G Private Vs. Government Action

• Library: Illinois Decisions on Search and Seizure (2017 Ed.)

G. Private vs. Government Action

Filarsky v. Delia, ___ U.S. ___, 132 S. Ct. 1657 (2012) (A plaintiff-firefighter employed by a city in California, who became ill after a toxic spill, missed work, under doctor's orders, for three weeks. The city became suspicious of the firefighter's extended absence, and hired a private investigator to conduct surveillance. The investigator observed him buying fiberglass insulation and other building supplies, and surmised that he was not missing work due to illness, but to do construction on his home. The city then initiated an internal affairs investigation, and hired defendant-private attorney. The attorney conducted an interview with the firefighter, who acknowledged buying the supplies, but denied working on his home during his absence. The private attorney then demanded access to the firefighter's home to determine whether or not work had been done. After the firefighter refused, the attorney requested that he bring the materials out of his home. Again, the firefighter refused, and the attorney then ordered him to produce the materials. The firefighter objected, arguing that it would violate his Fourth Amendment protections, and threatened to file suit against all parties. The plaintiff-firefighter, over objection, finally produced the materials for examination, and after showing city officials the rolls of insulation, filed a §1983 claim against the city and the defendant-private attorney, among others, which alleged the order to produce the materials was a violation of the Fourth Amendment. HELD: A private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit under §1983. Because there was no distinction at common law between public servants and "private individuals engaged in public service," even though the-defendant-attorney was a private actor, he was working for the government, and therefore entitled to receive qualified immunity. This protection, though, is limited, and does not extended to "individuals who ha[ve] no connection to government and pursue[] purely private ends." Thus, this conclusion is not at odds with Wyatt v. Cole, 504 U.S 158 (1992) or Richardson v. McKnight, 521 U.S. 399 (1997), where because of the unique characteristics of privately run prisons, these opinions held prison guards at those institutions were not connected to government and, as such, not entitled to receive qualified immunity).

New Jersey v. T.L.O., 469 U.S. 325 (1985) (holding a high school administrator's search of a high school student's purse was governed by the Fourth Amendment. However, the search in this case did not violate the Fourth Amendment, so evidence of marijuana found in the search was admissible at the student's juvenile court proceeding).

United States v. Jacobsen, 466 U.S. 109 (1984) (Defendants were waiting to receive a package containing cocaine that was being shipped by a private freight carrier. After the package was damaged in transit, the carrier opened it, found cocaine and called federal agents, who took a sample of the contents for testing without a warrant. The defendant argued the testing and evidence seizure was violative of Fourth Amendment rights. HELD: the examination of the cocaine was reasonable and did not violate the Fourth Amendment because the package had already been opened by a private party to whom the Fourth Amendment did not apply and because the federal agents merely set aside some newspaper covering the contents and reopened a tube to view the contents. The agents did not infringe on any privacy rights that had not already been frustrated as a result of private conduct by the carrier. There was no Fourth Amendment violation when the contents were seized and tested by the agents, since the agents effectively stood in the shoes of the private person for such a search, and their conduct did not exceed the private and unprotected search. Thus, there was neither a "search" nor "seizure" within the meaning of the Fourth Amendment. Further, the seizure of a small amount of cocaine for testing without a warrant was a de minimis violation of any protected possessory interest and, thus, was constitutionally reasonable).

Burdeau v. McDowell, 256 U.S. 465 (1921) (HELD: The Fourth Amendment is inapplicable when a former employee who was not a government official took papers that incriminated a discharged employee from the office safe and gave them to the Justice Department).

United States v. Shahid, 117 F.3d 322 (7th Cir. 1997) (HELD: Search or seizure by a private party does not implicate Fourth Amendment unless he/she is acting as an "instrument or agent" of the government. Two factors in determining whether one is an instrument or agent of the state are: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the private party's purpose was to assist law enforcement or to further its own ends. Additional criteria are whether the private actor acted at the request of the government and whether the government offered the private actor a reward. Even if private actor's purpose was to aid in law enforcement, this does not per se transform actor into government agent. Here, stop and search of defendant by mall security...