall that is owned and
     operated by Villanova University. Id. at 13. To obtain housing at
     Villanova students enter a housing contract with the University
     and consent to [the] search of [a] dorm room where it has been
     determined administratively that items or individuals in a
     particular room pose a possible safety or health risk to the
     community. Id. See also Exhibit CS-1. Students agree [to]
     comply with University policies, procedures, and regulations and
     to comply with the University Code of Student Conduct, Residence
     Life Policies and safety and security responsibilities that are set
     forth in the Student Handbook. . . . Appellant agreed to the terms
     and conditions of the housing contract on May 27, 2015, as



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     evidenced by his electronic submission of the housing application.
     Exhibit CS-2.

     During the morning of February 13[, 2016,] the Villanova Director
     of Public Safety, David Tedjeske, was advised of the assaults that
     took place earlier and of the LSD consumption of the individuals
     involved. Specifically, he learned that Daniel Jin and his juvenile
     girlfriend were hospitalized after the assaults and that the pair had
     consumed LSD. N.T. 4/8/17, at 21.

     Director Tedjeske contacted the Vice President for Student Life
     and the Dean of Students and requested authorization to search
     Jin’s[ ] room out of concern that additional LSD would be on
     campus. The administrators gave permission for a search and
     Director Tedjeske contacted Thomas DeMarco, Executive Director
     of Student Life, who met him at Good Counsel Hall, Room 339.
     Id. at 22. Two additional public safety officers were present. Id.
     at 24.

     After two attempts to reach Jin by telephone, Director Tedjeske
     and one of the other two officers unlocked the door with a master
     key and entered the room. Id. Contraband and cash was strewn
     throughout the small room. Id. at 26. In plain view, a syringe
     was on top of a desk. Appellant’s passport was in a drawer of the
     same desk. In another drawer a prayer book was found. Inside
     the prayer book were two sheets of LSD “stamps” in cellophane.
     “One hundred” was written on the cellophane and forty-five
     stamps were left on one sheet. A bag of marijuana was found
     along with packaging paraphernalia and large bundles of cash.
     See id., at 17-22. See also C-1, C-21.

     After the contraband was discovered, Director Tedjeske called the
     Villanova University dispatcher and asked him to contact the
     Radnor Police Department to report the discovery of the
     contraband. N.T. 4/8/17, at 27. Officer Metzler, a Radnor police
     officer, and his supervisor [arrived at the scene, but they]
     remained in the hall outside the room. They never entered the
     room and did not participate in the search. Id. at 27-28, 301-31.

     After Director Tedjeske and his fellow Public Safety officers
     completed their search, they turned the contraband and items
     seized over to the Radnor Police officers. Id. at 31. Director
     Tedjeske    completed   an   investigative  report,   including


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J-S37044-18, J-S37045-18


      photographs for future       use   in    University   administrative
      proceedings. Id. at 31.

      A warrant for Appellant’s arrest was issued. He was arrested on
      February 14, 2016[, when] activity on his “Wildcat” card indicated
      that he returned to campus from New York. See N.T. 12/19/16,
      at 35-36; N.T. 4/8/17, at 33.

Trial Court Opinion, filed 10/17/17, at 4-6.

      In Docket Number 3203-2016, Appellant was charged with one count of

Possession of a Controlled Substance, 35 Pa.C.S. § 780-113(a)(16), and one

count of Possession of Drug Paraphernalia, 35 Pa.C.S. §780-113(a)(32),

stemming from the marijuana and paraphernalia recovered from his person

on the date of his arrest. In Docket Number 3202-16, Appellant was charged

with two counts of Possession of a Controlled Substance with the Intent to

Deliver (“PWID”), 35 Pa.C.S. § 780-113(a)(16), one count of Possession of a

Controlled Substance, and seven counts of Possession of Drug Paraphernalia

stemming from the 26.96 grams of marijuana, 45 units of LSD, empty

baggies, scale, marijuana grinder, hypodermic needle, and $8,865.00 cash

recovered from his dorm room.

      On September 20, 2016, Appellant filed a motion to suppress the

evidence seized from his person and dorm room.          On May 1, 2017, after

conducting evidentiary hearings on December 19, 2016, and April 18, 2017,

the trial court denied Appellant’s motion.

      On August 2, 2017, the court presided over a consolidated non-jury trial

on stipulated facts and found Appellant guilty on all charges.        The court

sentenced Appellant to an aggregate term of three to 23 months’


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J-S37044-18, J-S37045-18



incarceration, to be followed by 4 years’ probation on Docket No. 3202-16.

On Docket No. 3203-16, the court imposed no further punishment. After the

denial of Appellant’s post-sentence motion for reconsideration on September

6, 2017, Appellant filed this timely appeal on September 15, 2017.1

       Appellant presents the following question for our consideration:

       WAS THE TRIAL COURT’S LEGAL CONCLUSION THAT MR.
       YIM WAS NOT SUBJECT TO ANY STATE ACTION WHEN
       VILLANOVA UNIVERSITY PUBLIC SAFETY OFFICERS
       SEARCHED HIS DORM ROOM WITHOUT A WARRANT
       ERRONEOUS?

Appellant’s brief, at 4.

       In reviewing a trial court’s decision to deny a suppression motion, our

standard of review is as follows:

              In reviewing the denial of a suppression motion, our
              role is to determine [ ] whether the suppression
              court's factual findings are supported by the record
              and whether the legal conclusions drawn from those
              facts are correct.      Because the Commonwealth
              prevailed before the suppression court, we may
              consider only the evidence of the Commonwealth and
              so much of the evidence for the defense as remains
              uncontradicted when read in the context of the record
              as a whole. Where the suppression court's factual
              findings are supported by the record, we are bound by
              these findings and may reverse only if the court's legal
              conclusions are erroneous.      Where, as here, the
              appeal of the determination of the suppression court
____________________________________________


1 On December 1, 2017, this Court issued a Rule to Show Cause why the
appeal at Docket No. 3118 EDA 2017 should not be quashed as untimely filed
on September 11, 2017, when judgment of sentence was imposed on August
7, 2017. As we accept Appellant’s response that his timely post-sentence
motion for reconsideration pertained to both docketed cases, we deem the
present appeal timely.

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J-S37044-18, J-S37045-18


            turns on allegations of legal error, the suppression
            court's legal conclusions are not binding on an
            appellate court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of law of the courts below
            are subject to our plenary review.

      Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654
      (2010) (internal quotations and citations omitted). Our scope of
      review is limited to the evidence presented at the suppression
      hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1080 (2013).

Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa.Super. 2018).

      Appellant’s challenge against the order denying his motion to suppress

centers on the argument that Villanova University’s Public Safety (“VUPS”)

officers were de facto state actors, subject to the dictates of the Fourth

Amendment, when they searched Appellant’s dorm room.             This is so, he

maintains, either because the uniformed officers were the only University

agents with the authority to exercise police-like powers on Villanova’s campus,

or because they worked “in concert” with the Radnor Township Police

Department in conducting a search of Appellant’s dorm room, where LSD and

other contraband were found. We disagree.

      The Fourth Amendment's protection against unlawful searches and

seizures applies only to actions by the government, as “[i]ts origin and history

clearly show that it was intended as a restraint upon the activities of sovereign

authority[.]” Burdeau v. McDowell, 256 U.S. 465, 475 (1921). It follows,

therefore, that “the proscriptions of the Fourth Amendment and Article I, § 8,

do not apply to searches and seizures conducted by private individuals.”

Commonwealth v. Faurelus, 147 A.3d 905, 909 (Pa.Super. 2016) (quoting


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J-S37044-18, J-S37045-18



Commonwealth v. Harris, 572 Pa. 489, 513, 817 A.2d 1033, 1047 (2002)

(citations omitted).

      Where, however, private individuals act not of their own accord but,

instead, as an instrument or agent of the state, they will be deemed state

actors subject to the proscriptions of the Fourth Amendment. Coolidge v.

New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564,

595 (1971). Decisional law of this Commonwealth has examined the question

of what constitutes state action in such circumstances.

      As set forth [in the Pennsylvania Supreme Court decision
      Commonwealth v. Corley, 491 A.2d 829 (Pa. 1985)], therein,
      the guiding principles are those first established by the United
      States Supreme Court in Lugar v. Edmondson Oil Co., Inc, 457
      U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). In Lugar, the
      Supreme Court held that the conduct allegedly causing the
      deprivation must be fairly attributable to the state. In explaining
      the “fair attribution” test, the United States Supreme Court
      stated:

            [Our] cases reflect a two-part approach to the
            question of “fair attribution.” First, the deprivation
            must be caused by the exercise of some right or
            privilege created by the state .... Second, the party
            charged with the deprivation must be a person who
            may fairly be said to be a state actor. This may be
            because ... his conduct is otherwise chargeable to the
            state.

      Lugar, 457 U.S. at 937, 102 S.Ct. at 2754, 73 L.Ed.2d at 495.
      The critical factor for purposes of determining whether state action
      is involved is whether the private individual, in light of all the
      circumstances, must be regarded as having acted as an
      “instrument” or agent of the state. Corley, 507 Pa. at 548, 491
      A.2d at 832, citing Coolidge[, 403 U.S. at 487.] This Court made
      clear in Corley that mere cooperation with the authorities alone
      does not constitute “state action.” In other words, the mere fact
      that police and prosecutors use the results of an individual's

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J-S37044-18, J-S37045-18


        actions does not, alone, elevate those actions to the level of state
        action. Where, however, the relationship between the person
        committing the wrongful acts and the State is such that those acts
        can be viewed as emanating from the authority of the State, the
        principles established in Corley dictate a finding of state action.

Price, 672 A.2d 280, 283–84 (Pa. 1996).

        In the wake of an unprovoked, LSD-induced violent attack committed

by Appellant’s roommate and guests, who later required hospitalization for

LSD overdose, Villanova University’s administration determined its duties to

ensure student safety required it to ascertain whether LSD or other

contraband that could make its way elsewhere on campus remained in the

offenders’ dorm room. The University made this decision unilaterally, and it

initiated a search of Appellant’s dorm room in accordance with University

regulations,2 without input, oversight, or assistance from Radnor Township

Police.

        As   noted,   supra,    the   initial   plain   view   search   conducted   by

administrators and VUPS officers uncovered a grocery bag of what appeared

____________________________________________


2   On this point, the trial court found:

        The evidence demonstrated that [Appellant] entered a housing
        contract with the University and agreed to its terms and conditions
        to secure on-campus housing. By the terms of the contract
        [Appellant] is required to comply with all University policies,
        procedures and regulations and the University reserved the right
        to enter a dormitory room without prior permission if it has reason
        to believe that an emergency exists or that violations of University
        policy are occurring or may have occurred.

Trial Court Opinion, at 8.



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J-S37044-18, J-S37045-18



to be professionally packaged and sealed marijuana, a scale, a large

hypodermic needle on a desk, and a large sum of cash on a shelf above the

desk. Only then did the University contact Radnor Township Police to inform

them that an ongoing room search uncovered what appeared to be evidence

of illegal drug possession.

       The police arrived and remained in the hall on stand-by while VUPS

officers completed their search, which uncovered LSD from inside Appellant’s

desk. According to testimony, Radnor police never participated in the search

or directed the actions of the VUPS officers in completing their search. N.T.

12/19/16, at 20-21; 4/18/17, at 30-31.

       This evidence supports the trial court’s conclusion that the University

conducted its search on its own terms and in accordance with its own policies

aimed at preserving student safety.3 Proceeding in this way, it did not act

jointly with the police or at the behest of the police in carrying out its search.

Only after completing its task in this regard did the University then turn over

to police what it believed to be evidence of a crime.
____________________________________________


3 The University unilaterally conducted a search of Appellant’s dorm room in
a manner consistent with university policies and the housing contract into
which Appellant willingly entered. The housing contract provides that the
University may be permitted to enter and inspect rooms without prior
permission if there is reason to suspect there are unsafe conditions. The
Student Handbook repeats these provisions and provides that “a student’s
personal privacy should be maintained at all times unless the University has
reason to suspect that a dangerous situation exists or that violations of
University policy have occurred or are occurring.”        See Supplemental
Memorandum of Law in Support of Motion to Suppress, filed 12/2/16, at 3.



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J-S37044-18, J-S37045-18



       As explained above, the mere fact that police and prosecutors use the

results of a private actor’s search alone does not transform the private action

into state action.      Price, 672 A.2d at 284.    Because the present facts

demonstrate nothing more than the University’s conveyance of privately

obtained evidence to police, the University’s search is not attributable to the

state on this basis.4

       Likewise, we reject Appellant’s alternate argument that VUPS had been

delegated a public function by the state. The “public function” test of private

actor conduct pertains to “where a private actor is performing activities or

services which traditionally have been the exclusive prerogative of the state.”

Hennessy v. Santiago, 708 A.2d 1269, 1276 (Pa.Super. 1998) (identifying
____________________________________________



4 Appellant cites federal decisions discussing circumstances when a private
actor works jointly with the state, making him a state actor for purposes of
Section 1983 liability, but he fails to demonstrate the existence of such
circumstances in his case. For instance, Appellant notes that in Fleck v.
Trustees of University of Pennsylvania, 995 F.Supp.2d 390 (E.D. Pa.
2014), the district court recognized Section 1983 jurisprudence has left open
the circumstances under which “private security officers may be held to have
performed public functions for purposes of § 1983 suits . . . . [if they] work[]
jointly with a township police officer” Id. at 402 (citing Padover v. Gimbel
Bros, Inc., 412 F.Supp. 920 (E.D. Pa. 1976) (denying § 1983 defendants’
motion to dismiss for want of state action where complaint alleged two private
security guards, one of whom was also municipal police officer, jointly arrested
and assaulted plaintiff)).

Here, the Radnor Township Police Department neither directed nor
participated in the search of Appellant’s room. Therefore, the cases upon
which Appellant relies to advance his claim that the University and the police
department worked jointly in performing the search are inapposite given the
facts of this case.


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J-S37044-18, J-S37045-18



“public function” test as one of several paradigms of state action by a private

individual developed by United States Supreme Court jurisprudence).

      Appellant maintains that, “despite nominally referring to themselves as

mere ‘security’ officers, in fact, [VUPS] served the public function of a formal

police force and were state actors under the public function test.” Appellant’s

brief, at 21. Specifically, Appellant contends:

      [T]he officers, who wore uniforms and were otherwise a formal
      security force, were the only police force for the University at the
      time. They responded to all emergencies or allegations of criminal
      conduct, and were even “allowed to restrain” individuals
      suspected of wrongdoing. Whatever their title, the VUPS officers
      were the de facto police on campus at the time of the search.
      Indeed, despite encountering the two students and the visitor who
      had ingested LSD just after midnight, the VUPS officers were
      solely responsible for the criminal investigation of the source of
      the drugs well into the following afternoon when the search was
      conducted. After all, Director Tedjeske was clear that the VUPS
      officers did not call Radnor Township Police to the scene until after
      they had discovered drugs in [Appellant’s] room. The VUPS had
      therefore “been delegated a public function by the State,”
      sufficient to render them state actors.

Appellant’s brief, at 21-22.

      The record belies Appellant’s argument that the VUPS was a police

force—let alone the only police force, as the University resides in Radnor

Township and comes within the municipal jurisdiction of the Radnor Township

Police Department. Indeed, testimony offered at both suppression hearings

established that VUPS officers oversaw security on campus, but they carried

no weapon or handcuffs, and they possessed no arrest powers.




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J-S37044-18, J-S37045-18



      Furthermore, when the administrative search of Appellant’s dorm room

discovered evidence of drug dealing, the University called the police for the

purpose of taking evidence retrieved from the room, arresting suspects, and

filing charges.

      Hence, the record makes clear that no plenary police powers were

vested upon VUPS from state laws. As such, Appellant’s reliance on Fleck,

supra, and Henderson v. Fisher, 631 F.2d 1115 (3d Cir. 1980), two Section

1983 cases, to make the case that VUPS officers served the public function of

a formal police force is misplaced.

      In Henderson, the Third Circuit Court of Appeals observed the

University of Pittsburgh campus police acted under color of state authority by

virtue of state legislation specifically stripping the University of Pittsburgh of

its wholly private character and deeming it “an instrumentality of the

Commonwealth to serve as a State related institution.”         The Pennsylvania

legislature, therefore, declared the University of Pittsburgh derives its

authority from the state, the Third Circuit noted.

      Furthermore, the legislature also delegated to the campus police the

very powers which the municipal police force of Pittsburgh possesses, the

Court continued.    Therefore, because the campus police department was

endowed by the state with powers and functions governmental in nature, it

was a state actor. Id. at 1118.

       In Fleck, the federal district court reasoned that Penn’s “state-actor

status rests not on its source of funds but on the police service performed[.]”

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J-S37044-18, J-S37045-18



Id. at 401. In this respect, Penn’s police department enjoyed plenary police

powers conferred upon it through Pennsylvania law, the district court found.

Thus having plenary powers in a patrol-zone territory once the “exclusive

prerogative” of the City of Philadelphia, the Penn police department was a

state actor, the court concluded.

      In contrast, the powers vested unto VUPS officers were not tantamount

to those within the exclusive prerogative of the state. Instead, they derived

from the University and were limited in scope relative to municipal police

powers.

      For these reasons, we conclude that the trial court committed no abuse

of discretion or error of law in making its determination that VUPS officers

were not state actors for purposes of the Fourth Amendment. As such, the

court appropriately refused to invoke the exclusionary rule under the Fourth

Amendment and denied Appellant’s motion to suppress.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/18




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