                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1309-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANTHONY R. COLEMAN,

     Defendant-Appellant.
____________________________

              Argued August 14, 2018 – Decided August 21, 2018

              Before Judges Messano and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              15-01-0198.

              Elizabeth    C. Jarit, Assistant Deputy Public
              Defender,     argued the cause for appellant
              (Joseph E.   Krakora, Public Defender, attorney;
              Elizabeth    C. Jarit, of counsel and on the
              brief).

              Steven A. Yomtov, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Steven A.
              Yomtov, of counsel and on the brief).

PER CURIAM
     Defendant Anthony R. Coleman appeals from a March 18, 2016

conviction of second-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b), contending the trial court erred by denying

his motion to suppress evidence seized without a search warrant

from his locker at work.   We affirm.

     We derive the following facts from the record on appeal.      On

September 29, 2014, an anonymous caller alerted both the Pennsauken

Police Department and defendant's employer, Menu Foods, Inc., that

defendant had a loaded handgun in his locker at Menu Foods.      The

anonymous tip to Menu Foods was received by Sheila Campbell, its

Human Resources Manager.   In turn, Campbell called the police and

verified the police were also aware of the anonymous tip.        The

police told Campbell they could not act on the call or search the

locker because it involved private property.   The police suggested

the locker search by company personnel be conducted in the presence

of a police officer for safety purposes.    Campbell requested the

police be present when employees of Menu Foods attempted to

retrieve the handgun.

     Officer Jeffrey Dinoto was dispatched to Menu Foods, where

he spoke to John Morris, Menu Foods' director of operations.

Accompanied by maintenance manager Will Hughes and operations

manager Daniel Wynn, Morris and Dinoto proceeded to the employee

locker room.   Defendant had two lockers.      As Dinoto stood by,

                                 2                          A-1309-16T1
Hughes used bolt cutters to cut off the lock and open the first

locker but no firearm was found inside.             Hughes then cut the lock

off of defendant's second locker, which contained a backpack.

Morris removed the backpack and placed it on a bench. The backpack

made a "distinctive thud" when placed on the bench as if "something

very heavy" was inside of it.       Morris reached inside the backpack

and removed a .380 caliber semi-automatic handgun loaded with ten

hollow point bullets and four ball rounds of ammunition.                Morris

handed the gun to Dinoto.         After securing the weapon, Dinoto

returned to police headquarters.          Defendant was not present when

the lockers were opened; he was at his work station.

     A grand jury charged defendant with second-degree unlawful

possession of a handgun (count one); third-degree receiving stolen

property,   N.J.S.A.   2C:20-7(a)       (count   two);    and   second-degree

certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count

three).

     Defendant moved to suppress the handgun.              The motion judge

conducted an evidentiary hearing.        Four witnesses testified.         Wynn

testified the lockers were Company property and were subject to

inspection when necessary.        The State introduced two documents

into evidence: an Employment Policies & Work Rules Handbook (the

Handbook) and a signed Handbook Acknowledgment Form, affirming

defendant   had   received   a   copy    of   the    Handbook   and   that    he

                                     3                                 A-1309-16T1
understood that he should read it and become familiar with it.

Defendant signed the form as a condition of his employment.      The

Handbook contains a "No Weapons Policy," which provides:

          Weapons are prohibited on Company property,
          in Company buildings, or in Company vehicles.
          Weapons are prohibited in lockers, desks,
          workspaces, storage areas, and employee
          vehicles and on an employee's person, or in
          employee's personal belongings (e.g., brief
          case, backpacks, purses, and wallets, etc.)
          whenever on Company property or elsewhere when
          performing work on behalf of the Company.
          Weapons may include, but ARE NOT LIMITED TO
          guns. . . .

The Handbook further provides:

          In enforcing the policy, Menu [Foods] reserves
          the right to search Company property including
          lockers, desks, workspaces, storage areas,
          etc. and any items located on Company property
          whether they belong to the Company employees,
          contractors or visitors.

The Handbook also contains a Workplace Violence Policy, which

states: "Menu Foods employees have a responsibility to take steps

to ensure a safe work environment for all employees and visitors."

     Defendant argued that the locker and backpack searches were

unconstitutional because they amounted to state action for which

probable cause was lacking. Defendant claimed there was sufficient

involvement or participation by police to qualify as state action

because the police had knowledge the employer would conduct the

search and the search was conducted in a police officer's presence.


                                 4                          A-1309-16T1
      The State argued that the mere presence of a police officer

did not constitute state action because the officer was only

present for safety purposes to take custody of the weapon if one

was found and render it safe.                  Alternatively, the State argued

defendant had no reasonable expectation of privacy in his locker

or his backpack, while on Company property, in light of Menu Foods'

right to search the locker and its contents pursuant to its No

Weapon Policy.

      In a written opinion, the motion judge denied the motion,

finding         defendant     was   "not   entitled        to   Fourth      Amendment

protection, because he had no reasonable expectation of privacy

in   the    contents     of   his   workplace     locker."       The    judge   noted

defendant's acknowledged familiarity with the contents of the

Handbook.         Thus, defendant "knew that his locker and personal

belongings could be subject to search."

      The motion judge further noted that "[w]hen private actors

act on their own, Fourth Amendment protections do not apply."

Instead, "Fourth Amendment protections are only implicated when

there      is    state   action     involved      in   a   search      or   seizure."

Recognizing mere police presence while a private party is engaging

in a search does not make it a state search, the motion judge

found "there is no indication here that the Menu Foods employee

acted 'at the behest or suggestion, with the aid, advice or

                                           5                                  A-1309-16T1
encouragement,    or   under    the    direction   or   influence'     of   the

Pennsauken police department."          (quoting United States v. Clegg,

509 F.2d 605, 609 (5th Cir. 1975)).          On the contrary, the motion

judge found once Campbell confirmed the anonymous tip regarding

the gun on Company property had also been reported to police, Menu

Foods "already knew [it was] going to search the locker."                   The

judge then recounted how the decision to search was carried out:

          Menu Foods initiated the search and the police
          offered to be present to ensure the safety of
          their employees, but Menu Foods did not
          initiate the search acting as an agent of the
          State.   Menu Foods employees cut the lock,
          opened the defendant's backpack, and revealed
          the presence of the firearm.

     Additionally, the motion judge concluded suppressing the

results of the search would not deter the State from using private

parties to engage in illegal searches.

     Following the denial of his motion to suppress, defendant

entered into a plea agreement with the State, pleading guilty to

count one in exchange for a recommended sentence of five years

imprisonment,    subject   to   a     forty-two-month    period   of    parole

ineligibility and dismissal of the remaining charges.                On March

18, 2016, defendant was sentenced in accordance with the negotiated

plea agreement.    This appeal followed.

     Defendant raises the following issues on appeal:



                                       6                               A-1309-16T1
            THE WARRANTLESS SEARCH OF COLEMAN'S LOCKED
            WORK LOCKER AND CLOSED BACKPACK VIOLATED HIS
            CONSTITUTIONAL RIGHTS, REQURING SUPPRESSION.

                  A.   Because Coleman had a possessory
                       interest in his locker and backpack,
                       the State was required, but failed,
                       to demonstrate an exception to the
                       warrant requirement in order to
                       justify the search; whether Coleman
                       had a reasonable expectation of
                       privacy was the incorrect inquiry
                       because courts have long-recognized
                       an expectation of privacy in the
                       workplace.

                  B.   The search of Coleman's locker and
                       backpack amounted to state action.

                  C.   The trial court's factual findings
                       are unsupported by the record and
                       deserve no deference.

     "When reviewing a trial court's decision to grant or deny a

suppression motion, [we] 'must defer to the factual findings of the

trial court so long as those findings are supported by sufficient

evidence in the record.'"    State v. Dunbar, 229 N.J. 521, 538 (2017)

(quoting State v. Hubbard, 222 N.J. 249, 262 (2015)).        "We will set

aside a trial court's findings of fact only when such findings 'are

clearly mistaken.'"     Ibid. (quoting Hubbard, 222 N.J. at 262).      "We

accord no deference, however, to a trial court's interpretation of

law, which we review de novo."     Ibid. (citing State v. Hathaway, 222

N.J. 453, 467 (2015)).

     "The   New   Jersey   and   Federal   Constitutions   guarantee   the

rights of persons to be free from unreasonable searches and

                                     7                            A-1309-16T1
seizures."      State v. Coles, 218 N.J. 322, 337 (2014) (citing N.J.

Const.   art.    I,    ¶7;   U.S.   Const.    amend.    IV).      However,   the

constitutional        prohibition   against       unreasonable    searches   and

seizures applies only to governmental action.              State v. M.A., 402

N.J. Super. 353, 367 (App. Div. 2008) (citing State v. Evers, 175

N.J. 355, 368-69 (2003)); State v. Premone, 348 N.J. Super. 505,

511 (App. Div. 2002) (citing United States v. Jacobsen, 466 U.S.

109, 113 (1984); State v. Saez, 139 N.J. 279, (1995)).                  "It is

wholly inapplicable to a search or seizure, even an unreasonable

one, effected by a private individual not acting as the agent of

the Government or with the participation or knowledge of any

governmental official."         State v. Navarro, 310 N.J. Super. 104,

107 (App. Div. 1998) (citations omitted); see generally 1 Wayne

R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment

(5th ed. 2012) § 1.8.

     Following our review, we conclude defendant's argument lacks

evidentiary      support.      First,       the   record   does   not   support

defendant's characterization of the search as a product of state

action. Although managerial employees of Menu Foods and the police

were simultaneously present during the search, no evidence shows

police prompted, directed, encouraged, or influenced the conduct

of Hughes or Morris.



                                        8                               A-1309-16T1
     For    state   action   to   exist,    facts    must   support    "tacit

cooperation"   between   police    and     the   third-party.      State     v.

Stelzner, 257 N.J. Super. 219, 230 (App. Div. 1992).            In addition,

the act must be prompted by the State.              Here, the record amply

supports the conclusion that the actions by Hughes and Morris were

independently motivated by Menu Foods' legitimate safety concerns

over the presence of a loaded firearm on Company property.              There

is no indication that Menu Foods' employees acted "at the behest

or suggestion, with the aid, advice or encouragement, or under the

direction or influence" of the police.           Clegg, 509 F.2d at 609.

On the contrary, the police stated to Campbell that they would not

act on the anonymous tip or search the locker because it involved

private property.     By that point Menu Foods had already decided

to search defendant's locker.       Moreover, although the results of

the private search were turned over to the police, the police did

not expand the scope of the private search.          See Premone, 348 N.J.

Super. at 512.

     Second, with respect to the actions of his private employer,

defendant had no objectively reasonable expectation of privacy in

his locker and items placed within his locker.               The clear and

unambiguous terms of his employer's No Weapon's Policy rendered

defendant's locker and its contents subject to search by his

employer.   Indeed, defendant concedes this case "does not concern

                                     9                                A-1309-16T1
whether,     given   the   policy,    [defendant]   had     a     reasonable

expectation    of    privacy   against    intrusions   by       his   private

employer."

     Finally, once the handgun was located, the actions of the

police in securing the handgun constituted a reasonable exercise

of their community caretaking functions "totally divorced from the

detection, investigation, or acquisition of evidence relating to

the violation of a criminal statute."         Navarro, 310 N.J. Super.

at 108 (quoting Cady v. Dombroski, 413 U.S. 433, 441 (1973)).

There was nothing unreasonable in the actions of the police which

resulted in the seizure of the handgun after it was removed from

the backpack by Morris.

     For the reasons outlined above, we affirm the denial of the

motion to suppress and the conviction that followed defendant's

guilty plea.

     Affirmed.




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