Chapter 27: Searches by Civilians and Police Agents

[1] USSC: US v. Jacobsen (1984)
466 US 109, 113 [“[The Fourth Amendment] is wholly inapplicable to a
search or seizure, even an unreasonable one, effected by a private
individual not acting as an agent of the Government or with the
participation or knowledge of any governmental official.”];
Skinner v. Railway Labor Exec. Assn. (1989) 489 US 602, 614
[evidence will be suppressed if it was obtained as the result of an
unlawful search by a civilian who was an “instrument or agent of the
Government”]; Coolidge v. New Hampshire (1971) 403 US 443, 487
[“The test [is whether the citizen] must be regarded as having acted as
an instrument or agent of the state”]. CAL: P v. Wachter
(1976) 58 CA3 911, 920 [exclusionary rule “does not extend to cases where
evidence has been seized or obtained by a private citizen unless that
citizen was then acting as an agent for the government”].

[2] QUOTE FROM:
Skinner v. Railway Labor Exec. Assn. (1989) 489 US 602, 614.
USSC: Lustig v. US (1949) 338 US 74, 78 [did the officer
“have a hand” in the search?].

[3] USSC:
Lugar v. Edmondson Oil Co. (1982) 457 US 922, 941 [“a private
party’s joint participation with state officials in the seizure of
disputed property is sufficient to characterize that party as a ‘state
actor'”]; US v. Jacobsen (1984) 466 US 109, 113 [search “with the
participation” of an officer]; Lustig v. US (1949) 338 US 74, 78
[“a search is a search by a federal official if he had a hand in it”].
CAL: P v. Wilkinson (2008) 163 CA4 1554, 1567 [“there must
be some evidence of Government participation in or affirmative
encouragement”]; Jones v. Kmart Corp. (1998) 17 C4 329, 333
[private citizen may be a police agent if he “obtained significant aid
from state officials”]; P v. Bennett (1998) 17 C4 373, 384, fn.3
[civilian was acting at an officer’s request]; Raymond v. Superior
Court (1971) 19 CA3 321, 325 [“police participation in planning and
implementation subjected the expedition and its product to
suppression.”]; P v. North (1981) 29 C3 509, 514 [search
“performed in conjunction with, or cloaked in the authority of the
state”]; P v. De Juan (1985) 171 CA3 1110, 1120 [search at
officers’ “behest or instigation”]. 9th CIR: George v.
Edholm (9C 2014) 752 F3 1206, 1215 [“Police officers may not avoid
the requirements of the Fourth Amendment by inducing, coercing,
promoting, or encouraging private parties to perform searches they would
not otherwise perform.”]; US v. Ziegler (9C 2007) 474 F3 1184,
1190 [FBI agent asked company manager to provide a copy of an employee’s
hard drive]; US v. Reed (9C 1994) 15 F3 928, 932 [“[The manager]
would not have felt comfortable searching Reed’s room had police officers
not been standing guard in the doorway as lookouts.”].

[4] OTHER: US v. Shelton (7C
2021) 997 F3 749, 771 [an FBI agent “directed [the informant] to conduct
warrantless searches of his co-worker’s offices”]; US v.
Rivera-Morales (1C 2020) 961 F3 1, 8 [what was “the extent of the
government’s role in instigating or participating in the search”?];
US v. Benoit (10C 2013) 713 F3 1, 10 [the officer did not
“affirmatively encourage, initiate or instigate the private action”];
US v. Silva (1C 2009) 554 F3 13, 18 [consider “the extent of the
government’s role in instigating or participating in the search, its
intent and the degree of control it exercises over the search and the
private party”].

[5] CAL: P v. Wilkinson (2008)
163 CA4 1554, 1566-67 [“a defendant must demonstrate that the Government
knew of and acquiesced in the private search and that the private
individual intended to assist law enforcement authorities”]; P v. De
Juan (1985) 171 CA3 1110, 1120 [“Suppression will be ordered when
with the knowledge that a private citizen is violating or is about to
unlawfully violate the privacy rights of another, the police sit idly by
and do nothing.”]; P v. Yackee (1984) 161 CA3 843, 847 [“officer
knowingly allowed the airline to reopen the suitcase in his presence, for
his benefit, without intervening to stop the search”]; P v.
Thompson (1972) 25 CA3 132, 142 [“The police officer who was present
at the [search] believed reasonably and in good faith that the conduct of
the airline official was lawful”]; Dyas v. Superior Court (1974)
11 C3 628, 633, fn.2 [exclusionary rule will be applied if officers
“knowingly allowed [an illegal search] to take place”]; Stapleton v.
Superior Court (1968) 70 C2 97, 103 [“the police need not have
requested or directed the search in order to be guilty of ‘standing idly
by’; knowledge of the illegal search coupled with a failure to protect
the petitioner’s rights against such a search suffices”]. 9th CIR:
US v. Walther (9C 1981) 652 F2 788, 792 [“The presence of law
enforcement officers who do not take an active role in encouraging or
assisting an otherwise private search has been held insufficient to
implicate fourth amendment interests, especially where the private party
has had a legitimate independent motivation for conducting the search.”];
US v. Cleaveland (9C 1994) 38 F3 1092 [not a police search when an
electric utility investigator asked an officer to accompany him while he
checked a meter].

[6] CAL: Stapleton v. Superior
Court (1968) 70 C2 97, 100 [“by allowing [the agent] to join in the
search and arrest operation, put [him] in a position which gave him
access to the car keys and thus to the trunk of [Stapleton’s] car”].

[7] CAL: P v. Warren (1990) 219
CA3 619, 622 [we consider “the intent of the party performing the
search”]. 9th CIR: Arpin v. Santa Clara Valley Transportation
Agency (9C 2001) 261 F3 912, 924 [“Arpin must show that Ruiz acted
with the intent to assist the government in its investigatory or
administrative purposes, and not for an independent purpose.”].

[8] OTHER: US v. Stephen (8C
2021) 984 F3 625, 629 [“Stephen cites no case where we have found
government agency based solely on a private citizen’s intent to assist
law enforcement.”].

[9] CAL: P v. Wilkinson (2008)
163 CA4 1554, 1568-69 [“there was substantial evidence that [the
citizens] had a dual intent of helping the police and getting the stolen
images back from defendant”]; P v. Minervini (1971) 20 CA3 832,
840 [“it is significant that any ‘search’ by the manager was to secure
the premises themselves and to prevent theft of property belonging to the
motel”]. 9th CIR: US v. Cleaveland (9C 1994) 38 F3 1092,
1094 [“[The citizen’s] motive to recover for PGE’s loss of power was a
legitimate, independent motive apart from crime detection or
prevention”]. OTHER: US v. Stephen (8C 2021) 984 F3 625,
630 [“That a private citizen is motivated in part by a desire to aid law
enforcement does not in and of itself transform her into a government
agent.”]; US v. Highbull (8C 2018) 894 F3 988, 993 [“she was
animated at least as much by a compulsion to protect her daughter as she
was by any desire to aid the police”]; US v. Smith (8C 2004) 383
F3 700, 705 [“the fact that a private citizen is motivated in part by a
desire to aid law enforcement does not in and of itself transform her
into a government agent”]; US v. Ginglen (7C 2006) 467 F3 1071,
1075 [“their primary objective was to protect the community from harm,
not to assist law enforcement”].

[10] 9th CIR: US v.
Andrini (9C 1982) 685 F2 1094, 1097-98 [“[The ATF agent] did not
instruct the motel clerk to open the bag. To the contrary, he advised the
clerk to follow routine procedure.”]. OTHER: US v.
Bruce (6C 2005) 396 F3 697, 706 [“the cleaning staff were not asked
to search for evidence, but merely to preserve any
possible evidence they might otherwise have removed from the room and
discarded in the course of their ordinary cleaning duties”].

[11] CAL: P v.
Lanthier (1971) 5 C3 751, 757 [“A single consultation by such
officials with a police expert on narcotics falls far short, for example,
of a general police-instigated exploratory search of student housing”];
P v. Mangiefico (1972) 25 CA3 1041, 1046-47 [private
investigator did not become a police agent merely because he notified the
police chief and fire marshal that he was working on an arson case that he
and they were investigating]; P v. North (1981) 29 C3 509,
629, 516 [“Citizen cooperation with the police in a criminal
investigation, standing alone, does not invoke the exclusionary rule.”];
P v. Warren (1990) 219 CA3 619, 622 [“incidental contacts
between the citizen and law enforcement agents prior to or during the
course of a search or seizure will not subject the search to fourth
amendment scrutiny”]. 9th CIR: US v. Walther
(9C 1981) 652 F2 788, 79 [“de minimis or incidental contacts
between the citizen and law enforcement agents prior to or during the
course of a search or seizure will not subject the search to fourth
amendment scrutiny”].

[12] OTHER: US v. Koenig (7C
1988) 856 F2 843, 849.

[13] OTHER: US v. Ringland (8C
2020) 966 F3 731, 736 [“Google did not become a government agent merely
because it had a mutual interest in eradicating child pornography from its
platform.”]; US v. Silva (1C 2009) 554 F3 13, 18 [“We
will not find state action simply because the government has a stake in
the outcome of a search.”].

[14] CAL: P v. Taylor (1990)
222 CA3 612, 625 [“the mere fact that California licenses security guards
and regulates their conduct does not transform them into state agents”].
OTHER: US v. Day (4C 2010) 591 F3 679, 685 [court rejects
argument that security guards were police agents because they are
licensed].

[15] CAL: P v.
Dement (2011) 53 C4 1, 35 [officer “specifically told him that he
was not to elicit information from defendant on our behalf”].

[16] CAL: P v.
McKinnon (1972) 7 C3 899, 914 [“drug education programs and
generalized appeals for the assistance of the citizenry” does not
“automatically ‘deputize’ all those who may have occasion to act on the
information”].

[17] CAL: P v. Wachter (1976) 58
CA3 911, 920 [“The primary issue to be determined in cases such as this is
whether a police officer was engaged in state action or had the status of
a private citizen when he obtained the incriminating evidence against the
defendant.”]; P v. Peterson (1972) 23 CA3 883, 884 [“It
fairly appears he entered the garage out of concern for his own safety as
a tenant of the apartment complex, and was acting as a private citizen
only.”]; P v. Wolder (1970) 4 CA3 984, 993 [“Mr. Donnelly,
although a police officer for the City of Los Angeles, acted as a private
citizen when he sought and obtained permission to enter [the] garage and
to examine the boxes which he was informed his daughter had stored
there.”]; P v. Topp (1974) 40 CA3 372, 378 [the officer “was
off-duty and not engaged in active police work at the time (of the
search). He simply acceded to the request of his friend to accompany him
to the house.”]. OTHER: US v. Ginglen (7C
2006) 467 F3 1071, 1076 [off-duty officer was deemed a private citizen
because of his “uniquely personal motivation”]. COMPARE:
P v. Millard (1971) 15 CA3 759, 762 [off-duty officer “had
made this arrest ostensibly and expressly as a police officer and not as a
private person”].

[18] CAL: P v.
Mangiefico (1972) 25 CA3 1041, 1048 [private investigator “was not
engaged in a joint operation with local authorities, but was conducting an
independent investigation”]; P v. Sahagun (1979) 89 CA3 1
[security consultant hired to investigate thefts at a laundry was not a
police agent when he searched a shed owned by the suspect]; P v.
De Juan (1985) 171 CA3 1110, 1122 [“Although several of the private
investigators involved in this case were retired policemen, their
testimony was that they did not display … any badge or other
identification indicating they were policemen”].

[19] CAL: P v.
Houle (1970) 13 CA3 892, 895; Pen. Code§§ 1299
et seq., 1300 et seq.

[20] CAL: P v.
Shegog (1986) 184 CA3 899, 902.

[21] CAL: Bus. & Prof.
Code§§ 7580 et seq.

[22] CAL: In re
Christopher H. (1991) 227 CA3 1567, 1574 [the mall security guards
“obtained no aid from state officials in stopping and searching
defendants”]; P v. Brouillette (1989) 210 CA3 842, 847
[“There was evidence to support the findings that the security guards
dressed like police and are looked upon by others as representing police
authority, and that they assisted the police … [But there] was nothing
to show that they made the inspection of the wallet as agents of the
state.”]; P v. Taylor (1990) 222 CA3 612, 625 [“the mere
fact that California licenses security guards and regulates their conduct
does not transform them into state agents”]; P v. Leighton
(1981) 124 CA3 497, 503 [the security officer’s “interests were directed
towards protecting her clients’—the store’s—interests”]; P v. Taylor
(1990) 222 CA3 612, 625 [Santa Cruz boardwalk security not state agents].
OTHER: US v. Avalos (8C 2021) 984 F3 1306, 1308 [detention
by private university security officer]; US v. Green (7C 2020) 975
F3 653 [employee of security company hired to protect a public housing
complex was an independent contractor, not a state actor]; US
v. Shahid (7C 1997) 117 F3 322, 326 [“the security officers’
primary role is to provide safety and security for all persons on mall
property”]; US v. Day (4C 2010) 591 F3 679, 685
[court rejects argument that security guards were police agents because
they are licensed]. NOTE re Zelinski: In P v. Zelinski
(1979) 24 C3 357 the California Supreme Court ruled that private security
personnel who were fulfilling a public function, such as making arrests,
were police agents and that evidence illegally obtained as a result of
such activities must be suppressed. That ruling is no longer the law,
having been abrogated by the passage of California’s Proposition 8. See
Collins v. Womancare (9C 1989) 878 F2 1145, 1154;
P v. Taylor (1990) 222 CA3 612, 621.

[23] CAL: Emslie v.
State Bar (1974) 11 C3 210, 222 [“The hotel security officers were
not acting under the authority of the state in apprehending, detaining,
searching or questioning Emslie at Caesar’s Palace Hotel.”]; P v.
Ingram (1981) 122 CA3 673, 677 [hotel manager found drugs in a
guest’s suitcase and showed the open suitcase to officers]; P v.
Robinson (1974) 41 CA3 658 [landlady who discovered a murder weapon
in her tenant’s coat pocket, gave the coat to an officer]; P v.
Johnson (1971) 21 CA3 235, 242 [apartment maintenance supervisor
entered an apartment in the course of his duties and saw drugs and a
machine gun]. OTHER: US v. Bruce (6C 2005) 396
F3 697, 705 [cleaning personnel were not police agents when, at officer’s
request, they segregated trash taken from suspect’s room].

[24] USSC: US v.
Jacobsen (1984) 466 US 109, 115 [“Whether [the initial opening of
the package by Federal Express employees was] accidental or deliberate,
and whether [it was] reasonable or unreasonable, [it] did not violate the
Fourth Amendment because of their private character.”]. CAL:
Miramontes v. Superior Court (1972) 25 CA3 877, 884
[when airline employees discovered marijuana in a package, it was
reasonable for them “to call on the police for expert assistance.”];
P v. Sapper (1980) 102 CA3 301, 305 [shipper did not become
a police agent merely because government regulations encouraged, but did
not mandate, searches of suspicious packages]; P v. Superior
Court (Evans) (1970) 11 CA3 887, 891 [“the original opening was
conducted by Grantham solely as the agent of United Airlines and not as an
agent of the police”]; P v. McKinnon (1972) 7 C3 899, 914
[“the carrier has the additional right to open and inspect a package which
it suspects contains contraband”]; P v. Warren (1990) 219
CA3 619 [“A ‘Right of Inspection’ sign, posted in the business, informs
customers that ‘The carrier reserves the right to open and inspect any
package tendered to it for inspection.'”]; P v. Howard
(1971) 21 CA3 997, 999 [package opened because employees reasonably
believed it contained drugs]. OTHER: US v.
Parker (8C 1994) 32 F3 395, 399 [“the government did not direct UPS
to open the package … UPS opened the package pursuant to its policy to
inspect the packaging of packages insured for more than $1,000”].
COMPARE: US v. Walther (9C 1981) 652 F2
788, 792-93 [shipper was police agent based largely on “extensive
contact” with the DEA which caused his to expect a reward for finding
drugs].

[25] 9th CIR: US v. Rosenow (9C
2022) 33 F4 529, 544 [Facebook and Yahoo!’s “desire to purge child
pornography from their platforms and enforce the terms of their user
agreements is a legitimate, independent motive apart from any interest
that the ESPs had in assisting the government in apprehending Rosenow”].
OTHER: US v. Adkinson (7C 2019) 916 F3 605, 610-11 [cellphone
service provider conducted tower dump on its own initiative to locate
person who robbed the provider’s store]; US v.
Richardson (4C 2010) 607 F3 357, 364; US v. Reddick (5C
2018) 900 F3 636 [Microsoft notified CberTips that, based on a routine
search of hash values, it appeared that the defendant was storing child
pornography].

[26] CASE REFERENCED:
US v. Tosti (9C 2013) 733 F3 816.

[27] CAL: P v. Wilson (2020) 56
CA5 128, 218 [“All of Google’s actions—including scanning user content
[for child pornography], assigning hash values to that content—constitute
private action that was not performed at the direction of the
government.” Edited.]. OTHER: US v. Miller (6C 2020) 982 F3
412, 423 [same as Wilson]. NOTE: re P v. Wilson:
After the Court of Appeal ruled that Google was not acting as a private
entity, the Ninth Circuit took the case and disagreed. (See US v.
Wilson (9C 2021) 13 F4 961.) The Ninth Circuit’s ruling does not
affect the validity of the ruling of the Court of Appeal. See P v.
Leon (2020) 8 C5 831, 844 [“Defendant’s reliance on federal appellate
cases is also unavailing. The cases are not controlling precedent.”].

[28] OTHER: US v. Bebris (7C
2021) 4 F4 551, 562 [“Several of our sister circuits have recognized that
a company which automatically scans electronic communications on its
platform does not become a government agent merely because it had a mutual
interest in eradicating child pornography from its platform.” Citations
omitted.].

[29] OTHER: US v. Goodale (8C
2013) 738 F3 917, 921.

[30] OTHER: US v. Sharp (6C
2012) 689 F3 616, 619 [“Our sister circuits who have addressed this
precise issue are unanimous in holding that a dog’s instinctive jump into
a car does not violate the Fourth Amendment as long as the canine enters
the vehicle on its own initiative and is neither encouraged nor placed
into the vehicle by law enforcement.” Citations omitted.].

[31] QUOTES FROM:
P v. Warren (1990) 219 CA3 619, 623. USSC: US
v. Jacobsen (1984) 466 US 109, 120 [“the removal of the
plastic bags from the tube [of duct tape] and the agent’s visual
inspection of their contents enabled the agent to learn nothing that had
not previously been learned during the private search. It infringed no
legitimate expectation of privacy and hence was not a “search” within the
meaning of the Fourth Amendment.”]; Arizona v. Hicks (1987)
480 US 321, 325 [“Merely inspecting those parts of the turntable that came
into view during the latter search would not have constituted an
independent search because it would have produced no additional invasion
of respondent’s privacy interest.”]; New Jersey v. T.L.O. (1985)
469 US 325, 346, fn.12 [“If Mr. Choplick could permissibly search T.L.O.’s
purse for cigarettes, it hardly seems reasonable to suggest that his
natural reaction to finding them—picking them up—could be a constitutional
violation.”]. CAL: P v. Ingram (1981) 122 CA3 673,
677 [briefcase “had already been opened” by the hotel manager, and each of
them contained white powder that “he as an experienced narcotic officer
believed to be cocaine”]; P v. Houle (1970) 13 CA3 892, 895
[“When [the citizen] informed Officer Sanchez that the contraband had been
found, the intrusion into appellant’s right of privacy had already
occurred.”]; P v. Robinson (1974) 41 CA3 658 665
[“defendant’s right of privacy was originally invaded by [the landlady]”];
P v. Shegog (1986) 184 CA3 899, 904 [“[any expectation of
privacy by the defendant had already been frustrated by the time Detective
Kostella arrived to view the property”]; P v. Brouillette
(1989) 210 CA3 842, 848 [because the security guards had seen the drugs
inside the defendant’s wallet, “the later actions of the police in
repeating the inspection of the contents of the wallet did not infringe
any constitutionally protected private interest that had not already been
frustrated as the result of private conduct”]. OTHER: US v.
Rivera-Morales (1C 2020) 961 F3 1, 10 [“When a private party examines
particular evidence and then invites the government to inspect what she
has found, the private party has frustrated any reasonable expectation of
privacy that an individual might have had in that evidence.”]; US v.
Benoit (10C 2013) 713 F3 1, 11 [“Every instance in which a private
citizen turns contraband over to the police features some form of passive
acceptance from an officer.”]; US v. Reddick (5C 2018) 900 F3 636,
640 [“The government effectively learned nothing from Detective Ilse’s
viewing of the files that it had not already learned from the private
search [by Microsoft].”]; US v. Starr (8C 2008) 533
F3 985, 995 [“When the police examined the evidence, the record indicates
that the officers only viewed material that had already been viewed by
Mrs. Starr.”]; US v. Koenig (7C 1988) 856 F2 843, 852
[“once a private actor has legally opened a package, has found suspected
contraband within the package, and has notified the government of the
discovery, the government need not obtain a search warrant before
examining and field testing the contents”]; US v.
Runyan (5C 2001) 275 F3 449, 463-64 [“A defendant’s expectation of
privacy with respect to a container unopened by the private searchers is
preserved unless the defendant’s expectation of privacy in the contents of
the container has already been frustrated because the contents were
rendered obvious by the private search.”]; US v. King
(6C 1995) 55 F3 1193, 1196 [warrantless police search permitted if it did
not “exceed the scope of the private search”].

[32] USSC:
Cooper v. California (1967) 386 US 58, 61-62 [in a vehicle
inventory search case, the Court said “It would be unreasonable to hold
that the police, having to retain the car in their custody for such a
length of time, had no right, even for their own protection, to search
it.”].

[33] USSC: US v. Place (1983)
462 US 696, 701. CAL: Robey v. Superior Court (2013) 56 C4
1218, 1239-40 [“the mobility of the package constituted exigent
circumstances justifying [the] seizure of the FedEx package without a
warrant so long as [the officer] had probable cause to believe it
contained contraband”].

[34] 9th CIR: US v. Phillips
(9C 2022) 32 F4 865, 869 [the deputy told the civilian “to not show him
anything she had not already seen, she understood his instruction, and she
did not show anything she had not already seen”].

[35] CAL: P v. Michael E.
(2014) 230 CA4 261, 277 [search illegal because “the record reflects and
the trial court found that [the civilian] did not view the materials he
placed in the flash drive before he was directed by Officer Clark to
conduct a more thorough search than the one that led him to contact the
police”]; P v. Wilkinson (2008) 163 CA4 1554, 1569 [search legal
because “the record sufficiently establishes that Sadler showed Officer
Walker images Sadler had viewed already”]. 9th CIR: US v.
Phillips (9C 2022) 32 F4 865, 869 [the deputy told the civilian “to
not show him anything she had not already seen, she understood his
instruction, and she did not show anything she had not already seen”];
9th CIR: US v. Tosti (9C 2013) 733 F3 816, 822 [the officer
viewed only the computer photos that a computer technician had opened].
OTHER: US v. Ringland (8C 2020) 966 F3 731, 737 [“Because
[the officer] searched only the same files that Google searched, the
government did not expand the search beyond Google’s private party
search.”]; US v. Lichtenberger (6C 2015) 786 F3 478, 485] [computer
search illegal because civilian, at officer’s request, opened files at
random]; Rann v. Atchison (7C 2012) 689 F3 832, 838 [“Because [the
civilians] knew the contents of the digital media devices when they
delivered them to the police, the police were ‘substantially certain’ the
devices contained child pornography.”]; US v. Runyan (5C 2001) 275
F3 449, 465 [“Since the police could be substantially certain, based on
conversations with [the civilians], what the privately-searched disks
contained, they did not exceed the scope of the private search when they
searched those specific disks.”].

[36] CAL: P v. Wilson (2020) 56
CA5 128, 218.

[37] USSC: US v.
Jacobsen (1984) 466 US 109, 123 [“A chemical test that merely
discloses whether or not a particular substance is cocaine does not
compromise any legitimate interest in privacy.”]. CAL: P v.
Leichty (1988) 205 CA3 914, 921 [immediate field test was lawful].

[38] CAL: P v.
Warren (1990) 219 CA3 619, 623-24.

[39] CAL: P v.
Leichty (1988) 205 CA3 914, 923-24.