134 Nev., Advance Opinion 65
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
THOMAS WILLIAM MOONEY, A/K/A No. 72736
TOM MOONEY,
Appellant, ALED
vs.
THE STATE OF NEVADA, AUG 3 20%
Respondent.
Appeal from a judgment of conviction, pursuant to a jury
verdict, of fourteen counts of possession of a component of an explosive or
incendiary device with the intent to manufacture an explosive or incendiary
device and, pursuant to a guilty plea, of three counts of possession of a
firearm by a person previously convicted of a felony offense. Fourth Judicial
District Court, Elko County; Alvin R. Kacin, Judge.
Affirmed.
Kriston N. Hill, Public Defender, and Benjamin C Gaumond, Deputy Public
Defender, Elko County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Tyler J. Ingram, District
Attorney, and David A. Buehler, Deputy District Attorney, Elko County,
for Respondent.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
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OPINION
By the Court, GIBBONS, J.:
Aline Mooney opened the locked bedroom door of Thomas
William Mooney, her adult son, while a sheriffs deputy stood nearby. The
deputy did not ask Aline to open the door or suggest that he wanted to see
inside the bedroom. Once the door was open, the deputy saw firearms and
bomb-making materials inside the room.
This case requires us to consider whether Aline's decision to
open Mooney's locked bedroom door in the presence of a law enforcement
officer was sufficiently connected or related to governmental action to
implicate the protections of the Fourth Amendment. Nevada caselaw,
however, provides us with scant guidance on how to resolve this question.
Turning to and adopting federal caselaw, we conclude Aline's
actions were sufficiently independent as to constitute private conduct.
Therefore, we affirm the district court's decision denying Mooney's motion
to suppress evidence because the Fourth Amendment's protections are
inapplicable to such private conduct.
FACTS
William Mooney dialed 9-1-1 to contact emergency services
because his and Aline's adult son, Mooney, and an unidentified woman were
allegedly using drugs and the woman was threatening suicide. Elko County
Sheriffs Deputy Brian Shoaf was dispatched to William's residence.
Upon his arrival at the residence, Deputy Shoaf was invited
into the house. William spoke with Deputy Shoaf in the kitchen and, upon
inquiry, informed Deputy Shoal that the incidents occurred in Mooney's
bedroom, which was located down a hallway. William informed Deputy
Shoaf that Mooney and the woman were using drugs, repeatedly stated he
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was angry with Mooney, and complained that Mooney had been "destroying
a lot of the house." William then guided Deputy Shoaf from the kitchen to
the hallway, pointed to a closed door at the end of a hallway, and said,
"that's Thomas' [1 bedroom."
At this point, without any prompting or encouragement from
Deputy Shoaf or William, Aline approached and attempted to open
Mooney's bedroom door Aline, however, could not open the door because it
was locked.
Deputy Shoaf made several inquiries regarding William's and
Aline's access to Mooney's room, and based on the information he gathered,
informed William and Aline that Mooney "had a reasonable expectation of
privacy to that room." In response, William became very agitated and
denounced Deputy Shoal's admonishment about Mooney's reasonable
expectation of privacy because he owned the house and "pay [s] for it."
Though Deputy Shoaf did not ask about a key to the door or
request either William or Mine to open the door, they informed Deputy
Shoaf that they had a key to the door, and Aline proceeded to get the key.
Deputy Shoaf cautioned William and Mine that, even though they had a
key to the door, Mooney still had a reasonable expectation of privacy.
Nevertheless, Aline unlocked Mooney's bedroom door and
opened it. At this time, Deputy Shoaf was down the hallway approximately
ten feet from the doorway, and a majority of the room was out of his sight.
William indicated he wanted Deputy Shoaf to see the condition
of Mooney's bedroom. Deputy Shoaf followed William down the hallway,
stopping just outside the door. Because it was too dark in the room for him
to see anything with his naked eye, Deputy Shoaf stood at the doorway, just
outside the room, and shined his flashlight into the room. At some point,
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William entered the bedroom and turned on the lights, and Deputy Shoaf
could then see the interior of the room without the aid of his flashlight.
Standing in the hallway and looking inside the room, Deputy
Shoaf observed drug paraphernalia, what appeared to be firearms, and
bomb-making materials. Based on his experience in the United States
Marine Corps, Deputy Shoaf recognized that some of the bomb-making
materials "are very easy to accelerate, very easy to set off." Thus, Deputy
Shoaf chose to enter Mooney's bedroom to examine these potentially
dangerous objects more closely.
Upon entering the• room, Deputy Shoaf handled one of the
objects that looked like a bomb or a component thereof. Deputy Shoaf
testified that this item's appearance was significant to him because it was
"the makeup of an anti-personnel explosive" that could easily explode and
cause severe injuries to anyone nearby. Because of this observation, Deputy
Shoaf secured and left the room, and he directed William and Mine to a safe
location.
Deputy Shoaf applied for and obtained a warrant to search
Mooney's bedroom. Deputy Shoaf, along with several detectives and
members of the Elko County Bomb Squad, executed the warrant and seized
"the devices, explosive components and firearms" that Deputy Shoaf had
previously observed.
PROCEDURAL HISTORY
Mooney moved to suppress all the evidence obtained as a result
of Deputy Shoafs observations of his bedroom. He argued that he had
exclusive possession and use of the bedroom such that his parents did not
have authority to consent to a search of the room. Thus, he argued, Deputy
Shoafs observations of his bedroom from the hallway constituted an
unreasonable, warrantless search in violation of the Fourth Amendment.
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The State opposed Mooney's motion, arguing that Deputy Shoaf
did not request to search Mooney's room and Mooney's parents acted
independently, not as agents of the state, when Aline opened the locked
bedroom door. Accordingly, it argued, the Fourth Amendment's protections
did not apply to their actions as private persons, or to Deputy Shoes
observations from the hallway, which did not exceed the parents' intrusion.
Alternatively, the State argued that William and Aline had authority to
consent to a search of Mooney's bedroom,
Mooney replied to the State's opposition, arguing that,
regardless of whether Aline was a state agent, Deputy Shoes observations
from the hallway constituted an unreasonable, warrantless search given
what Deputy Shoaf knew about Mooney's history of living in the room and
habits concerning keeping the door closed and locked.
The district court denied Mooney's motion to suppress evidence.
In so doing, it found, in relevant part, that despite Deputy Shoal's
admonition that Mooney "had a reasonable expectation of privacy to that
room," Aline retrieved her key to the room and proceeded to unlock and open
the door to the room "[w]ithout any request or other prompting from
[Deputy] Shoaf." It also found "that Aline and William were not acting as
agents of the government when they provided [Deputy] Shoaf with a view
of the bedroom." As a result, the district court concluded that Deputy Shoaf
was not conducting a Fourth Amendment "search" when he made plain-view observations of the bedroom from the hallway. The court further
concluded that Deputy Shoaf lawfully entered Mooney's bedroom because,
based on his military training and experience, he "had probable cause to
believe [Mooney] constructively possessed dangerous, life-threatening
contraband" such that "exigent circumstances" justified Deputy Shoaf s
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warrantless entry into the room to inspect the bomb-making materials and
secure the room before applying for a search warrant.
The case against Mooney proceeded to a jury trial on the
explosives charges. The jury found him guilty of 14 counts of possession of
a component of an explosive or incendiary device with the intent to
manufacture an explosive or incendiary device. Subsequently, Mooney
pleaded guilty to 3 counts of possession of a firearm by a person previously
convicted of a felony offense in exchange for reserving his right to appeal
the district court's denial of his motion to suppress evidence. Mooney was
sentenced to serve a prison term of 52 months to 11 years. This appeal
follows.
ANALYSIS
Mooney raises one issue on appeal: whether the district court
erred by denying his motion to suppress evidence. Mooney argues the
district court erred by determining that Deputy Shoaf was not conducting a
Fourth Amendment search when he saw the bomb-making materials in
Mooney's bedroom from the hallway. Specifically, Mooney takes issue with
the district court's conclusion that Aline's decision to open Mooney's
bedroom door did not implicate the Fourth Amendment because she was not
an agent or instrument of the government." Mooney does not challenge the
'Evidence of a crime or contraband that is observed by a law
enforcement officer from a position that the officer has a right to be in is not
a search under the Fourth Amendment as the items were observed in plain
view. See State v. Conners, 116 Nev. 184, 187 n.3,
994 P.2d 44,46 n.3 (2000)
(noting that under "Et] he plain-view doctrine . . . if police are lawfully in a
position from which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of access to the
object, they may seize it without a warrant" (internal quotation marks
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district court's conclusion that exigent circumstances justified Deputy
Shoafs entry into his bedroom, nor does he contest the subsequent issuance
and execution of the search warrant. 2
"This court reviews the lawfulness of a search de novo because
such a review requires consideration of both factual circumstances and legal
issues." Casteel v. State, 122 Nev. 356, 360,
131 P.3d 1, 3 (2006) (internal
quotation marks omitted). In so doing, "this court treats the district court's
findings of fact deferentially." McMorran v. State, 118 Nev. 379, 383,
46
P.3d 81, 84 (2002).
State action
The Fourth Amendment to the United States Constitution
provides that "Mlle right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause." The
Fourth Amendment's protections, however, only apply to governmental
action and are "wholly inapplicable" to any searches or seizures, even those
that are unreasonable, that are performed by private individuals not acting
omitted)). Therefore, Deputy Shoafs observations from outside the
bedroom were not a violation of the Fourth Amendment unless the door to
the room was unlawfully opened, which, as explained in this opinion, it was
not. Mooney also argues that his parents lacked actual or apparent
authority to consent to a search of his bedroom. We do not address this
argument in light of our disposition.
2 Though Mooney does not raise this issue on appeal, we agree with
the district court's finding that exigent circumstances justified Deputy
Shoafs entry into Mooney's bedroom. See Hannon v. State, 125 Nev. 142,
147,
207 P.3d 344, 347 (2009) (exigent circumstances justify a warrantless
search when law enforcement officers possess "an objectively reasonable
basis to believe that there was an immediate need to protect the lives or
safety of themselves or others").
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as agents for the government or with the knowledge or participation of some
government official. United States v. Jacobsen, 466 U.S. 109, 113 (1984)
(quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J.,
dissenting)).
The Nevada Supreme Court has recognized that the Fourth
Amendment's protections are limited and generally do not apply to the
conduct of private individuals except under specific circumstances with
sufficient indicia of governmental involvement. See, e.g., Golden v. State,
95 Nev. 481, 482,
596 P.2d 495, 496 (1979) (holding that a search of air
freight shipment by an airline employee was a private search that lacked
"the significant state involvement required to place it within the purview of
the Fourth Amendment"); Radkus v. State, 90 Nev. 406, 408,
528 P.2d 697,
698 (1974) ("The Fourth Amendment simply does not apply where evidence
is discovered and turned over to the government by private citizens."). Still,
the supreme court has only issued one opinion in which it discussed in depth
whether a private individual's conduct could be considered sufficiently
related to governmental action as to be subject to the protections of the
Fourth Amendment. See State v. Miller, 110 Nev. 690, 695-97,
877 P.2d
1044, 1047-49 (1994). 3 In Miller, the court did not announce any guiding
3 In one other case, the Nevada Supreme Court briefly discussed the
limits of "private conduct" for Fourth Amendment purposes. See Barnato v.
State, 88 Nev. 508,
501 P.2d 643 (1972). In Barnato, the supreme court
considered, in part, whether an animal control officer who suspected
appellants were growing marijuana on their property was a state actor
when he "surreptitiously entered [appellants] enclosed yard" with a
sheriffs deputy and "they took a leaf from one of the plants." Id. at 510,
501
P.2d at 644. It concluded summarily that "even if the Control Officer
himself may be considered a private citizen, State action clearly was
involved when he surreptitiously seized plant samples from the
[appellants] garden." Id. at 511-12,
501 P.2d at 645.
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principles or factors other courts should consider when faced with this
question beyond pointing to Jacobsen and other similarly general decisions
from the United States Supreme Court. See id. We therefore look primarily
to federal caselaw to complete our analysis.
While there is no bright line or defined set of features
distinguishing purely private conduct from governmental action, it is well
established that the Fourth Amendment's protections only apply to
searches or seizures conducted by a private individual when that private
individual acts as an agent or instrument for the government. See Coolidge
v. New Hampshire, 403 U.S. 443, 487 (1971), overruled in part on other
grounds by Horton v. California, 496 U.S. 128 (1990). Still, "there exists a
gray area between the extremes of overt governmental participation in a
search and the complete absence of such participation." United States v.
Reed, 15 F.3d 928, 931 (9th Cir. 1994) (internal quotation marks omitted).
"Whether a private party should be deemed an agent or instrument of the
Government for Fourth Amendment purposes necessarily turns on the
degree of the Government's participation in the private party's activities, a
question that can only be resolved in light of all the circumstances." Skinner
v. By. Labor Execs.' Ass'n, 489 U.S. 602, 614-15 (1989) (citations and
internal quotation marks omitted). "This is a fact-intensive inquiry that is
guided by common law agency principles." United States v. Jarrett, 338
F.3d 339, 344 (4th Cir. 2003) (internal quotation marks omitted). And it is
the defendant's burden to establish "government involvement in a private
search." United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994).
When determining whether the requisite agency relationship
exists, the majority of the federal courts of appeals that have addressed the
issue have held two factors should be considered: "(1) whether the
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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." United States v. Miller, 688
F.2d 652, 657 (9th Cir. 1982) (internal quotation marks omitted); see also
United States v. Ginglen, 467 F.3d 1071, 1074 (7th Cir. 2006); United States
o. Alexander, 447 F.3d 1290, 1295 (10th Cir. 2006); United States v. Steiger,
318 F.3d 1039, 1045 (11th Cir. 2003); United States v. Young,
153 F.3d 1079,
1080 (9th Cir. 1998); United States v. Jenkins,
46 F.3d 447, 460 (5th Cir.
1995); United States v. Malbrough, 922 F.2d 458, 462 (8th Cir. 1990). To
establish the requisite agency relationship, the defendant must meet both
factors. See Miller, 688 F.2d at 657 (using the conjunctive "and" when
describing the two-factor test); cf. Jarrett, 338 F.3d at 345 ("[Tthe
Government concedes the existence of the second factor. . . . Thus, the only
question before us concerns the first factor. ."); Reed, 15 F.3d at 931
(deciding that because the knowledge-and-acquiescence factor was clearly
met, the court must determine whether a private individual intended "to
further his own ends . . . or assist law enforcement efforts").
Concerning the first factor, "[al private person cannot act
unilaterally as an agent or instrument of the state; there must be some
degree of governmental knowledge and acquiescence." United States v.
Sherwin, 539 F.2d 1, 6 (9th Cir. 1976). "In order to run afoul of the Fourth
Amendment, therefore, the Government must do more than passively
accept or acquiesce in a private party's search efforts. Rather, there must
be some degree of Government participation in the private search." Jarrett,
338 F.3d at 344. For example, in Skinner, the United States Supreme Court
found that certain federal regulations governing private rail workers
demonstrated "the Government did more than adopt a passive position
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toward the underlying private conduct," such that the rail workers acted as
government actors. 489 U.S. at 615; see also People v. Wilkinson,
78 Cal.
Rptr. 3d 501, 513 (Ct. App. 2008) (rejecting the argument that an officer
telling a third party he could search the defendant's room was active
encouragement under factor one).
Concerning the second factor, where a private individual has "a
legitimate, independent motivation to further" that individual's own ends,
"any dual motive to detect or prevent crime or assist the police" must negate
the independent motivation for the private intrusion to be considered
governmental action. Cleaveland, 38 F.3d at 1094 (internal quotation
marks omitted). For example, in Cleaveland, the court held that the intent
of a power company employee who inspected an electric meter as part of his
job duties to determine if the defendant was stealing electricity was not
negated by any secondary intent to also assist law enforcement. Id. In
contrast, in Reed, the Ninth Circuit concluded that a private individual
"intended to help police" because that individual testified "that he knew
from his previous dealings with the police that he was not an agent of the
police department" and he "wanted to give [the police] enough information
so that they knew that there may be things happening. . . that they wanted
to take action on." 15 F.3d at 931 (alteration in original).
We conclude the two-factor approach provides a logical
framework for analyzing whether a private party should be deemed an
agent of the government, and we adopt that approach. Therefore, when
determining whether the requisite agency relationship exists, two factors
should be considered: (1) whether the government knew of and acquiesced
in the private individual's intrusive conduct, and (2) whether the private
individual performing the search or seizure intended to assist law
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enforcement or had some other independent motivation. Both factors must
be met for a private individual to be considered an agent or instrument of
the government and implicate the Fourth Amendment. And the burden to
demonstrate that a private individual has acted as a government agent or
instrument rests upon the defendant who seeks refuge under the Fourth
Amendment's protections. To satisfy the burden to establish the requisite
agency relationship under the first factor, the defendant must show
government agents knew of the intrusive conduct and acquiesced in the
conduct by actively participating in or encouraging the private individual's
actions. To satisfy the burden under the second factor, the defendant must
show either the private individual solely intended to assist law enforcement
when conducting the search or seizure, or, if dual motives exist, any
independent motive for conducting the search or seizure was negated by an
intent to assist law enforcement efforts.
We turn now to apply this test to the facts of the present case.
Application to Mooney
Although Deputy Shoaf certainly knew Aline was unlocking
and opening Mooney's bedroom door, Mooney failed to meet his burden to
demonstrate that Deputy Shoaf actively participated in or encouraged
Aline's actions. The record demonstrates Deputy Shoaf was present when
Mine opened the door and he informed Aline (as well as William) that the
fact that she had access to a key to the door did not undermine Mooney's
reasonable expectation of privacy in the room. Far from "affirmatively
encouragfing], instigat[ingt or initiat[ingl," Wilkinson, 78 Cal. Rptr. 3d at
513, Mine's intrusive conduct, Mooney can only show that Deputy Shoaf
was physically present and he implicitly discouraged her conduct. Thus, we
conclude Mooney failed to demonstrate the requisite agency relationship
under the first factor.
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Because we conclude that Mooney failed to demonstrate that a
government officer acquiesced to Mine's conduct, we need not consider
whether Aline intended to assist law enforcement in opening Mooney's
bedroom door. Still, to instruct future courts on how to apply this test when
faced with a similar scenario, and to provide an alternative basis for our
decision, we choose to address the second factor concerning Aline's intent
here.
Our inquiry focuses on Aline because she retrieved the key and
opened the door. The record demonstrates Aline testified that Deputy Shoaf
did not ask her to get her key to Mooney's room or to open the door. Rather,
she testified that she did not feel compelled or forced "by law enforcement"
to open the door, but chose to open the door after overhearing William and
Deputy Shoaf go down the hall toward Mooney's room. The record shows
that William insisted that Deputy Shoaf see the state of Mooney's bedroom,
not because he believed explosives or evidence of a crime were present
inside, but because he was angry with the way Mooney had been living.
Deputy Shoal's cautionary admonition that Mooney had a reasonable
expectation of privacy in his bedroom caused William to become incensed.
The record demonstrates that, in response to William's outrage, Aline
opened the door. Thus, rather than intending to assist Deputy Shoaf, the
record suggests that Aline's only intent was to pacify her husband by
opening the bedroom door. Mooney identifies no evidence pointing to
another motive. Accordingly, we also conclude that Mooney could not have
met his burden to demonstrate the requisite agency relationship under the
second factor.
As the district court correctly found, the record demonstrates
that Deputy Shoal's only participation in Aline's efforts was his physical
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presence and several verbal admonishments pointing out that Mooney
enjoyed a reasonable expectation of privacy in his bedroom, which was
protected by a locked door. Therefore, we conclude that the district court
did not err in finding that Aline did not act as an agent of the government
when she opened Mooney's door. Consequently, Deputy Shoafs
observations of bomb-making materials inside Mooney's room in plain view
from the hallway involved no Fourth Amendment search. See Horton, 496
U.S. at 133 n.5. 4 Accordingly, we conclude the district court did not err by
denying Mooney's motion to suppress evidence.
CONCLUSION
Searches and seizures conducted by a private individual only
implicate the Fourth Amendment when a private individual acts as an
agent or instrument for the government. Because there is no bright line or
defined set of features for distinguishing purely private conduct from
governmental action, turning to federal caselaw, we adopt a two-factor
approach for analyzing whether a private party should be deemed an agent
of the government. To determine whether the requisite agency relationship
exists, two factors should be considered: (1) whether the government knew
4 Mooney argues in his reply brief that "the plain view doctrine" is
inapplicable to Deputy Shoafs observation of the items in his room from the
hallway because he did not come across these items inadvertently, but was
engaged in "a fishing expedition." The United States Supreme Court,
however, eliminated the "inadvertence" element from this doctrine in
Horton such that it is immaterial whether Deputy Shoaf came across the
incriminating evidence in Mooney's room inadvertently or otherwise. See
Horton, 496 U.S. at 130 ("[E]ven though inadvertence is a characteristic of
most legitimate 'plain-view' seizures, it is not a necessary condition.");
United States v. Williams, 592 F.3d 511, 522-23 & n.3 (4th Cir. 2010)
(overruling cases requiring "inadvertence" for plain-view seizures due to
conflict with Horton). Thus, we reject Mooney's plain-view argument.
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of and acquiesced in the private individual's intrusive conduct, and (2)
whether the private individual performing the search or seizure intended
to assist law enforcement or had some other independent motivation.
Applying this test to the facts in this case, we conclude Mooney did not meet
his burden and demonstrate Mine was acting as an agent or instrument of
the government. We conclude that Deputy Shoaf did not violate Mooney's
Fourth Amendment rights by peering into and entering his room to secure
it and protect others from the potential harms that may have resulted from
the explosives Deputy Shoaf perceived in plain view. We therefore affirm
the district court's order denying Mooney's motion to suppress evidence and
affirm his judgment of conviction.
J.
We concur:
, C.J.
Silver
Tao
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