concurring.
I concur in the result reached but under a different analysis.
The trial court concluded that Defendant “had a right to privacy in [the] bedroom area” from which the gun and ammunition were seized. The court further concluded, as it had to, that Mrs. Kahoonei could, therefore, “neither consent ... to [a] search of the bedroom[ ] nor could she validly waive [Defendant’s right to privacy in the bedroom.” Thus, the court determined that, “if the officers had searched the bedroom” “[t]he recovery of the gun would be illegal[.]”
According to the trial court, the issue then became whether, when “Mrs. Kahoonei entered ... the bedroom [to recover the gun, she was] acting under the direction of or under the instruction of the polieef.]” Characterizing Officer AMna’s statement to Mrs. Kahoonei as an “appeal[ ] ... to her conscience, in advising her of the risk of harm or injury that a handgun could cause,” the court held that Mrs. Kahoonei had not acted as the agent of the. police but “as her personal agent.”
A.
I believe the rule to apply here is clear.
The Hawai'i Supreme Court has held that “[a]n ostensibly private search is nevertheless governmental action if instigated by the authorities or if government agents participated therein.” State v. Furuyama, 64 Haw. 109, 120, 637 P.2d 1095, 1102 (1981). “Hence, ‘a search ... physically conducted by a private individual but only at the government’s initiation and under their guidelines ... is not a private search.’ ” Id. (quoting United States v. Haes, 551 F.2d 767, 770 (8th Cir.1977)). Accordingly, where the police instigate or initiate the search or participate in or guide it, the search constitutes government action subject to all constitutional limitations.
*223The facts here fit the test set out in Furu-yama and I believe that test to be controlling.
It is abundantly plain that Mrs. Kahoonei did not arrive at an independent decision to recover the gun. Defendant had been arrested and removed from the premises. The police, nevertheless remained on the premises, obviously to further their investigation and to recover evidence against Defendant. The thought of searching for a gun did not originate with Mrs. Kahoonei but with the police. Sergeant Lenchanko indicated to the two women that “a search warrant could be obtained” and so a “search would be done anyway.” The only conceivable conclusion that can be drawn from this is that the police were intent upon a search of the premises. After this advisory, the women were separated and each interrogated by a police officer. In this investigatory setting, Officer AMna made his appeal to, as the trial court characterized it, Mrs. Kahoonei’s “conscience.” But, however the court might have characterized the statement, it was the officer’s thought that was communicated by him to Mrs. Kahoonei. The objective of his entreatment—that of recovering the gun and having it turned over to the police—was clear and, thus, like Sergeant Lenchanko’s declaration, subject under Furuyama to constitutional scrutiny. Indeed, even if the statement were, as the court characterized it, an “appeal! ] ••• to ... reason and ... conscience!,]” it was no less an urging or instigation of a third party to conduct a search of the premises that the officers knew they could not conduct without a warrant, as Sergeant Lenchanko’s statement indicated.
Within this factual context and with all due respect to the majority, I see no relevance to an analysis of Mrs. Kahoonei’s motivation. It is at best a speculative venture which may leave the mistaken impression that under these or similar facts a private person’s implied motivation may somehow vitiate the precipitating conduct of the police.
B.
I agree with the majority that Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), is instructive, but primarily for the effect to be given warrant representations by officers. In Bumper, the prosecution relied on the consent of Defendant’s grandmother to justify a search of the premises although the sheriff claimed to have had a search warrant when conducting the search. No search warrant, however, was ever produced and the United States Supreme Court held that the State had “the burden of proving that the [grandmother’s] consent was, in fact, freely and voluntarily given,” and that “[t]his burden cannot be discharged by showing no more than mere acquiescence to a claim of lawful activity.” Id. at 548-49, 88 S.Ct. at 1792. The court explained that, “[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search!,] [and] [t]he situation is instinct with coercion.... [Thus,] [w]here there is coercion there cannot be consent.” Id. at 550, 88 S.Ct. at 1792.
There is very little practical distinction, from the point of view of its effect on a lay person, between an officer’s claim that he or she has a search warrant and the statement that “a search would be done anyway.” By indicating that “a search would be done anyway,” the police, here, clearly made a “claim of lawful activity.” The officer’s statement in the instant case, as in Bumper, was substantially “instinct with coercion.” Id. at 550, 88 S.Ct. at 1792. Being coercive, a search made by a private party after such a statement could not be anything other than a search initiated or instigated by the police.
I can find no valid constitutional principle or law enforcement objective which sanctions the practice of obtaining a third party’s assistance in conducting a search based on the police’s representation that “a search warrant could be obtained” and so a search “would be done anyway.” It is obvious the purpose of the police statements was to convince the two women to retrieve the gun for the police without the aid of a warrant, thus absolving the police of any possible illegality in the recovery of the gun. This was followed, in turn, by Mrs. Kahoonei’s retrieval of the gun from a place she herself had no legal right to be. A police practice of obtain*224ing the aid of a third party to conduct what may potentially be a civilly and criminally wrongful private search on the representation that “a search would be done anyway” should not be sanctioned in our courts. Our jurisdiction has rejected evidence obtained as a result of coercion even when such coercion did not involve government action, in recognition of the principle that our courts should not serve as accomplices to illegal acts. Cf. State v. Bowe, 77 Hawai'i 51, 881 P.2d 538 (1994).
As a result, I do not agree with Judge Newman’s suggestion, cited in our opinion, that such warrant representations can be sanitized if the officer “in some way communicates the discretionary aspect of the warrant-issuing process.” United States v. Faruolo, 506 F.2d 490, 496 (2d Cir.1974). In cases involving “private” searches, it is doubtful that such information, when conveyed to a third person sought to be enlisted in a police search effort, can have any realistic effect on protecting the privacy rights of another.