Defendant Davon Capers is charged with the misdemeanor of Criminal Possession of a Controlled Substance in the Seventh Degree pursuant to NY Penal Law §220.03. Specifically, defendant is charged with possession of several baggies of crack cocaine that were allegedly found in his pocket on October 30, 2006.

In his omnibus motion, defendant Capers moves to suppress the evidence obtained as a result of the allegedly unlawful seizure of the cocaine from his pocket. In connection with his motion, defendant requests a pretrial hearing to determine whether probable cause existed for his detention so as to justify the seizure of the cocaine. See Mapp v. Ohio, 367 U.S. 643 (1961). He also moves to preclude any incriminating statements he made, and any identification of him that was made pursuant to police procedures, on the ground that he was not served with prior notice regarding any such statements or identification as required by NY Criminal Procedure Law §710.30. For the following reasons, defendant's motion is granted in part and denied in part. Further, as explained below, defendant is entitled to a Huntley hearing to determine the voluntariness of his incriminating statement if the People intend to introduce the statement at trial.

FACTUAL ALLEGATIONS

According to the misdemeanor information and supporting depositions, Jimmy Tekle is a private security guard at the University of Rochester in Rochester, New York. While in his patrol vehicle at about 3:19 p.m. on October 30, 2006, Mr. Tekle received a radio call about a "hold up" that had just occurred. He also heard another security officer state that he was chasing a black [*2]male who was running away from him.

In response to the radio call, Mr. Tekle drove to the campus building at 260 Crittenden Boulevard. He parked his car and entered the building where he saw two other University security guards holding defendant, who was later identified as Devon Capers. Mr. Tekle helped one security officer take defendant to a room in the building. Once there, Mr. Tekle searched defendant for weapons, using a metal scanner to help him do so.

When the scanner registered positive on defendant's left front pocket, Mr. Tekle removed the pocket's contents. Among the items he removed were three ziplock baggies filled with "white stuff." Mr. Tekle asked defendant what the "white stuff" was. In response, defendant stated that the substance was "crack." Mr. Tekle placed the items from defendant's pocket on the table, and remained with him in the room until the police arrived. Rochester Police Officer Corey Clark, who later arrived at the scene, field tested the substance in the baggies, and determined that it was cocaine. Defendant was then arrested for Criminal Possession of a Controlled Substance in the 7th Degree.

DISCUSSION OF LAW

Defendant contends that there was no reasonable basis for the security officers to take defendant into custody or to search his pockets, and that he is entitled to a probable cause hearing to challenge the security officers' actions in detaining him and seizing the cocaine that was allegedly in his pocket. He also maintains that any incriminatory statements he made and any identification of him must be precluded because he did not receive any notices of statements or identification as required by NY Criminal Procedure Law §710.30. Defendant's entitlement to the relief he seeks hinges, in large part, upon whether he was detained and searched by governmental actors. In this case, defendant was not.

The Court of Appeals recently reaffirmed that when a defendant moves to suppress evidence on the ground that it was not seized in a constitutionally permissible manner, he or she is entitled to a pretrial hearing if the defendant " raise[s] a factual dispute on a material point which must be resolved'" before the court can decide the legal merits of defendant's motion. People v. Burton, 6 NY3d 584 (2006), quoting People v. Gruden, 42 NY2d 214, 215 (1977). The Court also stressed that "[t]here is no legal basis for suppression, and, hence, no need for a hearing, unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure." People v. Burton, id.

Based on the undisputed allegations in this case, it is evident that defendant lacks the prerequisite standing to challenge the security officer's seizure of the cocaine from his pocket. Thus, he is entitled to neither a pretrial hearing nor suppression of the evidence.

The constitutional bar against unreasonable searches and seizures is meant to regulate government activity. Thus, the acts of private individuals even unauthorized acts do not violate constitutional proscriptions. Stated differently, unlawful searches and seizures by private individuals generally do not render evidence inadmissible at subsequent criminal proceedings. See Burdeau v. McDowell, 256 U.S. 465, 475 (1921); People v. Horman, 22 NY2d 378, 381-82 (1968), cert. denied, Horman v. New York, 393 U.S. 1057 (1969).

For that reason, the detention of suspected shoplifters in retail stores by private security guards is not subject to constitutional scrutiny. See People v. Horman, 22 NY2d at 381-82. The detention and search of a flight passenger at an airport by an airline employee is not subject to [*3]constitutional challenge. See People v. Adler, 50 NY2d 730, 736-37, cert. denied, Adler v. New York, 449 U.S. 1014 (1980). Similarly, the search of a student's dormitory room for marijuana at Elmira College, a private institution, by the College's dean is not constitutionally barred. See People v. Haskins, 48 AD2d 480, 484 (3rd Dep't 1975). But see People v. Scott D., 34 NY2d 483 (1974)(high school students are protected from unreasonable searches in seizures in school by high school employees).

In this case, defendant was detained and searched by private security officers employed by the University of Rochester, a private educational institution. When Mr. Tekle found what defendant told him was crack cocaine in his pocket, the security officers continued to detain defendant until the police arrived. There is no indication or allegation that there was any governmental involvement until after defendant was detained and the private search revealed the presence of cocaine. Nor is there any suggestion or allegation that the security officers' conduct "was so imbued with governmental involvement" that it lost its private character, thereby calling into play the full panoply of constitutional protections. People v. Adler, 50 NY2d at 737.

Under these circumstances, defendant has no standing to challenge his detention and search by the University of Rochester's private security guards before the police arrived. There is, therefore, no basis for either a pretrial hearing to challenge the seizure of the cocaine, or for the suppression of the cocaine. See People v. Boettner, 50 AD2d 1074 (4th Dep't 1975), affirming People v. Boettner, 80 Misc 2d 3 (Monroe County 1974)(search of students' dorm rooms for marijuana by Rochester Institute of Technology employees not subject to constitutional constraints). Accordingly, defendant's motion to suppress the cocaine that was seized by the University of Rochester security guard is denied.

Defendant also seeks to preclude any incriminating statements or identification testimony because he was not served with a notice pursuant to NY Criminal Procedure Law §710.30. Defendant's motion to preclude any such statements made to the police or identification made pursuant to police procedures is granted

On the other hand, defendant's statement to Mr. Tekle regarding the cocaine in his pocket is not precluded. NY Criminal Procedure Law §710.30(1)(a) requires the People to provide notice of statements a defendant made to "a public servant" that the People intend to introduce at trial. That provision imposes no obligation on the People to provide notice of statements or admissions defendant may have made to private individuals who are not acting as public law enforcement agents. Accordingly, because Jimmy Tekle, a private University of Rochester security guard, is a private individual, the People were not required to provide notice under NY Criminal Procedure Law §710.30 of defendant's statements to him that the People intend to introduce at trial. See People v. Williams, 21 AD3d 1401, 1403 (4th Dep't), leave to appeal denied, 5 NY3d 885 (2005); People v. Batista, 277 AD2d 141 (2d Dep't 2000), leave to appeal denied, 96 NY2d 825 (2001).

Nevertheless, upon request, defendant would be entitled to a Huntley hearing to determine whether defendant's admission to Mr. Tekle was voluntary. See People v. Huntley, 15 NY2d 72 (1965). Under NY Criminal Procedure Law §60.45(1), a statement made involuntarily by defendant to "any person" is inadmissible at trial. Thus, the fact that defendant's incriminating statement was made to a private individual does not relieve the People of their obligation to demonstrate, beyond a reasonable doubt, that the statement was obtained without [*4]"the use or threatened use of physical force" and without "any other improper conduct or undue pressure" before introducing the statement at trial. NY Criminal Procedure Law §60.45(2)(a). See People v. Riley, 303 AD2d 1045 (4th Dep't 2003); People v. Grillo, 176 AD2d 346, 347 (2d Dep't 1991).

CONCLUSION

For the foregoing reasons, defendant Caper's motion for a Mapp hearing and suppression of the cocaine that was allegedly seized from his pocket is denied. Defendant's motion to preclude incriminatory statements made to University of Rochester security guards is denied, but any statements made to the police or testimony regarding any identification made pursuant to police procedures are precluded. Upon defendant's request, the Court will schedule a Huntley hearing prior to trial to determine whether his statement to Jimmy Tekle regarding the cocaine was made voluntarily.

SO ORDERED.

Dated: January 23, 2007_____________________________

Hon. Ellen M. Yacknin

Rochester City Court