CA6: “Pill mill” employee was a snitch who let in undercover DEA agent as a patient; this was consent to enter and assumption of risk

The defendant was suspected of running a “pill mill.” A nurse practitioner worked for the clinic and was feeding information to the DEA as well as engaging in illegal acts, too. The DEA got the nurse to let an undercover officer come in as a fake patient to see the inside. This was not a question of private search. Instead, it is a question of apparent authority and trusting somebody who was really working for the police, and that’s not a Fourth Amendment violation. United States v. Lang, 2017 U.S. App. LEXIS 21860 (6th Cir. Oct. 31, 2017):

Lang argues that the search was illegal because Peterson was a government agent. Her arguments rest on the assumption that if a defendant’s employee is secretly a government agent (as opposed to a mere informant), the employee’s consent is constitutionally ineffective. However, none of our cases adopt this view or even ask the agent-informant question—because it’s the wrong question to ask. Lang applies the government-agent test through a misunderstanding of the private-search doctrine. Ordinary burglars or nosy roommates cannot violate the Fourth Amendment, no matter how invasive they become. See Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); United States v. Bowers, 594 F.3d 522, 525-26 (6th Cir. 2010). The private-search doctrine was imposed to prevent the police from covertly deputizing private citizens to break the law, thereby circumventing the state-action requirement and the Fourth Amendment’s strictures. Id. Thus, when an ordinary citizen invades another’s privacy at the government’s request and for the government’s benefit, he becomes a government agent, and the courts treat him as one. United States v. Boumelhem, 339 F.3d 414, 425 (6th Cir. 2003); Hardin, 539 F.3d at 418-19.

This was what happened in Hardin, the one case Lang cites in support of her position. …

Two important distinctions show that Hardin does not apply here. First, Peterson did not conduct a search. Indeed, Lang objects only to Delaney’s allegedly illegal search of the exam room. But in every case where we have found a violation of the private-search doctrine, the private person at issue had always conducted a search on the government’s behalf. See, e.g., United States v. Lichtenberger, 786 F.3d 478, 484-85 (6th Cir. 2015) (search of a boyfriend’s computer); United States v. Booker, 728 F.3d 535, 545 (6th Cir. 2015) (doctor’s intubation and physical examination of suspect); Hardin, 539 F.3d at 418-19. Second, Peterson violated no law or rule that would require private-search analysis anyway. Lang does not contest that Peterson had the authority to treat patients in the exam room. In contrast, the landlord in Hardin lied about his authority to enter—something that is beyond the power of the police and laypersons alike. E.g., United States v. Shaw, 707 F.3d 666, 669 (6th Cir. 2013) (holding that police may not “tell an occupant that they have a warrant to make an arrest at a given address when they do not”). The private-search doctrine is therefore inapplicable to this case.

Instead, this Fourth Amendment issue is governed by the Supreme Court’s consent jurisprudence. The voluntary consent of a person authorized to give it removes the need for a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). Police may also rely on a third party’s apparent authority to give consent, so long as that reliance is reasonable. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). Furthermore—in contrast to lies about authority—an undercover officer’s misrepresentation of her identity does not invalidate consent. United States v. Pollard, 215 F.3d 643, 648 (6th Cir. 2000); United States v. Baldwin, 621 F.2d 251, 252-53 (6th Cir. 1980); Shaw, 707 F.3d at 669 (6th Cir. 2013).

Further, the Constitution is not an insurance policy against broken trust. “The Fourth Amendment … does not protect wrongdoers from misplaced confidence in their associates.” Baldwin, 621 F.2d at 252; see also Hoffa v. United States, 385 U.S. 293, 301, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966) (“Partin [an informant] was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. [Hoffa], in a word, was not relying on the security of the hotel room; he was relying in his misplaced confidence that Partin would not reveal his wrongdoing.”); United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995) (“It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.”) (quoting United States v. Jacobsen, 466 U.S. 109, 117, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)). We have therefore rejected complaints that a defendant “never consented to the presence of a ‘police spy’ in his home.” Baldwin, 621 F.2d at 252. This is consistent with the Supreme Court’s view that that voluntariness does not always require full disclosure by the police. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996); Moran v. Burbine, 475 U.S. 412, 422, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) (“[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest ….”).

Thus, the true question here is whether Peterson had actual or apparent authority to admit Delaney to the exam room. The parties do not dispute that he did. Lang’s only complaint is that he used that authority to let Delaney enter. But this is not different from a case where the defendant finds out, to his chagrin, that he has unwittingly invited an undercover officer into his home. Baldwin, 621 F.2d at 252. Although we have not specifically reached this holding with regard to a police informant, the other three circuits to confront this issue have found no Fourth Amendment violation. See United States v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008) (apparent authority); United States v. Apperson, 441 F.3d 1162, 1186-87 (10th Cir. 2006); Wang v. United States, 947 F.2d 1400, 1403 (9th Cir. 1991). Absent some lack of authority by his criminal comrades, a defendant may not make out a Fourth Amendment violation merely by crying, “Et tu, Brute!” The district court therefore properly denied Lang’s motion to suppress.

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