last case for argument this morning in seventeen twenty seven twenty eight district of south dakota united states versus wer court we are asking that the court reverse remand the district court's holding and failing to suppress the phone of marie's heibel taken from his phone taken from his car by the mother of his child district court concluded that this was not in fact a government agency search but was a private party search so what's our standard of review on on determining agency status that is don't know you were reviewing the district court's conclusion that this is not a private that this is not a private party search it's government agents or church or vice versa dunno of all the historical facts underlying that are reviewed for clear so agency status you think is a legal conclusion they do actually do and i think the cases are and are in line with that know what's funny then you're going to as you get in the middle right these these criteria that the court has looked at on intent to assist or knowledge or acquiescence and  i thought about that question i think those are kind of the funny mixed questions of fact mark clearly find means of specifically an officer said this an officer did this are true factual findings reviewed for clear and the ultimate conclusion to suppress or not suppress is a legal conclusion i think what's important member in this case though is that someone will it doesn't matter because there was no dispute about the facts for example if we look about the intent to insist law enforcement for ms ginny's the only evidence addressed in that question comes directly from ms ginny's in the form of the officers body cam and audio recording in his vehicle contemporaneous to the search what about some of the conclusions by the district court taking inference as to what her intent may be if that too is a criteria intent to assist law enforcement request by law enforcement to assist our factual findings the district court's conclusion was clearly erroneous because it went directly against the only evidence in both instances as to the request by law enforcement officer mattson who is the officer on the scene testified at the suppression hearing at page fifty three line fifteen he asked mr nice do you have the phone have heard it as a initially private actor as to whether she would perceive that would be a request or simply a question as to the whereabouts of the well again judge kelly i think even i think that if you can ascertain what that statement by the officer is you have to look at the officer says he intended it to be he's the best gauge of what he's doing when he says do you have the phone and he says i wanted to phone but if you assess her hearing of it again the only evidence is she took it as a request because she immediately goes to the vehicle and begin searching and comes out with a form so the only evidence at nine hour nine forty seconds of video she says i had my son call the police she then says she wanted to sign a complaint against mr heibel because he was in possession of naked pictures of her daughter and that she had in fact been waiting for him to come home before she called the police so again the only evidence of what she was intending to do to involve law enforcement was to get mr heibel arrested and prosecuted she says that herself now the district court did speculate the district court says in for at one point the magistrate judge to speculate and i think that's more accurate because there's just not any other evidence the district court puts on the table other possible purposes that may be in fact that what ms ginny's wanted to do was to avoid further abuse of her daughter or maybe what she wanted to do was to avoid public disclosure of the material on the phone i would contend that one factual findings directly against mr nice's contemporaneous statements as to her purpose are clearly  but secondly those are still law enforcement purposes she still wants law enforcement to obtain the phone to arrest and prosecute mr heibel i mean how do you tease that out because i think in your briefing you sort of talk about this idea of the different that that sort of one in the same helping law enforcement is helping yourself when when would a private actor speak out or turn over think that's true we're always a little bit mixed motivated as human beings i think you could consider scenarios that could have been possible here right so if officer mattson is taking information from ms ginny's and she says hey my bag is in the car or my phone's in the car i'm going to go get it and she's in there and she says oh here's this phone she went in there with the purpose to get her material or they had a shared child who one point ms denise's is trying to get back in their apartment to make sure the child is ok if that child had been in the car in a car seat and she says i'm going to go get a little janie or jimmy out of the car again her purpose right to protect her kid to make sure the kids are ok i think even in this instance she at one point goes news turns off the car if maybe she just didn't want to a car running in her driveway more of a personal reason a private reason but here again she says i called the cops to get him arrested and the cops is what do you have the phone with the intent to list the phone and she goes and gets it i mean i don't think you really have to tease it out because syllogistic lee everyone's intent and actions just lined up as a law enforcement purpose i guess to me the question is has she become an agent of the government if if it's her will to get him prosecuted does that necessarily make her an agent of the government compare it in particular you know agent though isn't probably the most important thing that you act at the direction of course none of the cases give greater weight to any of these factors than the other  i would say that if we really try and analyze that factor again and it does come down to the fact that officer madsen i asked do you have the phone with the intent to have or get the phone and she immediately went and got it under his supervision it would be so much cleaner for all of us analyzing this if he said i direct you as an agent of the state to go obtain this phone but that's when yeah  yeah i'd always love to change the facts life would be so much easier but the reality is that's not how we communicate in a lot of instances and too i mean just as a practical matter the officers no dummy right now are going to say i de as if she did not she she did not testify this event took place almost two years before and there was video audio of the event so there's really nothing for her to add in her testimony other than what she already said and it might be helpful if she said well i took that as a direction that it and again her actions i think show that you know that she immediately went to go get it because coming into it she had the intent of getting him prosecuted so she's naturally going to want to be as helpful as she can to get prosecuted it is it's a fine line and i think you know i thought about that today your honor that what if she had gone in the car before officer mattson arrived and had the phone when he got there again she has the intent you wouldn't have knowledge acquiescence which no one disputed here that you know so you are always kind of balanced in these out again i i think what's so important here that you can compare and contrast to the smith case in the west coast that this court relied on is the evidence was uncon enforcement that's pretty tough to say that that person isn't acting pretty much as a private individual that if i can just just briefly i would again highlight the district court relied extensively on the smith case case and if you contrast those cases to this one again in we said you had conflicting evidence you had law enforcement who said i made a request to get evidence of a bank robbery you had a private homeowner who said i just went and got this guy stuff and gave it because he got arrested there and i don't want to anymore and so the key thing there is those factual findings were clearly erroneous because the district court without conflicting testimony there's no conflicting testimony here the same  the smith case where fedex has something pulled off the line they're concerned about shipping contraband which is a bad business model and so the officer present says hey it's up to you whether you search or not that's the extent of it there's no indication by the officer that this was intended to get them to open the package and here that's the only evidence and again those factual findings were clearly erroneous the difference between those cases and here is there is no conflict in evidence for the district court to weigh out all pointed to intent to assist law enforcement and to obtain from the officers subjective and whether or not he wants the person to search you know i think it does in the sense that tells you if that was a request i mean it gives you an indication of what he was trying to do when he said do you have the phone and he said he was trying to get her to get the phone to give it to him i don't think it's a specific legal requirement but i think informs whether or not thank you it may please the court my name is ron parsons on behalf of the united states mr since you are going to be with the standard of review on the agency question i think that's essentially correct your honor the ultimate legal conclusion is reviewed a no vote on a motion clearly erroneous you know since the supreme court in one nine hundred twenty one issued byrd oversees macdowell which confirmed that the fourth amendment only applies to government actors the really only man a couple supreme court cases that really touched on the issue why how do you determine when a private actor might become a government actor and the first was coolidge versus new hampshire and there are the detectives went to a house who was a murder kidnapping victim and they asked whether there are any guns in the house and the spouse the wife voluntarily turned over the guns after the request by the officers and the supreme court said that the test is in light of all the circumstances m mrs coolidge be regarded as having acted as an instrument or agent of the state and they commented that the police were surely acting normally improperly when they asked or as they've asked everyone else in the investigation including coolidge himself about whether there were any guns in the house and the supreme court emphasized that the fourth amendment does not require the police to discourage citizens from aiding in and in the in their utmost to apprehend criminal and they know that she was not a government actor in that case even though the police were there asked for the gun and it was produced by mrs coolidge very similar to what happened here the police are called to the scene for a domestic disturbance they have no idea whether on the scene until they get their officer mattson gets out nosers of domestic disturbance and misses mr nice says i think there are nude pictures of my thirteen year old daughter on heibel cellphone and i've seen them and the officer says what do you have the phone on natural logical question and she says i don't know where it is then  the district court made a specific factual finding that at the same time she walks over and goes into the car he is then talking to his cover officer who had just arrived on the scene and dispatch during the thirty seconds or so that she was in the car and all of a sudden she has the phone and she hands it to him in this case she she called they call her household calls law enforcement yet almost immediately she's talking about what ultimately is the subjects of this prosecution doesn't that really lean toward a finding that the that was that was her intent to help law enforcement now and of course there's a tension between the ninth circuit and the rest of the country in terms of this dual option or purpose doctrine the ninth circuit and reed says well there can't be a dual purpose if you're trying to get someone in trouble or if you're trying to protect your daughter in the in the situation then that's the same as trying to help law enforcement ok so let's let's go on the premise that that as we discuss with co counsel most folks do have multiple motives and it was right hard to find a case probably where you find purely one of the other but in this case if she can't get her personal motive satisfied  the the court identified the district court without the help of the police so she needs the police is that factor in to to this analysis i think everything factors in the court is the test there has to be some kind of not just there in their presence a passive observance or even a willingness to take the fruits of whatever whatever is produced courts have held that there has to be some kind of either direction or specific request or an objective manifesto what the government wants in order to ensure the ultimate question did the government participate enough in order to transform a private person into an agent o have an audio so we can all right here what she says and she never says those things i want to make sure that these images aren't disseminated i want to protect my daughter it's i want to file complaints against him just based on what what we can hear we don't have those other motives well and frankly had she wanted you could the in one other inference could have been if she really wanted to protect her daughter she would have acted much sooner well and she says what she  is i found nude pictures of my daughter on his cell phone and she just turned thirteen he was accused of raping her a year ago he says this will later you choose raping her and i didn't he said he didn't do it and i didn't  believe her at the time or him at the time didn't believe her at the time and believed him so i don't think you you and this court has recognized that the absence of evidence and smith in particular the court held that the absence of evidence that assisting the police was her only or primary motive in itself justified a finding that the defendant did not meet its burden and it has the burden here to prove that a private actors transformed into an agent of the government be objectively what happened here the police got on the scene she said i think there's a cell phone that has new pictures of my daughter and i've seen it they said do you have the phone they didn't say would you go look for the phone they didn't say would you go into the car to get the phone they don't know where the phone is they just ask do you have it and i think the description in the briefing that says that the officer admitted his purpose was to have her go get the phone is not accurate and that's not what the district court found on the magistrate found or what's in the transcript the question in the evidentiary hearing that that cited was and you asked that question in order to secure the phone and he said correct but to secure it doesn't mean he's asking her to go look for it or going to the car act as the government's agent if she has it they're going to take it and that's really all you can infer from that as the district court and they describe major findings about the tone of the officer there was no attempt at all found on the part of the officer to suggest what she should do a very specific findings on those points open ended question a single question no or force or direct or even request just do you have this information do you have the phone and if the court would hold that that's enough to transform a private actor into a government agent you know the coolidge case would be abrogated asking the question do you have this particular evidence that you've just described to me if that can transform a private person into a government actor and then you know the fourth amendment has been expanded beyond versus mcdowell far far beyond the replace disturbs me a little bit that's the ninth circuit case i suggest it's an outlier because they are what they've done is they've taken the totality of the circumstances test where the key the key factor is the court scream core pointed out in skinner is to what degree did the government participate that's the word the supreme court uses and scanner which is the most recent most helpful case on this direct question to what itself was never enough never enough for the ninth circuit has taken two of the factors that all courts consider including this court as one of many and and hammered it into a test that has to be satisfied and then read they say you knowledge and acquiescence in this case not no i don't in specific comment on the extent you're asking i can see that they were there and he certainly was aware that she was walking to the car with his testimony was that he doesn't know why she's going to the car at that point there's some you know cross examination he says well i assume i could have assumed that but he's has a court found talking to the dispatch officer and the cover officer during that thirty seconds and then she comes out and she has the phone was really he didn't know all right and now i know she's going to get the phone from that car he doesn't know that is there a video available of all those there's a video but video really only provides audio because the police cars is pointed in a direction where you can't see this when this is happening or what's happening when she's going into the car but there are findings about the interaction between the officer who soon as the door opens on the audio  you can hear the dating from the door opening and at that moment he's talking to dispatch talking to the couple mr is how the district court made those factual findings the real case also completely rejects the dual purpose that this court specifically has approved and also if you even wanted to give credit the reed case there was some measure of participation in that case you could say by the government because that was a motel and the owner of the motel called the police to the scene to stand guard while he went around and they knew he was going to go around and rummage for any evidence he could find about drug activities and the ninth circuit described the police participation in that case as being lookouts which i think is kind of an insulting term but you couldn't apply that here at all there's no way you could find that offer officer madsen who's there on a domestic disturbance is there to serve as a lookout  depending on what they show according to the supreme court about the degree of the government's participation in the private parties activities as it said in skinner so to the extent that any particular factor considering all the factors reveals the ultimate question which is the degree of the government's participation then you give that factor greater weight and that will depend on the case but here the fact that he asked the question do you have the phone that you just mentioned  that shows no degree of participation at all in her private activities and walking over to the car and opening the door and grabbing it she didn't even know it was in the car she thought she might go check and of course he had fled the  left the car running in the driveway with the keys in the ignition and he soon as he saw the police he was out the back door running so he's fleeing the car was registered to that address the officer testified he believed that mr highball probably live there even though she had told him that he didn't but the car registration indicated that that's where the car was registered to so officer doug has really no idea why she's going into the car for certain doesn't she has consent to go into that car or not he would have no idea yeah you're right you're right he's he's distracted in that thirty seconds but he admitted you know i probably could have assumed she's going into that car to look for the phone yeah but he doesn't know none of the factual findings when they say the facts are in disputed so i accept that of all the factual findings district court made including the findings about what you can reasonably infer from objective decision and smith which is kind of the most detailed examination of the law here which has been the ultimate holding was given the absence of evidence that edwards the private actor was motivated solely or even primarily by the intent to officers we conclude that the district courts factual findings are not clearly erroneous so the absence of evidence show they didn't meet their burden in that case we respectfully ask that the court affirm the denial i would just quickly run down these three factors which i agree are not and i mean there are multiple factors we consider our knowledge and acquiescence that page eight of the government's brief acknowledges that the officer was present in acquiesced in the search that's the state  inferring about other purposes the only evidence present is misogyny statements that she has a law enforcement purpose that she wants mr heibel arrested and prosecuted even as it relates to securing her daughter or the phone that is dependent upon him being arrested and prosecuted as it would relate then to the action at law enforcement request i think again reid is apt saying aside the issue about the test and whether there's dual purpose or not you want to call the hotel manager for law enforcement to come intervene just like you got a call here for law enforcement to come intervene you had a search by a private individual as law enforcement stood by several feet away just as personal property that the difference again between this case and the smith case and we said case is in those instances the court affirmed is not clearly erroneous the district court of conflicting evidence and testimony here there is no conflict you know it's just you did stretch the testimony of the officer a little bit in your opening argument that he wanted the phone that that was her car and that the phone had pictures and she acknowledged i don't have it he may have taken it so he knew the officer knew that she did not have it in her possession we the law school exam type case so we will wrestle with it cases submitted we appreciate your arguments today that finishes our argument