United States v. Cordova-Espinoza

49 F.4th 964

UNITED STATES of America, Plaintiff—Appellee,

v.Santiago CORDOVA-ESPINOZA, Defendant—Appellant.

No. 21-50518

United States Court of Appeals, Fifth Circuit.

FILED September 30, 2022

Joseph H. Gay, Jr., Richard Louis Durbin, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Kristin Michelle Kimmelman, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before King, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:

Santiago Cordova-Espinoza appeals the district court's denial of a motion 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 implicate the Fourth Amendment, the district court correctly denied Cordova's motion to suppress evidence obtained from the search in question. We therefore AFFIRM.

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 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 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.

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, 84 S.Ct. 889, 11 L.Ed.2d 856 (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, 84 S.Ct. 889. 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, 104 S.Ct. 1652, 80 L.Ed.2d 85 (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, 91 S.Ct. 2022, 29 L.Ed.2d 564 (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 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

We need not resolve this disagreement because we affirm the...