CA10: Bounty hunters were private actors when they entered premises

Defendant had an expectation of privacy as a social guest, but the entry was by bounty hunters looking for him as a bail jumper, and there was no governmental action involved. Their seeing drugs and paraphernalia on their entry was not subject to the Fourth Amendment. They were acting solely in their own pecuniary interests, and the fact the state regulated bailbondsmen to some degree had no effect on the outcome. United States v. Poe, 556 F.3d 1113 (10th Cir. 2009):

We use a dual-pronged inquiry to decide if a search by a private individual constitutes state action within the meaning of the Fourth Amendment. Souza, 223 F.3d at 1201; see also Smythe, 84 F.3d at 1242-43; Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir. 1989). First, we determine “whether the government knew of and acquiesced in the [individual’s] intrusive conduct.” Souza, 223 F.3d at 1201 (quotation omitted). Second, we consider “whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” Id. (quotation omitted). Both prongs must be satisfied considering the totality of the circumstances before the seemingly private search may be deemed a government search. Id. (citation omitted).

The bounty hunter’s search of Wilson’s residence does not satisfy either prong of the Souza inquiry. Poe does not and cannot assert that the government “knew of or acquiesced in” the bounty hunters’ entry and search of Wilson’s home. Souza and Smythe are instructive. In Souza, this court held that a search by a private delivery service employee amounted to a government search for Fourth Amendment purposes because it was instigated and encouraged by Drug Enforcement Agency (“DEA”) agents. 223 F.3d at 1202. The DEA agents identified the item they wanted searched, set it aside, and repeatedly encouraged the employee to open it. Id. In contrast, in Smythe, a bus station manager searched a box he feared contained dangerous materials after he called the police and the responding officer advised him that he could legally open the box. 84 F.3d at 1243. This did not constitute a government search. Id. Noting that “the police in no way instigated, orchestrated or encouraged the search,” we held that “if a government agent is involved ‘merely as a witness,’ the requisite government action implicating Fourth Amendment concerns is absent.” Id. (citation omitted). Before us, it is undisputed that the police did not become involved until Sanders called them, after he and DeWitt had entered Wilson’s house, apprehended Poe, and discovered the firearm, drugs, and paraphernalia. As with a “mere witness,” this after-the-fact involvement of the police does not implicate the Fourth Amendment.