D.Minn.: Permitting theft victim to participate in search did not violate Fourth Amendment

Permitting theft victim to be present at execution of search warrant to identify property was not a violation of the Fourth Amendment. United States v. Gregoire, 2009 U.S. Dist. LEXIS 120803 (D. Minn. December 2, 2009) (USMJ), adopted 2009 U.S. Dist. LEXIS 120801 (D. Minn. December 29, 2009):

The case law discloses a lengthy history of police officers requesting the aid of private citizens in order to accomplish a lawful search, particularly where the citizen is the victim of a theft, who is present to identify stolen items. See, e.g., United States v. Clouston, 623 F.2d 485, 487 (6th Cir. 1980); Bills v. Aseltine, 958 F.2d 697, 706 (6th Cir. 1992)(but finding citizen help unreasonable on the facts at hand); Bellville v. Town of Northboro, 375 F.3d 25, 32-33 (1st Cir. 2004) (recognizing that the use of private citizens in a search is permissible, but only when they are “serving a legitimate investigative function”); United States v. Sparks, supra at 831-32; United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982) (“We refuse to prohibit the police from asking theft victims to identify whether a particular item was stolen from them as long as doing so does not somehow enable the police to intrude into a suspect’s privacy vicariously when they could not do so directly.”).

Indeed, in Wilson v. Layne, supra at 614, the Supreme Court held that the presence of third parties in a search violates the Fourth Amendment only when “not in aid of the execution of the warrant.” Although the Arnolds contacted the police in order to offer their assistance, and not vice-versa, there is no evidence that the Arnolds participated in the search for their own personal reasons. Cf., Bills v. Aseltine, supra at 702 (in civil action, finding Fourth Amendment violation where security officer employee of victim entered home to search for items not on the Warrant, which listed only one target item, which had been found before the security officer arrived). We find no competent authority to support the Defendant’s contention, that the Arnolds’ presence during the search, in order to identify their stolen property, impermissibly intruded upon the Defendant’s privacy beyond the Warrant’s authorization.