ID: Interstate bus driver’s opening backpack was private search even though officer was watching

An interstate bus traveling from Portland OR to Salt Lake City stopped in Boise. The bus driver was moving luggage around to straighten it up for the boarding passengers, and he smelled marijuana coming from a backpack. He called the police that he was going to search the backpack. The officer couldn’t smell the marijuana, but the driver opened the backpack with the officer looking. The bus driver had a common law power to open the suitcase in case there was anything dangerous on the bus. The police standing by and watching didn’t make this not a private search. State v. Breese, 2016 Ida. App. LEXIS 100 (Aug. 23, 2016):

The Idaho Supreme Court has previously noted that, when common carriers have a suspicion that a package may contain contraband, the carrier has the right, rooted in common law, to make an inspection of the package’s contents. Pontier, 103 Idaho at 94 n.1, 645 P.2d at 328 n.1; see also Illinois v. Andreas, 463 U.S. 765, 769 n.1 (1983); United States v. Pryba, 502 F.2d 391, 399-400 (D.C. Cir. 1974). However, such a search may be classified as governmental intrusion where a carrier’s employee engaged in a search for the sole purpose of assisting the government. Walther, 652 F.2d at 792. Conversely, there is no state action where the private party has a legitimate, independent motivation for conducting the search and acting in accordance with that motive. Id.; see also United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir. 1996) (holding that a search was not governmental because a bus employee had a legitimate, independent motivation to open a package based on his independently formed belief that something was dangerous about the package and his concern for the passengers on the bus in which the package was to be shipped); United States v. Entringer, 532 F.2d 634, 637 (8th Cir. 1976) (holding that the Fourth Amendment does not require officers to obtain a warrant prior to entering upon a common carrier’s premises with its consent to observe a search conducted in accordance with the carrier’s own policies).

Even when a private person has authority to conduct a search, the person’s motivation for exercising that authority and engaging in a search, especially in the presence of law enforcement, is a critical consideration when determining if the person is a private or government agent. See, e.g., Walther, 652 F.2d 788; Gomez, 614 F.2d 643. Walther concerned actions taken by an airline employee who believed federal regulations gave him the right to open any piece of luggage and had routinely reported suspicious packages to federal agents in exchange for monetary reward. Walther, 652 F.2d at 790. Applying the second factor of the government agent analysis, the court held that the airline employee’s conduct was subject to the Fourth Amendment because the record supported the trial court’s finding that the airline employee was motivated by receiving an award from law enforcement and not by pursuing his employer’s interest. Id. at 792. Thus, the court concluded that such a motivation provided the airline employee with the requisite mental state of a government agent in the government’s effort to conduct a search. Id.

Conversely, in Gomez, 614 F.2d 643, the same court concluded that the opening of a misplaced suitcase by an airline employee looking to identify the owner was a private search even though law enforcement had carried the suitcase to an employee work area and directly aided in an effort to bypass the luggage lock. Id. at 645. The Gomez court based its holding on the trial court’s express findings that the airline employee’s motivation to conduct the search was driven by the legitimate purpose of identifying the owner of the luggage and that his opening of the luggage was pursuant to that motivation. Id. Thus, the court declined to hold that the officer’s slight participation converted the private search to a governmental one. Id.

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