IN THE SUPREME COURT OF IOWA
No. 15–1576
Filed February 10, 2017
Amended April 25, 2017
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER D. BROWN,
Appellant.
Appeal from the Iowa District Court for Scott County, Henry W.
Latham II (suppression hearing), John D. Telleen (suppression hearing),
Mary E. Howes (bench trial and sentencing), and Mark D. Cleve (bench
trial), Judges.
A defendant appeals the district court’s denial of two motions to
suppress based on searches conducted by his stepfather, an off-duty
police officer. DISTRICT COURT JUDGMENTS AFFIRMED.
Lauren M. Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, Genevieve Reinkoester,
Assistant Attorney General, Michael J. Walton, County Attorney, and
Kelly Cunningham, Assistant County Attorney, for appellee.
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ZAGER, Justice.
The defendant appeals from the denial of two separate motions to
suppress evidence based on his stepfather’s actions as an off-duty police
officer. In each case, the defendant’s stepfather conducted a search and
seized firearms and drugs. Defendant’s stepfather is a police officer with
the Davenport Police Department. However, each search was conducted
while the stepfather was off duty. The defendant alleges the searches are
unconstitutional because his stepfather was not acting in a parental
capacity, but rather conducted the searches while exercising state action
as a law enforcement official. The district court denied each motion to
suppress, finding there was no state action. After waiving his right to a
jury trial, trials were held to the court. After the bench trials, the
defendant was found guilty of the charges and sentenced accordingly.
The defendant now appeals the district court denials of the motions to
suppress. For the reasons stated below, we hold the stepfather was not
engaged in state action at the time of either search and no constitutional
claims are implicated. We affirm the judgments of the district court.
I. Background Facts and Proceedings.
The defendant, Christopher D. Brown, appeals his convictions and
sentences following two bench trials. He challenges the underlying
searches in each of the two cases, arguing that his stepfather’s
employment as a police officer, and other attendant facts, converted each
search into state action.
A. The First Search—Case Number FECR368292. On February
5, 2015, Brown’s mother, Lynne Kilburg, received a phone call from his
aunt, Cindy Keimig. Cindy informed Lynne that she believed Brown was
in possession of her husband’s gun. Brown had visited her son, his
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cousin Marcus, at the Keimigs’ home the night before, and Marcus
believed Brown took the gun when he left.
Brown spent the night with Marcus at the Keimig home on
February 4. Marcus always kept one of his father’s guns under the
mattress in his bedroom. When Marcus checked for the gun on the
morning of February 5, he discovered it was gone. He searched the room
for the gun and found it under the cushion where Brown was sitting.
Marcus told Brown that hiding the gun “was not cool” and Brown should
have told him where the gun was while he was looking. Marcus and
Brown left the Keimig residence and got into Marcus’ car to leave. Brown
said he forgot his wallet and returned to the house before Marcus
brought him home.
After dropping Brown off, Marcus left for training with the National
Guard. When he returned home at the end of the day, he realized the
gun was missing again. He informed his parents the gun was missing
and told them he believed Brown took it. Cindy then called Lynne to tell
her that Marcus believed Brown took the gun and that she and Marcus
were going to drive to Brown’s workplace to ask him about it. Upon their
arrival at Brown’s workplace, Cindy and Marcus saw Brown driving
away.
After Lynne talked to Cindy, she called Brown’s father, Richard
Brown. Lynne was concerned because Brown was on probation and
suffering from depression. Lynne was worried that Brown had taken the
gun because he was suicidal. Lynne asked Richard if he had a key to
Brown’s apartment so she could let herself in and look for the gun, but
Richard did not.
Lynne then called Brent Kilburg, her husband and Brown’s
stepfather. Lynne and Brent have been married since Brown was three
4
years old, and Lynne, Brent, and Richard co-parented Brown. Brent is a
police officer for the Davenport Police Department. Lynne told Brent that
the Keimigs believed Brown had taken a gun, that she was concerned
about Brown due to his probation and depression, and that she and the
Keimigs were going to Brown’s apartment to speak with him and try to
obtain the gun. Brent was off duty at the time of Lynne’s phone call and
decided to accompany everyone to Brown’s apartment. He did not
contact law enforcement at this time because he believed it was a family
matter.
When the family arrived at Brown’s apartment, they initially waited
outside while they discussed what their course of action should be. They
were concerned about Brown’s mental state and whether he would harm
himself with the gun. While they were standing outside and trying to
decide how to approach Brown, they saw him leave the parking lot of his
apartment building and drive down the street where they were standing.
Lynne began signaling for Brown to stop, and Brent moved to the street
to stand in front of Brown’s car. Brent motioned for Brown to pull over,
and both he and Lynne approached the passenger side of Brown’s car.
Brent asked Brown to turn off his car and pull the key out of the
ignition. Brent and Lynne both asked Brown about the missing gun, but
Brown denied having possession of it. Both Lynne and Brent then
observed a silver glint at Brown’s hip, which they believed was the
missing gun. Brent opened Brown’s passenger side door, asked Brown
to put his hands on his steering wheel, and then checked Brown’s person
and pockets. Brent found two knives on Brown’s person and Brown’s
cell phone. Brent saw that Brown had a backpack in the car, and he
moved the backpack closer to him in case it contained the gun.
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Lynne and Brent then asked Brown to get out of the car, and he
complied. Lynne again asked Brown about the gun, and he again denied
he had it. Lynne then asked Brent to search Brown to see if he had the
gun, and Brent found the gun in Brown’s waistband. Dana Keimig,
Brown’s uncle, positively identified the gun as the one he was missing
and put it in his vehicle.
Brown became upset, and Lynne told him to stay there with the
family instead of getting in his car and leaving. Lynne wanted to see if
she could either civilly commit Brown for depression and suicidal
ideations, or if she could find any services for Brown that could offer an
intervention. Lynne believed Brown would stay if she retained his
possessions. Lynne took his cell phone and placed it in his backpack.
She also took possession of Brown’s wallet and knives and placed all of
the items in her vehicle. She and Brown sat in the vehicle together
talking. While they were sitting in the vehicle, Brown’s cell phone rang
repeatedly. Brown wanted to answer his cell phone and was agitated
when he could not. Lynne ultimately retrieved the backpack and began
to look for the cell phone. While looking in the backpack for the cell
phone, Lynne discovered a bag that she believed contained marijuana, as
well as drug paraphernalia.
Because Brown was on probation for a marijuana-related offense,
Lynne informed Brent, Dana, and Marcus about the marijuana she
found in Brown’s backpack. Lynne and Brent called Richard to discuss
what they needed to do, and they mutually agreed they should call law
enforcement. Brent testified that once the marijuana was found, he
knew he needed to inform law enforcement, step back, and let the other
officers handle the matter.
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Brent called two of his supervisors, Sergeants Lindbom and
Jensen. After the phone call, he remained uninvolved other than
providing a statement to Sergeant Jensen. At approximately 4:29 p.m.,
Officer Stegall arrived at the apartment building. Brent informed Officer
Stegall that Brown was his stepson, he found a gun on Brown’s person,
and his wife found marijuana in Brown’s backpack. Officer Stegall then
conducted a pat down on Brown to determine whether he had any more
weapons and placed him in the backseat of his squad car. Officer Stegall
read Brown his Miranda rights at approximately 4:39 p.m. After reading
Brown his Miranda rights, Brown consented to an interview with Officer
Stegall.
During the interview, Brown told Officer Stegall he had previously
been arrested for possession with intent to deliver marijuana, and he was
currently on probation. Brown told Officer Stegall his family, including
his stepfather, was at his apartment to retrieve an airsoft pistol that
belonged to his uncle. He said his family found the airsoft pistol and
“other stuff” in his car, but did not elaborate on what the “other stuff”
was. The interview ended, and Officer Stegall remained with Brown.
At the time of the original contact with law enforcement, Sergeant
Jensen spoke on the phone with Brent. Brent advised him that the
situation was “a long story” and it would be easier for Sergeant Jensen to
just respond to the apartment. Upon his arrival, Sergeant Jensen spoke
with Brent, Lynne, Dana, and Marcus. Brent recounted the events of the
day and informed Sergeant Jensen that Brown was his stepson and was
on probation after receiving a deferred judgment for a charge of
possession with intent to deliver marijuana. Sergeant Jensen asked the
family where the gun and backpack were, and Brent retrieved the items
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and turned them over to Sergeant Jensen. Sergeant Jensen placed the
items in Officer Stegall’s squad car.
Officer Stegall informed Sergeant Jensen that Brown was given his
Miranda rights and Brown had consented to a brief interview. Sergeant
Jensen told Brown his Miranda rights were still in effect and asked him if
he would consent to another interview. Brown consented. Sergeant
Jensen asked Brown if there was anything illegal in his apartment or
backpack, and Brown answered affirmatively to both questions.
Sergeant Jensen asked for consent to search Brown’s apartment and
vehicle, to which Brown agreed. Officer Stegall filled out the consent to
search form for both the apartment and the vehicle. Brown signed the
consent forms and told the officers he wanted to be present during both
searches. Lieutenant Biggs and Sergeant Jensen searched Brown’s
vehicle first and did not locate anything of a criminal nature. Lieutenant
Biggs and Sergeant Jensen then searched Brown’s apartment, where
they discovered drug paraphernalia.
On February 25, Brown was charged with possession of a
controlled substance in violation of Iowa Code section 124.401(1)(d)
(2013), failure to affix drug tax stamp in violation of Iowa Code section
453B.12, and felon in possession of a firearm in violation of Iowa Code
section 724.26(1).
B. The Second Search—Case Number FECR368787. After his
initial arrest, Brown moved into Lynne and Brent’s home. Brown was
not working during this time, had no money, and had nowhere else to
live. Within a relatively short period, Lynne began to suspect Brown was
using and selling marijuana again.
The morning of February 21, one of Lynne and Brent’s younger
children woke Lynne up to ask if he could play the new Xbox gaming
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console that was in the living room. Lynne was surprised because the
family did not own an Xbox and had not purchased one. Her son told
her it belonged to Brown. Because Brown was not working, Lynne
became concerned that Brown had used money obtained from selling
drugs to buy the gaming console. She decided to search Brown’s car,
which was parked in her driveway, to confirm her suspicions that Brown
was selling drugs again. She searched the interior of Brown’s car but did
not find anything. She wanted to obtain access to the trunk of the car
but did not have the keys. Lynne went back inside the house.
After Brown left his bedroom to use the bathroom, Lynne entered
his bedroom to search for the car keys. She could not find his keys, but
did look through his cell phone for evidence of drug selling. Based on the
messages she found on his cell phone, Lynne concluded Brown was
selling drugs again and decided that she was going to tell him he needed
to leave the house.
After Brent woke up, Lynne briefly informed him about the text
messages she found on Brown’s cell phone and that she intended to tell
Brown to leave. Lynne confronted Brown and told him he needed to
leave. While he was packing, Lynne began arguing with him because she
believed he was stalling. Lynne called the sheriff’s office to ask them to
come over and make Brown leave. Once she realized Brown was going to
finish packing and leave, she called the sheriff’s office again and asked
them not to come.
While Lynne and Brown were arguing, Brent left the house to go
search Brown’s car. Brent was concerned about Brown’s behavior
because he did not want him to make a decision that would “ruin his life
[or] ruin somebody else’s life.” During the search, Brent was able to fold
down the backseat in Brown’s car to access the trunk. In the trunk,
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Brent found a shoebox and a cell phone box, in addition to other items.
He opened both boxes and found a loaded 9mm gun in the shoebox and
marijuana in the cell phone box. Brent placed the gun and marijuana in
his coat pocket. At this time, Brown left the house. Brent stepped back
from the car and allowed Brown to drive away.
Brent returned to the house and told Lynne what he found in
Brown’s car. Brent said they needed to call the sheriff’s office, and Lynne
agreed. They called the sheriff’s office and asked that they send someone
to their house on a nonemergency call. When Deputy Skalla arrived,
Brent and Lynne described what happened, and Brent turned over the
gun and marijuana he found in Brown’s vehicle. Lynne had retained
Brown’s cell phone after she discovered the text messages and also
turned the cell phone over to Deputy Skalla.
Deputy Skalla obtained a search warrant for the cell phone based
on the gun and marijuana found in Brown’s vehicle, the new Xbox,
Lynne’s description of the text messages, and Brown’s probation status.
An arrest warrant was issued on March 20, and Brown was arrested the
same day. Brown was charged with possession of a controlled substance
in violation of Iowa Code section 124.401(1)(d) and felon in possession of
a firearm in violation of Iowa Code section 724.26(1). The trial
information added conspiracy to commit a nonforcible felony in violation
of Iowa Code sections 706.1(1)(a) or (b), 706.3, and 703.1.
C. Proceedings. On April 17, Brown filed a motion to suppress
the evidence discovered as a result of his stepfather’s first search, which
the district court denied. Brown waived his right to a jury trial, and the
court held a bench trial on May 26. Brown stipulated to a bench trial on
10
the minutes of testimony and the State’s evidence. The district court
found Brown guilty of all three counts. 1
On May 22, Brown filed a motion to suppress the evidence
discovered as a result of his stepfather’s second search, which the
district court denied. The district court held a bench trial and on July
20 found Brown guilty of possession with intent to deliver marijuana and
felon in possession of a firearm.
On August 20, the district court sentenced Brown to five years in
prison with credit for time served on each of the three counts in case
FECR368292. Each of the three sentences was to run concurrently. The
district court also sentenced him to five years in prison with credit for
time served for the two counts in case FECR368787. The sentences were
to run concurrently. The sentence in FECR368787 was also to run
concurrently with the sentence in FECR368292. Brown appealed,
arguing the district court erred in denying his motions to suppress in
both cases. We retained the appeal.
II. Standard of Review.
When a defendant challenges a district court’s denial of a motion
to suppress based upon the deprivation of a state or federal
constitutional right, our standard of review is de novo. In re Property
Seized from Pardee, 872 N.W.2d 384, 390 (Iowa 2015). When we review a
record de novo, we make “an independent evaluation of the totality of the
circumstances as shown by the entire record.” Id. (quoting State v. Tyler,
867 N.W.2d 136, 152 (Iowa 2015)). “We give deference to the district
court’s fact findings due to its opportunity to assess the credibility of the
1Brown was found guilty of possession with intent to deliver a schedule I
controlled substance (marijuana) in violation of Iowa Code section 124.401(1)(d) (2013),
failure to affix drug tax stamp in violation of Iowa Code section 453B.12, and felon in
possession of a firearm in violation of Iowa Code section 724.26(1).
11
witnesses, but we are not bound by those findings.” Id. (quoting Tyler,
867 N.W.2d at 153).
III. Analysis.
Brown argues the district court erred in denying his motions to
suppress in both cases because the searches conducted by his stepfather
violated both the United States Constitution and the Iowa Constitution.
The Fourth Amendment provides,
The 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, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV. Article I, section 8 of the Iowa Constitution is the
“nearly identical [provision] to the Fourth Amendment to the United
States Constitution.” State v. Short, 851 N.W.2d 474, 500–01 (Iowa
2014) (discussing the differences in punctuation between the Iowa
Constitution and the Federal Constitution and how members of this
court have interpreted said differences). It provides,
The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable seizures and
searches shall not be violated; and no warrant shall issue
but on probable cause, supported by oath or affirmation,
particularly describing the place to be searched, and the
persons and things to be seized.
Iowa Const. art. I, § 8.
Although the provisions are similar and “were generally designed
with the same scope, import, and purpose, we jealously protect this
court’s authority to follow an independent approach under our state
constitution.” State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). While
Brown does not request that we apply a different standard to analyze the
Iowa Constitution, “even where a party has not advanced a different
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standard for interpreting a state constitutional provision, we may apply
the standard more stringently than federal caselaw.” State v. Kooima,
833 N.W.2d 202, 206 (Iowa 2013). However, “our independent authority
to construe the Iowa Constitution does not mean that we generally refuse
to follow the United States Supreme Court decisions.” Short, 851 N.W.2d
at 490. Instead, what we require “is not mere identification of a
potentially analogous federal precedent, but exercise of our best,
independent judgment of the proper parameters of state constitutional
commands.” Id. When both federal and state constitutional claims are
raised, we have the discretion to consider either claim first or to consider
both claims simultaneously. State v. Ochoa, 792 N.W.2d 260, 267 (Iowa
2010).
The Fourth Amendment protects persons from unreasonable
intrusions by the government upon their legitimate expectation of
privacy. State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004). This
protection includes unreasonable intrusions made by law enforcement
officers. Id. However, the Fourth Amendment only applies to searches
performed by the government, and not the actions of private individuals.
See State v. Campbell, 714 N.W.2d 622, 631 (Iowa 2006); see also State v.
Flynn, 360 N.W.2d 762, 764–65 (Iowa 1985). Brown argues that the
nature of his stepfather’s employment as a law enforcement officer
prevented him from acting as a private citizen when he conducted the
searches. Brown argues that his stepfather’s searches were government
action, and therefore, he was required to abide by the search and seizure
provisions of the Fourth Amendment and article I, section 8 of the Iowa
Constitution.
We have never addressed the specific question raised in this
appeal. However, other jurisdictions that have considered the issue have
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rejected the idea that an off-duty law enforcement officer can never
perform a search as a private individual. Instead, these jurisdictions
apply one of two tests to determine the capacity in which the officer was
acting at the time of the search. See, e.g., United States v. Cintron, 482
F. App’x 353, 356 (10th Cir. 2012) (“Determining when an individual is
acting as a private citizen or a government actor can be difficult,
including when the individual is an off-duty police officer working as a
security guard.”); United States v. Ginglen, 467 F.3d 1071, 1075 (7th Cir.
2006) (applying a test to determine whether an off-duty police officer
acted as a private party or government agent); State v. Walker, 459
N.W.2d 527, 532 (Neb. 1990) (“We reject the notion that solely because
one is a police officer, the officer acts in that capacity at all times.”); State
v. Santiago, 217 P.3d 89, 95–96 (N.M. 2009) (applying a two-step test to
analyze whether police officers were acting as private actors or on behalf
of the government); State v. Young, 12 A.3d 510, 514 (Vt. 2010) (“Any
determination of whether an off-duty police officer is acting as a private
person when making a search or seizure must be based on all the
circumstances of the case.”). We agree, and reject the idea that an off-
duty police officer is acting as a government agent in every situation.
A. Test One—Instrument or Agent of the Government. Under
the first test, courts ask whether an individual was acting as a private
citizen or as an “instrument or agent” of the government, and the test is
not limited solely to analyzing the actions of off-duty police officers. See
Ginglen, 467 F.3d at 1074. The key question is “whether the government
knew of and acquiesced in the intrusive conduct and whether the private
party’s purpose in conducting the search was to assist law enforcement
agents or to further its own ends.” Id. (quoting United States v. Shahid,
117 F.3d 322, 325 (7th Cir. 1997)). Courts also consider “whether the
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private actor acted at the request of the government and whether the
government offered the private actor a reward.” Id. The courts look to
the individual’s “primary objective” to determine whether they acted to
assist law enforcement or to further their own ends. See, e.g., id. at
1075.
In Ginglen, the court found that three brothers who searched their
father’s home for evidence of a robbery were acting in their own private
capacity and not as agents of the government. Id. at 1073, 1075. One of
the brothers was an officer for the Peoria Police Department. Id. at 1073.
After reading an article about a serial bank robber, he called his brothers
who agreed with him that the description of the perpetrator sounded like
their father. Id. The brothers decided to go to their father’s home,
confront him with the evidence, and try to convince him to turn himself
in. Id. The brothers wanted to stop the robberies from occurring for
both their father’s safety and the safety of the community, so they agreed
they would take him to the police station by force if he did not agree to
turn himself in. Id.
While they were at their father’s house, the brothers found clothing
that matched the clothing worn by the robber. Id. They called the chief
of police and arranged to meet him at the house of one of the brothers.
Id. Based on the observations of the three brothers, the police were able
to obtain a search warrant. Id. The court held that the brothers were
acting as concerned sons who wanted to prevent their father from
engaging in destructive behavior. Id. at 1075. The court found a few
factors particularly relevant in making this determination: the brothers
did not notify any police before going to their father’s house, they did not
make the decision to search the home for any reward, and they did not
collect any evidence. Id. The court held that their primary objective was
15
not to assist law enforcement, but rather to protect the community and
their father from future harm. Id.
In contrast, we considered whether off-duty police officers were
acting as government agents in State v. Carter, 267 N.W.2d 385 (Iowa
1978). In that case, Veterans Auditorium employed approximately
twenty-five off-duty Des Moines police officers to serve as security guards
during events. Id. at 386. Although the officers were off-duty, they wore
uniforms and were armed while they worked at the auditorium. Id. We
found that the officers were acting as government agents for a number of
reasons. Id. First, while they were working at the auditorium, the
officers were uniformed and carrying weapons. Id. Second, the officers
were able to make arrests and did in fact arrest the defendant. Id.
Finally, the arrangement to have the off-duty officers work events was
made between the auditorium and the Des Moines Police Department.
Id. at 386–87.
B. Test Two—Actions of Off-Duty Police Officers. The second
test that some courts utilize to determine whether an off-duty police
officer acted as a private citizen or in an official capacity is a two-part
test:
First, we must examine the capacity in which the off-duty
police officer was functioning when the officer initially
confronted the situation and second, we must examine the
manner in which he or she conducted himself or herself from
that point forward.
United States v. Couch, 378 F. Supp. 2d 50, 55 (N.D.N.Y. 2005) (quoting
State v. Andrews, 637 A.2d 787, 791 (Conn. App. Ct. 1994)). Unlike the
first test, this test is restricted solely to analyzing the actions of off-duty
police officers. Under this test, when courts consider the manner in
which the off-duty officer conducted himself or herself, the question is
16
whether the officer’s actions fell “outside [the] sphere of legitimate private
action.” Armstrong v. State, 46 So. 3d 589, 594 (Fla. Dist. Ct. App. 2010)
(quoting Commonwealth v. Leone, 435 N.E.2d 1036, 1041 (Mass. 1982)).
In making this determination, the crucial question is whether the search
was motivated by a legitimate private interest or solely by a governmental
purpose. Id. While the first test can be applied to any citizen, this
second test is applied specifically to analyze the actions of off-duty police
officers and thus is more applicable to the searches involved here. We
now adopt this test to address the question of whether an off-duty police
officer acted as a private citizen or in his or her official capacity while
conducting a search.
There are a number of cases in which courts have held that an off-
duty officer was not acting in his or her capacity as a law enforcement
official, but rather was acting as a private citizen. In United States v.
Abney, the court held that an off-duty police officer, Hernandez, working
as a private security guard was not acting in his governmental capacity
when he questioned a customer about counterfeit bills and asked the
customer to empty his pockets. 2003 WL 22047842, at *5 (S.D.N.Y. Aug.
29, 2003). In his role as a security guard, Hernandez’s purpose in
questioning the customer and asking him to turn out his pockets was for
the purpose of his employment as a security guard—he wanted to ensure
counterfeit money was not used in the store. Id.
In Walker, the court held an off-duty officer who was also a
landlord did not act in his law enforcement capacity when he entered a
tenant’s apartment to check on repairs and observed drug paraphernalia.
459 N.W2d at 532. The landlord, Davitt, gave the tenant notice that he
was going to enter the unit at 5:30. Id. at 529. While he did not give a
specific reason for the visit, Davitt testified that he intended to check on
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the status of repairs and to speak with the tenant about being late in
paying utilities, rent, and the security deposit. Id. at 532. Although
Davitt was informed of suspected drug use prior to entering the unit, the
only room he entered was the room where repairs were supposed to be
performed. Id. at 532–33. Once he discovered drug paraphernalia in
that room, Davitt asked the tenants if he could use their telephone and
called the narcotics unit of the Omaha Police Division. Id. at 530. He
told the tenants that police officers were on their way and advised them
to wait in the living room. Id. Once he found the drug paraphernalia,
Davitt left the room, informed the police of what he found, and waited for
the officers to arrive. Id. at 533.
In People v. Wachter, an off-duty sheriff, Stephens, went fishing
with his friend on the friend’s property. 130 Cal. Rptr. 279, 281 (Ct.
App. 1976). After they finished fishing, the friend suggested they visit an
acquaintance’s property. Id. They arrived at the property and found the
acquaintance was not home, but Stephens’ friend continued to show him
around. Id. The two men observed a few facilities on the property,
including a covered garden. Id. While they were in the garden, Stephens
noticed a green water hose and followed it down a slope to a cultivated
garden plot. Id. At this plot, Stephens saw what he believed to be
marijuana plants. Id. Stephens described the plants to his friend, and
they left to return to the friend’s house. Id. After Stephens returned
home, he called the deputy sheriff in charge of narcotics investigations
and reported what he saw at the property. Id. The court held that
Stephens had acted as a private citizen when he entered the property
with his friend and discovered the marijuana. Id. at 286–87.
In State v. Pearson, the defendant left her vehicle at a garage for
servicing. 514 P.2d 884, 884–85 (Or. Ct. App. 1973). The mechanic at the
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garage, Barrick, was also a reserve police officer. Id. at 885. When
Barrick first opened the door to the vehicle, he immediately smelled a
strong odor of marijuana. Id. He looked at the car’s ashtray and
observed several marijuana roach butts, which he recognized because of
his training as a reserve officer. Id. Barrick called the police station to
report his findings. Id. Once the police officer arrived at the garage,
Barrick took the officer to the car, removed the car’s ash tray, and
showed the officer the tray and its contents. Id. The court found that
Barrick was not acting in his official capacity when he discovered the
marijuana in the vehicle. Id. at 887.
In Andrews, an auxiliary police officer, Sampson, was driving his
personal vehicle home after he finished his shift at the police
department. 637 A.2d at 789. Although he was driving his own vehicle,
Sampson was still dressed in his uniform. Id. While driving home,
Sampson observed the defendant, Andrews, driving his vehicle
erratically. Id. Sampson saw Andrews run a stop sign, cross over the
centerline of the road, drive on the opposite side of the road, and strike
the curb with his vehicle a number of times. Id. Sampson called the
police department from his personal cell phone to report the erratic
driving, and continued to follow Andrews. Id. Because Andrews
continued to drive dangerously, Sampson flashed his headlights at the
car and turned on the blue flashing light he had in his vehicle from his
work as a volunteer firefighter. Id. Andrews pulled over, and Sampson
turned his lights off and approached the vehicle. Id. He asked Andrews
to wait for the police to arrive, but did not ask any questions or ask for
any information. Id. Andrews handed Sampson his license and
registration, but Sampson gave the items back and returned to his own
vehicle while they waited for the police. Id. Once the police arrived,
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Sampson explained the driving he observed. Id. The officers approached
Andrews’s vehicle, and they smelled alcohol on Andrews’s breath and
observed slurred speech. Id. They asked Andrews to perform field
sobriety tests, which he failed. Id.
The court found that Sampson was acting in his private capacity
when he first observed Andrews’s erratic driving. Id. at 791. Sampson
was off duty, outside his normal jurisdiction, and driving his personal
vehicle. Id. The court also found that Sampson conducted himself as a
private citizen and not as a police officer after his observation of erratic
driving. Id. Sampson called the police and notified them of the location
of the dangerous driving. Id. It was only after Andrews was unable to
remain on the traveled portion of the highway that Sampson flashed his
lights in an attempt to get the vehicle to pull over. Id. Although Andrews
provided them, Sampson never requested the license and registration,
nor did he keep them after Andrews provided the documents. Id.
Sampson did not administer any sobriety tests or take Andrews into
custody. Id. The court ultimately concluded that Sampson acted as a
private citizen, and there was no government action. Id.
Under this test, we hold that Brent was not acting in his public
capacity as a law enforcement officer while he was conducting either of
the searches. Instead, Brent was acting in his private capacity as a
stepfather. In the first search, Brent and Lynne stopped Brown’s vehicle
because they were concerned for him, as his parents. Both Brent and
Lynne attempted to stop Brown’s car as he drove down the street toward
their family. While Brent has certain responses due to his training as a
law enforcement officer, when Brent jumped in front of Brown’s car and
yelled at him to stop, he was not utilizing any specialized training he
received as an officer. Rather, jumping in front of Brown’s moving car
20
and yelling at him to stop was a parent’s response to an emotionally
charged situation. Both Brent and Lynne, in addition to the other family
members, were worried that Brown had taken his uncle’s gun because he
was depressed. They were concerned about his mental state and that he
would engage in self-harm or perhaps harm to others. Brent’s initial
search of Brown and his vehicle was to find the gun and return it to
Brown’s uncle. While sitting in her vehicle with Brown, Lynne was trying
to decide the family’s next options: whether there were any services or
interventions available for Brown due to his mental health. After several
interruptions when Brown’s cell phone was ringing, Lynne opened the
backpack and discovered the marijuana. It was only after this discovery
that Brent, Lynne, and Richard mutually decided they needed to call law
enforcement. After calling his supervisors to explain the situation, Brent
ceased any involvement. He gave statements to the officers when they
arrived, but he did not conduct any interview with Brown or assist the
law enforcement officers in their searches of Brown’s vehicle or
apartment.
During the second search, Brent was again acting in his capacity
as a concerned parent rather than as a government actor. Brown was
living with Brent and Lynne because they were concerned about his
mental state, he was unemployed, and he had nowhere else to go. After
living with them for only a short time, they became concerned that he
was using or selling drugs. After Lynne told Brent about the text
messages she found on Brown’s cell phone that made her believe he was
selling marijuana, Brent went outside to search Brown’s vehicle to
confirm or deny their suspicions. Brent was concerned that Brown was
making decisions that would “ruin his life.” While Brent was searching
the vehicle, he was not aware that Lynne had called the sheriff because
21
she believed Brown was stalling. Further, once Lynne realized Brown
was packing and intended to leave, she called the sheriff again and asked
them not to come. Once Brent found a gun and marijuana in Brown’s
car, Brent did not detain Brown. While he did retain the gun and
marijuana, he stepped back from Brown’s vehicle and let him leave.
After Brown left, he went back inside to consult with Lynne about what
he had found and what they needed to do. They mutually decided they
had to contact law enforcement and called the nonemergency line for the
sheriff’s office. Once the officer arrived, Brent and Lynne gave the officer
their narrative of the events and turned over the gun and marijuana.
Again, Brent did not assist in the request for a search warrant or the
resulting search.
We conclude that Brent was not acting in his capacity as a law
enforcement officer during either of the searches. When initially
confronted with the situations, Brent was at all times acting as a
concerned parent and not as a law enforcement officer. His subsequent
actions also do not indicate that he was acting as anything other than a
concerned parent. Under this test, the crucial question is whether the
search was motivated by a legitimate private interest or solely by a
governmental purpose.
There is no doubt that both of the searches in this case were
purely private in nature. In each search, Brent confronted the situation
in his capacity as a private citizen—a stepparent—and his conduct
moving forward indicated that he continued to act in his role as a
concerned parent. See, e.g., Andrews, 637 A.2d at 790–91. Neither the
Fourth Amendment nor article I, section 8 of the Iowa Constitution
applies to searches performed by private individuals. See Campbell, 714
22
N.W.2d at 632; see also Flynn, 360 N.W.2d at 764–65. As such, neither
the Federal nor the Iowa Constitution was violated.
IV. Conclusion.
For the above reasons, we hold that the defendant’s off-duty police
officer stepfather was acting in his private capacity, and not in his
governmental capacity as a law enforcement officer, when he conducted
the searches of the defendant’s person and vehicle. We therefore
conclude that the district court was correct in denying each of the
motions to suppress filed in these cases and affirm the judgments.
DISTRICT COURT JUDGMENTS AFFIRMED.