United States v. Cordova-Espinoza ( 2022 )

Case: 21-50518 Document: 00516490662 Page: 1 Date Filed: 09/30/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 30, 2022
No. 21-50518 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Santiago Cordova-Espinoza,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-330-1
Before King, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:
Santiago Cordova-Espinoza appeals the district court’s denial of a mo-
tion to suppress evidence obtained by federal agents after a hotel manager
opened the door to a room containing Cordova. The district court properly
found that this search was a private search. As private searches do not impli-
cate the Fourth Amendment, the district court correctly denied Cordova’s
motion to suppress evidence obtained from the search in question. We there-
fore AFFIRM.
Case: 21-50518 Document: 00516490662 Page: 2 Date Filed: 09/30/2022
No. 21-50518
I.
Santiago Cordova-Espinoza (“Cordova”), a Mexican citizen, entered
the United States without authorization. He was found at the OYO Hotel in
Alpine, Texas, when the hotel’s manager opened the door to Cordova’s
room in front of Department of Homeland Security (“DHS”) agents.
Cordova was charged with illegal reentry under 8 U.S.C. Section 1326. He
then moved to suppress the fruits of the hotel-room search, arguing that the
hotel manager was acting as a Government agent and that the Government
lacked a warrant that authorized the search. The district court held a
suppression hearing and denied the motion. Cordova thereafter pleaded
guilty to illegal reentry under 8 U.S.C. Section 1326, reserving his right to
challenge the district court’s denial of his motion to suppress.
The suppression hearing produced the following facts. Based on
information from other sources reporting multiple undocumented
immigrants gathering at the OYO Hotel, six Border Patrol agents went to the
hotel. Two agents entered the OYO Hotel’s office and spoke to the desk
attendant before ultimately speaking with the hotel’s owner and manager,
Yogesh Patel. An agent explained to Patel why the agents were there and
asked for details regarding Room 115, where it was believed the
undocumented immigrants were residing. This agent did not ask Patel to
open the door to Room 115, but Patel offered regardless. In response, the
agent told Patel “no, [and] that [he] needed to go speak with [his] supervisor
first.” The two agents then left the office and returned to the other agents in
the parking lot outside of Room 115.
Outside Room 115, the agents attempted to knock on the door four or
five times, but the occupants did not open the door. Patel then approached
an agent in the parking lot and asked him if the agents “wanted in the room.”
This agent responded: “Well, we’ve attempted a knock and talk, but nobody
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has answered. Outside of that, there is nothing we can do without a warrant.”
The agent “explained to [Patel] that the occupants, whoever has rented the
room, have a reasonable expectation of privacy from the government.” The
agent was confident he had told Patel that he needed either consent or a
warrant to open the door, but he was unsure whether he clarified that he
needed the occupants’ consent or Patel’s consent. Then, according to the
agent, “in the middle of this conversation . . . [Patel] just walked past me and
basically left me standing there, opened the door [to Room 115], turned
around, and walked away leaving the door wide open exposing . . . two
individuals in the room.”
Patel described his opening the door in some detail. He explained that
he saw “that [the agents] were struggling. So [Patel had] the right to open
[Patel’s] room; right. So [he] opened the 115 for them.” He said that the
agents never asked him to open the door but did tell him that they may “go
for the warrant. They would go before a judge,” which would be “a long
process for [the agents] to open the room and break the door.” Patel also
cited several reasons for opening the door. Principally, he said it was because
he “saw that the officers were struggling” and wanted to help them. But he
also noted that he was “concerned illegal activity was taking place” in the
room and that he did not want the agents to break his door. When asked
whether he told the agents that he planned to open the door, Patel ultimately
testified that he had, though he could not recall which agent he told. No agent
reported being told that Patel was going to open the door or asking Patel to
open the door. And no agent reported encouraging Patel to open the door or
compensating Patel for doing so.
As Patel walked toward the door, an agent followed Patel at an
approximately ten-foot distance but was unsure whether Patel intended to
open the door or just knock on it. No agent attempted to stop Patel from
acting while he walked toward the door. After Patel opened the door, several
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agents observed two individuals, one of whom was Cordova, in the room.
Upon approaching the entrance of the door and eventually entering the room,
they also found pizza, water, soft drinks, and some wet clothes.
Cordova moved to suppress evidence obtained from this search and
argued that Patel was acting as a Government agent when pursuing this
warrantless search. In determining whether Patel acted as an agent of the
Government, the district court applied the test set out by the Ninth Circuit
in United States v. Miller, 688 F.2d 652 (9th Cir. 1982). 1 That test has two
factors: “(1) whether the Government knew or acquiesced in the intrusive
conduct; and (2) whether the private party intended to assist law
enforcement efforts or to further his own ends.” United States v. Blocker, 104
F.3d 720, 725 (5th Cir. 1997). As to the first factor, the court concluded that
the Government did not know about or acquiesce in the conduct because, per
the agents’ testimony, Patel acted without warning, and the agents did not
expect Patel to open the door. As to the second factor, the court concluded
that Patel—despite stating that he wanted to assist the DHS agents—was
acting to further his own ends as he wanted to prevent damage to his door
and wanted to halt illegal activity at his hotel. Thus, the court denied the
motion to suppress.
Cordova timely appeals, arguing that the district court erred when it
concluded that Patel was not acting as the Government’s agent when he
opened the door.
1
The two factors used in the Miller test were first elucidated by the Ninth Circuit
in United States v. Walther, 652 F.2d 788 (9th Cir. 1981), but for present purposes, we will
follow the convention of the parties and district court in referring to this as the Miller test.
See Eugene L. Shapiro, Governmental Acquiescence in Private Party Searches: The State Action
Inquiry and Lessons from the Federal Circuits, 104 KY. L.J. 287, 290 (2016) (explaining the
Ninth Circuit approach).
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II.
“On appeal from the denial of a motion to suppress we review the
district court’s factual findings under the clearly erroneous standard and its
conclusions of law de novo.” Blocker, 104 F.3d at 725 (quoting United States
v. Johnson, 16 F.3d 69, 71 (5th Cir. 1994)). We treat “the district court’s
determination whether a person is acting as an agent for the Government as
a factual finding.” Id. Clear error exists only if, after viewing all the evidence,
the court is “left with the definite and firm conviction that a mistake has been
committed.” United States v. Charon, 442 F.3d 881, 891 (5th Cir. 2006)
(quoting United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005)).
The Fourth Amendment’s protection against the unreasonable search
of a person’s home also protects guests staying in a hotel room. Stoner v.
California, 376 U.S. 483, 490 (1964). Thus, the Government cannot engage
in a warrantless search inside a guest’s hotel room, even with the hotel
owner’s permission, unless an exception to the warrant requirement applies.
Id. at 486–88. Evidence obtained in a wrongful search or seizure by a private
party, however, does not violate a person’s rights under the Fourth
Amendment. United States v. Jacobsen, 466 U.S. 109, 113 (1984). But, of
course, the Government cannot use private individuals as agents to
circumvent Fourth Amendment protections. See United States v. Mekjian,
505 F.2d 1320, 1327 (5th Cir. 1975). Thus, the question is one of agency, or
whether, when Patel opened the hotel door, he “must be regarded as having
acted as an ‘instrument’ or agent of the state.” United States v. Bazan, 807
F.2d 1200, 1202 (5th Cir. 1986) (quoting Coolidge v. New Hampshire, 403 U.S.
443, 487 (1971)).
The parties here dispute the proper test we should apply to decide
whether Patel acted as an agent of the state. Cordova argues that this circuit
has applied the two-factor Miller test in the past (including in Bazan) to
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determine whether an individual was acting on behalf of the state. See, e.g.,
Bazan, 807 F.2d at 1202–04; Blocker, 104 F.3d at 725. In response, the
Government argues that this circuit has not yet adopted a single test. Instead,
the Government argues that we should consider multiple factors to
determine whether a private party acted as an agent of the state. One
expression of these factors also (confusingly) comes from Bazan, which, per
the Government’s view, 2 created a separate, three-factor test later applied by
this circuit.3 See, e.g., United States v. Dahlstrom, 180 F.3d 677, 682 (5th Cir.
1999); United States v. Ramirez, 810 F.2d 1338, 1342 (5th Cir. 1987). These
Bazan factors require us to find a private party was not a Government agent
when: (1) the Government has offered no form of compensation to an
informant; (2) the Government did not initiate the idea that the informant
would conduct a search; and (3) the Government lacked specific knowledge
that the informant intended a search. Bazan, 807 F.2d at 1204. The parties
disagree as to whether we should apply the two factors from Miller or the
three factors from Bazan. Caselaw from our circuit is also somewhat
inconsistent on this question; we have applied both tests in the past but have
not formally adopted one to the exclusion of the other. 4
2
It is unclear from the briefing whether the Government is necessarily suggesting
we apply the three Bazan factors as a separate test here or merely as a guide to analyzing
particularly salient factors under a more general totality-of-the-circumstances approach.
Although we do not decide here which of the two approaches allegedly taken by the Bazan
court is appropriate, we are almost certainly bound to one of these two approaches and thus
decline to follow the Government’s possible suggestion that we determine Patel’s agency
using a third totality-of-the-circumstances approach.
3
Cordova argues that this three-factor test is not a separate test. He argues that
said factors were “drawn from the circumstances specific to Bazan’s case” and were “not
meant to be a strict three-part test to be applied in all cases but rather examples of factors
to consider.”
4
Compare United States v. Meals, 21 F.4th 903, 908 n.3 (5th Cir. 2021) (noting that
we have not yet adopted a specific test), with Blocker, 104 F.3d at 725 (noting that we have
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We need not resolve this disagreement because we affirm the
judgment of the district court under either of the tests suggested by the
parties. We thus do not decide here whether the three factors in Bazan are a
test separate from the two-factor Miller test; similarly, we decline to opine on
which of these two suggested approaches should control in future cases in
this circuit. Under either of the suggested approaches, the district court did
not err in finding that Patel was acting as a private party, and not as an agent
of the state, when he opened the hotel room door. There was thus no search
or seizure by Government officials that implicates the Fourth Amendment.
We initially consider the facts under the two-factor Miller test. The
first factor requires us to consider whether the Government knew or
acquiesced in the intrusive conduct. Miller, 688 F.2d at 657; see also Bazan,
807 F.2d at 1202–03. Such knowledge or acquiescence arises when the
Government is either a direct participant or indirect encourager. Miller, 688
F.2d at 657. The district court did not identify, and the record does not show,
any evidence suggesting conduct by the Government that would support a
finding of direct Government participation. We must thus consider whether
the Government indirectly encouraged the search. 5 The district court found
that the Government did not. We agree.
“applied the test articulated by the Ninth Circuit in United States v. Miller”), and Ramirez,
810 F.2d at 1342 (applying the three factors from Bazan).
5
We identify four separate arguments Cordova makes in suggesting the agents here
indirectly encouraged Patel. None changes the outcome of our Miller analysis. First, the
persuasive incentivization allegedly present in Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602 (1989), is distinguishable from the instant case. In Skinner, railroads were
acting as agents of the Government under federal rules authorizing railroads to administer
blood and urine tests on employees involved in safety violations. Id. at 609–12. But these
rules preempted existing state laws and regulations covering similar subject matter and
required employees to submit to tests or be withdrawn from covered service. Id. at 615. The
present case involves both less comprehensive actions by the Government and far less
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Bazan’s analysis of this first Miller factor is instructive. In Bazan,
Garza (a private party) entered and searched Bazan’s property. Bazan, 807
F.2d at 1202. Before he did so, Garza had twice spoken to the Drug
Enforcement Administration (“DEA”) about suspicious activity on the
premises, previously acted as a police informant, previously worked as a
deputy sheriff, and was asked by a DEA agent generally to “conduct
surveillance on [Bazan’s] ranch.” Id. at 1203. Despite this degree of prior
contact between the DEA agent and Garza, the Bazan court noted that the
agent “had no reason to predict that Garza would enter the ranch, and he
clearly did not request that Garza do so.” Id. In other words, the agent “had
no knowledge of what Garza would do or when he would act,” which was
severe punishments for noncompliance, both of which indicate a far more limited and
qualitatively different scope of Government action.
Second, Cordova suggests that we should apply a constructive knowledge standard
here such that a private party is acting as a state agent when the Government knew or should
have known that the private party would conduct the search. As evidence, he cites Mekjian,
505 F.2d at 1328. But we decline to read into the Miller factors an additional standard based
on language from a case that did not specifically apply (and predates) Miller.
Third, Cordova argues that, in not affirmatively acting to stop Patel, the agents
acquiesced in Patel’s search. In the absence of supporting caselaw requiring such actions,
we decline to impose into this circuit’s Miller analysis a new duty on the Government to
affirmatively stop a search, particularly in a case where, like here, said search happened
rapidly and without the Government’s prior knowledge.
Finally, Cordova notes that an agent explained to Patel that hotel occupants “have
a reasonable expectation of privacy from the government” and that the agents thus needed
consent to open the door. Cordova seems to suggest that this explanation was an
impermissible veiled attempt at hinting to Patel that he should open the door, but we find
the district court’s characterization of this exchange as merely “informative” (i.e., not
directive) to be plausible, supported by the record, and thus not clear error. Additionally,
any possible discrepancy noted by Cordova between the record and the district court’s
findings about who an agent said needed to give consent (i.e., the manager or the room’s
occupants) to search is not relevant here because such a discrepancy does not ultimately
change the informative nature of the conversation between the agent and Patel.
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sufficient to find a lack of Government knowledge or acquiescence in Garza’s
search. Id. at 1204.
In the instant case, the district court correctly found that the
Government had no prior knowledge of and no participatory role in Patel’s
search. The agents here thus had even less knowledge and acquiescence than
the agent in Bazan, who suggested generally to the neighbor that he conduct
surveillance. Id. at 1203. By contrast, the district court found that “all agents
credibly testified that they did not know Mr. Patel would open the door,” a
finding supported by the testimony of agents that they were surprised to see
Patel opening the door. 6 Additionally, the record shows that the agent told
Patel not to open the door until the agent had heard from his supervisor. This
testimony can also be fairly read as indicating a lack of Government
acquiescence in the search. The district court thus correctly found that the
Government did not affirmatively encourage Patel to open the door and thus
did not acquiesce to Patel’s search. These findings are supported by the
record and, given that the district court was in the best position to evaluate
the credibility and context of witness statements, are not clearly erroneous.
See Mekjian, 505 F.2d at 1328 (“The meaning of the statements made [by a
private party] with regard to promises to send information [to the
Government] depend upon the context in which they were made and the
credibility of witnesses. This appraisal was a role most appropriate for the
trial judge.”). The Government thus did not have the necessary knowledge
6
Cordova notes that Patel mentioned to an agent that he would open the door,
testimony that the district court also described in a footnote as “credible.” Although this
testimony would seem to contradict the district court’s factual finding that the agents did
not know Patel would open the door, one possible explanation is that Patel told this to the
agent, who then told Patel that he would need to speak to his supervisor first about getting
a warrant. The agent could have then been surprised when Patel opened the door before
the agent could get a warrant. Given such a possibility, we cannot say that the district court
clearly erred in finding that the agents did not know Patel would open the door.
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or acquiescence in the instant case for this search to implicate the Fourth
Amendment.
The next factor under Miller is whether the private party intended to
assist law enforcement efforts or to further his own ends. Miller, 688 F.2d at
657. Mixed motives—where a private party has both a personal motive and
an intent to aid the Government—do not necessarily compel a finding of
Government involvement in a search. See Bazan, 807 F.2d at 1204. The
district court found that Patel was motivated at least partly by a desire to help
himself. We agree.
In Bazan, the court suggested that Garza (the private party) had a
personal motive for conducting a search of the relevant property. The
property had once belonged to the family of Garza’s wife, and the property
owner suggested that Garza may have aided the authorities in their
investigation out of a hope of regaining the property. Id. at 1204. The Bazan
court explained that such personal motives are especially likely to exist in
instances where, as in the present case, the Government does not offer any
compensation for the private party’s efforts in aiding a search. Id.Here, Patel was similarly motivated, in part, by a private interest in
protecting and maintaining his property. He was concerned that illegal
activities were happening in his hotel and that the agents would break down
his door, either of which is a reasonable—and, more to the point, personal—
motivation for a hotel manager to have for opening a hotel room.
Furthermore, an agent testified that he told Patel not to open the door until
the agent had heard from his supervisor. The fact that Patel did so before the
agent had heard back also suggests that Patel had an independent, personal
motive in opening the door beyond just assisting the agents in their
investigation. The district court thus did not clearly err in concluding that
Patel’s private, personal interests in conducting the search precluded a
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finding of state involvement. In sum, both prongs of the Miller test indicate
that Patel was acting as a private party, not as an agent of the Government.
We next consider the three-factor test from Bazan. As the Bazan court
considered these factors in conjunction with its Miller analysis, our
discussion of the Miller factors unsurprisingly weighs heavily in our Bazan
analysis. First, we consider whether the Government offered any
compensation to Patel to open the door. The district court found that it did
not, and no record evidence indicates otherwise. Second, we consider
whether the Government or the private party initiated the idea of conducting
a search. This analysis tracks closely to the first Miller factor. As discussed,
the record supports the district court’s finding that there was no insinuation
from the Government that Patel open the door. Third, we consider whether
the Government lacked specific knowledge that the informant intended a
search. The district court credited testimony from agents asserting no prior
knowledge of Patel’s opening the door. The record supports this finding.
Thus, even applying the Bazan court’s three factors as a separate test yields
the same result: Patel was acting as a private party, not a Government agent.
Consequently, there was insufficient Government involvement in this case
to constitute a state search implicating the Fourth Amendment. 7
III.
This circuit has taken various approaches in deciding whether a
private party acts as a Government agent when conducting a search. In the
7
As we hold that the Fourth Amendment’s prohibition against warrantless
searches is inapplicable to Patel’s search, we need not address Cordova’s arguments
concerning the types of evidence properly excludable from a search violating the Fourth
Amendment. Similarly, we do not credit Cordova’s argument that the agents participated
in an illegal search by looking around after Patel opened the door. See Mekjian, 505 F.2d at
1328 (finding no Fourth Amendment violation in Government accepting records from
private individual after individual’s search was held to be purely private).
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instant case, Patel did not act as an agent under any of these various
approaches; as such, we decline to specify a single approach this court must
use in future cases. Regardless of whether we look to the Miller test or the
supposedly distinct Bazan factors, the district court did not clearly err in
determining that Patel was not acting as an agent of the Government. As
such, the Fourth Amendment’s protection against unreasonable searches is
inapplicable here for lack of Government involvement in the search. The
Government can thus properly use the evidence adduced by Patel’s opening
the door, and Cordova’s motion to suppress such evidence was properly
denied by the district court.
For the foregoing reasons, we AFFIRM.
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