Amended April 25, 2017 State of Iowa v. Christopher D. Brown

                  IN THE SUPREME COURT OF IOWA
                             No. 15–1576

                        Filed February 10, 2017

                        Amended April 25, 2017

STATE OF IOWA,

      Appellee,

vs.

CHRISTOPHER D. BROWN,

      Appellant.



      Appeal from the Iowa District Court for Scott County, Henry W.

Latham II (suppression hearing), John D. Telleen (suppression hearing),

Mary E. Howes (bench trial and sentencing), and Mark D. Cleve (bench

trial), Judges.



      A defendant appeals the district court’s denial of two motions to

suppress based on searches conducted by his stepfather, an off-duty

police officer. DISTRICT COURT JUDGMENTS AFFIRMED.



      Lauren M. Phelps, Davenport, for appellant.



      Thomas J. Miller, Attorney General, Genevieve Reinkoester,

Assistant Attorney General, Michael J. Walton, County Attorney, and

Kelly Cunningham, Assistant County Attorney, for appellee.
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ZAGER, Justice.

      The defendant appeals from the denial of two separate motions to

suppress evidence based on his stepfather’s actions as an off-duty police

officer. In each case, the defendant’s stepfather conducted a search and

seized firearms and drugs. Defendant’s stepfather is a police officer with

the Davenport Police Department. However, each search was conducted

while the stepfather was off duty. The defendant alleges the searches are

unconstitutional because his stepfather was not acting in a parental

capacity, but rather conducted the searches while exercising state action

as a law enforcement official. The district court denied each motion to

suppress, finding there was no state action. After waiving his right to a

jury trial, trials were held to the court.   After the bench trials, the

defendant was found guilty of the charges and sentenced accordingly.

The defendant now appeals the district court denials of the motions to

suppress. For the reasons stated below, we hold the stepfather was not

engaged in state action at the time of either search and no constitutional

claims are implicated. We affirm the judgments of the district court.

      I. Background Facts and Proceedings.

      The defendant, Christopher D. Brown, appeals his convictions and

sentences following two bench trials.     He challenges the underlying

searches in each of the two cases, arguing that his stepfather’s

employment as a police officer, and other attendant facts, converted each

search into state action.

      A. The First Search—Case Number FECR368292. On February

5, 2015, Brown’s mother, Lynne Kilburg, received a phone call from his

aunt, Cindy Keimig. Cindy informed Lynne that she believed Brown was

in possession of her husband’s gun.     Brown had visited her son, his
                                      3

cousin Marcus, at the Keimigs’ home the night before, and Marcus

believed Brown took the gun when he left.

        Brown spent the night with Marcus at the Keimig home on

February 4.     Marcus always kept one of his father’s guns under the

mattress in his bedroom.      When Marcus checked for the gun on the

morning of February 5, he discovered it was gone. He searched the room

for the gun and found it under the cushion where Brown was sitting.

Marcus told Brown that hiding the gun “was not cool” and Brown should

have told him where the gun was while he was looking.          Marcus and

Brown left the Keimig residence and got into Marcus’ car to leave. Brown

said he forgot his wallet and returned to the house before Marcus

brought him home.

        After dropping Brown off, Marcus left for training with the National

Guard. When he returned home at the end of the day, he realized the

gun was missing again. He informed his parents the gun was missing

and told them he believed Brown took it. Cindy then called Lynne to tell

her that Marcus believed Brown took the gun and that she and Marcus

were going to drive to Brown’s workplace to ask him about it. Upon their

arrival at Brown’s workplace, Cindy and Marcus saw Brown driving

away.

        After Lynne talked to Cindy, she called Brown’s father, Richard

Brown.     Lynne was concerned because Brown was on probation and

suffering from depression. Lynne was worried that Brown had taken the

gun because he was suicidal. Lynne asked Richard if he had a key to

Brown’s apartment so she could let herself in and look for the gun, but

Richard did not.

        Lynne then called Brent Kilburg, her husband and Brown’s

stepfather. Lynne and Brent have been married since Brown was three
                                   4

years old, and Lynne, Brent, and Richard co-parented Brown. Brent is a

police officer for the Davenport Police Department. Lynne told Brent that

the Keimigs believed Brown had taken a gun, that she was concerned

about Brown due to his probation and depression, and that she and the

Keimigs were going to Brown’s apartment to speak with him and try to

obtain the gun. Brent was off duty at the time of Lynne’s phone call and

decided to accompany everyone to Brown’s apartment.          He did not

contact law enforcement at this time because he believed it was a family

matter.

      When the family arrived at Brown’s apartment, they initially waited

outside while they discussed what their course of action should be. They

were concerned about Brown’s mental state and whether he would harm

himself with the gun.   While they were standing outside and trying to

decide how to approach Brown, they saw him leave the parking lot of his

apartment building and drive down the street where they were standing.

Lynne began signaling for Brown to stop, and Brent moved to the street

to stand in front of Brown’s car. Brent motioned for Brown to pull over,

and both he and Lynne approached the passenger side of Brown’s car.

      Brent asked Brown to turn off his car and pull the key out of the

ignition. Brent and Lynne both asked Brown about the missing gun, but

Brown denied having possession of it.      Both Lynne and Brent then

observed a silver glint at Brown’s hip, which they believed was the

missing gun. Brent opened Brown’s passenger side door, asked Brown

to put his hands on his steering wheel, and then checked Brown’s person

and pockets. Brent found two knives on Brown’s person and Brown’s

cell phone. Brent saw that Brown had a backpack in the car, and he

moved the backpack closer to him in case it contained the gun.
                                     5

      Lynne and Brent then asked Brown to get out of the car, and he

complied. Lynne again asked Brown about the gun, and he again denied

he had it. Lynne then asked Brent to search Brown to see if he had the

gun, and Brent found the gun in Brown’s waistband.         Dana Keimig,

Brown’s uncle, positively identified the gun as the one he was missing

and put it in his vehicle.

      Brown became upset, and Lynne told him to stay there with the

family instead of getting in his car and leaving. Lynne wanted to see if

she could either civilly commit Brown for depression and suicidal

ideations, or if she could find any services for Brown that could offer an

intervention.     Lynne believed Brown would stay if she retained his

possessions. Lynne took his cell phone and placed it in his backpack.

She also took possession of Brown’s wallet and knives and placed all of

the items in her vehicle.     She and Brown sat in the vehicle together

talking. While they were sitting in the vehicle, Brown’s cell phone rang

repeatedly.     Brown wanted to answer his cell phone and was agitated

when he could not. Lynne ultimately retrieved the backpack and began

to look for the cell phone.    While looking in the backpack for the cell

phone, Lynne discovered a bag that she believed contained marijuana, as

well as drug paraphernalia.

      Because Brown was on probation for a marijuana-related offense,

Lynne informed Brent, Dana, and Marcus about the marijuana she

found in Brown’s backpack. Lynne and Brent called Richard to discuss

what they needed to do, and they mutually agreed they should call law

enforcement.      Brent testified that once the marijuana was found, he

knew he needed to inform law enforcement, step back, and let the other

officers handle the matter.
                                    6

      Brent called two of his supervisors, Sergeants Lindbom and

Jensen.    After the phone call, he remained uninvolved other than

providing a statement to Sergeant Jensen. At approximately 4:29 p.m.,

Officer Stegall arrived at the apartment building. Brent informed Officer

Stegall that Brown was his stepson, he found a gun on Brown’s person,

and his wife found marijuana in Brown’s backpack. Officer Stegall then

conducted a pat down on Brown to determine whether he had any more

weapons and placed him in the backseat of his squad car. Officer Stegall

read Brown his Miranda rights at approximately 4:39 p.m. After reading

Brown his Miranda rights, Brown consented to an interview with Officer

Stegall.

      During the interview, Brown told Officer Stegall he had previously

been arrested for possession with intent to deliver marijuana, and he was

currently on probation. Brown told Officer Stegall his family, including

his stepfather, was at his apartment to retrieve an airsoft pistol that

belonged to his uncle. He said his family found the airsoft pistol and

“other stuff” in his car, but did not elaborate on what the “other stuff”

was. The interview ended, and Officer Stegall remained with Brown.

      At the time of the original contact with law enforcement, Sergeant

Jensen spoke on the phone with Brent.       Brent advised him that the

situation was “a long story” and it would be easier for Sergeant Jensen to

just respond to the apartment. Upon his arrival, Sergeant Jensen spoke

with Brent, Lynne, Dana, and Marcus. Brent recounted the events of the

day and informed Sergeant Jensen that Brown was his stepson and was

on probation after receiving a deferred judgment for a charge of

possession with intent to deliver marijuana. Sergeant Jensen asked the

family where the gun and backpack were, and Brent retrieved the items
                                        7

and turned them over to Sergeant Jensen. Sergeant Jensen placed the

items in Officer Stegall’s squad car.

      Officer Stegall informed Sergeant Jensen that Brown was given his

Miranda rights and Brown had consented to a brief interview. Sergeant

Jensen told Brown his Miranda rights were still in effect and asked him if

he would consent to another interview.           Brown consented.        Sergeant

Jensen asked Brown if there was anything illegal in his apartment or

backpack,   and      Brown   answered       affirmatively   to   both   questions.

Sergeant Jensen asked for consent to search Brown’s apartment and

vehicle, to which Brown agreed. Officer Stegall filled out the consent to

search form for both the apartment and the vehicle. Brown signed the

consent forms and told the officers he wanted to be present during both

searches.   Lieutenant Biggs and Sergeant Jensen searched Brown’s

vehicle first and did not locate anything of a criminal nature. Lieutenant

Biggs and Sergeant Jensen then searched Brown’s apartment, where

they discovered drug paraphernalia.

      On February 25, Brown was charged with possession of a

controlled substance in violation of Iowa Code section 124.401(1)(d)

(2013), failure to affix drug tax stamp in violation of Iowa Code section

453B.12, and felon in possession of a firearm in violation of Iowa Code

section 724.26(1).

      B. The Second Search—Case Number FECR368787.                       After his

initial arrest, Brown moved into Lynne and Brent’s home. Brown was

not working during this time, had no money, and had nowhere else to

live. Within a relatively short period, Lynne began to suspect Brown was

using and selling marijuana again.

      The morning of February 21, one of Lynne and Brent’s younger

children woke Lynne up to ask if he could play the new Xbox gaming
                                    8

console that was in the living room. Lynne was surprised because the

family did not own an Xbox and had not purchased one. Her son told

her it belonged to Brown.     Because Brown was not working, Lynne

became concerned that Brown had used money obtained from selling

drugs to buy the gaming console. She decided to search Brown’s car,

which was parked in her driveway, to confirm her suspicions that Brown

was selling drugs again. She searched the interior of Brown’s car but did

not find anything. She wanted to obtain access to the trunk of the car

but did not have the keys. Lynne went back inside the house.

      After Brown left his bedroom to use the bathroom, Lynne entered

his bedroom to search for the car keys. She could not find his keys, but

did look through his cell phone for evidence of drug selling. Based on the

messages she found on his cell phone, Lynne concluded Brown was

selling drugs again and decided that she was going to tell him he needed

to leave the house.

      After Brent woke up, Lynne briefly informed him about the text

messages she found on Brown’s cell phone and that she intended to tell

Brown to leave.     Lynne confronted Brown and told him he needed to

leave. While he was packing, Lynne began arguing with him because she

believed he was stalling. Lynne called the sheriff’s office to ask them to

come over and make Brown leave. Once she realized Brown was going to

finish packing and leave, she called the sheriff’s office again and asked

them not to come.

      While Lynne and Brown were arguing, Brent left the house to go

search Brown’s car.      Brent was concerned about Brown’s behavior

because he did not want him to make a decision that would “ruin his life

[or] ruin somebody else’s life.” During the search, Brent was able to fold

down the backseat in Brown’s car to access the trunk.       In the trunk,
                                    9

Brent found a shoebox and a cell phone box, in addition to other items.

He opened both boxes and found a loaded 9mm gun in the shoebox and

marijuana in the cell phone box. Brent placed the gun and marijuana in

his coat pocket. At this time, Brown left the house. Brent stepped back

from the car and allowed Brown to drive away.

      Brent returned to the house and told Lynne what he found in

Brown’s car. Brent said they needed to call the sheriff’s office, and Lynne

agreed. They called the sheriff’s office and asked that they send someone

to their house on a nonemergency call.      When Deputy Skalla arrived,

Brent and Lynne described what happened, and Brent turned over the

gun and marijuana he found in Brown’s vehicle.        Lynne had retained

Brown’s cell phone after she discovered the text messages and also

turned the cell phone over to Deputy Skalla.

      Deputy Skalla obtained a search warrant for the cell phone based

on the gun and marijuana found in Brown’s vehicle, the new Xbox,

Lynne’s description of the text messages, and Brown’s probation status.

An arrest warrant was issued on March 20, and Brown was arrested the

same day. Brown was charged with possession of a controlled substance

in violation of Iowa Code section 124.401(1)(d) and felon in possession of

a firearm in violation of Iowa Code section 724.26(1).           The trial

information added conspiracy to commit a nonforcible felony in violation

of Iowa Code sections 706.1(1)(a) or (b), 706.3, and 703.1.

      C. Proceedings. On April 17, Brown filed a motion to suppress

the evidence discovered as a result of his stepfather’s first search, which

the district court denied. Brown waived his right to a jury trial, and the

court held a bench trial on May 26. Brown stipulated to a bench trial on
                                          10

the minutes of testimony and the State’s evidence.                 The district court

found Brown guilty of all three counts. 1

       On May 22, Brown filed a motion to suppress the evidence

discovered as a result of his stepfather’s second search, which the

district court denied. The district court held a bench trial and on July

20 found Brown guilty of possession with intent to deliver marijuana and

felon in possession of a firearm.

       On August 20, the district court sentenced Brown to five years in

prison with credit for time served on each of the three counts in case

FECR368292. Each of the three sentences was to run concurrently. The

district court also sentenced him to five years in prison with credit for

time served for the two counts in case FECR368787. The sentences were

to run concurrently.        The sentence in FECR368787 was also to run

concurrently with the sentence in FECR368292.                      Brown appealed,

arguing the district court erred in denying his motions to suppress in

both cases. We retained the appeal.

       II. Standard of Review.

       When a defendant challenges a district court’s denial of a motion

to   suppress     based    upon     the   deprivation     of   a   state   or   federal

constitutional right, our standard of review is de novo.               In re Property

Seized from Pardee, 872 N.W.2d 384, 390 (Iowa 2015). When we review a

record de novo, we make “an independent evaluation of the totality of the

circumstances as shown by the entire record.” Id. (quoting State v. Tyler,

867 N.W.2d 136, 152 (Iowa 2015)).              “We give deference to the district

court’s fact findings due to its opportunity to assess the credibility of the

        1Brown was found guilty of possession with intent to deliver a schedule I

controlled substance (marijuana) in violation of Iowa Code section 124.401(1)(d) (2013),
failure to affix drug tax stamp in violation of Iowa Code section 453B.12, and felon in
possession of a firearm in violation of Iowa Code section 724.26(1).
                                     11

witnesses, but we are not bound by those findings.” Id. (quoting Tyler,

867 N.W.2d at 153).

      III. Analysis.

      Brown argues the district court erred in denying his motions to

suppress in both cases because the searches conducted by his stepfather

violated both the United States Constitution and the Iowa Constitution.

The Fourth Amendment 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.

U.S. Const. amend. IV. Article I, section 8 of the Iowa Constitution is the

“nearly identical [provision] to the Fourth Amendment to the United

States Constitution.”      State v. Short, 851 N.W.2d 474, 500–01 (Iowa

2014) (discussing the differences in punctuation between the Iowa

Constitution and the Federal Constitution and how members of this

court have interpreted said differences). It provides,

      The right of the people to be secure in their persons, houses,
      papers and effects, against unreasonable seizures and
      searches shall not be violated; and no warrant shall issue
      but on probable cause, supported by oath or affirmation,
      particularly describing the place to be searched, and the
      persons and things to be seized.

Iowa Const. art. I, § 8.

      Although the provisions are similar and “were generally designed

with the same scope, import, and purpose, we jealously protect this

court’s authority to follow an independent approach under our state

constitution.” State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). While

Brown does not request that we apply a different standard to analyze the

Iowa Constitution, “even where a party has not advanced a different
                                    12

standard for interpreting a state constitutional provision, we may apply

the standard more stringently than federal caselaw.”      State v. Kooima,

833 N.W.2d 202, 206 (Iowa 2013). However, “our independent authority

to construe the Iowa Constitution does not mean that we generally refuse

to follow the United States Supreme Court decisions.” Short, 851 N.W.2d

at 490.    Instead, what we require “is not mere identification of a

potentially analogous federal precedent, but exercise of our best,

independent judgment of the proper parameters of state constitutional

commands.” Id. When both federal and state constitutional claims are

raised, we have the discretion to consider either claim first or to consider

both claims simultaneously. State v. Ochoa, 792 N.W.2d 260, 267 (Iowa

2010).

      The Fourth Amendment protects persons from unreasonable

intrusions by the government upon their legitimate expectation of

privacy.   State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004).            This

protection includes unreasonable intrusions made by law enforcement

officers. Id. However, the Fourth Amendment only applies to searches

performed by the government, and not the actions of private individuals.

See State v. Campbell, 714 N.W.2d 622, 631 (Iowa 2006); see also State v.

Flynn, 360 N.W.2d 762, 764–65 (Iowa 1985).         Brown argues that the

nature of his stepfather’s employment as a law enforcement officer

prevented him from acting as a private citizen when he conducted the

searches. Brown argues that his stepfather’s searches were government

action, and therefore, he was required to abide by the search and seizure

provisions of the Fourth Amendment and article I, section 8 of the Iowa

Constitution.

      We have never addressed the specific question raised in this

appeal. However, other jurisdictions that have considered the issue have
                                       13

rejected the idea that an off-duty law enforcement officer can never

perform a search as a private individual.         Instead, these jurisdictions

apply one of two tests to determine the capacity in which the officer was

acting at the time of the search. See, e.g., United States v. Cintron, 482

F. App’x 353, 356 (10th Cir. 2012) (“Determining when an individual is

acting as a private citizen or a government actor can be difficult,

including when the individual is an off-duty police officer working as a

security guard.”); United States v. Ginglen, 467 F.3d 1071, 1075 (7th Cir.

2006) (applying a test to determine whether an off-duty police officer

acted as a private party or government agent); State v. Walker, 459

N.W.2d 527, 532 (Neb. 1990) (“We reject the notion that solely because

one is a police officer, the officer acts in that capacity at all times.”); State

v. Santiago, 217 P.3d 89, 95–96 (N.M. 2009) (applying a two-step test to

analyze whether police officers were acting as private actors or on behalf

of the government); State v. Young, 12 A.3d 510, 514 (Vt. 2010) (“Any

determination of whether an off-duty police officer is acting as a private

person when making a search or seizure must be based on all the

circumstances of the case.”). We agree, and reject the idea that an off-

duty police officer is acting as a government agent in every situation.

      A. Test One—Instrument or Agent of the Government. Under

the first test, courts ask whether an individual was acting as a private

citizen or as an “instrument or agent” of the government, and the test is

not limited solely to analyzing the actions of off-duty police officers. See

Ginglen, 467 F.3d at 1074. The key question is “whether the government

knew of and acquiesced in the intrusive conduct and whether the private

party’s purpose in conducting the search was to assist law enforcement

agents or to further its own ends.” Id. (quoting United States v. Shahid,

117 F.3d 322, 325 (7th Cir. 1997)). Courts also consider “whether the
                                     14

private actor acted at the request of the government and whether the

government offered the private actor a reward.” Id. The courts look to

the individual’s “primary objective” to determine whether they acted to

assist law enforcement or to further their own ends.       See, e.g., id. at

1075.

        In Ginglen, the court found that three brothers who searched their

father’s home for evidence of a robbery were acting in their own private

capacity and not as agents of the government. Id. at 1073, 1075. One of

the brothers was an officer for the Peoria Police Department. Id. at 1073.

After reading an article about a serial bank robber, he called his brothers

who agreed with him that the description of the perpetrator sounded like

their father.    Id.   The brothers decided to go to their father’s home,

confront him with the evidence, and try to convince him to turn himself

in.   Id.   The brothers wanted to stop the robberies from occurring for

both their father’s safety and the safety of the community, so they agreed

they would take him to the police station by force if he did not agree to

turn himself in. Id.

        While they were at their father’s house, the brothers found clothing

that matched the clothing worn by the robber. Id. They called the chief

of police and arranged to meet him at the house of one of the brothers.

Id. Based on the observations of the three brothers, the police were able

to obtain a search warrant. Id. The court held that the brothers were

acting as concerned sons who wanted to prevent their father from

engaging in destructive behavior. Id. at 1075. The court found a few

factors particularly relevant in making this determination: the brothers

did not notify any police before going to their father’s house, they did not

make the decision to search the home for any reward, and they did not

collect any evidence. Id. The court held that their primary objective was
                                      15

not to assist law enforcement, but rather to protect the community and

their father from future harm. Id.

        In contrast, we considered whether off-duty police officers were

acting as government agents in State v. Carter, 267 N.W.2d 385 (Iowa

1978).     In that case, Veterans Auditorium employed approximately

twenty-five off-duty Des Moines police officers to serve as security guards

during events. Id. at 386. Although the officers were off-duty, they wore

uniforms and were armed while they worked at the auditorium. Id. We

found that the officers were acting as government agents for a number of

reasons.    Id.    First, while they were working at the auditorium, the

officers were uniformed and carrying weapons. Id. Second, the officers

were able to make arrests and did in fact arrest the defendant.             Id.

Finally, the arrangement to have the off-duty officers work events was

made between the auditorium and the Des Moines Police Department.

Id. at 386–87.

        B. Test Two—Actions of Off-Duty Police Officers. The second

test that some courts utilize to determine whether an off-duty police

officer acted as a private citizen or in an official capacity is a two-part

test:

        First, we must examine the capacity in which the off-duty
        police officer was functioning when the officer initially
        confronted the situation and second, we must examine the
        manner in which he or she conducted himself or herself from
        that point forward.

United States v. Couch, 378 F. Supp. 2d 50, 55 (N.D.N.Y. 2005) (quoting

State v. Andrews, 637 A.2d 787, 791 (Conn. App. Ct. 1994)). Unlike the

first test, this test is restricted solely to analyzing the actions of off-duty

police officers.   Under this test, when courts consider the manner in

which the off-duty officer conducted himself or herself, the question is
                                      16

whether the officer’s actions fell “outside [the] sphere of legitimate private

action.” Armstrong v. State, 46 So. 3d 589, 594 (Fla. Dist. Ct. App. 2010)

(quoting Commonwealth v. Leone, 435 N.E.2d 1036, 1041 (Mass. 1982)).

In making this determination, the crucial question is whether the search

was motivated by a legitimate private interest or solely by a governmental

purpose.     Id.   While the first test can be applied to any citizen, this

second test is applied specifically to analyze the actions of off-duty police

officers and thus is more applicable to the searches involved here. We

now adopt this test to address the question of whether an off-duty police

officer acted as a private citizen or in his or her official capacity while

conducting a search.

      There are a number of cases in which courts have held that an off-

duty officer was not acting in his or her capacity as a law enforcement

official, but rather was acting as a private citizen. In United States v.

Abney, the court held that an off-duty police officer, Hernandez, working

as a private security guard was not acting in his governmental capacity

when he questioned a customer about counterfeit bills and asked the

customer to empty his pockets. 2003 WL 22047842, at *5 (S.D.N.Y. Aug.

29, 2003).     In his role as a security guard, Hernandez’s purpose in

questioning the customer and asking him to turn out his pockets was for

the purpose of his employment as a security guard—he wanted to ensure

counterfeit money was not used in the store. Id.

      In Walker, the court held an off-duty officer who was also a

landlord did not act in his law enforcement capacity when he entered a

tenant’s apartment to check on repairs and observed drug paraphernalia.

459 N.W2d at 532. The landlord, Davitt, gave the tenant notice that he

was going to enter the unit at 5:30. Id. at 529. While he did not give a

specific reason for the visit, Davitt testified that he intended to check on
                                       17

the status of repairs and to speak with the tenant about being late in

paying utilities, rent, and the security deposit.          Id. at 532.   Although

Davitt was informed of suspected drug use prior to entering the unit, the

only room he entered was the room where repairs were supposed to be

performed.       Id. at 532–33.   Once he discovered drug paraphernalia in

that room, Davitt asked the tenants if he could use their telephone and

called the narcotics unit of the Omaha Police Division. Id. at 530. He

told the tenants that police officers were on their way and advised them

to wait in the living room. Id. Once he found the drug paraphernalia,

Davitt left the room, informed the police of what he found, and waited for

the officers to arrive. Id. at 533.

      In People v. Wachter, an off-duty sheriff, Stephens, went fishing

with his friend on the friend’s property.     130 Cal. Rptr. 279, 281 (Ct.

App. 1976). After they finished fishing, the friend suggested they visit an

acquaintance’s property. Id. They arrived at the property and found the

acquaintance was not home, but Stephens’ friend continued to show him

around.    Id.     The two men observed a few facilities on the property,

including a covered garden. Id. While they were in the garden, Stephens

noticed a green water hose and followed it down a slope to a cultivated

garden plot.      Id.   At this plot, Stephens saw what he believed to be

marijuana plants. Id. Stephens described the plants to his friend, and

they left to return to the friend’s house.     Id.   After Stephens returned

home, he called the deputy sheriff in charge of narcotics investigations

and reported what he saw at the property.            Id.    The court held that

Stephens had acted as a private citizen when he entered the property

with his friend and discovered the marijuana. Id. at 286–87.

      In State v. Pearson, the defendant left her vehicle at a garage for

servicing. 514 P.2d 884, 884–85 (Or. Ct. App. 1973). The mechanic at the
                                        18

garage, Barrick, was also a reserve police officer.           Id. at 885.     When

Barrick first opened the door to the vehicle, he immediately smelled a

strong odor of marijuana.         Id.   He looked at the car’s ashtray and

observed several marijuana roach butts, which he recognized because of

his training as a reserve officer. Id. Barrick called the police station to

report his findings.    Id.    Once the police officer arrived at the garage,

Barrick took the officer to the car, removed the car’s ash tray, and

showed the officer the tray and its contents. Id. The court found that

Barrick was not acting in his official capacity when he discovered the

marijuana in the vehicle. Id. at 887.

      In Andrews, an auxiliary police officer, Sampson, was driving his

personal vehicle home after he finished his shift at the police

department. 637 A.2d at 789. Although he was driving his own vehicle,

Sampson was still dressed in his uniform.            Id.     While driving home,

Sampson    observed      the    defendant,   Andrews,        driving   his   vehicle

erratically. Id. Sampson saw Andrews run a stop sign, cross over the

centerline of the road, drive on the opposite side of the road, and strike

the curb with his vehicle a number of times. Id. Sampson called the

police department from his personal cell phone to report the erratic

driving, and continued to follow Andrews.              Id.     Because Andrews

continued to drive dangerously, Sampson flashed his headlights at the

car and turned on the blue flashing light he had in his vehicle from his

work as a volunteer firefighter. Id. Andrews pulled over, and Sampson

turned his lights off and approached the vehicle. Id. He asked Andrews

to wait for the police to arrive, but did not ask any questions or ask for

any information.       Id.     Andrews handed Sampson his license and

registration, but Sampson gave the items back and returned to his own

vehicle while they waited for the police.      Id.    Once the police arrived,
                                       19

Sampson explained the driving he observed. Id. The officers approached

Andrews’s vehicle, and they smelled alcohol on Andrews’s breath and

observed slurred speech.      Id.   They asked Andrews to perform field

sobriety tests, which he failed. Id.

      The court found that Sampson was acting in his private capacity

when he first observed Andrews’s erratic driving. Id. at 791. Sampson

was off duty, outside his normal jurisdiction, and driving his personal

vehicle. Id. The court also found that Sampson conducted himself as a

private citizen and not as a police officer after his observation of erratic

driving. Id. Sampson called the police and notified them of the location

of the dangerous driving. Id. It was only after Andrews was unable to

remain on the traveled portion of the highway that Sampson flashed his

lights in an attempt to get the vehicle to pull over. Id. Although Andrews

provided them, Sampson never requested the license and registration,

nor did he keep them after Andrews provided the documents.               Id.

Sampson did not administer any sobriety tests or take Andrews into

custody. Id. The court ultimately concluded that Sampson acted as a

private citizen, and there was no government action. Id.

      Under this test, we hold that Brent was not acting in his public

capacity as a law enforcement officer while he was conducting either of

the searches.   Instead, Brent was acting in his private capacity as a

stepfather. In the first search, Brent and Lynne stopped Brown’s vehicle

because they were concerned for him, as his parents. Both Brent and

Lynne attempted to stop Brown’s car as he drove down the street toward

their family. While Brent has certain responses due to his training as a

law enforcement officer, when Brent jumped in front of Brown’s car and

yelled at him to stop, he was not utilizing any specialized training he

received as an officer. Rather, jumping in front of Brown’s moving car
                                   20

and yelling at him to stop was a parent’s response to an emotionally

charged situation. Both Brent and Lynne, in addition to the other family

members, were worried that Brown had taken his uncle’s gun because he

was depressed. They were concerned about his mental state and that he

would engage in self-harm or perhaps harm to others.       Brent’s initial

search of Brown and his vehicle was to find the gun and return it to

Brown’s uncle. While sitting in her vehicle with Brown, Lynne was trying

to decide the family’s next options: whether there were any services or

interventions available for Brown due to his mental health. After several

interruptions when Brown’s cell phone was ringing, Lynne opened the

backpack and discovered the marijuana. It was only after this discovery

that Brent, Lynne, and Richard mutually decided they needed to call law

enforcement. After calling his supervisors to explain the situation, Brent

ceased any involvement. He gave statements to the officers when they

arrived, but he did not conduct any interview with Brown or assist the

law enforcement officers in their searches of Brown’s vehicle or

apartment.

      During the second search, Brent was again acting in his capacity

as a concerned parent rather than as a government actor. Brown was

living with Brent and Lynne because they were concerned about his

mental state, he was unemployed, and he had nowhere else to go. After

living with them for only a short time, they became concerned that he

was using or selling drugs.     After Lynne told Brent about the text

messages she found on Brown’s cell phone that made her believe he was

selling marijuana, Brent went outside to search Brown’s vehicle to

confirm or deny their suspicions. Brent was concerned that Brown was

making decisions that would “ruin his life.” While Brent was searching

the vehicle, he was not aware that Lynne had called the sheriff because
                                    21

she believed Brown was stalling.     Further, once Lynne realized Brown

was packing and intended to leave, she called the sheriff again and asked

them not to come. Once Brent found a gun and marijuana in Brown’s

car, Brent did not detain Brown.         While he did retain the gun and

marijuana, he stepped back from Brown’s vehicle and let him leave.

After Brown left, he went back inside to consult with Lynne about what

he had found and what they needed to do. They mutually decided they

had to contact law enforcement and called the nonemergency line for the

sheriff’s office. Once the officer arrived, Brent and Lynne gave the officer

their narrative of the events and turned over the gun and marijuana.

Again, Brent did not assist in the request for a search warrant or the

resulting search.

      We conclude that Brent was not acting in his capacity as a law

enforcement officer during either of the searches.          When initially

confronted with the situations, Brent was at all times acting as a

concerned parent and not as a law enforcement officer. His subsequent

actions also do not indicate that he was acting as anything other than a

concerned parent. Under this test, the crucial question is whether the

search was motivated by a legitimate private interest or solely by a

governmental purpose.

      There is no doubt that both of the searches in this case were

purely private in nature. In each search, Brent confronted the situation

in his capacity as a private citizen—a stepparent—and his conduct

moving forward indicated that he continued to act in his role as a

concerned parent. See, e.g., Andrews, 637 A.2d at 790–91. Neither the

Fourth Amendment nor article I, section 8 of the Iowa Constitution

applies to searches performed by private individuals. See Campbell, 714
                                   22

N.W.2d at 632; see also Flynn, 360 N.W.2d at 764–65. As such, neither

the Federal nor the Iowa Constitution was violated.

      IV. Conclusion.

      For the above reasons, we hold that the defendant’s off-duty police

officer stepfather was acting in his private capacity, and not in his

governmental capacity as a law enforcement officer, when he conducted

the searches of the defendant’s person and vehicle.        We therefore

conclude that the district court was correct in denying each of the

motions to suppress filed in these cases and affirm the judgments.

   DISTRICT COURT JUDGMENTS AFFIRMED.