The Adventure of the Fruit of the Poisonous Tree

(I’ll be honest: this post isn’t really about the fruit of the poisonous tree so much as it’s about Sherlock’s possible status as a state actor and thus whether or not the restrictions of the Fourth Amendment apply to him. The poisonous tree bit just makes for a snappier title and is at least somewhat related to the main topic.)

In many ways Sherlock Holmes is the Ur-superhero, prefiguring Batman. They are both detectives possessing no supernatural abilities, only a keen intellect, physical training, a faithful assistant, and a relentless drive to solve or prevent crime. In the case of the Sherlock Holmes of Elementary, they even share a certain degree of wealth — though Sherlock doesn’t flaunt it, he does use his wealth to solve problems on a few occasions. They also share a strong connection with the police.

It is that connection with the police that is so often a troubling feature of Elementary. Often Sherlock will make a point of his police affiliation in order to gain access to a building or get a person of interest to talk. But at other times he will claim that, since he is not a police officer, he does not need a warrant to perform a search (searches that often include breaking and entering). Which is closer to the truth? Or can he have it both ways?

I. The Fourth Amendment and the State Action Requirement

Like most of the Constitution, the Fourth Amendment restricts the powers of the federal and state governments, not private individuals. In every state except Texas, if a non-state actor independently performs an illegal search or seizure, any evidence obtained is still admissible. In every state, if a government agent does so, any evidence obtained — and any evidence derived from that evidence — must be excluded. This exclusionary rule is the remedy for a violation of a defendant’s Fourth Amendment rights.

(That is a highly abridged summary of Fourth Amendment law, but the point of this post isn’t really the Fourth Amendment but rather state action.)

The question, then, is whether Sherlock should be considered a state actor — thus requiring him to comply with the Fourth Amendment — or not — thus allowing him relative freedom to conduct investigations in his particular (which is not to say illegal) manner.

Why not simply say that Sherlock is clearly a state actor since he works for the New York City Police Department? While the word “work” may be used in the show (as in, “work on a case” or “work with the department”), Holmes is unpaid and so clearly not an employee. He does what he does simply to occupy his mind and help keep himself sober. In a technical sense he may be a contractor, in that there may be an implied or verbal contract between Sherlock and the department, but he isn’t receiving a 1099 or the like. Since it is at least debatable whether Sherlock is working as a government agent under the direction of the police department or whether he is simply a private citizen offering tips to the police (or something in between), I think it behooves us to consider the question more fully.

II. The State Action Doctrine

Before going further, I want to be clear that although I am staking out an argument, I am not claiming that it is the only possible analysis or necessarily the correct one. This is not because I lack the courage of my convictions, but rather because this is a frankly muddled and difficult area of the law. As Justice O’Connor herself said, “our cases deciding when private action might be deemed that of the state have not been a model of consistency.” Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 632 (1991) (O’Connor, J., dissenting). That said, here we go.

Over the years, the Supreme Court has offered a few different approaches to deciding whether or not a private individual should be considered a state actor. The two major approaches are the public function “test” and the Lugar test. I think Sherlock would be considered a state actor under both tests.

A. The Public Function “Test”

I use scare-quotes because over the years the Court has severely curtailed the circumstances under which a private entity will be considered a state actor under this test. It is now no longer a test so much as a handful of exceptions to a general negative rule. In any case, the idea is that a private entity will be considered a state actor if the private entity assumes or is delegated a power “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1964). However, “While many functions have been traditionally performed by governments, very few have been ‘exclusively reserved to the State.’” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978).

Some of those very few examples include operating a town’s entire municipal government and city services (Marsh v. Alabama) and running an election (Terry v. Adams). It may also include “fire and police protection”. Flagg Bros., 436 U.S. at 163. Fire and police protection were expressly mentioned only as dicta in Flagg Bros., but even though the public function test is largely on life support these days, my feeling is that police protection is a power traditionally exclusively reserved to the State. Not because professional police have always been around (they are mainly a product of the late 19th & early 20th centuries), but because even the limited police protection of county sheriffs, raising the hue and cry, and the like all ultimately stem from the State. There was not a competing tradition of private security forces or investigators, to my knowledge

Under this view, when Sherlock assumes the role of a police investigator (i.e. an investigator working with the police as opposed to a private investigator working for a private client) or when the police delegate investigatory duties to him, he is assuming or being given the public function of providing police protection. This makes him a state actor, triggering the restrictions of the Fourth Amendment — or the protections of the Fourth Amendment, depending on your perspective.

B. The Lugar Test

This test comes from Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922 (1982), in which the Court gave a “simple” two-part test for state action.

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible. … Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.

It’s not the brightest-line rule, but I think we can muddle through.

First: dealing only with the issue of warrantless searches, we can see that the deprivation [of a federal right] is caused by a person for whom the State is responsible, namely Sherlock. The NYPD has demonstrated that it has assumed responsibility for Sherlock on multiple occasions, requiring him to apologize to wronged citizens in order to continue to work on cases, for example. They also introduce him as a consultant and extend or restrict his access to cases, witnesses, and evidence in their discretion, typically according to how well Sherlock is playing by the rules.

Second: Sherlock definitely acts together with and obtains significant aid from state officials. He and the police certainly coordinate their actions and communicate on a regular basis. And from the police he gets forensic data, access to crime scenes and interrogation rooms, and transportation in police cars on numerous occasions.

Thus, I believe that Sherlock is also a state actor under the Lugar test.

III. Conclusion

So what is the practical upshot of all this? The upshot is that Sherlock’s reckless methods are seriously endangering the prosecution’s ability to actually convict many of the criminals that Sherlock and the police investigate. He can’t have his cake and eat it too: either work independently of the police and simply hand them a file with his conclusions, produced as a concerned citizen, or work with the police but under the same constitutional restrictions.

An alternate view might be that the upshot is that the show is taking a few liberties with the law for dramatic license, but where’s the fun in that?