United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Laurie Smith Camp Chief United States District Judge
This matter is before the Court on the Findings and Recommendation (Filing No. 34), issued by Magistrate Thomas D. Thalken, recommending that the Motion to Suppress filed by the Defendant Marcus Deon Coty (“Coty”) (Filing No. 27), be denied. Coty filed Objections to the Findings and Recommendation (Filing No. 40) as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government has not responded to the Objections. For the reasons set forth below, the Findings and Recommendation will be adopted, and the Motion to Suppress will be denied.
Coty is charged with two counts of being a felon in possession of a firearm and one count of being a felon in possession of ammunition. Coty seeks to suppress evidence obtained from a search of his home on or before May 4, 2015, conducted by Coty’s ex-girlfriend. Specifically, Coty seeks to suppress (1) a receipt from Moneymaker Guncraft Corp. dated March 21, 2015; (2) a receipt from Walmart, dated April 1, 2015; and (3) any evidence obtained from the subsequent investigation as a result of the illegal search of his home by his ex-girlfriend.
Coty was placed on supervised release in February of 2014, after having been convicted of being a felon in possession of a firearm. (Tr. 5.) United States Probation Officer Jeff Anthens (“Anthens”) was assigned to supervise Coty. (Tr. 4.) In May of 2015, Anthens received documents and a statement from Coty’s ex-girlfriend (“Ms. X”) (Tr. 6, 7-8.) The documents consisted of two receipts, one from a gun shop in Omaha and the second from Walmart for the purchase of ammunition. (Tr. 8; H.E. 1.) Ms. X found the receipts in a drawer in Coty’s residence, examined them, and turned them over to Anthens. (Tr. 11.) At the time Ms. X found the receipts she was not acting on behalf of any government official, nor did any government official have any knowledge of her actions. (Tr. 7.)
Upon receiving the receipts, Anthens examined them and determined that they were consistent with Ms. X’s statement. (Tr. 9.) Anthens sent a scan of the receipts to an ATF agent. (Tr. 12.) The ATF agent indicated to Anthens that he would conduct an investigation. (Tr. 12.) Anthens later learned that, as a result of the investigation, the ATF agent had strong reason to believe that Coty had in fact recently possessed a firearm and purchased ammunition (Tr. 12.) Anthens also learned that the investigation led to other evidence, including videos of the defendant purchasing ammunition. (Tr. 12.)
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(C), the Court must make a de novo determination of those portions of the findings and recommendation to which the Defendants have objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendation. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
Coty claims in his brief that Ms. X illegally obtained the receipts. “The Fourth Amendment protects only against government action.” United States v. Gonzalez, 781 F.3d 422, 427 (8th Cir.) cert. denied, 136 S.Ct. 139 (2015). “‘A search by a private party with no government knowledge or participation’ does not implicate this constitutional right to be free from unreasonable search and seizure.” Id. (quoting United States v. Livesay, 983 F.2d 135, 136 (8th Cir.1993)). There is no evidence that Ms. X was in any way acting with the knowledge or participation of the Government when she found the receipts. Although Anthens had contact with Ms. X throughout his supervision of Coty, his contact with her related solely to his supervision of Coty. There is no evidence that Anthens instructed Ms. X to conduct an investigation or act on his behalf. Accordingly, there is no Fourth Amendment violation based on Ms. X finding the receipts.
Coty also argues that his Fourth Amendment rights were violated when Anthens examined the receipts Ms. X provided to Anthens. Coty’s argument is based on the United States Supreme Court’s decision in Walter v. United States, 447 U.S. 649 (1980). In Walter, the defendants were charged with interstate shipment of five illegal obscene films, based on the following:
12 large, securely sealed packages containing 871 boxes of 8-millimeter film depicting homosexual activities were shipped by private carrier from St. Petersburg, Fla., to Atlanta, Ga. The shipment was addressed to “Leggs, Inc., ” but was mistakenly delivered to a substation in the suburbs of Atlanta, where “L'eggs Products, Inc., ” regularly received deliveries. Employees of the latter company opened each of the packages, finding the individual boxes of film. They examined the boxes, on one side of which were suggestive drawings, and on the other were explicit descriptions of the contents. One employee opened one or two of the boxes, and attempted without success to view portions of the film by holding it up to the light. Shortly thereafter, they called a Federal Bureau of Investigation agent who picked up the packages. . . .
Thereafter, without making any effort to obtain a warrant or to communicate with the consignor or the consignee of the shipment, FBI agents viewed the films with a projector.
447 U.S. at 651-52. The Supreme Court held that the FBI agents’ exhibition of the films “constituted an unreasonable invasion of the owner's constitutionally protected interest in privacy, ” notwithstanding that “the nature of the contents of these films was indicated by descriptive material on their individual containers.” Id. at 654. The Court noted: “The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents . . . [as] it has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.” Id. at 654-55 (citations omitted). The Supreme Court reasoned that the third party's prior opening of the boxes did not “excuse the [FBI's] failure to obtain a search ...