U.S. v. Miller

Citation688 F.2d 652
Decision Date21 September 1982
Docket NumberNo. 81-1566,81-1566
Parties11 Fed. R. Evid. Serv. 1128 UNITED STATES of America, Plaintiff-Appellee, v. Howard Eugene MILLER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Donald Snavely, Missoula, Mont., for defendant-appellant.

George F. Darragh, Asst. U. S. Atty., Butte, Mont., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before CHOY, TANG, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge.

The principal issue in this appeal is whether a theft victim's visit to the defendant's property to look for his stolen trailer constituted a government search and is subject to Fourth Amendment requirements.

Because the theft victim acted on his own and received consent to walk around the premises from the defendant's son, his visit was not an unlawful government search and the fruits thereof were properly admitted into evidence. Accordingly, we affirm the defendant's conviction.

Facts

Miller was indicted for and convicted of receiving stolen goods in violation of 18 U.S.C. § 2315. The events leading up to his indictment were as follows.

In November, 1980, Nandor Szombathy reported the theft of his low-boy trailer and three conveyor belts to the Spokane Police Department. In mid-February, 1981, he received an anonymous tip that his trailer was on Miller's property in Superior, Montana. He relayed this tip to the Spokane police, who advised him to notify the FBI, which he did.

After receiving this tip, FBI Agent John Nelson notified the local sheriff's office in Superior, Montana. A deputy sheriff then informed Agent Nelson that Miller had a low-boy with a "for sale" sign on it parked next to the frontage road running to Miller's property. Both Agent Nelson and Sheriff Ron Boyce visited Miller's property and examined the trailer parked along the frontage road but they were unable to confirm whether it was the stolen trailer. They then invited Szombathy to come to Superior to examine the trailer parked alongside the frontage road.

Szombathy drove to Superior on February 21, 1981. En route he drove past Miller's property and noticed two trailers parked between the frontage road that leads to Miller's property and the highway. The trailers were parked approximately 100 to 150 yards from the highway, and were marked "for sale." When first driving by, Szombathy thought that one of the two trailers might have been his, but was not sure. He then continued to Superior to meet with Agent Nelson and Sheriff Boyce.

At this meeting, Szombathy asked whether he could go to Miller's property to look for his trailer. He suggested that he pose as a prospective buyer of mining equipment to gain access to the property. Agent Nelson answered that he "didn't see anything wrong with that at all." The officers and Szombathy agreed to rendezvous later that morning.

Upon arriving at Miller's property, Szombathy went to look at the trailers parked alongside the frontage road. While he was looking at the trailers, Miller's high school-age son drove up and asked Szombathy what he wanted. Szombathy replied that he was looking for a low-boy trailer to haul mining equipment with. Miller's son explained that there were other trailers in Miller's shop area, and took Szombathy there. The shop area was approximately 300 to 450 yards from where the two trailers were parked.

Szombathy saw a trailer in Miller's shop area that he recognized as his. The trailer was upside down, its axles had been removed, and its tailend had been cut off. In addition, the trailer had been painted since it was stolen. Despite these alterations, Szombathy recognized it as his because of its unusually large size and sturdy construction. Szombathy acknowledged that the trailer was not visible from the frontage road.

Upon seeing his trailer, Szombathy explained that he was looking for a smaller trailer. When Miller's son took him into the woods near Miller's residence, which was apart from the shop area, to look at another trailer, Szombathy saw the conveyors that had been lying on top of his trailer when it was stolen. The conveyor belts were not visible from the frontage road either.

After this visit to Miller's property, Szombathy returned to Superior and reported his observations to the two officers at their scheduled meeting. At this point, on the basis of Szombathy's observations, Agent Nelson suggested that they obtain a Upon his return to Miller's property, Szombathy encountered Miller's son, who was leaving, and told him that he was "going back to look at the conveyor and look at the other stuff again." Szombathy took several pictures, which were admitted into evidence at Miller's trial.

search warrant. Szombathy decided that, in the meantime, he would go back to Miller's property and photograph the stolen equipment. Agent Nelson objected to this idea, thinking that this might "tip off" Miller. Nonetheless Szombathy returned to Miller's property to take some pictures. Agent Nelson followed him for protective purposes, positioning himself where he could watch Szombathy with binoculars.

Based on Szombathy's observations during his visits to Miller's property, Agent Nelson obtained a search warrant and searched Miller's property on February 24, 1981, at which time he did not locate the stolen trailer or conveyor belts.

Miller was indicted on March 24, 1981, for receiving and concealing a low-boy trailer, knowing it to have been stolen. Thereafter, Sheriff Boyce recovered the stolen trailer and conveyor belts from places other than Miller's residence.

Prior to trial, Miller moved to suppress the evidence obtained during Szombathy's visits to his property. He also filed a motion in limine to preclude the introduction of evidence regarding the three conveyor belts. Both motions were denied. At trial the jury returned a guilty verdict. 1

Miller subsequently moved for a judgment of acquittal or, in the alternative, for a new trial. He sought acquittal because of an alleged insufficiency of evidence. He sought a new trial because of a number of alleged errors at trial. Both motions were denied, and Miller was sentenced. He now appeals.

I MOTION TO SUPPRESS

Miller complains that his Fourth Amendment rights were violated when Szombathy visited his property, looked around, and photographed the stolen trailer and conveyor belts. He argues that Szombathy's contact with law enforcement agents converted his actions into government conduct, and implicated the Fourth Amendment. Invocation of Fourth Amendment protections requires both an unreasonable intrusion into privacy and a finding of governmental conduct. Neither exists in this case. Consequently, we affirm the district court's denial of Miller's motion to suppress.

A. The Government-Private Search Distinction

In the proceedings below, Miller moved to suppress the evidence derived from Szombathy's visits to Miller's property. He correctly noted that, although a search or seizure conducted by a private party does not violate the Fourth Amendment, if that individual acts as an instrument or agent of the state in conducting the search, Fourth Amendment interests are implicated. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). The district court rejected Miller's contention that Szombathy acted as an instrument of the government when visiting Miller's property. It reasoned that Szombathy's prior contacts with Agent Nelson and Sheriff Boyce were not such that they made him a government agent, and that he therefore acted in a private capacity. We agree. 2

Our analysis starts with United States v. Walther, 652 F.2d 788 (9th Cir. 1981). There we noted that there is no bright line that distinguishes instances of "government" conduct from instances of "private" conduct, and that we should refer to certain general principles when analyzing cases in While a certain degree of governmental participation is necessary before a private citizen is transformed into an agent of the state, de minimis or incidental contacts between the citizen and law enforcement agents prior to or during the course of a search or seizure will not subject the search to fourth amendment scrutiny. The government must be involved either directly as a participant or indirectly as an encourager of the private citizen's actions before we deem the citizen to be an instrument of the state....

                the "gray area."  Id. at 791.  3  We discussed those general principles
                

Id. From our review of earlier cases, we discerned that two critical factors in the "instrument or agent" analysis are: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. Id. at 791-92.

Here the government concedes that it knew of and acquiesced in Szombathy's conduct. However, Szombathy acted out of a desire to recover his stolen property. The government argues that this consideration should conclude our analysis. We find this issue more complex.

This case involves several instances of police-private citizen contact: the invitation to Szombathy to come to Superior, the meeting in Superior when Agent Nelson gave tacit approval for Szombathy to go onto Miller's property, and Agent Nelson's accompanying Szombathy when he returned to Miller's place to photograph the trailer and conveyor belts. This case also involves two alleged invasions of privacy. Given this somewhat complicated set of facts, we have found it worthwhile to consider each element of the sequence separately.

Miller complains that the government instigated the searches he complains of by inviting Szombathy to Superior. We must evaluate that invitation, however, in light of its scope and the reason it was extended. Agent Nelson merely contemplated that Szombathy look at the trailers that were...

To continue reading

Request your trial
127 cases
  • State v. Bracy
    • United States
    • Arizona Supreme Court
    • June 10, 1985
    ...may do so if it sees fit. State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977); State v. Canedo, supra; see also United States v. Miller, 688 F.2d 652 (9th Cir.1982); United States v. Witt, 648 F.2d 608 (9th Cir.1981). Thus, even the total failure to define reasonable doubt could not have r......
  • Berger v. Hanlon
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 13, 1997
    ...which the private parties conducted searches on their own, and not under the government's cloak of authority. See United States v. Miller, 688 F.2d 652, 657-58 (9th Cir.1982); United States v. Jennings, 653 F.2d 107, 110 (4th Cir.1981). In Miller a theft victim went to the defendant thief's......
  • Pleasant v. Lovell
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 16, 1989
    ...2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982); Walther, 652 F.2d at 792; accord United States v. Snowadski, 723 F.2d 1427, 1429 (9th Cir.), cert. denied, 469 U.S. 8......
  • State v. Santiago
    • United States
    • New Mexico Supreme Court
    • August 31, 2009
    ...search intended to assist law enforcement efforts or to further his own ends.'" Smythe, 84 F.3d at 1242-43 (quoting United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982)); accord United States v. Alexander, 447 F.3d 1290, 1295 (10th Cir.2006); United States v. Jarrett, 338 F.3d 339, 345......
  • Request a trial to view additional results
4 books & journal articles
  • Chapter 5 - §2. Elements for exclusion
    • United States
    • Full Court Press California Guide to Criminal Evidence Chapter 5 Exclusion of Evidence on Constitutional Grounds
    • Invalid date
    ...and does nothing to stop it. People v. DeJuan (4th Dist.1985) 171 Cal.App.3d 1110, 1120-21; see, e.g., U.S. v. Miller (9th Cir.1982) 688 F.2d 652, 657 (no agency relationship when private citizen informed police of how he planned to search for stolen property on D's residence, search was le......
  • Table of Cases null
    • United States
    • Full Court Press California Guide to Criminal Evidence Table of Cases
    • Invalid date
    ...64 L. Ed. 2d 497 (1980)—Ch. 5-A, §3.3.1(3)(a) U.S. v. Meza-Corrales, 183 F.3d 1116 (9th Cir. 1999)— Ch. 5-A, §3.3.1(3)(g) U.S. v. Miller, 688 F.2d 652, 11 Fed. R. Evid. Serv. 1128 (9th Cir. 1982)—Ch. 5-A, §2.1.1(3)(b)[1][a] U.S. v. Montoya de Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 87 L. ......
  • Searches of the home
    • United States
    • James Publishing Practical Law Books Suppressing Criminal Evidence Fourth amendment searches and seizures
    • April 1, 2022
    ...are met, the private citizen is deemed to have acted as a government agent when conducting the search. Id. Citing United States v. Miller, 688 F.2d 652 (9th Cir. 1982). W/2, in conducting a search of Ms. Client’s private bedroom to bring (name dog) out to Officer _____is an unambiguous illu......
  • Earning Virtual Responsibility: Raising the Level of Accountability for Interactive Computer Service Providers Due to User-Generated Trafficking.
    • United States
    • Suffolk University Law Review Vol. 55 No. 3, June 2022
    • June 22, 2022
    ...466 U.S. 109, 126 (1984) (concluding private search reasonable and did not violate Fourth Amendment). (104.) See United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982) (distinguishing government from private conduct); Mitter, supra note 16, at 266 (explaining how private entities become......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT