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United States v. Avalos

United States District Court, D. Nebraska

May 30, 2019

MARCO A. AVALOS, Defendant.


          Laurie Smith Camp Senior United States District Judge

         This matter is before the Court on the Findings and Recommendation (F&R), ECF No. 26, issued by Magistrate Judge Michael D. Nelson, recommending that the Motion to Suppress, ECF No. 15, filed by the Defendant, Marco A. Avalos, be granted in part. Avalos filed an Objection to the Findings and Recommendation, ECF No. 27, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government filed a Notice of Adoption of the Magistrate Judge's F&R, ECF No. 29. For the reasons set forth below, the F&R will be adopted.


         Avalos does not directly object to the Magistrate Judge's factual findings. Having reviewed the record, the Court adopts and incorporates those findings. By way of summary, on October 25, 2018, Creighton University public safety officers responded to a call from a female student on campus. The student reported that a man cat-called her and attempted to enter her residence hall. Using the student's description, public safety officers located Avalos and stopped him to “ban and bar” him from campus. Avalos resisted when the officers attempted to stop him, and, after a struggle, he fell to the ground and dropped a concealed handgun. When public safety officers saw the weapon, they called 911 to inform the Omaha Police Department (OPD). The public safety officers then handcuffed Avalos and waited for OPD officers to arrive.

         Upon arrival, an OPD officer patted down Avalos and asked him if he had “anything else” on him. Avalos told the officer “I have dope.” Ex. 2, at 1:30-1:59. As a result of the pat down, OPD officers recovered drug paraphernalia and a brown powder substance. After discovering the brown powder substance, an OPD officer asked Avalos what the substance was, and Avalos told the officer it was “crystal.” Ex. 2, at 19:36; TR. 31-32.

         Avalos was charged in a single-count indictment with being a felon in possession of a firearm. Indictment, ECF No. 1. Avalos seeks to suppress evidence obtained on October 25, 2018. Avalos argues that (1) Creighton University public safety officers lacked reasonable suspicion of criminal activity to stop him, and (2) OPD officers conducted a custodial interrogation without advising Avalos of his Miranda rights. The Magistrate Judge concluded that Creighton public safety officers were not agents of the Government and the Fourth Amendment did not apply to the initial stop. The Magistrate Judge also concluded that the OPD officer's question about whether Avalos had “anything else” on him was permissible for officer safety, but the officer's question about the nature of the brown powder substance was part of a custodial interrogation.


         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 a Defendant has 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.


         I. Applicability of Fourth Amendment to Public Safety Officers

         Avalos's objection focuses on the Magistrate Judge's conclusion that Creighton University public safety officers are not subject to the requirements of the Fourth Amendment. The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. Const. amend. IV. However, “this protection extends only to actions undertaken by government officials or those acting at their direction.” United States v. Highbull, 894 F.3d 988, 991 (8th Cir. 2018), reh'g denied (Jan. 11, 2019). “‘[T]he 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.'” Id. at 991-92 (quoting Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 613-14 (1989)).

         “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.” United States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010) (quoting Skinner, 489 U.S. at 614). To evaluate an agency relationship in the Fourth Amendment context, courts consider three factors: “[1] whether the government had knowledge of and acquiesced in the intrusive conduct; [2] whether the citizen intended to assist law enforcement or instead acted to further his own purposes; and [3] whether the citizen acted at the government's request.” Highbull, 894 F.3d at 992 (quoting Wiest, 596 F.3d at 910). Avalos “bears the burden of proving by a preponderance of the evidence that a private party acted as a government agent.” Id.

         None of the listed factors demonstrates an agency relationship between Creighton public safety officers and the OPD. First, no evidence shows that OPD or any government agency knew of the public safety officers' intention to stop Avalos, nor is there evidence that any agency acquiesced to the stop. The second factor also weighs against a finding of agency. The public safety officers testified that they stopped Avalos to ban him from campus. See Tr. 9-11, ECF No. 25. They intended to act for the benefit Creighton University, not to assist law enforcement. The third factor also weighs against a finding of agency. Avalos acknowledges that OPD did not specifically request Creighton public safety officers to stop him, nor is there evidence that OPD officers encourage such stops. Accordingly, none of the factors weighs in favor of finding an agency relationship.

         Although Avalos does not directly address any of the factors, he nevertheless argues that “it is obvious that the Omaha Police Department and the Creighton University public safety officers work closely together” and that the public safety officers were “acting as police officers.” ECF No. 28 at 2, PageID.104. The Eighth Circuit rejected a similar argument in United States v. Gonzalez, 781 F.3d 422, 427 (8th Cir. 2015). In Gonzalez, the defendant argued that UPS employees opening a suspicious package “operated as ‘de facto' government agents because UPS had a close and ongoing relationship with law enforcement and because the employees opened the package not based on UPS policy but based on a desire to aid police in uncovering illegal activity.” Id. The court rejected that argument, reasoning that the defendant pointed to no evidence of a close and ongoing relationship between UPS and law enforcement ...

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