D.Iowa: CA8 probably wouldn’t adopt CA5’s private search foreseeability element

A foreseeability requirement in the private search doctrine, apparently applicable in the Fifth Circuit is not followed in this district court in the Eighth Circuit. United States v. Hayes, 2022 U.S. Dist. LEXIS 98528 (D.Iowa June 2, 2022):

Defendant relies heavily on the Fifth Circuit Court of Appeals holding in United States v. Paige, 136 F.3d 1012 (5th Cir. 1998), which established a third requirement for the private search exception to apply: that the private search be reasonably foreseeable. (Doc. 56, at 1-7). In his concurrence in Miller, Judge Murphy opined that he would have adopted the foreseeability requirement as described in Paige. 152 F.3d at 816. Citing this, defendant argues that “[n]othing in Miller suggests that the Eighth Circuit disagrees with the Fifth Circuit’s foreseeability analysis in Paige when the police follow a private search with their own search.” (Doc. 61, at 2 n.2). Defendant’s reliance on Paige and the concurring opinion in Miller is misplaced.

Far from adopting foreseeability as a requirement, the majority in Miller expressly left open the question of whether foreseeability should be a requirement of the private search exception. 152 F.3d at 816 (“We neither adopt nor reject the Fifth Circuit’s rule because the police search in this case would pass muster under … Paige.”). Defendant urges the Court-at least by implication-to adopt this foreseeability requirement because the Eighth Circuit has not expressly disclaimed it and because one judge once expressed support for it in concurrence. Subsequent decisions by the Eighth Circuit, however, offer some insight as to how much weight the Paige opinion carries. See, e.g., United Statesv. Goodale, 738 F.3d 917, 921 (8th Cir. 2013); United States v. Starr, 533 F.3d 985 (8th Cir. 2008); United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011); United Statesv. Johnson, 505 Fed. App’x 606 (8th Cir. 2013); United States v. Sigillito, 759 F.3d 913 (8th Cir. 2014); United States v. Suellentrop, 953 F.3d 1047 (8th Cir. 2020); UnitedStates v. Ringland, 966 F.3d 731 (8th Cir. 2020). Each of these opinions consider the issue of a private search based on the analytical framework described in Miller. None of these opinions make even a passing mention of a foreseeability requirement. In fact, no panel of the Eighth Circuit since Miller has even mentioned Paige in the context of the private search exception. In Miller, the Eighth Circuit left open the possibility of adopting the foreseeability standard at some future time. That possibility remains open, but foreseeability is not now-nor has it ever been-a requirement of the private search exception in the Eighth Circuit. Defendant’s objection on this ground is overruled.

I doubt that the Fifth Circuit today would even adopt that.