152 F.3d 813 | 8th Cir. | 1998
Lead Opinion
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 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 dan
Miller moved to suppress the seized items, challenging the officers’ first, warrant-less 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 warrant-less 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, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (actual authority); Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (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 this as a third-party consent ease. 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, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (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, 104 S.Ct. 1652, 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, 104 S.Ct. 1652. 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, 104 S.Ct. 1652. Our cases following Jacobsen are to the same effect. See, e.g., United States v. Rouse, 148 F.3d 1040, 1041 (8th Cir.1998); United States v. Mithun, 933 F.2d 631, 634 (8th Cir.1991).
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, 104 S.Ct. 1652. 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, — U.S. -, 117 S.Ct. 2467, 138 L.Ed.2d 223 (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, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979), the Fifth Circuit tailored the Jacob-sen 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 Ja-cobsen and Paige. It was reasonably foreseeable that the on-duty supervisor of Miller’s treatment facility might forget Miller was out of 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.
Concurrence Opinion
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, 148 F.3d 1040 (8th Cir.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, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); Paige, 136 F.3d at 1021 n. 11, I would not extend the Jacob-sen rule beyond circumstances where an intrusion by a private actor into a residence was reasonably foreseeable to the owner or tenant.