Last week the Fifth Circuit handed down a significant decision on the “private search” doctrine in Fourth Amendment law, United States v. Oliver. Oliver permits warrantless searches under the private search doctrine even when the police who conducted the search didn’t know about the private search. I don’t think the private search doctrine can extend so far, and in this post I hope to explain why I think the decision is wrong. I also want to explain why a different Fourth Amendment rule, the “apparent authority” doctrine, very possibly applies to the facts of this case. The apparent authority doctrine was not litigated in the Oliver case, but it should have been. If I’m right about that, the Oliver decision may have reached a plausible result but did so using a rationale that is quite troubling and likely to cause more problems in the future.
I. The Private Search Doctrine
First, some background. The Fourth Amendment regulates the government, not private parties. If a private party conducts a search, and that private party is not somehow an agent of the government, the Fourth Amendment doesn’t apply. In United States v. Jacobsen, 466 U.S. 109 (1984), the Supreme Court held that the private search doctrine lets the government reenact the private search that was conducted so long as it does not “exceed the scope of the private search.” In practice, what usually happens is that the private party comes to the government and tells the officers about the search. The private party and the government then reenact the private search together. If the government needs more evidence beyond the scope of the private search — for example, if the private party searched one box and there are several boxes present — the government can get a warrant to search the property based on the probable cause of what it learned from both (a) the report of the private search and (b) the reeenactment of the private search.
II. United States v. Oliver
In Oliver, the government obtained a cardboard box of documents belonging to the suspect from the suspect’s girlfriend. The suspect had been arrested for fraud, and he had left the box at his girlfriend’s apartment. The box contained a notebook, credit and identification cards, and documents relating to the suspect’s fraud crimes. The box was not taped shut, but the boyfriend had told his girlfriend not to open it. The government learned about the box from the suspect’s co-defendant, and they went to the girlfriend’s apartment to retrieve it. Exactly what happened at the apartment is not entirely clear, although it seems that the girlfriend voluntarily handed over the box to the police and the police took it away. The police later searched the box without a warrant and found evidence that incriminated the suspect. At the suppression hearing, it became known for the first time that the girlfriend had actually searched the box herself before giving the box to the police. The police did not know this at the time, however, as the police didn’t ask and she didn’t volunteer the information to the police at the time.
The Fifth Circuit held that the government’s warrantless search of the box was constitutional under the private search doctrine. The girlfriend’s private search allowed the government to search the box without a warrant even though the officers didn’t know about the private search. In effect, information learned at the suppression hearing retroactively validated the officers’ unconstitutional search by ensuring that there was no reasonable expectation of privacy in the contents of the box based on facts that the officers didn’t know at the time. The Fifth Circuit acknowledged that the private search doctrine had never been applied when the officers did not know of the earlier private search, and it acknowledge language in Jacobsen cutting against its reading. But it found no cases directly rejecting its reading of the private search doctrine, and found the theory it adopted with theories of the private search doctrine adopted in other Fifth Circuit cases. The Fifth Circuit also added this Bush v. Gore-esque caveat:
This holding, however, is limited to the unique facts of this case and is not intended to expand significantly the scope of the private search doctrine.
III. Why Oliver is Wrong
In my view, Oliver is wrong. The rationale of allowing the government to reenact private searches is that it does not expand government power to see what a private party has seen and is willing to hand over to the government. If I open my neighbor’s mail and find that it contains evidence of crime, and I decide to report it to the police, the government is going to learn what is in my neighbor’s mail one way or the other. Either I am going to tell it to them, I’m going to show it to them, or both. Allowing the government to reconstruct a private search simply lets the private party show the police what he saw instead of tell the police what he saw. That avoids the difficult line-drawing problem that would otherwise arise if you want to create a show vs. tell distinction in the private search doctrine given the difficult line of knowing when the private party becomes an agent of law enforcement.
Applying the private search doctrine when the government doesn’t even know a private search occurred is very different. That’s true for two reasons, one practical and the other conceptual. First, as a practical matter, applying the private search doctrine in this setting dramatically expands government power. Up to now, the private search doctrine has allowed a government warrantless search when a private party voluntarily goes to the police to report it. That occurs rarely, and the decision to invade privacy is really in the hands of the private party not regulated by the Fourth Amendment. In Oliver, the private search doctrine allows a government warrantless search when a private party has conducted a search but does not go to the police to report it. That happens all the time, and it leaves the decision to invade privacy in the hands of the police that the Fourth Amendment does regulate.
Second, the Oliver approach makes no conceptual sense. Expectations of privacy in Fourth Amendment law are necessarily expectations of privacy agains searches by the government. There is no such thing as a Fourth Amendment reasonable expectation of privacy against a private search. Referring to a reasonable expectation of privacy as to a private search is like saying that charging for gym membership violates the Free Exercise Clause: It just confuses categories of words. When Jacobsen spoke of the private search frustrating reasonable expectations of privacy, that was true because the private party conducted the search and then reported it to the government. It was the private search plus the voluntarily decision to report the search that brought the information to the government’s attention, and that is what frustrated the reasonable expectation of privacy. It makes no sense to apply that rationale when the government conducted the search on its own, learned the information during its search, and then only months later found out that some private party had done a similar search.
It’s true that the Oliver court claimed that its decision was limited to the “unique” circumstances before it, and that the judges did not “intend” to expand the doctrine significantly. But it’s not clear what was unique about the rather typical facts in the case, and I don’t know how the judges’ intent trumps the legal reasoning that they adopted.
IV. Why Oliver Is an Apparent Authority Case, not a Private Search Case
What makes the Oliver case all the more frustrating is that the facts of this case could actually support the court’s holding under a different doctrine. Under the apparent authority doctrine of Ilinois v. Rodriguez, 497 U.S. 177 (1990), officers can search property if they have a reasonable belief that someone who had common authority to consent to the search gave them permission to do so. The basic idea is that the police can conduct consent searches in reliance on claims of authority even if the claims are erroneous when the facts support a reasonable belief that the person has such common authority.
Based on the facts of the Oliver case, I think there’s a decent argument that the apparent authority doctrine should apply. It’s true that the girlfriend was told not to look in the box. But I don’t think the officers knew that, and it makes sense that they would think that a girlfriend has authority over the contents of an open box left at her apartment. So if I’m understanding the record correctly, this is an unremarkable apparent authority case, not a remarkable private search case. At the very least, that’s the argument that should be in play. But the parties and the judges somehow focused on the private search doctrine instead, leading to unfortunate results for the state of the law with this newly-published opinion.
To his credit, Judge Emilio Garza dissented on the private search issue. However, Judge Garza concluded that the case “case cries out for an exception to exclusionary rule” to admit the evidence, and then speculated that maybe Herring could apply because the officer didn’t seem to be acting out of malice. I don’t think Herring can apply here, as I don’t think Herring applies to misunderstandings of the law. But I suspect the exception that Judge Garza is looking for is the “apparent authority” doctrine. Under Rodriguez, the argument would run, the search was reasonable because under the circumstances it was made in reasonable reliance on the consent of the girlfriend.
Thanks to FourthAmendment.com for the link.