State v. Madsen

#24654-rev & rem-DG

2009 SD 5

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

HARRY L. MADSEN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
MOODY COUNTY, SOUTH DAKOTA

* * * *

HONORABLE DAVID R. GIENAPP
Judge

* * * *

LAWRENCE E. LONG
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

JACK DER HAGOPIAN
Sioux Falls, South Dakota Attorney for defendant
and appellant.

* * * *

ARGUED SEPTEMBER 30, 2008

OPINION FILED 01/21/09
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GILBERTSON, Chief Justice

[¶1.] Defendant was arrested and convicted for drug-related crimes using

evidence seized by security guards at a hotel owned and operated by the Flandreau

Santee Sioux Tribe. Defendant claimed the search violated either the Indian Civil

Rights Act, or the Fourth Amendment, and that the evidence seized should be

suppressed. The circuit court denied Defendant’s motion to suppress the evidence.

We reverse and remand.

FACTS

[¶2.] On January 12, 2007, the Defendant Harry L. Madsen (Madsen)

rented a hotel suite at the Royal River Casino and Hotel in Flandreau, South

Dakota. Madsen invited friends to his room including Benjamin Carter (Carter)

and Matthew Leiss. The two friends were not registered guests of the hotel, did not

have a key to the room, and were not staying overnight in the room.

[¶3.] The Royal River Casino Hotel is owned and operated by the Flandreau

Santee Sioux Tribe. 1 The tribe hires tribal members as security guards for the

protection of casino and hotel assets, and watch for any unlawful activity or unruly

behavior. Security guards carry company-owned and issued firearms, ammunition,

and handcuffs while on duty, and follow the casino and hotel’s internal procedures

for reporting unusual situations to a security captain before summoning local law

1. It is unclear from the record whether the Tribe itself operates the casino and
hotel, or whether it maintains an operating contract with a third party.
However, whether operated directly by the Tribe or by a third party on behalf
of the Tribe, the casino is authorized under the Indian Gaming Regulation,
25 USC § 2701(5), which permits Indian tribes to operate gaming operations
under specified conditions.

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enforcement for criminal matters. Security guards do not have authority to conduct

an arrest on tribal property, only to detain suspected violators until law

enforcement arrives.

[¶4.] Shortly after midnight on January 13, 2007, security captain Robert

Long Crow (Long Crow) received a report from two security guards who had been

escorting a guest back to a room on the third floor. The security guards reported

they could smell a “very strong odor of marijuana” emanating from a room on the

third floor, which was subsequently identified as Madsen’s suite. Long Crow,

wearing his casino-issued uniform and firearm, exited the elevator on the third floor

and detected a strong odor of raw marijuana. He could also hear male voices and

the loud noise of a television coming from the suite. Long Crow approached the

suite, stuck his nose up against the door, and determined that Madsen’s suite was

the source of the odor.

[¶5.] Long Crow, now in the company of two other security guards, placed

his finger over the peephole and knocked on the door. Long Crow intended to gain

access to the room first by ruse, and if entry was not permitted he intended to use a

master key and a crash bar to open the door by force. Benjamin Carter (Carter)

opened the door four or five inches and Long Crow told him of a non-existent noise

complaint as a ruse to get Carter to open the door. Carter denied Long Crow entry

and attempted to close the door. Long Crow had placed his foot over the threshold

while speaking with Carter, and pushed the door back toward Carter. Carter then

said “go ahead and come on in,” and Long Crow and one of the security guards

entered the living room of the hotel suite. The security guard made a sweep of the

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living room, while Long Crow walked toward what he thought at the time was a

syringe but turned out to be a small screwdriver. During the security sweep, one of

the guards discovered a marijuana bud the size of a quarter on the carpet next to a

coffee table. The security guards did not search the bedroom or the bathroom, as

the doors to these rooms were closed.

[¶6.] Long Crow and the security guards placed all three men in casino

issued handcuffs and led them to the hotel lobby to await the arrival of local law

enforcement. All three men denied being the registered guest during this time.

Each claimed that they were a friend of the hotel guest and had intended to stay for

a few hours before leaving.

[¶7.] Mike Eisenbarth (Eisenbarth) of the City of Flandreau Police

Department arrived at the hotel lobby, and was informed of the circumstances of

the detention. Eisenbarth was shown the marijuana bud. Eisenbarth then

searched the three men before transferring them from the casino’s handcuffs to

police department handcuffs. While searching Madsen’s pockets, Eisenbarth

discovered six nine-millimeter pistol rounds and $2,500.00 in cash. Eisenbarth also

obtained the driver’s licenses of the three men and eventually was able to determine

Madsen’s identity and that the hotel suite was registered to Madsen.

[¶8.] Eisenbarth then filed an affidavit with the circuit court along with a

request for a warrant to search Madsen’s hotel suite and car. In the affidavit,

Eisenbarth recounted Long Crow’s report on the search of the room, stated his

opinion that the item found by Long Crow and his staff was a marijuana bud, and

recounted Eisenbarth’s discovery of the cash and ammunition on Madsen. After a

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warrant issued, Eisenbarth searched Madsen’s suite and discovered a bag that

contained eight baggies of raw marijuana, two packets of methamphetamine, one

spoon, four knives, and a Chinese throwing star. A search of Madsen’s car revealed

some hypodermic needles, a container of a suspicious white substance, and a bottle

of pills without a prescription label. A urine sample collected from Madsen tested

positive for cocaine, methamphetamine, and marijuana.

[¶9.] Madsen’s pretrial motion to suppress all evidence collected by

Eisenbarth was denied by the circuit court. Madsen’s renewed motion to suppress

was also denied. The circuit court found that the Indian Civil Rights Act applied to

the matter, as the incident occurred in Indian country. The circuit court also found

that the Royal River Casino and Hotel were owned by the Tribe, and operated

either by the Tribe or under a third-party management contract. The circuit court

then found that Long Crow and his security guards were acting as private citizens

rather than as agents of the State or the Tribe when they conducted the search of

Madsen’s hotel suite. Finally, the circuit court concluded that the prohibition

against unreasonable searches and seizures did not apply to Long Crow and his

security guards given their status as private citizens. The circuit court did not

make any findings concerning whether Carter was authorized to and willingly gave

consent to the search of Madsen’s hotel suite.

[¶10.] After a bench trial on the matter, Madsen was sentenced to two,

concurrent, six-year sentences for possession of controlled substances

(methamphetamine and cocaine); a three-year sentence for intent to distribute

marijuana to be served consecutive to the controlled substance counts; a suspended

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thirty-day jail sentence for possession of marijuana; and a second suspended thirty-

day jail sentence for ingesting substances. Madsen raises two issues on appeal:

1. Whether the circuit court erred by denying Madsen’s
motion to suppress and motion to reconsider based on its
conclusion of law that the hotel security guards were not
working as agents of State or Tribal law enforcement.

2. Whether the circuit court erred by not considering
Madsen’s motion to suppress and motion to reconsider
based on Carter’s inability to consent to a search of the
hotel suite.

STANDARD OF REVIEW

[¶11.] A warrantless search conducted by the government, its officials and

agents implicates a defendant’s Fourth Amendment right. State v. Bowker, 2008

SD 61, ¶17, 754 NW2d 56, 62 (citing State v. Sweedland, 2006 SD 77, ¶¶12-13, 721

NW2d 409, 412). “The constitutional provisions prohibiting unreasonable searches

and seizures only protect against action by the government, its officials and agents,

and have no application to the wrongful or unauthorized acts of private

individuals.” State v. Cundy, 86 SD 766, 771, 201 NW2d 236, 239 (1972) (citing 79

CJS Searches and Seizures § 5c, p783). “This Court reviews the denial of a motion

to suppress alleging a violation of a constitutionally protected right as a question of

law by applying the de novo standard.” Bowker, 2008 SD 61, ¶17, 754 NW2d at 62

(citing State v. Stanga, 2000 SD 129, ¶8, 617 NW2d 486, 488 (citing Ornelas v.

United States, 517 US 690, 699, 116 SCt 1657, 1663, 134 LEd2d 911 (1996); United

States v. Khan, 993 F2d 1368, 1375 (9thCir 1993); State v. Hirning, 1999 SD 53, ¶9,

592 NW2d 600, 603)). However, the clearly erroneous standard is applied to the

circuit court’s findings of fact. Id.

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ANALYSIS AND DECISION

[¶12.] 1. Whether the circuit court erred by denying
Madsen’s motion to suppress and motion to
reconsider based on its conclusion of law that the
hotel security guards were not working as agents of
State or Tribal law enforcement.

[¶13.] Madsen argued below that the hotel security guards were agents of the

Tribe and in that capacity were required to adhere to Fourth Amendment principles

by virtue of the Indian Civil Rights Act, 25 USC § 1302(2). Madsen contended that

violations of the reasonableness requirement in the Indian Civil Rights Act by hotel

security guards required suppression of the marijuana bud seized in the hotel suite

at the time of the original search. Madsen further contended all evidence

subsequently discovered in the safety search of his person and under the search

warrant obtained after the discovery of the marijuana bud was fruit of the

poisonous tree and should have been excluded under Wong Sun v. United States,

371 US 471, 83 SCt 407, 9 LEd2d 441 (1963). In the alternative, Madsen argued

that the hotel security guards were acting as agents of the City of Flandreau Police

Department, and thus their actions were limited by the constraints of the Fourth

Amendment.

[¶14.] The circuit court found that the Indian Civil Rights Act, 25 USC §

1302(2) applied, and that it provided protections similar to the Fourth Amendment.

However, the circuit court found that the prohibition on unreasonable searches and

seizures contained in the Indian Civil Rights Act did not apply to Long Crow and

the security guards, as they were acting as private citizens at the time of the search.

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The Indian Civil Rights Act and the Fourth Amendment

[¶15.] The Indian Civil Rights Act provides in relevant part:

No Indian tribe in exercising powers of self-government shall--

...

(2) violate the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable search and
seizures, nor issue warrants, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched and the person or thing to be seized[.]

25 USC § 1302(2).

[¶16.] The text of the Indian Civil Rights Act is remarkably similar to the

text of the Fourth Amendment, which 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.

US Const. amend. IV. The Fourth Amendment prohibition against unreasonable

searches and seizures is applicable to the states through the Fourteenth

Amendment. State v. McCreary, 82 SD 111, 124-25, 142 NW2d 240, 247 (1966)

(quoting Mapp v. Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 (1961)). The

constitutional prohibition against unreasonable searches and seizures requires

generally that state and federal law enforcement obtain a warrant issued “by a

neutral judicial officer based on probable cause prior to the execution of a search or

seizure” that implicates the Fourth Amendment. State v. Mattson, 2005 SD 71,

¶29, 698 NW2d 538, 548 (citing State v. De La Rosa, 2003 SD 18, ¶7, 657 NW2d

683, 685 (citing Terry v. Ohio, 392 US 1, 20, 88 SCt 1868, 1879, 20 LEd2d 889

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(1968))). Warrantless searches are permissible under particular circumstances,

however, “[t]he State has the burden of proving that a warrantless search falls into

a specific exception to the warrant requirement.” Id. ¶30, 698 NW2d at 548 (citing

State v. Hess, 2004 SD 60, ¶23, 680 NW2d 314, 324).

[¶17.] The Fourth Amendment typically does not directly govern the conduct

of tribal officials in Indian country. United States v. Schmidt, 403 F3d 1009, 1013

(8thCir 2005); United States v. Becerra-Garcia, 397 F3d 1167, 1171 (9thCir 2005);

United States v. Clifford, 664 F2d 1090, 1091-92 n3 (8thCir 1981) (citing Santa

Clara Pueblo v. Martinez, 436 US 49, 56, 98 SCt 1670, 1675, 56 LEd2d 106 (1978));

United States v. Erickson, 2008 WL 1803626, *1 (DSD 2008). However, tribal

power to investigate violations in Indian country is constrained by the limits

contained in the Indian Civil Rights Act, which was enacted to secure the right to be

free of arbitrary and unjust actions by tribal governments.2 Santa Clara Pueblo,

436 US at 61, 98 SCt at 1678, 56 LEd2d 106 (quoting S.Rep. No. 841, 90th Cong.,

1st Sess., pp 5-6 (1967)). Additionally, the Indian Civil Rights Act has been

2. Tribal authorities, including tribal law enforcement, have the “traditional
and undisputed power to exclude persons whom they deem to be undesirable
from tribal lands.” United States v. Terry, 400 F3d 575, 579 (8thCir 2005).
While it is undisputed that tribes have no jurisdiction to prosecute non-
Indians for crimes committed on Indian lands, Oliphant v. Suquamish Indian
Tribe, 435 US 191, 212, 98 SCt 1011, 1022-23, 55 LEd2d 209 (1978), tribal
officers have authority to detain offenders and transport them to the proper
state or federal authorities for criminal prosecution where the offender has
“disturb[ed] public order on the reservation. . . .” Duro v. Reina, 495 US 676,
696-97, 110 SCt 2053, 2065-66, 109 LEd2d 693 (1990)). The ability to exclude
non-Indian law violators from tribal lands carries with it the power to
investigate such violations. Id. (citing Brendale v. Confederated Tribes and
Bands of Yakima Indian Nation, 492 US 408, 422, 109 SCt 2994, 3003, 106
LEd2d 343 (1989).

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extended to protect the rights of non-Indians while on tribal lands from

unreasonable searches and seizures by tribal government. United States v. Terry,

400 F3d 575, 579-80 (8thCir 2005) (holding Indian Civil Rights Act required tribal

police and Bureau of Indian Affairs officer to comply with reasonableness standards

for search and seizure of non-Indian detained on reservation on suspicion of

domestic abuse); United States v. Keys, 390 FSupp2d 875, 884 (DND 2005)

(statements made by non-Indian defendant illegally detained and questioned by

Bureau of Indian Affairs officer on reservation after non-Indian status verified,

were obtained in violation of 25 USC § 1302(2) and were suppressed).

[¶18.] Several courts have addressed the issue of whether a search and

seizure conducted by tribal government is subject to the same reasonableness

standard embodied in the Fourth Amendment by virtue of the Indian Civil Rights

Act, 25 USC § 1302(2). See Terry, 400 F3d at 579-80; Becerra-Garcia, 397 F3d at

1171; Ortiz-Barraza v. United States, 512 F2d 1176, 1180 (9thCir 1975); Keys, 390

FSupp2d at 884. Any such “Duro” detention is subject to the reasonableness

standard embodied in the Fourth Amendment by virtue of the Indian Civil Rights

Act, 25 USC § 1302(2), and Fourth Amendment case law is applied to the particular

alleged violation. Terry, 400 F3d at 579-80 (“tribal officer must avoid effecting a

constitutionally unreasonable search or seizure”) (citing Duro v. Reina , 495 US 676,

696-97, 110 SCt 2053, 109 LEd2d 693 (1980)); Becerra-Garcia, 397 F3d at 1171

(holding “Indian Civil Rights Act . . . imposed an ‘identical limitation’ on tribal

government conduct as the Fourth Amendment.”); Clifford, 664 F2d at 1091 n3

(holding Fourth Amendment standards govern conduct of tribal officials by virtue of

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Indian Civil Rights Act); Erickson, 2008 WL 1803626 at *1 (holding “Indian Civil

Rights Act . . . imposed the same standards on tribal officers as the Fourth

Amendment.”). These courts generally assumed that the Fourth Amendment’s

exclusionary rule applied when tribal government violated the reasonableness

limitation in the Indian Civil Rights Act, 25 USC § 1302(2), but did not provide any

analysis for their supposition. Terry, 400 F3d at 580 (applying reasonableness

standard in Terry v. Ohio, 392 US 1, 88 SCt 1868, 20 LEd2d 889 (1968) to Indian

Civil Rights Act); Becerra-Garcia, 397 F3d at 1171; Ortiz-Barraza, 512 F2d at 1180;

Keys, 390 FSupp2d at 884; Clifford, 664 F2d at 1090; Erickson, 2008 WL 1803626 at

*1.

[¶19.] People v. Ramirez, 148 CalApp4th 1464 (CalCtApp 2007), squarely

addressed whether Congress intended the Fourth Amendment’s exclusionary rule to

apply to searches and seizures conducted by tribal government in Indian country.

The Ramirez court noted that the language of the Indian Civil Right Act, enacted in

1968, is almost identical to the language of the Fourth Amendment, and “thus

evidences a congressional intent to extend, as against the Indian tribes, ‘the

security of one’s privacy against arbitrary intrusions by the police – which is at the

core of the Fourth Amendment.’” Id. at 1470 (quoting Wolf v. Colorado, 338 US 25,

27-28, 69 SCt 1359, 1361, 93 LEd2d 1081(1949) overruled by Mapp, 367 US 643, 81

SCt 1684, 6 LEd2d 1081). The legislative history of the Indian Civil Rights Act

lends support to this proposition. “A central purpose of the Indian Civil Rights Act

was to ‘secure for the American Indian . . . the broad constitutional rights afforded

to other Americans,’ and thereby to ‘protect individual Indians from arbitrary and

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unjust actions of tribal governments.’” Id. (quoting Santa Clara Pueblo, 436 US at

61, 98 SCt at 1678, 56 LEd2d 106 (quoting S.Rep. No. 841, 90th Congr., 1st Sess.,

pp 5-6 (1967)) (citing generally Burnett, An Historical Analysis of the 1968 ‘Indian

Civil Rights’ Act (1971-1972) 9 HarvLJ on Legis 557). The Ramirez court concluded

that the Indian Civil Rights Act, 25 USC § 1302(2), limits tribal power to conduct

unreasonable searches and seizures to the same degree that the Fourth Amendment

limits the power of the federal and state governments. Id. at 1471.

[¶20.] The Ramirez court then turned its focus to the exclusionary rule. Id.

at 1473. It noted that at the time of the enactment of the Indian Civil Rights Act in

1968, the United States Supreme Court had previously held in 1961 in Mapp v.

Ohio, 367 US at 655-56, 81 SCt at 1692, 6 LEd2d 1081, that “the exclusionary rule

was ‘part and parcel of the Fourth Amendment’s limitation upon governmental

encroachment of individual privacy’ and ‘an essential part of both the Fourth and

Fourteenth Amendments.’” Id. at 1473 (quoting Mapp, 367 US at 651, 658, 81 SCt

at 1689, 1693, 6 LEd2d 1081). 3 The enactment of the Indian Civil Rights Act

against the backdrop of Mapp evidences congressional intent to graft the Fourth

Amendment exclusionary rule onto 25 USC § 1302(2). Id. at 1473-75. Thus, we are

required to review a trial court’s ruling on a motion to suppress evidence seized in

3. The United States Supreme Court would eventually reverse course and
describe the exclusionary rule as a “judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent effect,
rather than a personal constitutional right of the party aggrieved.” Ramirez,
148 Cal App4th at 1473 (quoting United States v. Calandra, 414 US 338, 348,
94 SCt 613, 620, 38 LEd2d 561 (1974)) (citing United States v. Leon, 468 US
897, 104 SCt 3405, 82 LEd2d 677 (1984)).

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violation of the Indian Civil Rights Act, 25 USC § 1302(2) under Fourth

Amendment case law, including application of the exclusionary rule.

Were the Security Guards Government Actors?

[¶21.] Given that the exclusionary rule applies to the Indian Civil Rights Act,

we next must determine whether the Tribe was engaged in “exercising powers of

self government” as it pertains to Long Crow and the security guards when they

conducted the search of Madsen’s hotel suite. In the alternative, Madsen argues

that Long Crow and his security guards were agents of local law enforcement. If

the answer to either of these inquires is yes, then we must reverse and remand the

matter to the trial court.

[¶22.] “Indian tribes have the exclusive right to regulate gaming activity on

Indian lands if the gaming activity is not specifically prohibited by Federal law and

is conducted within a State which does not, as a matter of criminal law and public

policy, prohibit such gaming activity.” Indian Gaming Regulation, 25 USC §

2701(5) (1988). For purposes of the Indian Gaming Regulation, Indian lands are

defined as

(A) all lands within the limits of any Indian reservation; and

(B) any lands title to which is either held in trust by the United
States for the benefit of any Indian tribe or individual or held by
any Indian tribe or individual subject to restriction by the
United States against alienation and over which an Indian tribe
exercises governmental power.

25 USC § 2703(4).

[¶23.] According to the record below, the Flandreau Santee Sioux Tribe

operates its casino under the provisions of the Indian Gaming Regulation on trust

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land. The State’s supplemental materials provided after oral arguments included a

Gaming Compact between the Tribe and the State of South Dakota that

substantiates that fact. As such, it is the Tribe’s responsibility to conduct its

gaming operations in compliance with Indian Gaming Regulation, which requires,

among other things, adequate security measures and personnel. Indian Gaming

Regulation, 25 USC § 2710(b)(E) – (F). The Flandreau Santee Sioux Gaming

Commission’s internal regulations detail the functions of its security department:

1. The Security people are responsible for the safety and
protection of casino transactions giving support to the
employees and ensuring guests of fair play. (See
[Flandreau Santee Sioux Tribal Gaming Commission]
(FSSTGC) Regulations, Section 1300, General 1300.15).
2. The Security Director shall employ and engage such
Security personnel as may be reasonably necessary to
insure the reasonable safety and security of the
casino/Motel Complex and its guests and employees and
of the monies incident to managing and operating the
same at all times.
3. Protection from and elimination of any element or agent
which jeopardizes the welfare and security of the casino’s
property, patrons and employees.

[¶24.] The Casino has implemented policies and procedures to assist security

guards with maintaining compliance with the Flandreau Santee Sioux Tribal

Gaming Commission’s internal regulations, and ensuring casino operations are

conducted fairly, cash accounted for accurately, and removing any “agent” from the

property who presents a security risk. In addition to duties pertaining to casino

operations, security guards also provides safety and security services at the Tribe’s

adjacent hotel property. The Casino’s policies and procedures state that security

guards are not permitted to search a casino guest or a guest’s hotel room, or to

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conduct an arrest. Instead, security guards may detain guests suspected of criminal

conduct and contact local law enforcement officers who will determine and conduct

any arrest or search that may be necessary. Based on these facts, regulations,

policies and procedures, we conclude that the security guards were employed by the

Tribe in its exercise of powers of self government as it relates to its lawful operation

of its gaming operation under Indian Gaming Regulation, 25 USC § 2701 et al.4

[¶25.] The State argues that the security guards were acting as private

citizens rather than agents of the Tribe in carrying out their duties. The State cites

to Ramirez, 148 CalApp4th at 1471 n8, in support of its argument that the

exclusionary rule cannot apply to Long Crow and the security guards because they

were not tribal officers, but rather were employed as private security guards at the

casino. The holding in Ramirez is not as narrow as the State suggests in its brief.

Ramirez does not stand for the proposition that the exclusionary rule applies only

to violations of the Indian Civil Rights Act by tribal officers, or as the State

contends specifically to violations by tribal law enforcement officers. Ramirez

stands for the proposition that the exclusionary rule applies to violations of the

Indian Civil Rights Act by tribal governments. The Ramirez court also specifically

rejected the very argument advanced by the State in the instant case: “we reject

the People’s argument that ‘with respect to non-Indians, tribal officers have

4. We see no distinction between the two possible scenarios presented by the
State, that Long Crow and his security guards were employed either directly
by the Tribe, or by a third-party contractor on behalf the Tribe. Under either
scenario, the Tribe was ultimately responsible for providing security for its
gaming operations in compliance with the Indian Gaming Regulation, 25
USC § 2710(b)(2)(E) - (F).

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essentially the same status as security guards who patrol their employers’

premises.’” Ramirez, 148 CalApp4th at 1471 n8.

[¶26.] Furthermore, the Fourth Amendment prohibition against

unreasonable searches and seizures has never been limited exclusively to the

conduct of law enforcement officers. Ferguson v. City of Charleston, 532 US 67, 76-

77, 121 SCt 1281, 1287-88, 149 LEd2d 205 (2001) (holding that employees of a state

run hospital were government actors subject to the strictures of the Fourth

Amendment when conducting urine screenings for cocaine use on pregnant mothers

without informed consent for purposes of criminal prosecution); New Jersey v.

T.L.O., 469 US 325, 335-37, 105 SCt 733, 739-40, 83 LEd2d 720 (1985) (holding

searches of student lockers by public school officials was government action subject

to Fourth Amendment reasonableness standards). The reasonableness restraint is

imposed on “‘government action’ –that is, ‘upon the activities of sovereign

authority.’” T.L.O., 469 US at 335, 105 SCt at 739, 83 LEd2d 720 (citing Burdeau

v. McDowell, 256 US 465, 475, 41 SCt 574, 576, 65 LEd 1048 (1921)). Hence, the

Fourth Amendment is applicable to the activities of both civil and criminal

authorities. Id. (holding public school officials subject to Fourth Amendment

limits) (citing Camara v. Municipal Court, 387 US 523, 528, 87 SCt 1727, 1730, 18

LEd2d 930 (1967) (holding building inspectors subject to the Fourth Amendment

standards); Marshall v. Barlow’s Inc., 436 US 307, 312-13, 98 SCt 1816, 1820, 56

LEd2d 305 (1978) (holding Occupational Safety and Health Act inspectors subject

to Fourth Amendment standards); Michigan v. Tyler, 436 US 499, 506, 98 SCt

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1942, 1948, 56 LEd2d 486 (1978) (firemen entering privately owned premises to

battle fire subject to Fourth Amendment standards)).

[¶27.] Like the hospital staff of the state run hospital in Ferguson, and the

public school officials in T.L.O., Long Crow and the security guards were Tribal

government actors by virtue of their status as employees of the Tribal casino

operation, a distinctly Tribal governmental operation by virtue of Indian Gaming

Regulation, 25 USC § 2701(5). While it is undisputed that Long Crow and the

security guards were not employed by the Tribe as law enforcement officers, they

were employed in a civil capacity to provide safety and security services for the

gaming operation on Tribal land. As such, their actions when conducting searches

and seizures were subject to the constraints of the Fourth Amendment, including

the exclusionary rule, as embodied in the Indian Civil Rights Act, 25 USC §

1302(2).

[¶28.] This becomes even clearer under the holding in Becerra-Garcia, 397

F3d 1167. In that case, tribal officials with the title of tribal rangers were charged

with the task of patrolling reservation land for trespassers. Id. at 1169. The tribal

rangers lacked authority to stop suspicious vehicles, were not cross deputized by

local law enforcement, and were without authority to conduct searches on the

reservation. Id. at 1169-70. The only authority the tribal rangers had was to

identify suspicious vehicles and make reports to tribal law enforcement officers, as

trespassing was a significant problem on the reservation. Id. Tribal rangers

spotted Becerra-Garcia’s van on a remote dirt road on the reservation within a few

weeks of reports of suspicious vehicles in the area. Id. at 1170. The tribal rangers

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approached Becerra-Garcia’s van from the rear, and engaged their hazard lights.

Id. Becerra-Garcia stopped his vehicle and after failing to communicate with the

tribal rangers in either English or Spanish, Becerra-Garcia motioned the rangers

toward the van. Id. Upon approaching the van, the tribal rangers saw twenty

individuals who appeared to be illegal aliens in the back of the van. Id. The tribal

rangers held Becerra-Garcia until tribal law enforcement arrived and conducted an

arrest. Id. At the trial court level, Becerra-Garcia’s motion to suppress all evidence

discovered as a result of the stop was denied. Becerra-Garcia appealed. Id.

[¶29.] On appeal, Becerra-Garcia argued that the tribal rangers were acting

in the capacity of private citizens and not as government actors due to their lack of

authority to stop cars on the reservation. Id. at 1171. The Ninth Circuit Court of

Appeals held the argument “while creative, misses the mark.” Id. at 1172. The test

was not whether the tribal rangers were without law enforcement authority. Id.

Rather, the test was whether the tribal rangers were government actors under the

three-part test in United States v. Reed, 15 F3d 928, 931 (9thCir 1994). Id. The test

was (1) whether the government, in this case the tribal government represented by

tribal law enforcement, knew of and acquiesced in the tribal rangers’ activities, (2)

whether the tribal rangers intended to assist tribal government, and (3) whether

the tribal rangers acted to further the ends of tribal government rather than the

tribal rangers’ own ends. Id. (citing Reed, 15 F3d at 931 (citing United States v.

Miller, 688 F2d 652, 657 (9thCir 1982))). That court concluded that the function of

the tribal rangers was to assist the tribal police department and the United States

Border Patrol by monitoring remote areas of the reservation, and that both

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government agencies were aware of the tribal rangers’ purpose and activities. Id.

Furthermore, the tribal rangers stopped Becerra-Garcia to enforce the criminal

trespass laws of the tribal nation, not for their own personal benefit. Id. Thus, that

court held the tribal rangers were government actors and subject to the constraints

of the Indian Civil Rights Act. Id.

[¶30.] The Ninth Circuit Court of Appeals also noted that the tribal rangers

exceeded the scope of their authority, as testified to by the tribal rangers involved in

the stop, when they initiated the stop of Becerra-Garcia’s van. Id. at 1173. Despite

that fact, that court also held the constraints of the Indian Civil Rights Act applied,

as the rangers’ authority under tribal law “[was] not the linchpin for determining

the admissibility of the evidence obtained as a result of the stop.” Id. at 1173.

Despite lacking Tribal authority to make the traffic stop, that court held that the

stop was reasonable within the meaning of the Fourth Amendment because the

rangers had reasonable articulable suspicion to investigate Becerra-Garcia for

criminal trespass. 5 Id. at 1174-75. That court declined to adopt Becerra-Garcia’s

argument that a bright-line rule should be adopted for determining reasonableness:

“that a stop is automatically unreasonable if the officers lacked authority to conduct

the seizure.” Id. at 1175. Instead, that court adhered to the rule that

reasonableness must be determined on a case-by-case basis rather than by a bright-

line rule. Id. (citing Terry, 392 US at 17, 20-21, 88 SCt 1868, 20 LEd2d 889

5. Becerra-Garcia did not challenge the district court’s finding that the rangers
had reasonable articulable suspicion to investigate for criminal trespass.
Becerra-Garcia, 397 F3d at 1174.

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(“rejecting a ‘rigid all-or-nothing model of justification and regulation under the

[Fourth] Amendment’ in favor of a flexible model that considers the scope of the

intrusion and its justification”); Go-Bart Importing Co. v. United States, 282 US

344, 357, 51 SCt 153, 75 LEd 374 (1931) (“‘There is no formula for the

determination of reasonableness. Each case is to be decided on its own facts and

circumstances’”)).

[¶31.] Thus, in the instant case, the issue is not determined by whether Long

Crow and the security guards exceeded the boundaries of their authority to conduct

searches under the Flandreau Santee Sioux Gaming Commission’s rules and

regulations. Instead, we are guided by the legal conclusion that Long Crow and the

security guards were government actors charged by the Tribe with the safety and

security of the casino and hotel operation. The Tribe, through the Flandreau

Santee Sioux Tribal Gaming Commission, knew of the security guards’ policies and

procedures. Furthermore, Long Crow testified he conducted the search in order to

protect casino and hotel property, and not for his own purposes. The security

guards, therefore, were Tribal government agents whose conduct was limited by the

constraints of the Indian Civil Rights Act.

[¶32.] Because we hold that the security guards were Tribal government

actors, we do not need to address Madsen’s alternative argument that Long Crow

and the security guards were also agents of local law enforcement. However, the

circuit court never addressed the reasonableness of the search and whether the

consent given by Carter to Long Crow to enter and search the hotel suite was valid.

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[¶33.] We remand the matter to the circuit court for further proceedings

consistent with this opinion. The circuit court is directed to use Fourth Amendment

case law for guidance as to whether the search by Long Crow and the security

guards was reasonable under the circumstances. Reversed and remanded.

[¶34.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, and SABERS,

Retired Justice, concur.

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