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Definition of a Government Agent Under the 4th Amendment (podcast transcript)

Hi, I’m Tim Miller.  I’m back again with Ms. Solari.  We’re continuing our journey through the 4th Amendment to the Constitution of the United States.  Now, recently we discussed what triggers the 4th Amendment to the Constitution.  Specifically, that it’s a government intrusion into a place where one has a reasonable expectation of privacy.  When the government intrudes into a place where one has a reasonable expectation of privacy, the 4th Amendment requires the search to be reasonable.  Well, now we are going to answer the question, you know -- who is exactly is a government agent?  Ms. Solari, can you help me with this? 

Solari:  Sure.  Yes sir.  Most generally, a government agent will be somebody acting in an official capacity on behalf of a Federal or state government.  And, the courts have told us -- some people think that’s limited to just law enforcement officers -- but, the courts have told us that it is extended actually to include other government actors like fire fighters, building inspectors or even public school officials. 

Miller:  Okay, well, you know, how about an ATF agent?  An ATF agent intrudes into my house maybe to look for explosives. 

Solari:  Sure, absolutely that person would be a government agent under the 4th Amendment. Yes sir.

Miller:  And, a Georgia Bureau of Investigation Agent, he comes into my house maybe looking for narcotics.

Solari:  Yes, even though the GBI agent is a state actor, the 4th Amendment applies to state and Federal agents.

Miller:  All right.  Well, what about my disgruntled wife or girlfriend, she comes inside my house looking for, maybe, I don’t know -- any type of  evidence that I might have inside the house.  Would that disgruntled wife or girlfriend – would she trigger the 4th Amendment?

Solari:  Normally, no.  As long as she is not acting at the behest of the government or on behalf of the government – if she is just acting out of her own private interest and in her own personal capacity, then she would not be considered a government agent.

Miller:  All right.  Well what about a, you know, let me ask you this - what about going down to a night club?  You know a lot of night clubs have bouncers.  Suppose that bouncer, you know, searches, makes, you know, reaches inside my pocket or something.  I assume he is going inside a place where I have a reasonable expectation of privacy -- my pocket.  Does that trigger the 4th Amendment?

Solari:  No, actually.  It is an intrusion into your reasonable expectation of privacy.  But, as we discussed in our earlier session, really it has to be a government intrusion into that REP.  And since the bouncer at that night club isn’t a government agent, then the 4th Amendment isn’t concerned with that action and wouldn’t apply.

Miller:  How about a foreign law enforcement agent over seas?

Solari:  No, our 4th Amendment doesn’t apply to foreign agents in other countries and their law enforcement actions.

Miller:  Okay, United Parcel Service and FedEx.  Those are both private corporations.  Do you agree?

Solari:  Yes, sir.

Miller:   So, if a United Parcel Service employee looks inside a package that I’m delivering– of course he is going inside a place where I have a reasonable expectation of privacy; but, again that UPS employee, he’s a private employee.  Right?

Solari:  Yes.

Miller:  And, I would agree now, I would assume now that there would be no government intrusion...correct?

Solari: No sir, unless he was for some reason acting on behalf of  the government or had been asked by a government agent to do that.  Unless that were the case then if that person was acting in his own private capacity as a UPS or FedEx employee then he would not be a government agent for 4th Amendment purposes.

Miller:  Can private parties ever trigger the 4th Amendment?
 
Solari:  Yes, as we discussed, if a private party were to be acting at the behest of the government -- if a government agent were to ask that FedEx person to open up a package and look inside, or to ask someone’s girlfriend to go through their things looking for evidence to turn over to the police, then that would be government activity.  That would be the actions of a government agent because government agents can’t ask private parties to do something they themselves couldn’t do under the 4th Amendment, so in that type of instance it would be extended to that private party.

Miller:  Okay.  Now, I’ve got to ask you this.  Now, who exactly is protected under the 4th Amendment from these government agents?

Solari:  Well, the 4th Amendment says that the “people” are protected.   They could have used the word “citizens” but they did not.  So, it actually extends not only to U.S. citizens -- and first I should say that it extends to U.S. citizens both here in the U.S. and while abroad.  If the search, if the intrusion, into the REP is conducted by a U.S. agent, our citizens are protected here and abroad.  Also, members of the armed forces are protected here in the U.S. and abroad, again, when the search -- when the intrusion into REP involves a U.S. agent.  And corporations are protected; although you wouldn’t normally think of them as people, they are included as people for 4th Amendment purposes. So corporations have legal rights under the 4th Amendment to be secure from unreasonable searches and seizures. 

Miller:  Okay, well you are, you were a Naval Criminal Investigative Service Agent.  Correct? 

Solari:  Yes, sir.

Miller:  And, I would assume a marine in Camp Pendleton, California, would be protected under the 4th Amendment from an unreasonable search by the Naval Criminal Investigative Service.

Solari:  Absolutely.

Miller:  And, what if that marine goes over to Japan?  Does he receive the same protections from the NCIS? 

Solari:  He does; he receives the same protection against unreasonable searches and seizures by U.S. agents, such as Naval Criminal Investigative Service.  However, the situation is a little bit different if he is out in town somewhere in Japan and Japanese law enforcement agents want to conduct a search or seizure.  Our 4th Amendment provisions don’t apply to foreign law enforcement agents.  Again, unless they are acting on our behalf or unless we’ve requested them to do that search.

Miller:  So, if the Naval Criminal Investigative Service told the Japanese police officer to go inside an off-base apartment, then he would in essence deputize that foreign agent and that foreign agent would trigger the 4th Amendment.  Do you agree with that?

Solari:  Yes, sir, because we’d essentially be using that Japanese agent as an extension of ourselves.  So, we can’t do -- by going through Japanese law enforcement, we couldn’t do anything that U.S. agents couldn’t accomplish legally under the 4th Amendment.  That would be sort of cheating.

Miller:  Okay.  I’ve got one more “what if” for you. 

Solari:  All right.

Miller:  What if a United States agent searches a foreign national’s property in a foreign country?  You know, for example, suppose a DEA agent goes down to Mexico and searches a Mexican national’s home.

Solari:  Okay.  I don’t know what his jurisdictional problems may be as far as his agency is concerned.  But, as far as the 4th Amendment issue, foreign nationals in a foreign country are those who are not protected by 4th Amendment provisions.

Miller:  Okay.  I think I understand that.  Thank you very much ma'am, and we will see you again when we talk about what a reasonable expectation of privacy is.

Solari:  All right sir, thank you.