The People of the State of New York v. Nomari Powell, Defendant. (2026)

THE DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE IS DENIED.

OPINION OF THE COURT

The defendant is charged with, inter alia, Criminal Possession of a Weapon in the Second Degree. He has moved for an order suppressing physical evidence and statements, contending that he was subjected to an unlawful search and seizure and that his statements were taken in derogation of his constitutional rights. At the commencement of the hearing, the People withdrew their statement notice. A hearing to determine the admissibility of the physical evidence was held before me on June 22nd, 2026. The People called Police Officer Melanie Hilton, whose testimony the court credits in all relevant respects. No witnesses were called on behalf of the defendant.

FINDINGS OF FACT

Officer Hilton testified that on November 2, 2025 at approximately 1:40 AM she responded to 10-19 Irving Avenue, Queens, a "pop-up location where they have parties" (suppression hearing minutes, p8), pursuant to her receipt of a radio transmission that security personnel at the location had recovered a firearm. Upon arrival, she saw a male, identified at the hearing as the defendant, who was on the ground surrounded by security personnel. She said that she was told by security that a gun had been recovered.

According to Officer Hilton, no other police officers were at the scene when she arrived, and none of the security guards identified themselves to her as police or law enforcement officers. She said that she spoke with the head of security, James Jenkins, who was not a member of the NYPD or any other law enforcement agency. Mr. Jenkins told her that there had been a verbal dispute and that the defendant had tried to leave. However, he stopped the defendant and recovered a gun from his front waistband. He then placed the defendant in handcuffs, put him on the ground, and called the police. Officer Hilton stated that Mr. Jenkins handed the firearm that he recovered from the defendant to her partner.

Officer Hilton further testified that there were no police operations occurring at 10-19 Irving Avenue when this incident occurred.

On cross-examination, Officer Hilton testified that at the time of the incident, she did not check to see if Mr. Jenkins was a licensed peace officer. She did, however, ask him for his identification, which he provided.

On redirect- examination, Officer Hilton testified that the state identification provided by Mr. Jenkins was his driver's license.

The defendant now moves for the suppression of the firearm.

CONCLUSIONS OF LAW

The sole issue before the Court, in determining whether the firearm recovered from the defendant by Mr. Jenkins is admissible in evidence, is whether Mr. Jenkins was a private security guard or a State actor.

It is settled law that "an unauthorized search or seizure by private individuals, including store detectives, does not render the evidence inadmissible at subsequent civil or criminal proceedings" (People v Jones, 47 NY2d 528, 533 [1979]). In Jones, the Court of Appeals held that this is so "because the Fourth Amendment is meant to regulate government activity" and the "unauthorized act of a private person does not violate the constitutional limitations" (id), a concept that "has been the rule when the individual has acted entirely on his own without the participation or knowledge of any governmental official" (id). However, the Court in Jones acknowledged that the government "cannot avoid constitutional restrictions by using a private individual as its agent" or "when government officers, subject to constitutional limitations, have participated in the act" (id). In Jones, the Court of Appeals held that the involvement of the police, who were advised that the defendant was under observation by store detectives, remained in the store for several minutes to also observe the defendant, then assisted in the defendant's detention and waited outside of the room where store detectives questioned the defendant, was extensive enough to transform the scenario from private conduct to State action.

In People v Ray (65 NY2d 282, 286 [1985]), the Court of Appeals again acknowledged that private conduct "may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections". It delineated the indicia of State involvement that "may transform private conduct into State action" (id), which included: 1) "a clear connection between the police and the private investigation"; 2) completion of the private act at the instigation of the police; 3) close supervision of the private conduct by the police; and 4) "a private act undertaken on behalf of the police to further a police objective" (id). With these guidelines in mind, the Ray Court found that the conduct of the store detective, who observed the defendant stealing property, detained him in the security office, patted him down, questioned him without Miranda warnings, then handed him over to a special police officer who worked at Bloomingdales and who placed the defendant under arrest, did not constitute State action. In so holding, the Court noted that Bloomingdales' conduct "in employing a special police officer on the premises to process any arrest ordered as a result of the private investigation conducted by employees of the store" did not constitute "governmental involvement requiring observance of the full panoply of constitutional protections" (id) since the surveillance, apprehension, and questioning of the defendant was not done at the behest of the special police officer or with her assistance (see also, People v Adler, 50 NY2d 730 [1980], in which the Court of Appeals held that the search conducted by an airlines employee was private, and thus did not "implicate Fourth Amendment considerations" [id, p737] since "there was no governmental involvement until after the private search revealed the presence of contraband", noting that the airline employee did not "become an agent of the police merely by surrendering the package" to the police officer who was summoned to the scene [id]).

In the case at bar, the defendant was detained and searched by James Jenkins, who was employed by the party venue as the head of security. Mr. Jenkins recovered a firearm from the defendant's waistband, then placed him in handcuffs, put him on the ground, and called the police. The officer who responded to the location testified that there were no other police officers at the scene, nor any police operations being conducted there. She said that none of the security guards surrounding the defendant identified themselves as police or law enforcement officers and that Mr. Jenkins was not a member of the NYPD or any other law enforcement agency. She also stated that Mr. Jenkins had handed the recovered firearm to her partner and when asked for identification, provided his driver's license. On these facts, the Court finds that the People have met their burden of going forward to show that Mr. Jenkins was acting in his private capacity as the head of security at the dance venue. He was "not acting as an agent for the police and was not under their supervision or control" (People v Martin, 240 AD2d 434 [2d Dept 1997], appeal denied 90 NY2d 895 [1997]). There was no "connection between the police and the private investigation" conducted by Mr. Jenkins, no "instigation" by the police to search the defendant," no "supervision" of Mr. Jenkins by the police (People v Ray, supra), and "no police participation in the search which was not undertaken to further a law enforcement objective" (People v Martin, supra). The Court finds that these circumstances sufficiently demonstrate that the search was a private one (see, People v Green, 41 AD3d 162 [1st Dept 2007], appeal denied 9 NY3d 932 [2007], in which the Appellate Division held that "the guard, acting in a private capacity, detained and searched defendant on his own initiative, and then called the police to come and arrest him [and [t]hus, defendant's detention did not amount to state action").

The Court notes that Mr. Jenkins' use of handcuffs does not warrant a different result. In People v Parris, (220 AD2d 254 [1st Dept 1995], appeal denied 87 NY2d 976 [1996]), the Appellate Division held that where the defendant failed to show "a connection between security guards and police indicative of active governmental involvement in the surveillance, apprehension, or questioning of defendant," there was no basis to grant the suppression hearing, let alone suppress the evidence. They held that the fact that the security guards "resembled the police in the uniforms they w[ore] and tactics they use[d], r[a]n the store's own private jail, and operate[d] for the sole purpose of aiding the police in gathering and turning over the information and suspects needed to prosecute" did not turn a private investigation into a State action, finding that a store policy that reflected a practice "of turning defendant over to authorities after investigation and the decision to prosecute have privately been made is constitutionally immaterial and, in reality, simply consistent with the customary procedures involved in all citizens' arrests" (id, citing People v Ray, supra, at 287-288; see also, People v La Fauci, 91 Misc 2d 980 [Nassau County 1977], [which held that there was no impediment to private security guards using handcuffs]). Therefore, the fact that the use of handcuffs, which the Court notes requires no license, resembles police conduct and gear does not transform a private apprehension and search into a State action.

The Court further notes that neither the defendant's speculation in his Memo of Law that Mr. Jenkins "may well have worked with another branch of the police department (Defendant's Memo, p2) nor Officer Hilton's testimony that that she did not check to see whether or not Mr. Jenkins was a peace officer is sufficient to meet the defendant's burden here. Although the People unquestionably had the burden of "going forward to show the legality of the police conduct in the first instance" (People v Messano, 41 NY3d 228 [2024]), which the Court has already found they have met with ample indicia that the search of the defendant herein was private and did not involve any law enforcement intervention, it is the defendant who bears the ultimate burden of proving illegality (People v Berrios, 28 NY2d 361 [1971]), which the Court finds he failed to do. There is not the slightest indication that Mr. Jenkins is anything more than a private actor. He did not identify himself as a law enforcement officer, did not show any law enforcement identification, and did not rely on the police to any extent to detain and search the defendant. On these facts, there is no basis to find that this was a State action (see, People v Wilks, 50 AD3d 520 [1st Dept 2008], appeal denied 11 NY3d 742 [2008]), which held that the People had met their "burden of justifying the challenged activity by showing that the store detectives who stopped and searched defendant were not state actors," but that the defendant had "offered no evidence to contradict the People's proof, thus failing to satisfy his ultimate burden")¹ .

Based upon the foregoing, the Court finds that Mr. Jenkins was a private actor and that there was no State involvement with the detention and search of the defendant. Accordingly, the defendant's motion to suppress the firearm is denied.

This decision constitutes the decision and order of the Court.

DATED: August 12, 2026

Kew Gardens, New York

HON. GERMAINE A. AUGUSTE

Acting Justice of the Supreme Court

FOOTNOTES

1.   The Court agrees with the People that even if the defendant was affiliated with some law enforcement agency, no indication of which was adduced at the hearing, he could still have been acting in a private capacity that is not impacted by this affiliation (see, People v Liciani, 120 Misc 2d 826 [1983]).

Germaine A. Auguste, J.