Under the two-part test, the Court finds that Ms. Valenzuela was not functioning as a government instrument at the time of her [*17] search. As to the first prong, the Chula Vista officers clearly “knew of” Ms. Valenzuela’s actions because they were physically present as she unlocked and searched the workbench. The officers, however, did not acquiesce in the search. As stated above, acquiescence may be shown in at least two ways: if the private party search is not illegal, the defendant must show that the government encouraged or directly participated in the search; if, on the other hand, the private party search is illegal, the Ninth Circuit has found acquiescence where the government did not discourage the illegal conduct. … Defendant has not shown that Ms. Valenzuela’s actions, taken in isolation, were illegal. Nor is the Court aware of a prohibition on one spouse searching the personal property of another without consent. … Accordingly, Defendant must show that the Chula Vista police actively participated or encouraged Ms. Valenzuela’s search to satisfy the first prong of the government instrument test. Defendant has not met that burden.” United States v. Serrano, 2023 U.S. Dist. LEXIS 38240 (S.D. Cal. Jan. 17, 2023).
Search of a zippered lunchbox on the ground led to denial it was his, but all this was the product of defendant’s illegal arrest. There was a reasonable expectation of privacy in the zippered lunchbox closed to view of others. Denial of suppression reversed. State v. Haneline, 2023 Mo. App. LEXIS 146 (Mar. 7, 2023).*