Page 32 - TPA Journal March April 2025

[Patel’s] room; right. So [he] opened the 115 for court concluded that Patel—despite stating that he
them.” He said that the agents never asked him to wanted to assist the DHS agents—was acting to
open the door but did tell him that they may “go further his own ends as he wanted to prevent dam-
for the warrant. They would go before a judge,” age to his door and wanted to halt illegal activity
which would be “a long process for [the agents] to at his hotel. Thus, the court denied the motion to
open the room and break the door.” Patel also suppress.
cited several reasons for opening the door. Cordova timely appeals, arguing that the district
Principally, he said it was because he “saw that the court erred when it concluded that Patel was not
officers were struggling” and wanted to help them. acting as the Government’s agent when he opened
But he also noted that he was “concerned illegal the door.
activity was taking place” in the room and that he [standard of review discussion omitted.]
did not want the agents to break his door. When The Fourth Amendment’s protection against the
asked whether he told the agents that he planned to unreasonable search of a person’s home also pro-
open the door, Patel ultimately testified that he tects guests staying in a hotel room. Thus, the
had, though he could not recall which agent he Government cannot engage in a warrantless
told. No agent reported being told that Patel was search inside a guest’s hotel room, even with the
going to open the door or asking Patel to open the hotel owner’s permission, unless an exception to
door. And no agent reported encouraging Patel to the warrant requirement applies. Evidence
open the door or compensating Patel for doing so. obtained in a wrongful search or seizure by a pri-
As Patel walked toward the door, an agent fol- vate party, however, does not violate a person’s
lowed Patel at an approximately ten-foot distance rights under the Fourth Amendment. But, of
but was unsure whether Patel intended to open the course, the Government cannot use private indi-
door or just knock on it. No agent attempted to viduals as agents to circumvent Fourth
stop Patel from acting while he walked toward the Amendment protections. Thus, the question is one
door. After Patel opened the door, several agents of agency, or whether, when Patel opened the
observed two individuals, one of whom was hotel door, he “must be regarded as having acted
Cordova, in the room. Upon approaching the as an ‘instrument’ or agent of the state.”
entrance of the door and eventually entering the The parties here dispute the proper test we should
room, they also found pizza, water, soft drinks, apply to decide whether Patel acted as an agent of
and some wet clothes. the state. Cordova argues that this circuit has
Cordova moved to suppress evidence obtained applied the two-factor Miller test in the past to
from this search and argued that Patel was acting determine whether an individual was acting on
as a Government agent when pursuing this war- behalf of the state. In response, the Government
rantless search. In determining whether Patel argues that this circuit has not yet adopted a single
acted as an agent of the Government, the district test. Instead, the Government argues that we
court applied the test set out by the Ninth Circuit should consider multiple factors to determine
in United States v. Miller. That test has two fac- whether a private party acted as an agent of the
tors: “(1) whether the Government knew or acqui- state. One expression of these factors also (con-
esced in the intrusive conduct; and (2) whether the fusingly) comes from Bazan, which, per the
private party intended to assist law enforcement Government’s view, created a separate, three-fac-
efforts or to further his own ends.” As to the first tor test later applied by this circuit. These Bazan
factor, the court concluded that the Government factors require us to find a private party was not a
did not know about or acquiesce in the conduct Government agent when: (1) the Government has
because, per the agents’ testimony, Patel acted offered no form of compensation to an informant;
without warning, and the agents did not expect (2) the Government did not initiate the idea that
Patel to open the door. As to the second factor, the the informant would conduct a search; and (3) the

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