Page 33 - TPA Journal March April 2025

Government lacked specific knowledge that the court noted that the agent “had no reason to pre-
informant intended a search. The parties disagree dict that Garza would enter the ranch, and he
as to whether we should apply the two factors clearly did not request that Garza do so.” In other
from Miller or the three factors from Bazan. words, the agent “had no knowledge of what
Caselaw from our circuit is also somewhat incon- Garza would do or when he would act,” which
sistent on this question; we have applied both tests was sufficient to find a lack of Government
in the past but have not formally adopted one to knowledge or acquiescence in Garza’s search.
the exclusion of the other. In the instant case, the district court correctly
We need not resolve this disagreement because we found that the Government had no prior knowl-
affirm the judgment of the district court under edge of and no participatory role in Patel’s search.
either of the tests suggested by the parties. We thus The agents here thus had even less knowledge and
do not decide here whether the three factors in acquiescence than the agent in Bazan, who sug-
Bazan are a test separate from the two-factor gested generally to the neighbor that he conduct
Miller test; similarly, we decline to opine on surveillance. By contrast, the district court found
which of these two suggested approaches should that “all agents credibly testified that they did not
control in future cases in this circuit. Under either know Mr. Patel would open the door,” a finding
of the suggested approaches, the district court did supported by the testimony of agents that they
not err in finding that Patel was acting as a private were surprised to see Patel opening the door.
party, and not as an agent of the state, when he Additionally, the record shows that the agent told
opened the hotel room door. There was thus no Patel not to open the door until the agent had heard
search or seizure by Government officials that from his supervisor. This testimony can also be
implicates the Fourth Amendment. fairly read as indicating a lack of Government
We initially consider the facts under the two-fac- acquiescence in the search. The district court thus
tor Miller test. The first factor requires us to con- correctly found that the Government did not affir-
sider whether the Government knew or acquiesced matively encourage Patel to open the door and
in the intrusive conduct. Such knowledge or thus did not acquiesce to Patel’s search. These
acquiescence arises when the Government is findings are supported by the record and, given
either a direct participant or indirect encourager. that the district court was in the best position to
The district court did not identify, and the record evaluate the credibility and context of witness
does not show, any evidence suggesting conduct statements, are not clearly erroneous. The
by the Government that would support a finding Government thus did not have the necessary
of direct Government participation. We must thus knowledge or acquiescence in the instant case for
consider whether the Government indirectly this search to implicate the Fourth Amendment.
encouraged the search. The district court found The next factor under Miller is whether the private
that the Government did not. We agree. party intended to assist law enforcement efforts or
Bazan’s analysis of this first Miller factor is to further his own ends. Mixed motives—where a
instructive. In Bazan, Garza (a private party) private party has both a personal motive and an
entered and searched Bazan’s property. Before he intent to aid the Government—do not necessarily
did so, Garza had twice spoken to the Drug compel a finding of Government involvement in a
Enforcement Administration (“DEA”) about sus- search. The district court found that Patel was
picious activity on the premises, previously acted motivated at least partly by a desire to help him-
as a police informant, previously worked as a self. We agree.
deputy sheriff, and was asked by a DEA agent In Bazan, the court suggested that Garza (the pri-
generally to “conduct surveillance on [Bazan’s] vate party) had a personal motive for conducting a
ranch.” Despite this degree of prior contact search of the relevant property. The property had
between the DEA agent and Garza, the Bazan once belonged to the family of Garza’s wife, and

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