Daily Blog #316: Sunday Funday 5/4/14 Winner!

Sunday Funday by David Cowen - Hacking Exposed Computer Forensics Blog

Hello Reader,
      One of the best things about Sunday Funday is when I pick a topic that someone I never knew before has a serious passion for. In this weeks contest one such anonymous submitter has obviously been tracking this topic and has come back with a great list of cases that apply. There is nothing better for me than a Sunday Funday I walk away from learning something as well.

The Challenge:

One of our viewers, Jason Alvarado, pointed out a case study on USA v Jerrett in which a mans conviction was overturned when it was revealed how the anonymous tipster and the government interacted. What other case studies can you find for other cases like this in the USA or in any other country.

The Winning Answer

Raymond v. Superior Court9 a 12-year old boy told an officer that he had found marijuana in his father’s bedroom. The officer responded by asking him to try to get “a sample.” He succeeded but, not surprisingly, the court suppressed it, saying, “Although the [boy] was the immediate actor, police participation in planning and implementation subjected the expedition and its product to [suppression].”

Stapleton v. Superior Court,11 LAPD officers, accompanied by special agents from three credit card companies, went to Stapleton’s home to arrest him on an outstanding warrant for credit card fraud. Some of the agents covered the back while the officers and one of the agents entered through the front. After Stapleton was arrested, one of the agents searched the trunk of his car and found several illegal tear gas canisters.

The California Supreme Court ruled the search was illegal and, although it was conducted by a civilian, it also ruled it was a police search because the officers, “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.”

People v. De Juan, “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.”

 U.S. v. Reed14 the manager of a Best Western motel in Alaska notified officers that he suspected Reed was using his motel room for “drug activities.” He also asked the officers to stand by while he “checked the room.” According to the court, the officers “stood guard” in the doorway as the manager went through Reed’s dresser drawers and examined the contents of his briefcase. As it turned out, the search netted a gun and some drugs, but the court suppressed everything because the officers had failed to stop him. Said the court:

[The officers] definitely knew and acquiesced in [the manager’s] search. They were personally present during the search, knew exactly what [the manager] was doing as he was doing it, and made no attempt to discourage him from examining Reed’s personal belongings beyond what was required to protect hotel property.

 People v. Minervini17 a motel desk clerk in Santa Barbara suspected that two men who had rented two rooms were part of a gang that had been stealing television sets from motels in the area. When he saw one of the men removing a “large box” from his room, he notified the police and the motel’s manager. When officers arrived, they accompanied the manager as he opened the door to one of the rooms and found the television was gone. The manager and the officers then went to the other room which the manager opened with a key. As he looked around the room, he saw that the television set had been placed in a cardboard box. The men were later arrested.

On appeal, they claimed the motel manager was functioning as a police agent when he opened the doors to their rooms. But the court pointed out that the manager “went to the rooms and opened them on his own initiative.” More important, he had a right to do so and “that right would not be diminished if he sought police assistance in exercising that right or even if he was encouraged by the police to so exercise it.”

 U.S. v. Andrini20 ATF agents were conducting surveillance on a motel room rented by Andrini who was suspected of setting fire to an office building. As the result of a mix-up in room assignments, Andrini’s suitcase was sent to the wrong room, then returned to the front desk. Although an ID tag was not attached to the bag, both the desk clerk and the ATF agent (who happened to be present) suspected that it belonged to Andrini. When the clerk asked the agent what he wanted him to do with the bag, he told him to follow “routine” procedures. So the clerk opened it to try to determine the identity of its owner. Inside, he saw a gun. Continuing to follow routine procedures, he notified local police who arrested Andrini for being a felon in possession of a firearm. During a search incident to the arrest, the officers found a pyrotechnic fuse similar to the one used in the arson.  On appeal from his arson conviction, Andrini contended the search of his suitcase should be deemed a police search but the court disagreed, noting, “[The ATF agent] did not instruct the motel clerk to open the bag. To the contrary, he advised the clerk to follow routine motel procedure.”  

People v. Warren the defendant argued that Alvarez, the owner of a parcel delivery service, was a police agent when he searched a package that Warren had dropped off. His argument was based on Alvarez having been an officer in the past, and having previously notified officers when he found drugs in packages. But this was immaterial, said the court, because “the evidence supports the trial court’s finding that Alvarez was acting as a responsible employee and on behalf of the mail companies, and not as an agent of the government.”

United States v. Jacobsen (1984) 466 U.S. 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 U.S. 602, 614. ALSO SEE Coolidge v. New Hampshire (1971) 403 U.S. 443, 487 [“The test [is whether the citizen] must be regarded as having acted as an instrument or agent of the state”]. 

Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922, 937 [private citizen may be a police agent if he “obtained significant aid from state officials”]; United States v. Jacobsen (1984) 466 U.S. 109, 113 [private citizen may be a police agent if he acted “with the participation” of an officer]; Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333 [private citizen may be a police agent if he “obtained significant aid from state officials”]; People v. McKinnon (1972) 7 Cal.3d 899, 912 [Fourth Amendment applies if officers “hired and paid” the person to conduct warrantless searches,” or if  he were to “open and search a specific package at [their] express direction or request”]; People v. Bennett (1998) 17 Cal.4th 373, 384, fn.3 [civilian was acting at an officer’s request]; Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, fn.2 [exclusionary rule will be applied if officers “requested the illegal search”]; Stapleton v. Superior Court (1968) 70 Cal.2d 97, 102 [“[The civilian] entered petitioner’s house at the request and as an agent of the police.”]; People v. Tarantino (1955) 45 Cal.2d 590 [officer requested a sound engineer to plant a bug in a suspect’s hotel room]; People v. Fierro (1965) 236 Cal.App.2d 344 [officer requested motel manager to search the defendant’s motel room]; People v. North (1981) 29 Cal.3d 509, 514 [search “performed in conjunction with, or cloaked in the authority of the state”]; People v. De Juan (1985) 171 Cal.App.3d 1110, 1120 [search at officers’ “behest or instigation”]; People v. Scott (1974) 43 Cal.App.3d 723, 726 [citizen “hired and paid by the police”]; People v. Leighton (1981) 124 Cal.App.3d 497, 501 [“the police direct[ed] the private citizen to conduct the search”]; U.S. v. Ziegler (9th Cir. 2007) 474 F.3d 1184, 1190 [FBI agent asked company manager to provide him with a copy of an employee’s hard drive]; U.S. v. Ginglen (7th Cir. 2006) 467 F.3d 1071, 1075 [“[T]here is no indication that the government encouraged or acquiesced in the brothers’ decision to enter their parents’ home.”]; U.S. v. Shahid (7th Cir. 1997) 117 F.3d 322, 325 [“Other useful criteria are whether the private actor acted at the request of the government and whether the government offered the private actor a reward.”]. 9 (1971) 19 Cal.App.3d 321, 325. 

Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922, 941 [“[W]e have consistently held that 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’ for purposes of the Fourteenth Amendment.”]; People v. North (1981) 29 Cal.3d 509, 514 [search “performed in conjunction with” officers]; People v. McKinnon (1972) 7 Cal.3d 899, 912 [civilian would be deemed a police agent if officers were engaged in a “joint operation” with him]; People v. Scott (1974) 43 Cal.App.3d 723, 726 [a search would be a police search if a citizen “participates in planning or implementing a ‘joint operation’ with law enforcement authorities”]. COMPARE People v. Mangiefico (1972) 25 Cal.App.3d 1041, 1048 [“Berdan was not engaged in a joint operation with local authorities, but was conducting an independent investigation.”]. 

People v. Yackee (1984) 161 Cal.App.3d 843, 847 [“[T]he investigating officer knowingly allowed the airline to reopen the suitcase in his presence, for his benefit, without intervening to stop the search. Thus, what had heretofore been a purely private search became a joint operation with the police.”]; Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, fn.2 [exclusionary rule will be applied if officers “knowingly allowed [an illegal search] to take place without protecting the third party’s rights”]; Stapleton v. Superior Court (1968) 70 Cal.2d 97, 103 [“[T]he police stood silently by while [the agent] made the obviously illegal search.”]; People v. McKinnon (1972) 7 Cal.3d 899, 912 [“[A] private citizen may also be deemed to act as an agent of the police when the latter merely ‘stand silently by’”]; People v. North (1981) 29 Cal.3d 509, 516 [“police foreknowledge or simultaneous awareness of a citizen entry, is wholly lacking in the case before us.”]; U.S. v. Walther (9th Cir. 1981) 652 F.2d 788, 793 [“The DEA thus had knowledge of a particular pattern of search activity dealing with a specific category of cargo, and had acquiesced in such activity.”]; U.S. v. Shahid (7th Cir. 1997) 117 F.3d 322, 325 [a “critical” factor is “whether the government knew of and acquiesced in the intrusive conduct”]. 

U.S. v. Cleaveland18 an investigator for the Portland General Electric Company (PGE) received a tip that someone was diverting electricity to a certain residence. So he asked a detective to accompany him while he checked the meter. The detective waited in his car while the investigator searched the meter housing and discovered evidence of illegal diversion. In ruling that the search was not a police search, the court noted: It was PGE, not the police, who initiated the plan to inspect the meter. There was no reason why the detective should have restrained [the investigator] or discouraged him in his search because [the investigator] never exceeded his authority under the Customer Service Agreement to go on the property and inspect the meter. 

U.S. v. Bruce21 the manager of an Extended Stay America hotel in Ohio notified police that employees had detected the odor of burning marijuana coming from one of two rooms that had been rented by Bruce and his friends. So a police sergeant asked the manager to tell the housekeepers to segregate the trash from the two rooms “during their regular cleaning.” While searching the trash, officers found marijuana.  On appeal, Bruce contended the housekeepers were police agents, but the court disagreed, noting:  [T]he 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. There is no evidence that the staff were asked to look around the rooms, report any suspicious items, or otherwise deviate from their typical cleaning routine. 
Also Read: Daily Blog #315

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