W.D.Okla: Def bears burden of proving “private search” was by government actor and did; suppressed

Defendant has sufficient interest in the business from which a thumb drive with data was taken and turned over to ICE officers at the U.S. Embassy in Panama. (The court acknowledges that it’s not “standing,” per se, but it continues to use the word.) On the question of private search, the court can’t find a Tenth Circuit case on it, but the Seventh and Ninth put it on defendant, so that’s what the court does. Then it finds that the defendant satisfied his burden of proof that the guy taking the thumb drive was a government actor because of government encouragement. [On the burden of proof, I disagree. See note at end.] United States v. King, 2015 U.S. Dist. LEXIS 187174, 2015 WL 12852051 (W.D. Okla. Jan. 21, 2015):

3. Lack of a Search Warrant and Suppression

The limitations imposed by the Fourth Amendment apply to Mr. Stewart’s conduct as a state actor. See, Lugar v. Edmondson Oil Co., 457 US. 922, 937 (1982) (party charged with the deprivation must be a person who may fairly be said to be a state actor; this may be because he is state official or because his conduct is otherwise chargeable to the state); Sloane v. United States, 47 F.2d 889 (10th Cir. 1931) (“[An officer] must not be permitted to do indirectly that which he cannot do directly, and thus circumvent the provisions of the Fourth Amendment against unreasonable search and seizures.”).

The explicit premise of defendant’s motion is that the Fourth Amendment protects Mr. King, as a United States citizen, from warrantless search and seizure, and that the Fourth Amendment does so despite the fact that the search and seizure occurred in Panama. The motion contends that because there was no warrant, fourth amendment standards were violated, with the result that the fruits of the search and seizure must be suppressed. The government argues only that Mr. King has no standing and that there was no government actor. Having rejected the government’s arguments, what remains is a warrantless search and seizure in violation of Mr. King’s rights under the Fourth Amendment, along with the incumbent exclusionary rule. See, e.g., United States v. Delaplane, 778 F.2d 570, 573 (10th Cir. 1985) (stating the exclusionary rule applies where American agents participate in a foreign search or where foreign agents act as agents for American counterparts, although those requirements were not met in that case). The motion will be granted.

Because this is a warrantless search, one would assume that the burden should be on the government, as it is in all warrantless searches. Nevertheless, the court finds the evidence in favor of the defendant, essentially making a government appeal far more difficult. [King was later convicted of some offense. The forfeiture case is United States v. King, 2017 WL 895748 (W.D. Okla. March 6, 2017).]