D.Utah: UPS Store employee opened package with rattle as a private searcher

UPS Store employee opened a package that rattled because he feared an unfounded insurance claim. He was not acting as an agent of the police. United States v. Lawrence, 2011 U.S. Dist. LEXIS 139655 (D. Utah December 5, 2011)*:

In determining whether a private person has become an agent of the government, the Tenth Circuit uses a two-part inquiry: “1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir. 1989). Both prongs must be met before the private search is deemed governmental conduct. United States v. Leffall, 82 F.3d 343, 347 (10th Cir. 1996).

Defendant abandoned CDs with child pornography on them by leaving them in a house foreclosed on that he moved out of and never tried to reclaim them. United States v. Larson, 2011 U.S. Dist. LEXIS 139566 (W.D. Mo. November 17, 2011)*:

Defendant’s subjective desire to someday retrieve the computer disks borders on the absurd. He no longer owned the house. He moved out of the house. Someone else bought the house and moved in. Defendant never contacted Fannie Mae, he never contacted the new owner. More than a year from the date of foreclosure had gone by before defendant learned the authorities had possession of those disks; nearly eight months had gone by since he vacated the premises. It is unclear to me exactly when defendant planned to try to retrieve these disks, and it is ridiculous to think that he had any privacy interest in these disks which were sitting in someone else’s house for this length of time.

Not surprisingly, there are no cases which support defendant’s theory on this point. However, United States v. Thomas, 451 F.3d 543 (8th Cir. 2006), cert. denied, 549 U.S. 1144, 127 S. Ct. 1010, 166 L. Ed. 2d 761 (2007), is similar in that the defendant in that case left mail in a mailbox at Mail Boxes, Etc. He failed to pay the rent on the box or come by to ask for the mail for about a year. Police obtained the mail from the Mail Boxes, Etc., establishment and opened it without a warrant. The court held that the mail was clearly abandoned.