||WHEN IS A PRIVATE CITIZEN ACTING AS A GOVERNMENT AGENT?

WHEN IS A PRIVATE CITIZEN ACTING AS A GOVERNMENT AGENT?

On July 6, 2018, the Eighth Circuit Court of Appeals decided the United States v. Highbull[i], in which the court examined whether the Fourth Amendment applied when a woman retrieved a cell phone out of her boyfriend’s car and gave it to the police.  The relevant facts of Highbull are as follows:

On February 19, 2015, the Sioux Falls Police Department received a domestic-disturbance call from a young boy, who reported that a man was harassing his mother. Andrew Mattson was the first officer to respond to the call. Upon arriving at the scene, Officer Mattson was flagged down by Michelle Janis, the mother of the boy who placed the call. Janis can be heard on a recording from Officer Mattson’s body microphone exclaiming that someone had just taken off running. Officer Mattson asked her what was going on, and she responded: “I wanted to sign a complaint on him. He went and had pictures of my daughter naked, and she’s only 13.”

Janis identified the man as Highbull and informed Officer Mattson that the red Ford Taurus that was left running in front of her building belonged to him. A license plate check revealed that the Taurus was registered to Highbull at Janis’s address. Janis then entered the vehicle, and Officer Mattson asked if she was “going to grab the keys.” Although she said yes, Janis merely turned off the car, leaving the keys in the ignition. Rejoining Officer Mattson on the sidewalk in front of her apartment, Janis explained that she and Highbull had been arguing several days earlier because she refused to let him see their infant daughter. It was during this argument that she looked at Highbull’s phone and saw the naked pictures of her thirteen-year-old daughter, who was not related to Highbull.

At that point, Officer Mattson asked Janis, “Do you have the phone?” Without explanation, she began walking back toward the Taurus and stammered, “Um, I don’t know if it’s this . . . I think it’s . . . I don’t know. . . I think he does have one. He probably got rid of it or whatever.” She then reentered the vehicle just as Officer Mattson’s backup arrived. The two officers conferred several feet away from the Taurus for the thirty seconds Janis was inside the vehicle. Officer Mattson later testified that he never directed Janis to enter the Taurus or to look for the phone, that he himself neither opened nor entered the car, and that his attention was on the backup officer while Janis was in the vehicle.

After her brief time in the Taurus, Janis emerged with Highbull’s cell phone and handed it to Officer Mattson. She explained that there were nude photos of her daughter on the device but that she could no longer locate them because they were “deeper in the phone.” When Officer Mattson could not find the pictures, Janis became upset, worrying that nothing was going to be done. Officer Mattson explained that he could not make an arrest solely on the basis of her statements but that he would take the phone for further investigation. A subsequent forensic analysis conducted pursuant to a search warrant uncovered the images.”[ii]

Highbull was later charged under federal law for sexual exploitation of a child.  He filed a motion to suppress and argued that Janis was acting as an agent of the police when she retrieved the phone and gave it to the officer, and therefore the Fourth Amendment applied.  Ultimately, the district court denied the motion to suppress, and Highbull entered a guilty plea with the right to appeal the denial of the motion to suppress.  Highbull then appealed the denial of his motion to suppress to the Eighth Circuit Court of Appeals.

The issue on appeal was whether Janis was acting as an agent for the police when she entered her boyfriend’s car and retrieved his cell phone, which she said contained nude photographs of her juvenile daughter.

The court of appeals first noted the legal principles that apply to searches conducted by private citizens.  The court first stated

The Fourth Amendment guarantees the right of citizens to be free from “unreasonable searches and seizures.” U.S. Const. amend. IV. However, as the Supreme Court has long held, this protection extends only to actions undertaken by government officials or those acting at their direction. See, e.g., Skinner v. Ry. Labor Execs.‘ Ass’n, 489 U.S. 602, 613-14 (1989); Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971); Burdeau v. McDowell, 256 U.S. 465, 475 (1921). Thus, “the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative” but it does “protect[] against such intrusions if the private party acted as an instrument or agent of the Government.Skinner, 489 U.S. at 614.[iii] [emphasis added]

Thus, if Janis was acting as an agent of the police, then the Fourth Amendment would apply and the search would have to be supported by search warrant or an exception to the search warrant requirement.  On the other hand, if Janis acted as a private citizen, the Fourth Amendment rules would not apply to her search and seizure of the phone.

Next, the court discussed the factors to consider when they determine whether the private person was acting privately or as an agent for the police.  The court stated

Whether a private party should be deemed an agent or instrument of the government for Fourth Amendment purposes necessarily turns on the degree of the government’s participation in the private party’s activities, a question that can only be resolved in light of all the circumstances.” United States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010) (quoting Skinner, 489 U.S. at 614). In evaluating agency in the Fourth Amendment context, our court has focused on three relevant factors: “[1] whether the government had knowledge of and acquiesced in the intrusive conduct; [2] whether the citizen intended to assist law enforcement or instead acted to further his own purposes; and [3] whether the citizen acted at the government’s request.Id.[iv] [emphasis added]

It was also noted that the defendant bears the burden of establishing the three factors above.[v]

The court then applied the factors above to the facts of Highbull’s case.  Regarding the first factor, whether the government had knowledge of and acquiesced in the search, the court said that this weighed in favor of finding agency.  This is because the officer was present and watched her enter the car as he asked if she had the phone.

The second factor, whether the citizen intended to assist law enforcement or instead to further his own purposes, the court noted that

Even when government officials know of and acquiesce in a warrantless search, we have been unwilling to impute agency where the private actor was not “motivated solely or even primarily by the intent to aid the officers” and where the government did not request the challenged search. See United States v. Smith, 383 F.3d 700, 705 (8th Cir. 2004). [emphasis added]

It was noted that Janis did not testify in the hearing at the motion to suppress, so she was never asked what her purpose was in the search for the phone.  Highbull argued that her explicit intent was to assist law enforcement because protecting her daughter involved law enforcement.

In examining this factor, the court looked at the Eight Circuit case, the United States v. Smith.[vi]  In Smith, a FedEx manager opened a package after a drug detection dog alerted on the package.  Drugs were observed and the police were contacted.  The Eighth Circuit held the manager was not acting as an agent of the police.  The court reasoned that she had the dual purpose of not allowing her driver to be used to transport contraband in addition to the aiding law enforcement.  The court reasoned that because the manager was not motivated “solely” or even “primarily” by the intent to aid law enforcement, the manager was not an agent of law enforcement.

The Eighth Circuit then applied the principle from Smith to Highbull’s case and determined that Janis may have similarly had a dual motive of protecting her daughter and aiding law enforcement.  However, if this is the case, the court held the district court did not err in finding that aiding law enforcement was not Janis sole or even primary motive in the search, in light of the fact that she also had a strong motive to protect her daughter, as well as help a civil custody case she had against Highbull.  As such, this weighted in favor of not finding agency on the part of Janis.

Regarding the third factor, whether the government requested Janis to conduct the search, the court noted that the officer did not specifically ask Janis to bring him the phone or search the car.  The officer simply asked, “Do you have the phone?”  This request did not imply that the officer wanted her to search his car for the phone, but rather was an inquiry if it was already in her possession.  As such her search was voluntary and unsolicited.  Thus, the third factor weighed in favor of not finding agency on the part of Janis.

In light of the above factors and the application of the holding in Smith, the court held

[A]lthough the district court found that Officer Mattson knew of and acquiesced in Janis’s search of the vehicle, it did not err in denying Highbull’s motion to suppress given that she did not conduct the search at the government’s request and that there was insufficient “evidence that [she] was motivated solely or even primarily by the intent to aid the officers.” See id.[vii]

Therefore, Highbull’s conviction was affirmed.

 

______________________________________

CITATIONS:

[i] No. 17-2728 (8th Cir. Decided July 6, 2018)

[ii] Id. at 2-3

[iii] Id. at 4-5

[iv] Id. at 5

[v] Id.

[vi] 383 F.3d 700 (8th Cir. 2004)

[vii] Id. at 8

By |2019-01-15T18:44:15+00:00January 15th, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.