An interstate bus traveling from Portland OR to Salt Lake City stopped in Boise. The bus driver was moving luggage around to straighten it up for the boarding passengers, and he smelled marijuana coming from a backpack. He called the police that he was going to search the backpack. The officer couldn’t smell the marijuana, but the driver opened the backpack with the officer looking. The bus driver had a common law power to open the suitcase in case there was anything dangerous on the bus. The police standing by and watching didn’t make this not a private search. State v. Breese, 2016 Ida. App. LEXIS 100 (Aug. 23, 2016):
The Idaho Supreme Court has previously noted that, when common carriers have a suspicion that a package may contain contraband, the carrier has the right, rooted in common law, to make an inspection of the package’s contents. Pontier, 103 Idaho at 94 n.1, 645 P.2d at 328 n.1; see also Illinois v. Andreas, 463 U.S. 765, 769 n.1 (1983); United States v. Pryba, 502 F.2d 391, 399-400 (D.C. Cir. 1974). However, such a search may be classified as governmental intrusion where a carrier’s employee engaged in a search for the sole purpose of assisting the government. Walther, 652 F.2d at 792. Conversely, there is no state action where the private party has a legitimate, independent motivation for conducting the search and acting in accordance with that motive. Id.; see also United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir. 1996) (holding that a search was not governmental because a bus employee had a legitimate, independent motivation to open a package based on his independently formed belief that something was dangerous about the package and his concern for the passengers on the bus in which the package was to be shipped); United States v. Entringer, 532 F.2d 634, 637 (8th Cir. 1976) (holding that the Fourth Amendment does not require officers to obtain a warrant prior to entering upon a common carrier’s premises with its consent to observe a search conducted in accordance with the carrier’s own policies).
Even when a private person has authority to conduct a search, the person’s motivation for exercising that authority and engaging in a search, especially in the presence of law enforcement, is a critical consideration when determining if the person is a private or government agent. See, e.g., Walther, 652 F.2d 788; Gomez, 614 F.2d 643. Walther concerned actions taken by an airline employee who believed federal regulations gave him the right to open any piece of luggage and had routinely reported suspicious packages to federal agents in exchange for monetary reward. Walther, 652 F.2d at 790. Applying the second factor of the government agent analysis, the court held that the airline employee’s conduct was subject to the Fourth Amendment because the record supported the trial court’s finding that the airline employee was motivated by receiving an award from law enforcement and not by pursuing his employer’s interest. Id. at 792. Thus, the court concluded that such a motivation provided the airline employee with the requisite mental state of a government agent in the government’s effort to conduct a search. Id.
Conversely, in Gomez, 614 F.2d 643, the same court concluded that the opening of a misplaced suitcase by an airline employee looking to identify the owner was a private search even though law enforcement had carried the suitcase to an employee work area and directly aided in an effort to bypass the luggage lock. Id. at 645. The Gomez court based its holding on the trial court’s express findings that the airline employee’s motivation to conduct the search was driven by the legitimate purpose of identifying the owner of the luggage and that his opening of the luggage was pursuant to that motivation. Id. Thus, the court declined to hold that the officer’s slight participation converted the private search to a governmental one. Id.
by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)