AV Preeminent
The Florida Bar

Government Participation in Illegal Searches

As Fort Lauderdale criminal lawyer Moore has pointed out in the past, the Fourth Amendment is a limitation upon the search and seizure powers of the federal and state governments. The amendment applies to all federal and state officials and is not limited to law enforcement personnel. Thus, the amendment applies to searches conducted by public school officials and to public employer searches for work-related purposes. The amendment and it’s exclusionary rule, however, are “wholly inapplicable” to a search or seizure, even in unreasonable ones, effected by a private individual not acting as an agent of the Government or with the participation of any government official.’

Whether a private party should be deemed an agent of the government for Fourth Amendment purposes turns on the degree of the government’s participation in the private party’s activities. For example, a private security guard, acting alone, may search an employee’s locker and turn the fruits of the search over to public law enforcement officials who may use the evidence at trial. The exclusionary rule, however, would bar the use of the evidence if the private security guard had conducted the search at the behest of federal or state law enforcement officers. Not only may the police accept the fruits of a private search, they also may reexamine the seized property as long as the police “do no more than the private parties have already done”. For example, the police may reopen a package previously opened and then resealed by a private courier.

Foreign law enforcement officials also are exempt from the restraints of the Fourth Amendment. Unless circumstances “shock the judicial conscience,” the exclusionary rule does not apply to searches conducted by a foreign sovereign in its own territory. Nor is the Fourth Amendment extraterritorial in its coverage; thus U.S. agents may search and seize property owned by a nonresident alien and located in a foreign country.

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