United States v. Dominic L. Miller
152 F.3d 813
8th Cir.
1998
Check Treatment

*2 Before FAGG and SMITH,* Judges, Judge. District FAGG, Judge. appeals

The Government district suppressing drug-related evi- court’s order L. effi- dence seized from Dominic Miller’s ciency apartment Bridgeway Treatment Facility, a house for adults with se- vere, persistent mental illnesses. re-We verse and remand. complicated facts are neither relevant disputed. illness Miller’s mental medications,

controlled which were cen- If trally dispensed. residents up to show for their medi- failed cations, to their staff members apartments and rouse them. Because these persons posed ill of dan- severely some risk * Smith, souri, sitting by designation. D. The Honorable Ortrie Judge the Western District of Mis- District others, Weinbender, ger to themselves and staff members United facility’s apartments (8th Cir.1997), also had access to the we conclude otherwise. key. by way Saturday of a master One proper Because the resolution of this matter Fischer, morning, super- Lorie the weekend doubt, we exercise our discretion visor, at Miller’s knocked door. Miller was appeal to decide the Government’s on a dif *3 away the gen- weekend —residents were ground altogether. ferent Washington See erally they pleased— free to come and as Co., Light Virginia Gas Co. v. Elec. & Power forgotten but Fischer had that fact. Receiv- 248, (4th Cir.1971) (“[I]f 251 reply, Fischer unlocked Miller’s door necessary result, deemed to reach the correct and called his name. then She remembered appellate an sponte sua consider gone, he was but at the same time she points presented not to the district court and cigarette smoke. a smelled has appeal by any not even raised on party.”); rule, no-smoking strict stepped so Fischer see Dep’t also United States Labor v. of investigate. cigarette inside to She saw Inc., (8th Rapid 345, Robert’s 348 butts, ashes, drug matches —and evidence of Cir.1997). This, too, activity plain against view. around, Bridgeway’s looking prohibits rules. After The Fourth Amendment apartment Fischer relocked the and called unreasonable searches and seizures. Absent head, Bridge- the medical services who called some exception, well-settled unconsented way’s director and told him what Fischer had warrantless searches are unreasonable. See day, seen. The next Fischer entered Miller’s Boettger, United States v.

apartment again weekday supervi- (8th with the Cir.1995). reaching the issue of sor, Weidemann, Stephanie who also ob- whether the director’s consent rendered the drug day, served the evidence. Later that lawful, police however, warrantless intrusion the director had the locks on Miller’s door preliminary the question is whether Fourth changed keep altering to Miller from the place Amendment search has taken at all. Monday, scene. On the director called the searches, The apply Constitution does not to police and admitted them into Miller’s room. otherwise, by private reasonable or individu “ The officers saw what Fischer and Weide- als, so as the ‘not seen, mann had more. offi- The acting agent anas of the Government or with then cers obtained a search warrant and participation knowledge the govern of ” drug-related pros- seized the items. Miller’s mental official.’ United States v. ecution followed due course. 109, 113, 104 1652, 466 U.S. S.Ct. 80 L.Ed.2d (1984) States, 85 Walter suppress Miller moved to the seized 2395, 447 U.S. items, first, challenging the officers’ warrant- (1980) (Blackmun, J., dissenting)). 410 Fur entry grounds. less on Fourth Amendment ther, search, to a Fourth be Amendment The Government countered that the governmental infringe intrusion must on a was lawful because the director consented to legitimate expectation privacy. See id. third-party it. For a consent to a warrant- Because a search frustrates such an effective, legally less search to be the 117-18, expectation, see id. at 104 S.Ct. consenting party appar must have actual or ensuing police stays intrusion that within authority give ent the consent. See Unit the limits of the search is Matlock, ed States v. n.& (1974) (actual purposes, search for Fourth Amendment see id. 104 S.Ct. 1652. in a authority); Rodriguez, Illinois 177, 188-89, legality governmen the of later (1990) degree tal intrusions “must be (apparent authority). tested the Concluding the neither, they to which the possessed director exceeded the district court granted appeal, Miller’s motion. search.” 104 S.Ct. 1652. On both the following Government Our cases are to the same and Miller continue to treat this See, third-party e.g., as a effect. consent ease. After de novo United States (8th Cir.1998); Leyva-Serrano, see F.3d Cir.1997); 127 F.3d see also both Ja- pass muster under this case would of Jacobsen’s The reasonably fore- Paige. It was cobsen and straightforward as as rule here is Mil- on-duty supervisor of that the seeable question Fischer and There is no rule itself. facility might forget Miller ler’s treatment wholly pri- to act intended

Weidemann town, open his door when did was out they capacity when entered Miller’s vate call, respond to his medication police neither knew about apartment, and the apartment investigate when step inside his entry. in their See United acquiesced rules, of house detected violation she Parker, open sight. drug-related items left see the Cir.1994). became involved first court’s order and reverse the district day joint Fischer after inconsis- for further remand Weidemann, intrusion went no and the tent with Mithun, 933 F.2d at than theirs. See further *4 Fourth Amendment search 634. concurring. Judge, Circuit all, drug-related evidence so the occurred by reached the court I concur the result lawfully in this case was obtained. Mr. Mil Lorie Fischer’s into a recent concluding, we take note of reason room in the house was ler’s Circuit, by opinion issued the Fifth ably to him. See United States foreseeable (5th Cir.1998). Paige, 136 F.3d 1012 States v. 1012, 1020 Paige, 136 F.3d which involves the search Like our previously applied the have not Paige concerns a intru apartment, to an individual’s resi private search rule property specifically, sion into residential dence, 148 F.3d see United States — Cir.1998) private of a garage (package); the wake detached —in Cir.1991) Jacobsen, contrast, dealt with search. (automobile), of this case make but the facts virtually package, and “it was search of appropriate. here Since the its package] contained certain that [the pro heightened afforded home has been Jacobsen, 466 U.S. at but contraband.” privacy, against invasions of see Cali tection Emphasizing point, n. S.Ct. 1652. Carney, fornia “people’s contain observing that homes (1985); Paige, L.Ed.2d 406 posses personal, noncontraband countless the Jacob- at 1021 n. I would extend sions,” “to extend the Fifth Circuit declined in where an sen rule circumstances involving ‘to Jacobsen’s cases actor into a residence trusion ” Paige, 136 F.3d at searches of residences.’ reasonably to the owner or foreseeable Allen, 1020 n. 11 tenant. (6th Cir.) (deciding search to Jacobsen’s grounds issue on unrelated — rule), denied, cert. U.S. search (1997)). -, reject

The Fifth Circuit did not Drawing pre-Jacobsen on circuit however. America, Appellee, UNITED STATES Bomengo, precedent, United States v. (5th Cir.1978) (involving GRAY, Appellant. Dale Robert apartment), No. 97-3588. (1979), Fifth tailored the Jacob- the court’s concerns sen rule to accommodate

when a search follows April Submitted situation, Fifth of a home. In this held, search within the Denied; Stay Motion to Mandate only is lawful of an earlier Sept. Denied private party’s intrusion was rea when “the sonably Paige, foreseeable.” adopt reject the Fifth

1020. We neither police search in

Circuit’s rule because the