United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson, United States Magistrate Judge.
matter is before the Court on the Motion to Suppress and
Request for Evidentiary Hearing and Oral Argument (Filing
No. 15) filed by Defendant, Marco A. Avalos. Defendant
filed a brief in support of the motion (Filing No.
16) and the government filed a brief in opposition
(Filing No. 18).
Court held an evidentiary hearing on the motion on February
14, 2019. Defendant was present with his attorney, David
Stickman. The government was represented by Assistant United
States Attorney, Thomas Kangior. Oscar Gabriel Garcia
(“Supervisor Garcia”), a security supervisor with
the Creighton University Department of Public Safety, and
City of Omaha police officer Matthew McDonald (“Officer
McDonald”) testified on behalf of the government. The
Court received into evidence Exhibits 1 and 2 offered by the
government and Exhibit 101 offered by Defendant. A transcript
(TR.) of the hearing was prepared and filed on February 28,
2019. (Filing No. 25). This matter is now fully
submitted to the Court. For the following reasons, the
undersigned magistrate judge recommends that Defendant's
motion be granted, in part, and in part denied.
October 25, 2018, Creighton University public safety officers
responded to a call from a female student on campus who felt
threatened by a man, later identified as Defendant,
cat-calling her and attempting to enter her residence hall.
(TR. 6-7). Supervisor Garcia testified that public safety
officers sought to stop Defendant to ask for his
identification and to ban and bar him from campus. (TR. 8-9).
Public safety officers located Defendant based on the
student's description. (TR. 7-8). The public safety
officers attempted to detain Defendant; Defendant resisted,
and after a struggle, Defendant hit the ground and a
concealed handgun fell from his person. (TR. 9-11). The
public safety officers called 911, handcuffed Defendant, and
waited for Omaha Police Department (“OPD”)
officers to arrive. (TR. 10-11). Creighton's security
cameras recorded these events. See Exhibit 1.
officers McDonald and Carrera arrived at the scene
approximately five minutes later. Officer McDonald's body
camera recorded OPD's encounter. See Exhibit 2. Officer
McDonald testified that upon his arrival, a public safety
officer turned over the firearm recovered from Defendant.
(TR. 12, 26). Officer McDonald secured the firearm in his
cruiser while Officer Carrera patted down Defendant, who was
still in handcuffs. (TR. 27). Officer Carrera asked Defendant
if he had “anything else” on him, to which
Defendant reportedly responded, “I have dope.”
(Ex. 2, at 1:30-1:59). Officer Carrera searched
Defendant's person and recovered drug paraphernalia and a
brown powder substance. (Id. at 4:54-6:53; 14:01-16;
TR. 30-32, 36). Officer Carrera asked Defendant what the
brown substance was, and Defendant stated,
“crystal.” (Ex. 2, at 19:36; TR. 31-32).
Defendant was not advised of his Miranda rights
prior to making such statements. (TR. 28, 36).
is charged in the Indictment with one count of being a felon
in possession of a firearm under 18 U.S.C. § 924(g)(1).
(Filing No. 1). Defendant moves the Court for an
order suppressing all evidence obtained from the seizure and
search of his person, including his statements, arguing he
was stopped and detained without reasonable suspicion and
arrested without probable cause in violation of the Fourth
Amendment. Defendant also seeks to suppress his statements
made without being advised of his Miranda rights, in
violation of the Fifth Amendment.
government contends that Creighton public safety officers
detained Defendant on private property and were not acting
under the authority of any governmental agency, and therefore
the Fourth Amendment is not implicated. The government
further argues that Defendant's statements do not need to
be suppressed as such statements were not the product of
custodial interrogation and such questioning was permitted
for purposes of officer safety.
argues that Creighton University public safety officers did
not have reasonable suspicion to stop and detain him for
“catcalling” in violation of the Fourth
Amendment. (Filing No. 16 at p. 2). The
government asserts that the Fourth Amendment's
protections do not apply because the security officers who
initially stopped and detained Defendant are private persons
employed by a private institution. (Filing No. 18 at p.
Fourth Amendment only applies to state action; its protection
against unreasonable searches and seizures “is wholly
inapplicable to a search or seizure . . . effected by a
private individual not acting as an agent of the
Government.” United States v. Jacobsen, 466
U.S. 109, 113 (1984). Accordingly, “the Fourth
Amendment does not apply to a search or seizure, even an
arbitrary one, effected by a private party on his own
initiative but it does protect[ ] against such intrusions if
the private party acted as an instrument or agent of the
Government.” United States v. Highbull, 894
F.3d 988, 991-92 (8th Cir. 2018), reh'g denied
(Jan. 11, 2019)(quoting Skinner v, Ry. Labor Execs.'
Ass'n, 489 U.S. 602, 614 (1989))(internal quotation
marks omitted)(alteration in original). “Whether a
private party should be deemed an agent or instrument of the
government for Fourth Amendment purposes necessarily turns on
the degree of the government's participation in the
private party's activities, a question that can only be
resolved in light of all the circumstances.”
Id. (quoting United States v. Wiest, 596
F.3d 906, 910 (8th Cir. 2010). When evaluating agency in the
Fourth Amendment context, the court considers “
whether the government had knowledge of and acquiesced in the
intrusive conduct;  whether the citizen intended to assist
law enforcement or instead acted to further his own purposes;
and  whether the citizen acted at the government's
request.” Id. (citing Wiest, 596 F.3d
at 910). “A defendant bears the burden of proving by a
preponderance of the evidence that a private party acted as a
government agent.” Id. (internal citations and
quotation marks omitted).
case, all three factors weigh in favor of a finding that
agency did not exist between Creighton public safety officers
and local law enforcement on October 25, 2018, such that the
Fourth Amendment should apply to their seizure of Defendant.
First, there is no evidence that any local law enforcement
officers knew of or acquiesced in the actions of
Creighton's public safety officers at the time of the
initial contact with Defendant. Supervisor Garcia testified
that public safety had no prior contact with, and received no
instructions from, OPD upon receiving the call from the
Creighton student. (TR. 11, 23). Officer McDonald similarly
testified that OPD gave no directions to the public safety
officers before his arrival. (TR. 12-13). Creighton public
safety officers do not have any closed system communications
with OPD, and instead Creighton's public safety
dispatcher must call 911 for assistance from local law
enforcement just like any other private citizen. (TR. 20).
Here, Creighton public safety called 911 only after the
struggle with Defendant and the discovery of the handgun
which had fallen from his clothing. (TR. 11).
evidence also reflects that Creighton's public safety
officers were acting to further the private university's
own purposes and did not act at the government's request.
Supervisor Garcia testified that public safety officers first
approached Defendant to identify him to ban and bar him from
Creighton's property. Creighton's public safety
department provides services 24/7/365 as first responders,
including first-aid, and foot and bicycle patrol. (TR. 21-22;
Ex. 101). As a private institution, Creighton public safety
officers are employees of Creighton University, and are
responsible for the safety of its students, faculty, and
visitors. Creighton's Department of Public Safety is a
“private security force, ” although they do carry
handcuffs and firearms with open-carry permits issued by the
City of Omaha. However, public safety officers do not receive
training or guidance from OPD nor any other law enforcement
academy training. And while “[t]he department . . .
maintains a close working relationship with municipal, state
and federal law enforcement agencies, ” “there is
no formal agreement or written memoranda of understanding
between Creighton and governmental law enforcement agencies
on the investigation of alleged criminal offenses.”
(Ex. 101 at p. 3, 11). Creighton will contact governmental
law enforcement agencies for more serious crimes. (Ex. 101 at
p. 11). There is no evidence in this case that the public
safety officers acted at the government's request. See,
e.g, United States v. Gonzalez, 781 F.3d 422, 427
(8th Cir. 2015)(finding Fourth Amendment was not implicated
by search by a private company where there was “no
evidence of a close and ongoing relationship” between