United States Court of Appeals

for the Fifth Circuit

No. 21-50518

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 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. 

United States Court of Appeals

Fifth Circuit

FILED

September 30, 2022

Lyle W. Cayce

Clerk

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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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