It is axiomatic that the Fourth Amendment does not apply to private entities. Like much of the Constitution, "it was intended as a restraint upon the activities of sovereign authority." The Supreme Court has held that a wrongful search or seizure conducted by a private party does not rise to a constitutional violation of the Fourth Amendment, nor prevent the government from using evidence that it has acquired lawfully. Here, [McDonald] put the contents of the [luggage] in plain view of the [Chicago Police Department]. [The government agents'] actions are therefore unassailable on Fourth Amendment grounds. The only question, then, is whether [McDonald] "must be regarded as having acted as an instrument or agent of the state" for the purpose of evaluating his initial search of the [luggage].
Disclaiming any bright-line rule for its inquiry into that last-stated question, Koenig, id. at 847 then reconfirmed the approach that our Court of Appeals had taken the preceding year in United States v. Feffer, 831 F.2d 734 (7th Cir. 1987):
In Feffer, this circuit agreed that "two critical factors in the 'instrument or agent' analysis are whether the government knew of and acquiesced in the intrusive conduct and whether the private party's purpose for conducting the search was to assist law enforcement agents or to further [its] own ends." Other useful indicators are whether the private actor performed the search at the request of the government and whether the government offered a reward. Feffer, 831 F.2d at 739-40. In all cases, however, the "court's analysis must be made on a case-by-case basis and in light of all of the circumstances." Id. at 739.
Finally, Koenig, 856 F.2d at 850 (citations omitted)--in the course of distinguishing an earlier Ninth Circuit case involving an airline search--said:
We disagree, however, that a governmental policy such as fighting drugs or preventing hijackings is itself enough to provide the necessary level of governmental control, even if governmental and private entities voluntarily cooperate. Private carriers need not be treated as governmental agents unless it can be established that they are induced to conduct a private search by some government action.
All of that discussion might well have been written for this very case. Nothing here even begins to suggest that the UAL search was conducted for any reason other than its own legitimate concerns for air safety, or that UAL was in any respect acting as the surrogate or handmaiden for some governmental agency (either federal or local) in that respect. That being the case, the same result would be called for even if our Court of Appeals were to adopt the perspective announced and applied in United States v. $ 124.570 U.S. Currency, 873 F.2d 1240 (9th Cir. 1989)--a question that this Court need not resolve.
Elliot cannot prevail in any event.
Because the conduct of which Elliot complains was carried out by a private party without any taint of government participation, the search of Elliot's bag and the consequent recovery of the white powder that proved to be heroin did not implicate the Fourth Amendment. As for Elliot's post-search statements, neither he nor the government brought out any facts during the course of this Court's evidentiary hearing, but his able counsel has acknowledged that those statements might be suppressed only if they were found to be fruit of the poisoned tree (with the search being the "tree" in this instance).
Accordingly Elliot's motion to suppress is denied in its entirety. This case may now be set for a prompt trial.
Milton I. Shadur
Senior United States District Judge
Date: December 14, 1992