United States v. Dominic L. Miller ( 1998 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 97-3669SD
    _____________
    United States of America,                *
    *
    Appellant,          *
    * Appeal from the United States
    v.                                 * District Court for the District
    * of South Dakota.
    Dominic L. Miller,                       *
    *
    Appellee.           *
    _____________
    Submitted: February 10, 1998
    Filed: August 11, 1998
    _____________
    Before FAGG and MURPHY, Circuit Judges, and SMITH,* District Judge.
    _____________
    FAGG, Circuit Judge.
    The Government appeals the district court’s order suppressing drug-related
    evidence seized from Dominic L. Miller’s efficiency apartment at Bridgeway Treatment
    Facility, a halfway house for adults with severe, persistent mental illnesses. We reverse
    and remand.
    *
    The Honorable Ortrie D. Smith, United States District Judge for the Western
    District of Missouri, sitting by designation.
    The relevant facts are neither complicated nor disputed. Miller’s mental illness
    was controlled by medications, which were centrally dispensed. If Bridgeway residents
    failed to show up for their morning medications, staff members would go to their
    apartments and rouse them. Because these severely ill persons posed some risk of
    danger to themselves and others, staff members also had access to the facility’s
    apartments by way of a master key. One Saturday morning, Lorie Fischer, the weekend
    supervisor, knocked at Miller’s door. Miller was away for the weekend--residents
    were generally free to come and go as they pleased--but Fischer had forgotten that fact.
    Receiving no reply, Fischer unlocked Miller’s door and called his name. She then
    remembered he was gone, but at the same time she smelled cigarette smoke.
    Bridgeway has a strict no-smoking rule, so Fischer stepped inside to investigate. She
    saw cigarette butts, ashes, matches--and evidence of drug activity in plain view. This,
    too, was against Bridgeway’s rules. After looking around, Fischer relocked the
    apartment and called the medical services head, who called Bridgeway’s director and
    told him what Fischer had seen. The next day, Fischer entered Miller’s apartment again
    with the weekday supervisor, Stephanie Weidemann, who also observed the drug
    evidence. Later that day, the director had the locks on Miller’s door changed to keep
    Miller from altering the scene. On Monday, the director called the police and admitted
    them into Miller’s room. The officers saw what Fischer and Weidemann had seen, and
    nothing more. The officers then obtained a search warrant and seized the drug-related
    items. Miller’s prosecution followed in due course.
    Miller moved to suppress the seized items, challenging the officers’ first,
    warrantless entry on Fourth Amendment grounds. The Government countered that the
    entry was lawful because the director consented to it. For a third-party consent to a
    warrantless police search to be legally effective, the consenting party must have actual
    or apparent authority to give the consent. See United States v. Matlock, 
    415 U.S. 164
    ,
    171 & n.7 (1974) (actual authority); Illinois v. Rodriguez, 
    497 U.S. 177
    , 188-89 (1990)
    (apparent authority). Concluding the director possessed neither, the district court
    granted Miller’s motion. On appeal, both the Government and Miller continue to treat
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    this as a third-party consent case. After de novo review, see United States v. Leyva-
    Serrano, 
    127 F.3d 1280
    , 1282 (10th Cir. 1997); see also United States v. Weinbender,
    
    109 F.3d 1327
    , 1329 (8th Cir. 1997), we conclude otherwise. Because the proper
    resolution of this matter is beyond doubt, we exercise our discretion to decide the
    Government’s appeal on a different ground altogether. See Washington Gas Light Co.
    v. Virginia Elec. & Power Co., 
    438 F.2d 248
    , 251 (4th Cir. 1971) (“[I]f deemed
    necessary to reach the correct result, an appellate court may sua sponte consider points
    not presented to the district court and not even raised on appeal by any party.”); see
    also United States Dep’t of Labor v. Rapid Robert’s Inc., 
    130 F.3d 345
    , 348 (8th Cir.
    1997).
    The Fourth Amendment prohibits unreasonable searches and seizures. Absent
    some well-settled exception, unconsented warrantless searches are unreasonable. See
    United States v. Boettger, 
    71 F.3d 1410
    , 1413 (8th Cir. 1995). Before reaching the
    issue of whether the director’s consent rendered the warrantless police intrusion lawful,
    however, the preliminary question is whether a Fourth Amendment search has taken
    place at all. The Constitution does not apply to searches, reasonable or otherwise, by
    private individuals, so long as the private party is “‘not acting as an agent of the
    Government or with the participation or knowledge of any governmental official.’”
    United States v. Jacobsen, 
    466 U.S. 109
    , 113 (1984) (quoting Walter v. United States,
    
    447 U.S. 649
    , 662 (1980) (Blackmun, J., dissenting)). Further, to be a Fourth
    Amendment search, a governmental intrusion must infringe on a legitimate expectation
    of privacy. See 
    id. Because a
    private search frustrates such an expectation, see 
    id. at 117-18,
    an ensuing police intrusion that stays within the limits of the private search is
    not a search for Fourth Amendment purposes, see 
    id. at 120.
    Thus, in a private search
    case, the legality of later governmental intrusions “must be tested by the degree to
    which they exceeded the scope of the private search.” 
    Id. at 115.
    Our cases following
    Jacobsen are to the same effect. See, e.g., United States v. Rouse, No. 98-1705, 
    1998 WL 381725
    , at *2 (8th Cir. July 10, 1998); United States v. Mithun, 
    933 F.2d 631
    , 634
    (8th Cir. 1991).
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    The application of Jacobsen’s private search rule here is as straightforward as
    the rule itself. There is no question Fischer and Weidemann intended to act in a wholly
    private capacity when they entered Miller’s apartment, and the police neither knew
    about nor acquiesced in their entry. See United States v. Parker, 
    32 F.3d 395
    , 398-99
    (8th Cir. 1994). The police first became involved the day after the joint search by
    Fischer and Weidemann, and the police intrusion went no further than theirs. See
    
    Mithun, 933 F.2d at 634
    . Thus, no Fourth Amendment search occurred at all, so the
    drug-related evidence in this case was lawfully obtained.
    Before concluding, we take note of a recent opinion issued by the Fifth Circuit,
    United States v. Paige, 
    136 F.3d 1012
    (5th Cir. 1998). Like our case, which involves
    the search of an apartment, Paige concerns a police intrusion into residential property--
    specifically, a detached garage--in the wake of a private search. Jacobsen, by contrast,
    dealt with the search of a package, and “it was virtually certain that [the package]
    contained nothing but contraband.” 
    Jacobsen, 466 U.S. at 120
    n.17. Emphasizing this
    point, and observing that “people’s homes contain countless personal, noncontraband
    possessions,” the Fifth Circuit declined “to extend Jacobsen’s holding ‘to cases
    involving private searches of residences.’” 
    Paige, 136 F.3d at 1020
    n.11 (quoting
    United States v. Allen, 
    106 F.3d 695
    , 699 (6th Cir.) (deciding search issue on grounds
    unrelated to Jacobsen’s private search rule), cert. denied, 
    117 S. Ct. 2467
    (1997)). The
    Fifth Circuit did not reject Jacobsen, however. Drawing on pre-Jacobsen circuit
    precedent, United States v. Bomengo, 
    580 F.2d 173
    , 175-76 (5th Cir. 1978) (involving
    private search of apartment), cert. denied, 
    439 U.S. 1117
    (1979), the Fifth Circuit
    tailored the Jacobsen rule to accommodate the court’s concerns when a police search
    follows a private party search of a home. In this situation, the Fifth Circuit held, a
    police search within the scope of an earlier private search is lawful only when “the
    private party’s intrusion was reasonably foreseeable.” 
    Paige, 136 F.3d at 1020
    . We
    neither adopt nor reject the Fifth Circuit’s rule because the police search in this case
    would pass muster under both Jacobsen and Paige. It was reasonably foreseeable that
    the on-duty supervisor of Miller’s treatment facility might forget Miller was out of
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    town, open his door when he did not respond to his morning medication call, step
    inside his apartment to investigate when she detected a violation of house rules, and see
    the drug-related items left in open sight.
    We reverse the district court’s order and remand for further proceedings not
    inconsistent with this opinion.
    MURPHY, Circuit Judge, concurring.
    I concur in the result reached by the court because Lorie Fischer’s entry into Mr.
    Miller’s room in the halfway house was reasonably foreseeable to him. See United
    States v. Paige, 
    136 F.3d 1012
    , 1020 (5th Cir. 1998). We have not previously applied
    the Jacobsen private search rule to an individual’s residence, see United States v.
    Rouse, No. 98-1705, 
    1998 WL 381725
    (8th Cir., July 10, 1998) (package); United
    States v. Mithun, 
    933 F.2d 631
    , 634 (8th Cir. 1991) (automobile), but the facts of this
    case make its application here appropriate. Since the home has long been afforded
    heightened protection against invasions of privacy, see California v. Carney, 
    471 U.S. 386
    , 390 (1985); 
    Paige, 135 F.3d at 1021
    n.11, I would not extend the Jacobsen rule
    beyond circumstances where an intrusion by a private actor into a residence was
    reasonably foreseeable to the owner or tenant.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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