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2003 YMCA Mock Trial
Case Law Summaries
The following Case Law Summaries are to be used to develop your oral argument for the Pre-Trial Motion to Suppress filed behalf of the Defendant, Taylor Garrison
NO OTHER CASES OR AUTHORITIES MAY BE CITED OR USED
Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921)
(United States Supreme Court case)
Facts: J.C. McDowell was being investigated by a grand jury in the United States District Court for the Western District of Pennsylvania for the crime of fraudulent use of the mails. Joseph Burdeau was the Special Assistant to the Attorney General of the United States who was charged with prosecuting McDowell.
McDowell was employed by Doherty and Company as the head of the natural gas division of the Cities Services Company, a subsidiary of Doherty and Co. His office was in the Farmer’s Bank Building in Pittsburgh, Pennsylvania. In March 1920, an officer of Doherty and Co. was sent to Pittsburgh to take over McDowell’s offices. This officer and several private detectives drilled into and blew open two safes in McDowell’s office, then removed all the papers within, including McDowell’s private papers. The group also broke the locks on McDowell’s desk, and removed all of the papers from it. All of these items were then sent to Doherty and Company’s corporate offices in New York City.
In June, 1920, Doherty and Co. turned over a letter, found in McDowell’s desk, to the Department of Justice and Mr. Burdeau. Mr. Burdeau eventually took possession of more of McDowell’s private books, papers, memoranda, etc. Burdeau intended to present these documents to a grand jury investigating McDowell for a violation of section 215 of the United States criminal code, “fraudulent use of the mails.”
McDowell then filed a petition in the United States District Court, asking for an order for the return of the books, papers, memoranda, and correspondence stolen from his office.
United States District Court decision: The United States District Court ruled in McDowell’s favor. The court ordered that all of McDowell’s papers should be delivered to the clerk of the court, who would then seal and impound them for ten days. The papers would then be delivered to McDowell unless an appeal was taken. The court stated:
“It did not appear that Burdeau, or any official or agent of the United States, or any of the department, had anything to do with the search of petitioner’s safe, files, or desk, or the abstraction therefrom of any of the writings referred to in the petition, and added that ‘the order made in this case is not made because of any unlawful act on the part of anybody representing the United State or any of its departments but solely upon the ground that the government should not use stolen property for any purpose after demand made for its return.’
Expressing his views, at the close of the testimony the judge said that there had been a gross violation of the Fourth and Fifth Amendments to the federal Constitution; that the government had not been a party to any illegal seizure; that those amendments, in the understanding of the court, were passed for the benefit of the states against action by the United States—forbidden by those amendments, and that the court was satisfied that the papers were illegally and wrongfully taken from the possession of the petitioner, and were in the hands of the government.
United States Supreme Court decision: The U.S. Supreme Court reversed the District Court and held that Burdeau could use the stolen papers. The Court stated:
“In the present case the record clearly shows that no official of the federal government had anything to do with the wrongful seizure of the petitioner’s property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Services Company. It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting officers of the federal government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned.
The exact question to be decided here is: May the government retain incriminating papers, coming to it in the manner described, with a view to their use in a subsequent investigation by a grand jury where such papers will be part of the evidence against the accused, and may be used against him upon trial should an indictment be returned?
We know of no constitutional principle that requires the government to surrender the papers under such circumstances. Had it learned that such incriminatory papers, tending to show a violation of federal law, were in the hands of a person other than the accused, it having had no part in wrongfully obtaining them, we know of no reason why a subpoena might not issue for the production of the papers as evidence. Such production would require no unreasonable search or seizure, nor would it amount to compelling the accused to testify against himself.
The papers having come into the possession of the government without a violation of petitioner’s rights by governmental authority, we see no reason why the fact that individuals, unconnected with the government, may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense where the documents are of an incriminatory character.
It follows that the District Court erred in making the order appealed from, and the same is reversed.”
State v. Ludvik, 40 Wn.App. 257, 698 P.2d 1064 (1985)
(Washington Court of Appeals, Division Three)Facts: In November 1982, Brooks Carmichael, a Washington State game agent, observed heavy pedestrian traffic in and out of the home of Douglas Ludvik, who lived across the street from Carmichael. Carmichael noticed that “the individuals involved stayed for only brief periods of time. As many as 15 vehicles would arrive in an hour. This traffic would continue until 10 or 11 o’clock at night.”
Several days after he began observing this traffic, Mr. Carmichael saw what he believed to be a drug transaction. Carmichael used binoculars to look into Ludvik’s home and see a plastic baggie exchanged for money.
On November 15, 1982, Carmichael reported his observations to the Spokane County Sheriff’s Department. The detectives asked the prosecutor’s office about obtaining a warrant, and it was decided that further investigation should be conducted. Mr. Carmichael agreed to the use of his residence for purposes of police surveillance. A sheriff’s deputy set up surveillance from Carmichael’s home, using binoculars and a spotting scope. The deputy observed the same traffic as Carmichael had observed, and also saw one person leaving the home with a baggie containing what appeared to be marijuana. The deputy also saw Ludvik retrieve a baggie of marijuana.
On November 16, 1982, deputies obtained a search warrant. The affidavit for the warrant contained the information originally supplied by Carmichael and also the observations made during the police surveillance. When the warrant was served, Ludvik led officers to a closet containing dried mushrooms, containing the controlled substance psilocyn.
Ludvik was charged with and convicted of unlawful possession of a controlled substance, psilocyn. The trial court ruled: “…the evidence gathered by Mr. Carmichael before contacting the sheriff’s office was lawful because the observations did not involve any governmental activity. In short, Carmichael had acted as a private citizen. However, the observations made by Deputy Quasnick and Mr. Carmichael through the window of the Ludvik residence during the police surveillance constituted an unreasonable intrusion into Ludvik’s legitimate expectation of privacy in his home. Nevertheless, the remaining information contained in the supporting affidavit established probable cause; therefore, the warrant was valid and the evidence seized during its execution was not subject to exclusion.”
Ludvik was then found guilty at trial.
Court of Appeals Decision: The court of appeals affirmed the judgment of the trial court. The court stated:
Mr. Ludvik initially contends Mr. Carmichael’s observations, prior to contacting the sheriff’s department, constituted a governmental search because Mr. Carmichael is employed as a state game agent and has authority under RCW 77.12.060 and .080 to execute search warrants and make arrests…
Constitutional guaranties against unreasonable searches and seizures protect only against governmental actions and do not require the application of the exclusionary rule to evidence obtained from private citizens acting on their own initiative…The history and origins of both the fourth amendment to the United States Constititution and article 1, section 7 of the Washington State Constitution clearly show they were intended as a restraint upon sovereign authority; in the absence of state action, they have no application regardless of the scope of protection which would otherwise be afforded under either provision.
In determining whether a search is subject to constitutional controls, official involvement is not measured by the primary occupation of the person conducting the search, but the capacity in which he acts at the time of the search…Further, a mere purpose to aid the government does not transform an otherwise private search into a governmental search.
Here, Mr. Carmichael was not acting in an official capacity at the time of his initial observations. His surveillance of the Ludvik residence was not related to his official duties. He exercised no greater authority under the circumstances than any other private citizen. He took no other action on his own, but instead contacted law enforcement authorities. His actions had not been coordinated or encouraged by the police. Therefore, the trial court did not err in determining Mr. Carmichael’s initial observations constituted a private search and were not subject to exclusion.
State v. Swenson, 104 Wn.App. 744, 9 P.3d 933 (2000)
(Washington Court of Appeal, Division One)
Facts: “On March 7, 1995, David Loucks left home for a 7 p.m. meeting at the Seattle recording studio that he owned and operated. The next morning, David Loucks’ father, Allan Loucks, Sr., discovered his son’s dead body on the floor of the studio with duct tape over his mouth and nose and around his hands and feet. David Loucks’ wedding band, keys to the studio, and some of his recording equipment were missing…
Allan Loucks, Sr., an attorney, took an immediate interest in helping the police find his son’s killer or killers. He suggested investigative strategies that the police should pursue and provided the police with information that a “Paul Waller” had an appointment with David Loucks on the evening of March 7, 1995. Detectives Alan Lima and Kevin O’Keefe followed up on many of these leads and kept Allan Loucks informed of their progress.
By June 1995, Allan Loucks decided that detectives were not competently investigating his son’s death. He took time away from his law practice to investigate on his own. Despite instructions from Detective Lima to let police handle the investigation, Allan Loucks continued to pursue various leads and provide information to the police. By August 1995, this information included driver’s license numbers, credit card numbers, birth dates, birth certificates, social security numbers, bank records, insurance information, court documents, and addresses of people that Allan Loucks thought the police should investigate. Through the end of 1995, Loucks continued to be a consistent source of information for the police.
In January 1996, Allan Loucks met with the police to provide them with some additional names of people to investigate, including Shawn Swenson. In turn, the police updated Allan Loucks on their investigation and exchanged information with him. Shortly thereafter, Allan Loucks provided police with an address and car that he connected to Swenson.
On February 6, 1996, Allan Loucks provided the police with a sketch, credit information for Swenson, and his social security number. On February 13, 1996, Allan Loucks tipped Detective Lima that Swenson had used a Washington Driver’s License with a Florida address at a music store in Spokane.
In March 1996, the police called Allan Loucks to ask for the cellular phone numbers that Allan Loucks thought they should investigate. Allan Loucks called back and said that he did not have any new cellular phone numbers to investigate. He did, however, indicate that he was able to connect Swenson to some stolen recording equipment.
In the spring of 1996, Allan Loucks received some anonymous information that Swenson had called David Loucks’ studio five times in the weeks and days leading up to his son’s death. The information included days, times, and lengths of the calls. Earlier, Allan Loucks had contacted several people in the telephone industry asking for this information. He advised them to provide the information anonymously because he knew that his contacts could not obtain the information legally.
Allan Loucks did not immediately provide the information to police because he was frustrated with how the police were conducting their investigation. On June 10, 1996, Allan Loucks told police that the key to solving the case was Swenson’s phone records and that he believed Swenson was “Paul Waller.” Allan Loucks also said that he had a lot of additional information but needed to consult a criminal attorney before releasing it.
On June 18, 1996, Allan Loucks met with police and again advised them that Swenson’s phone records were very important to solving the case. In addition, he provided police with information connecting Swenson to another theft of recording equipment. On July 3, 1996, the police received a “Crime Stoppers Tip” advising police that Swenson called David Loucks’ recording studio from Swenson’s home telephone on February 24, 1995, that Swenson called the studio several times around David Loucks’ death, and that Swenson was involved in two other thefts of recording equipment in the Seattle area. The tipster also provided Swenson’s home telephone number.
On July 6, 1996, after meeting with Allan Loucks, King County Deputy Prosecuting Attorney Patty Eakes told police that it might be important to obtain a subpoena for Swenson’s phone records. Shortly thereafter, a warrant was issued for Swenson’s arrest in connection with recording equipment stolen in Redmond, Washington. The police called Allan Loucks and informed him that the police would interview Swenson once he was arrested on the theft charges.
In September 1996, Allan Loucks met with Eakes. At that point, he was so angry that the police had not obtained Swenson’s phone records on their own that he provided her with the dates and times that David Loucks’s studio had been called from Swenson’s former Spokane phone number, and the lengths of the calls. On October 14, 1996, Allan Loucks followed Swenson’s girlfriend home from her place of work to an apartment building. After Allan Loucks spotted Swenson, he called the Spokane Police Department. The police arrived at the apartment and arrested Swenson on the outstanding warrant related to the theft charges.
The next day, Eakes and Detectives Lima and O’Keefe traveled to Spokane and confronted Swenson with the information provided by Allan Loucks and the fact that they now had his fingerprints. Swenson eventually admitted that he was at the studio the night David Loucks was killed. Swenson then gave a taped statement to the police, implicating someone named “Joe” in David Loucks’ death. Swenson later identified “Joe” as Joseph Gardner. The police interviewed Gardner, who was already in prison for another crime, and Gardner implicated himself and Swenson in the robbery at David Loucks’ studio.
Swenson moved to suppress the phone records and his subsequent statements to police, contending that Allan Loucks was acting as a government agent when Allan Loucks obtained initial information from Swenson’s phone records. At the CrR 3.6 hearing, Allan Loucks testified that the police never told him, directly or indirectly, that they wanted Swenson’s phone records. Detective Lima testified that he was concerned about how Allan Loucks was getting his information but did not want to know his sources. In addition, Detective Lima testified that he never asked Allan Loucks, directly or indirectly, to obtain any phone records and repeatedly discouraged Allan Loucks from continuing his investigative efforts. Detective Lima, however, also testified that he told Allan Loucks that the police could not obtain telephone records without probable cause, in response to a statement by Allan Loucks that the police needed to get phone records for certain individuals. The trial court denied Swenson’s motion to suppress, concluding that Allan Loucks was not acting as a government agent and even if he were, the police would have inevitably discovered Swenson’s phone records.
Court of Appeals Decision:
The defendant bears the burden of proving that a private citizen who provides evidence to the government was acting as an instrumentality or agent of the government…’Whether or not a person is acting as the State’s instrumentality depends on the particular circumstances of the case…Critical factors in determining whether a private person acts as a government agent include [1] whether the government knew of and acquiesced in the intrusive conduct and [2] whether the party performing the search intended to assist law enforcement efforts or to further his [or her] own ends…United States v. Miller, 688 F.2d 652 (9th Cir. 1982)…If the court answers both queries in the affirmative, then the private citizen was acting as a government agent when he or she conducted the search…
In this case, Allan Loucks clearly satisfies the second part of the so-called Miller test. Although Allan Loucks had a personal interest in identifying his son’s killer or killers, he obtained Swenson’s phone records to assist law enforcement officers in their investigation. Therefore, the only question is whether Swenson has met the first part of the Miller test—did the government know of and acquiesce in Allan Loucks’ obtaining Swenson’s phone records?
Swenson contends that Allan Loucks investigation was not independent of the police department’s investigation, and that the police acquiesced and encouraged Allan Loucks’ illegal seizure of Swenson’s phone records by accepting other information that the police suspected was obtained by Allan Loucks through illegal means. But even if this court accepts Swenson’s characterization of the testimony from the CrR 3.6 hearing, this does not establish that Allan Loucks was acting as a government agent when he obtained Swenson’s phone records.
Mere knowledge by the government that a private citizen might conduct an illegal search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one…It must be shown that the State in some way ‘instigated, encouraged, counseled, directed, or controlled the conduct of the private person…’
In this case, although one could conclude from the conflicting evidence that the police encouraged Allan Loucks to help them with their investigation, there is no evidence that the police instigated, encouraged, counseled, or directed Allan Loucks to obtain Swenson’s phone records. In fact, the evidence shows that Alan Loucks was continually frustrated at police failure to take advantage of the information he provided regarding the phone records, and that the police did not seize the records until they were able to obtain a search warrant based on their interviews with Swenson and Gardner. Moreover, Swenson does not even challenge the trial court’s finding that ‘[t]he police never articulated for Mr. Loucks any specific type of information that they were seeking in their own investigation.’…Without some evidence that the police indicated to Allan Loucks that they wanted Swenson’s phone records, it cannot be said that the police were using Allan Loucks to obtain evidence without a search warrant where a search warrant would otherwise be required. Therefore, the trial court’s finding that Allan Loucks was not acting as a government agent when he obtained Swenson’s phone records is supported by substantial evidence, and the trial court properly denied Swenson’s motion to suppress.
United States v. Souza, 223 F.3d 1197 (10th Cir. 2000)
Facts: On May 3, 1999, Larry Souza pled guilty to an indictment charging him with one count of possession with intent to distribute methamphetamine and aiding and abetting. Souza appeals the district court’s denial of his motion to suppress drug evidence discovered as the result of a search conducted at a United Parcel Service (UPS) facility in Sacramento, California, of a package addressed to him…
On June 9, 1997, agents of the Drug Enforcement Administration (DEA) were training officers assigned to a Sacramento task force on drug parcel interdiction. The training took place at the UPS office in West Sacramento. Detective Steve Sloan was one of the officers conducting the training at the UPS facility. At approximately 5:30 p.m., a white cardboard box caught Detective Sloan’s attention as he watched packages pass by on a conveyer belt. Detective Sloan believed that the package might contain contraband because it had been sent through third party shipping, the sender had only used a first name, all openings on the box were heavily taped with a clear tape, and the box was solid so that no side of it could be compressed. Detective Sloan testified that he suspected the box was filled with a type of foam that expands and hardens once it is put in the box, a characteristic that he believed, based on his experience as a narcotics detective, indicated that the box contained contraband.
The box was taken off the conveyer belt and placed next to a wall behind Detective Sloan. Special Agent Donald Rowden, also part of the interdiction operations, noticed the same suspicious characteristics of the package and decided to conduct a test to see if a narcotics dog would alert to the package. Special Agent Rowden took the package to a parking lot off UPS property and set the package on the ground with four other controlled packages that were placed about three feet apart and placed a plastic milk crate over each package. SA Rowden then directed a narcotics dog, Clause, to sniff the packages. Clause positively alerted to the package that had been targeted by Rowden and Sloan for the presence of narcotics…SA Rowden returned the package to Detective Sloan and advised him that he wanted to hold the package to write an application for a search warrant based on the probable cause of the narcotics dog alert…
Detective Sloan took the package and placed it behind him on the floor next to the wall. Subsequently, a UPS employee, April Denning, arrived on the scene. According to Denning’s testimony, a conversation was initiated by Detective Sloan who told her that a narcotics dog had alerted to the package and ‘stated that they couldn’t tell me to open the package, they were not authorized to do that, they would have to have a search warrant, but he pointed to where the package was.’ A couple of minutes later, another officer again told Denning, “I cannot tell you not to open the package, but there it is on the floor.” Denning estimated that approximately five minutes passed between the two conversations. She also testified that she was influenced by the statements of the interdiction officers.
After his conversation with Denning, Detective Sloan continued evaluating other packages that were on the conveyer belt. Approximately a minute or two after Detective Sloan continued with his evaluation, Denning picked the targeted package up, took it a few feet away to where her workstation was located, and began opening the package. Detective Sloan watched Denning open the package but did not tell her not to open it because he felt it was “not right to stop her.” He also believed she was acting within UPS policy in opening the package.
Due to hardened foam that completely encased everything, Denning had difficulty opening the package. She started tearing some of the foam away and, at that point, DEA agents intervened using a knife to cut through the foam and located the Tupperware container that was inside the package. The Tupperware container revealed a brownish substance that appeared to be methamphetamine. When Detective Sloan saw the methamphetamine, he took custody of the package. Detective Sloan then turned the package over to Special Agent Rowden, who was upset because he wanted to “get a couple of warrants behind Clause for reliability purposes” and “because he knew it would have been a good warrant.”…Special Agent Rowden then conducted a closer inspection of the package at his office, which revealed that the Tupperware container held plastic bags containing approximately 197 grams of a substance which tested positively for methamphetamine…The package was then delivered to the Souza residence and Souza was subsequently arrested.
Souza filed a motion to suppress the evidence…The district court agreed that the search was in violation of the Fourth Amendment….
Court of Appeals Decision: In determining whether a search by a private person becomes a government search, the following two-part inquiry is utilized: “1) whether the government knew of an acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts of to further his own ends…Both prongs must be satisfied before the private search may be deemed a government search…The totality of the circumstances guides the court’s determination as to whether the two-part inquiry has been met.
If a government agent is involved “merely as a witness,” the requisite government action is absent and the search will be deemed private…The police must “instigate, orchestrate, encourage, or exceed the scope of the private search to trigger application of the Fourth Amendment”…The police are under no duty to discourage private citizens from conducting searches of their own volition…
In this case… the officers had substantially more involvement in the search of the box than merely being witnesses to the search. First, the officers specifically targeted the box and placed it to the side for safekeeping. Second, officers twice, within a span of five minutes, attempted to encourage Denning to open the package and Denning testified that she was influenced by the officers’ attempts…While companies such as UPS have legitimate reasons to search packages independent of any motivation to assist police…there is no evidence that in this instance Denning had a legitimate, independent motivation to open the package, despite her practice of randomly opening packages on other occasions…
Perhaps the most damning of all is that, as the district court found, the officers substantially assisted in the search initiated by Denning. “A search is a search by a federal official if he had a hand in it” and…[s]o long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it…While private searches generally do not raise constitutional concerns, the Fourth Amendment would be seriously undermined if the search of the package in this case was described as anything other than orchestrated by the government.
United States v. Robinson, 504 F. Supp. 425 (1980)
(United States District Court, Northern District of Georgia)
Facts: Defendant Alphonso Robinson has been charged in a one-count indictment with possession of marijuana with intent to distribute…Defendant filed a motion to suppress evidence.
Defendant arrived at Ft. Lauderdale, Florida, airport before mid-morning on August 12, 1980, carrying a tote bag, a yellow suitcase, and blue suitcase…After defendant checked the two suitcases, he was approached by a Broward County, Florida, detective who asked to interview him. The detective identified himself as a narcotics detective. The defendant consented to speak with the detective. Having first acquired defendant’s two checked suitcases from Delta baggage personnel, the detective then asked defendant if he would consent to a search of his person, his carry-on tote bag, and the two checked suitcases. Defendant consented to a search of all of the above except the blue suitcase. He told the detective the blue suitcase belonged to a friend of his and he was transporting the suitcase to Los Angeles for the friend. As such, the defendant told the detective that he could not consent to a search of the blue suitcase, and in Ft. Lauderdale, it was never searched. The detective re-delivered the suitcases to Delta and defendant flew to Atlanta.
While defendant was en route to Atlanta, the detective phoned [Special Agent Gerald] Chapman [of the Drug Enforcement Administration (DEA)] at home in Atlanta and related to him the events in Ft. Lauderdale…When defendant’s plane landed in Atlanta, he went to the gatehouse from which his connecting flight would leave around 6:00 a.m. for Los Angeles. Agent Chapman approached him and asked if he could question him. Agent Chapman identified himself as a DEA agent. The pair walked into the corridor where defendant related to Chapman that he had been questioned and searched in Ft. Lauderdale…
Chapman asked defendant if he would consent to a search of his person and the tote bag in his immediate possession, and the defendant consented…The DEA agent found no contraband items on defendant or in his tote bag. When asked if he would consent to a search of the two suitcases which correlated to the claim checks in his pocket, he again consented to search of the yellow one, but refused to consent to a search of the blue bag, contending that he did not have authority to consent to a search of a bag that he carried for a friend.
The defendant then went downstairs with Agent Chapman who left the defendant with two Atlanta police officers in a police station. The defendant was not under arrest. Agent Chapman took the claim checks he had seized from defendant to Delta baggage personnel and requested them to remove defendant’s two suitcases from either the airplane bound for Los Angeles on which defendant was ticketed, or an area awaiting the arrival of the plane that was to leave for Los Angeles. Agent Chapman carried one of defendant’s suitcases to the police station where he had left defendant, while a Delta employee carried the other. Both suitcases were locked.
Each suitcase had an identification tag attached to it bearing defendant’s name…Agent Chapman, in the presence of the Delta employee, placed the keys he had seized from defendant on a desk in the Atlanta police station and told defendant that though the suitcase was for a friend of his, because he had custody and control of it he could consent to the opening of it. Agent Chapman told the defendant that the keys that had been found in his possession appeared to fit the lock on the blue suitcase. Defendant refused to consent to the search of the bag, again contending that although he was carrying it to Los Angeles, it belonged to a friend. The Delta employee asked defendant if the blue suitcase was his, to which defendant again made it clear that the bag was checked to him but that he could not consent to a search of it since it belonged to a friend.
The Delta agent who had carried one of defendant’s two suitcases to the Atlanta police station then took the keys which Agent Chapman had placed on the desk and opened the blue suitcase. According to Agent Chapman, the Delta agent and his supervisor decided either to open the blue suitcase to learn who in fact it belonged to or they believed they could open it “based on the tariff laws.” The blue suitcase contained marijuana, leading to the present charge against defendant…
District Court Decision: The Fourth Amendment’s warrant requirement, of course, is intended solely “as a restraint upon the activities of sovereign authority.” Burdeau v. McDowell…, and a search conducted by a private individual for purely private reasons does not fall within the protective ambit of the Fourth Amendment…However, if under the circumstances of the case the private party acted as an instrument or agent of the government, the ostensibly private search must meet the amendment’s standards…The decisive factor is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means…
…The contribution of Agent Chapman leading to the discovery of the marijuana was extensive. Had he not requested Delta employees to locate defendant’s two checked suitcases, they would have been transferred to the airplane bound for Los Angeles for which defendant held a ticket; had he not placed the keys to the blue suitcase on a desk in front of the Delta agent and told the defendant in the Delta agent’s presence that the keys appeared to fit the lock on the suitcase, the Delta agent would not have had access to the contents of the suitcase without damaging the suitcase which was checked to the paying customer; and had he not continued to request defendant to consent to a search of the suitcase in the Delta agent’s presence, the Delta agent may never have learned that a law enforcement officer wished to have the suitcase opened. In addition to these facts, the Delta agent who, according to Agent Chapman, opened the bag to learn who was the owner of it, knew that it was checked to defendant, that defendant’s name was on it, that the keys to it were in his possession, and that defendant claimed a possessory interest in the bag.
In the Court’s determination the Delta agent opened the bag at the unspoken, but real, encouragement of Agent Chapman, rendering the search of defendant’s friend’s blue suitcase a governmental search. Therefore, if no exception to the warrant requirement applies to this case, the search and seizure was illegal under the Fourth Amendment.
The government has failed to argue that any exception to the warrant requirement would justify this warrantless search…
State of Kansas v. Bohannon, 596 P.2d 190 (1979)
(Court of Appeals of Kansas)
Facts: The defendant, O.B. Bohannon, Jr., was charged with one count of burglary and one count of theft. The charges arose out of a burglary of the residence of Eddie Taylor in which a number of pieces of citizens band (CB) radio equipment were stolen. Taylor was of the opinion his equipment made a distinctive sound when transmitting, and a few days after the burglary he heard what sounded like his equipment on the air. Through conversation he learned the “handle” (Gambling Dog), and address of the person operating the equipment. Subsequent investigation disclosed that “Gambling Dog” was the handle of the defendant, O.B. Bohannon, Jr.
Taylor, a former reserve police officer with the Wichita Police Department, contacted a Lt. Bullins of the department and requested that Bullins meet him at 17th and Hillside. When Bullins arrived, Taylor told him of his suspicions regarding the defendant. Bullins and Taylor agreed that they had insufficient evidence to obtain a search warrant, and that if they merely went to the defendant’s home, the odds were that they would not be allowed to enter and the CB equipment would be disposed of. The two men then went to the home of Taylor’s son-in-law, Robert Emerson. Taylor asked Emerson, who was familiar with the equipment, to go to the defendant’s home and verify that it was Taylor’s equipment. Bullins instructed Emerson that he would need to be able to identify at least a portion of the equipment. Bullins and Taylor returned to 17th and Hillside in the police vehicle. Emerson, traveling in his own vehicle, proceeded directly to the defendant’s home. Emerson’s first attempt to view the equipment was unsuccessful and he returned to 17th and Hillside. The three men soon heard the distinctive transmitter noise, whereupon Emerson returned to defendant’s home and verified that Taylor’s CB equipment was in fact there.
Based on the information Emerson gave Bullins, a search warrant was obtained and the stolen CB equipment was seized. The defendant was charged with one count of theft and one count of burglary…The trial judge found that Emerson was acting as an agent for the Wichita Police Department when he went to the defendant’s home to view the CB equipment and accordingly suppressed the evidence. The State then brought this interlocutory appeal…
Court of Appeals Decision: In order to be admissible, evidence obtained through a search by a private individual must come to the State upon a “silver platter” and not as a result of any instigation by state officials or participation by them in illegal activities…The extent of official involvement in the total enterprise is the crucial element, for if it is too great the private individual’s role may be reduced to that of an agent…Once an agency relationship is established, the full panoply of constitutional provisions and curative measures applies, and any evidence which the police could not legally seize or observe is also off limits to the agent…
The facts in the case before this Court fall between the two extremes of when police had only an idea of what might occur and when they actually witnessed the illegal search and seizure taking place…Officer Bullins participated in obtaining a person to go to the defendant’s home, an entity enjoying special protection by our constitution, and there obtain evidence the officer did not think he could successfully obtain. We note that a police vehicle was used in the trip to recruit Emerson. Counsel for the State candidly admitted at oral argument that Bullins may have acted in a supervisory capacity, and he was clearly present during the entire planning stage. Bullins was also present when Emerson twice left to go to the defendant’s home. He further participated when he explained to Emerson what the latter must observe in the home, and was standing by the immediate neighborhood while the illegal search took place. While he did not instruct Emerson to take any illegal action, the record contained evidence from which the trial court could conclude that he must have been aware of the probability such activity would take place…Affirmed.
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