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United States v. McGill

March 16, 2010


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Denying Defendant's Motion to Suppress

Defendant moves the Court for an order suppressing evidence which Carnival staff collected on board the Elation, including any statements he made to Carnival staff after they took him into custody. Defendant argues Carnival staff acted jointly with the government, at the government's behest, and for the government's benefit, in an area traditionally reserved for law enforcement. Defendant concedes that under the circumstances, Carnival staff could detain him, enter his cabin to determine Mrs. McGill's well-being, and gather evidence which was in plain sight. However, defendant argues Carnival staff needed to obtain a warrant before they searched his cabin or backpack. Defendant also argues the law required Carnival staff to advise him of his Miranda rights before questioning him.

The parties initially briefed the suppression issue and presented oral arguments during a hearing on September 28, 2009. The Court then held an evidentiary hearing on January 26, 2010, regarding the extent of the government's direction and participation in Carnival's investigation of Mrs. McGill's death on board the Elation. The parties submitted further briefing after the evidentiary hearing, and the Court heard further oral argument regarding the government actor issue on February 19, 2010. Having considered all of the parties' arguments, for the reasons explained below, the Court DENIES defendant's motion to suppress.

Legal Standard

The Fourth Amendment generally does not protect against unreasonable intrusions by private individuals. United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994) (citing Walter v. United States, 447 U.S. 649 (1980)). The Fourth Amendment does, however, prohibit private individuals, who are acting as instruments or agents of the government, from unreasonably intruding upon another person's privacy rights. Id. (citing Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971)).

"The government must be involved either directly as a participant or indirectly as an encourager of the private citizen's actions before [courts] will deem the citizen to be an instrument of the state." United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981). In order to determine whether a private individual is acting as a governmental instrument or agent for Fourth Amendment purposes, the Ninth Circuit has articulated the following two-part inquiry:

(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.

Reed, 15 F. 3d at 931; see also United States v. Attson, 900 F.2d 1427, 1432 (9th Cir. 1990) (applying standard to determine whether Fourth Amendment was implicated by non-law enforcement governmental party's conduct); Walther, 652 F.2d at 792 (analysis of whether private individual was acting as "instrument or agent" of the government requires inquiry regarding "(1) the government's knowledge and acquiescence, and (2) the intent of the party performing the search.")*fn1 . The burden is upon the defendant to demonstrate the government's involvement was sufficient to subject Carnival employees' actions to constitutional scrutiny. United States v. Gumerlock, 590 F.2d 794, 799 (9th Cir. 1979).

The Ninth Circuit has applied a similar standard to determine whether a private person was acting as an arm of the government when he elicited self-incriminating statements from an individual in custody. The critical question is "whether the person with whom the defendant speaks is involved 'on behalf of the state'." United States v. Roston, 986 F.2d 1287, 1292 (9th Cir. 1993) (quoting Jones v. Cardwell, 686 F.2d 754, 756 (9th Cir. 1982)); see also United States v. Pace, 833 F.2d 1307, 1313 (9th Cir. 1987) (finding that a jailhouse informant was not a government actor because there was no pre-existing agreement between the informant and the FBI and there was no quid pro quo underlying the informant's relationship with the government).


Defendant points to several categories of evidence he believes shows that Carnival staff acted as an "instrument or agent" of the government including (1) provisions of the Code of Federal Regulations which require passenger vessel operators to report any serious incident onboard a vessel and also require security officers, security plans, and security programs; (2) an October 24, 2008 agreement between the major cruise lines and the government regarding the procedures for reporting serious violations of U.S. laws onboard a cruise ship; (3) training provided to cruise ship security personnel by the FBI, Customs and Border Protection ("CBP"), U.S. Coast Guard ("USCG"), and Immigration and Customs Enforcement ("ICE"); (4) Carnival's own "Corporate Security Standards"; and (5) Carnival's cooperation and coordination with the FBI in the investigation and prosecution of this case.

1. CFRs

Defendant argues the following provisions of the Code of Federal Regulations ("CFRs") required Carnival staff to engage in law enforcement activity:

-- 46 C.F.R. ยงยง 4.03-2, 4.03-4, 4.05.1, and 4.05-10 (requiring passenger vessel operators to immediately file a report with the U.S. Coast Guard ...

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