Casey Anthony has sure done a good job of convicting herself.

Several days ago we discussed Unus v. Kane a case in which a Muslim family sued for an alleged violation of its Fourth Amendment rights to be free of unreasonable searches and seizures. Today we take a look at another case in which the plaintiff claimed an illegal search of her residence. Luckily for the plaintiff in this case, Maira Guzman the Seventh Circuit Court of Appeals reversed the trial court grant of summary judgment to the defendant, the City of Chicago. Guzman sued the City of Chicago pursuant to 42 USC Section 1983 for a violation of her civil rights.

Sergeant Marvin Bonnstetter of the Chicago Police Department was investigating gangs in Chicago. While he was at the jail he was approached by a man who claimed to have information. Together with an FBI officer he met with this man (known as John Doe). The officers asked the man a number of questions. He seemed knowledgeable about Chicago gangs and he was able to identify pictures of gang members.

John Doe told the officers that he had seen a convicted felon, Ruben Estrada coming out of his residence, located at 1536 West Walton in Chicago, with a gun. Doe told the officers that the West Walton address was a single family residence. The officers and Doe drove by the building and it appeared to be a single family residence. There was a real estate sign in the window and the officers thought it was a home run business.

Bonnstetter used the information to write an affidavit and submit it to the court to get a search warrant for the residence. A magistrate signed the search warrant.

Fourteen police officers and FBI agents, including Bonnstetter went to the residence to serve the search warrant. Shortly after arriving they discovered that it was not a single family residence. The real estate office was separate from the rest of the building and their were two residential apartments in the building. Furthermore no one by the name of Ruben Estrada lived in the building. They searched the upstairs apartment where Maira Guzmen, a pregnant woman, her husband, and their nine year old son lived.

The Seventh Circuit found that while Bonnstetter acted appropriately in obtaining the search warrant the police did not properly execute the warrant. The court citing Maryland v. Garrison stated that since the officers realized that it was not a single family residence prior to the search, they were required to withdraw.

California First District Court of Appeal, in People v. Smith, ruled that a search by police officers inside the underwear of a parolee in a hotel parking lot, not exposed to the street, is reasonable under the Fourth Amendment.

Craig Smith was sentenced to ten years in state prison on drug charges after he was arrested in the parking lot of the Vallejo Inn in Vallejo, California. Two police officers saw a man attempting to gain entrance to a hotel room through a window leading out into the parking lot. At the same time they saw another man, Smith, sitting in a car outside the room. They decided to investigate. They asked Smith if he was on parole and he answered in the affirmative. The hotel being in a high crime neighborhood and Smith being on parole for a drug related offense, led the officers to search him. Initially they did a pat search but found nothing. Then they searched his vehicle and again found nothing. Then with Smith standing in the crock of the police car, that is the area between the open door and the body of the vehicle, they removed his belt, opened buttons, unzipped his zipper, lowered his pants and searched inside his underwear where they found a bag containing twelve baggies containing crack cocaine, heroin, and methamphetamine.

An officer may search a parolee, even without reasonable or probable cause as long as the officer knows the person is on parole. But such a search cannot be arbitrary, capricious and/or harassing. Here the court balanced the defendant’s limited privacy rights as a parolee against the state”s “overwhelming” interest in preventing recidivism on part of the parolee. The court pointed out that searches of parolees are a means of carrying out the officer’s duty to closely supervise a parolee.

A search, according to the judge, is only arbitrary, capricious or harassing if the officer carries out the search for an improper purpose. Generally the means or place used to perform the search is immaterial. Therefore since the officers had a legitimate law enforcement reason to perform the search the search and since it was carried out in relatively unintrusive manner it was reasonable under the Fourth Amendment

Interestingly while the court found the location and the nature of the search reasonable, it did not discuss whether the defendant’s privacy rights under the Fourth Amendment and California’s constitutional guarantee of privacy were violated when the officer put his hand inside the defendant’s underwear and retrieved the bag which was sitting on the defendant’s penis.

Yesterday, we considered a case decided by the California Supreme Court, Sheehan v. San Francisco 49ers, Ltd which involved the pat search of attendees at San Francisco 49ers games. The pat search was performed at the direction of the 49ers in conformance with directions from the NFL.

Today we look at another search. This time performed by bounty hunters in Oklahoma. In this case, the Tenth Circuit upheld the use of evidence found by bounty hunters while making an arrest. Both cases of course involve searches. But the other significant fact is that both cases involve searches by people who are not state actors, ie. not employed by the government or working at the direction of the government. This is important because the Fourth Amendment only applies to searches performed by state actors.

In United States v. Poe, the Tenth Circuit Court of Appeals found that a search by a bounty hunter was not performed by a state actor and therefore it was not subject to exclusion at trial under the Fourth Amendment regardless of whether or not it was supported by probable cause.

Five bounty hunters, hired by a bail bonds company, surveilled the Oklahoma City home of Kim Wilson, the former girl friend of Aaron Dale Poe who skipped bond in an Oklahoma state case. Wilson left home about 10:30 pm. Two of the bounty hunters followed her to AutoZone where she worked. They questioned her and found out that Poe was at her residence. She did not give permission for them to search her house but she said that Poe planned to sell drugs from the house and that there was a gun in the house.

They returned to Wilson’s house. Three of the bounty hunters watched the front door while the other two watched the back of the house. They saw Chris McGill drive up to the house and approach the back door. He attempted to leave shortly thereafter but he was apprehended by the bounty hunters.

The bounty hunters then arrested Poe. He resisted and one of the bounty hunters was attached by a pit bull. The dog was tased and both the dogs and Poe surrendered.

The bounty hunters found methamphetamine and a nine-millimeter pistol in the residence. They called the police.

Poe was charged with possession of methamphetamine for sale (McGill’s attempt buy methamphetamine was interupted by the bounty hunters)and possession of a weapon by a convicted felon. He moved to suppress the evidence found by the bounty hunters claiming that the search was without a search warrant and therefore in violation of the Fourth Amendment. The District Court rejected his claim on the basis that he did not have standing to object to the search of Wilson’s house.

On appeal the Tenth Circuit found that he had standing since he had a reasonable expectation of privacy. He was a social guest with sufficient ties to the residence. He had a “degree of acceptance into the household” and “an ongoing and meaningful connection to the home.”

But it rejected his claim on the basis that the bounty hunters were not state actors. The bounty hunters were neither state agents nor were they working at the direction of state agents. The court considered two factors in determining whether the bounty agents were working at the direction of state agents.

First, we determine whether the government knew of
and acquiesced in the [individual’s] intrusive conduct. . .Second, we consider whether the party performing the search intended to assist law enforcement efforts or to further his own ends.

The court found that there was no evidence that the bounty hunters were working with the knowledge or acquiescence of government agents. Furthermore it found that their goal was not to help the government, but rather to obtain payment for their own use from the bail bonds agency. Since the bounty hunters were not state actors the evidence that they seized was not subject to suppression for violation of the Fourth Amendment.

Sheehan was decided based upon the California Constitutions right to privacy. The Federal right to privacy is not coextensive to the California right and therefore Poe was based on the Fourth Amendment. The California constitutional right to privacy extends to the acts of private citizen and organizations which are nor necessarily state actors. The Fourth Amendment right is limited to state actors. Thus, while. the search of people attending 49ers games may be illegal under state law, the search of Poe by bounty hunters is legal under the Fourth Amendment.

In 2005 the San Francisco 49ers, in compliance with a NFL policy initiated a policy of pat searching patrons as they entered the stadium for football games. Daniel and Kathleen Sheehan challenged the policy in court as a violation of the California Constitutional privacy right.

The 49ers demurred to the complaint and the San Francisco Superior Court dismissed the case. The Court of Appeals confirmed the dismissal but the Supreme Court ruled Monday that the Superior Court had insufficient information to dismiss the case and it reinstated the suit for further proceedings.

In order to succeed in a suit charging a violation of the constitutional privacy right the Sheehans must show that

(1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.”

But because the Superior Court decided the matter on a demur it did not have enough information to determine that it is impossible for the Sheehans to prove a privacy invasion. In particular the Supreme Court held that the trial court did not have enough information to decide whether the Sheehans had a reasonable expectation of privacy Among the issues that will have to be decided at trial are whether the Sheehans waived their right by going to the game, whether the 49ers had a reasonable purpose for imposing the pat search requirement, and whether the 49ers could have used a less intrusive method to obtain their goal.

The Eleventh Circuit Court of appeals recently upheld a similar but different search at Tampa Bay Buccaneers games. The Tampa policy, unlike San Francisco’s limited the search to above the waist and more importantly Florida does not have a constitutional right to privacy.