T he Honorable Ortrie D. Smith, United States District Judge for the Wester n * District of Missouri, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3669SD

_____________ United States of America, *
* Appellant, *

* Appeal from the United States
v. * District Court for the District
* of South Dakota. Dominic L. Miller, *
* Appellee. *

_____________ Submitted: February 10, 1998

Filed: August 11, 1998

_____________ Before FAGG and MURPHY, Circuit Judges, and SMITH, District Judge. *

_____________ FAGG, Circuit Judge.

The G overnment appeals the district court’s order suppressing drug-relate d evidence seized from Dominic L. Miller’s efficiency apartment at Bridgewa y Treatment Facility, a halfway house for adults with severe, persistent mental illnes ses. We reverse and remand.-2-

The relevant facts are nei ther complicated nor disputed. Miller’s mental illness was controlled by medications, which were centrally dispensed. If Bridge way residents failed to show up for their morning medications, staff members would go to thei r apartments and rouse them. Because these severely ill persons posed some risk o f dan ger to themselves and others, staff members also had access to the facility’ s apartments by way of a master key. One Saturday morning, Lorie Fischer, the weekend sup ervisor, knocked at Miller’s door. Miller was away for the weekend--resident s were generally free to come and go as they pleased--but Fisch er had forgotten that fact. Receiv ing no reply, Fischer unlocked Miller’s door and called his name. She the n remembered he was gone, but at the same time she smelled cigarette smoke

. Bridgeway has a strict no-smo king rule, so Fischer stepped inside to investigate. She saw cigarette butts, ashes, matche s--and evidence of drug activity in plain view. This, too, was against Bridgeway’s rules. After looking around, Fischer relocked th e apartment and ca

lled the medical services head, who called Bridgeway’s director and told him what Fischer had seen. The next day, Fischer entered Miller’s apar tment again with th e weekday supervisor, Stephanie Weidemann, who also observed the dru g evidence. Later that day, the director had the locks on Miller’s door changed to keep Miller from altering the scene. On Monday, the director called the police and admitted them into Miller’s room. The officers saw what Fischer an d Weidemann had seen, and nothing more. The officers then obt ained a search warrant and seized the drug-related items. Miller’s prosecution followed in due course.

Mi ller moved to suppress the seized items, challenging the officers’ first , warrantless entry on Fourth Amendment g rounds. The Government countered that the entry w as lawful because the director consented to it. For a third-party consent to a warrantless police search to be legall y effective, the consenting party must have actual or apparent authority to give the consent. See Unite d States v. Matlock , 415 U.S. 164, 171 & n.7 (1974) (actual authority); Illinois v. Rodriguez , 497 U. S. 177, 188-89 (1990) (apparen t authority). Concluding the director possessed neither, the district court granted Miller’s motion. On appeal, bo th the Government and Miller continue to treat-3-

this as a third-party consent case. After de novo review, see United States v. LeyvaSerrano , 127 F.3d 1280, 1282 (10th Cir. 1997); see also United States v. Weinbender , 109 F.3 d 1327, 1329 (8th Cir. 1997), we conclude otherwise. Because the prope r resolutio n

of this matter is beyond doubt, we exercise our discretion to decide th e Government’s appeal on a different ground altog ether. See Washington Gas Light Co.

v. Virgi nia Elec. & Power Co. , 438 F.2d 248, 251 (4th Cir. 1971) (“[I]f deeme d necessary to reach the correct result, an appellate court may sua sponte consider points not p resented to the district court and not even raised on appeal by any party.”); se e also United States Dep’t of Labor v. Rapid Robert’s Inc. , 130 F.3d 345, 348 (8th Cir. 1997).

The F ourth Amendment prohibits unreasonable searches and seizures. Absent some well-settled exception, unc onsented warrantless searches are unreasonable. See UnitedStates v. Boettger , 71 F.3d 1410, 1413 (8th Cir. 1995). Before reaching th e issue of whether the director’s consent rendered the warrantless police intrusion lawful, howe ver, the preliminary question is whether a Fourth Amendment search has take n place at all. The Co nstitution does not apply to searches, reasonable or otherwise, by privat e individuals, so long as the private party is “‘not acting as an agent of th e Gov ernment

or with the participation or knowledge of any governmental official.’ ” United States v. Jacobsen , 466 U.S. 109, 113 (1984) (quoting Walter v. United States , 44 7 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). Further, to be a Fourth Amendment search, a governmental intrusion must infringe on a legitimate expectation of privacy. See id. Because a private search frustrates such an expectation, see id. at 117-18, an ensu ing police intrusion that stays within the limits of the private search is not a search for Fourth Amendment purp oses, see id. at 120. Thus, in a private search
case, the legality of later governmental intrusions “must be tested by the degree t o which they exceeded the scope of the private searc h.” Id. at 115. Our cases following Jacobsen are to the same effect. See, e .g. , United States v. Rouse , No. 98-1705, 1998 WL 381725, at *2 (8th Cir. July 10, 1998); United States v. Mithun , 933 F.2d 631, 634 (8th Cir. 1991).-4-

The application of Jacobsen ’s private search rule here is as straightforward as the rule itself. There is no question Fischer and Weidemann i ntended to act in a wholly priv ate capacity when they entered Miller’s apartment, and the police neither kne w about nor acquiesced in their entry. See United States v. Parker , 32 F.3d 395, 398-99 (8th Cir. 1994). The police first became involved the day after the joint search b y Fischerand Weidemann, and the police intrusion went no further than theirs. Se e Mithun , 933 F.2d at 634. Thus, no Fourth Amendment search occurred at all, so the drug-related evidence in this case was lawfully obtained.
Before concluding, we

take note of a recent opinion issued by the Fifth Circuit, United States v. Pa

ige , 136 F.3d 1012 (5th Cir. 1998). Like our case, which involves the search of an apartment, Paige concerns a police

intrusion into residential property-- specifically, a detached garage--in the wake of a private search. Jacobsen , by contrast, dealt with th e search of a package, and “it was virtually certain that [the package ] contained nothing but contraband.” Jacobsen , 466 U.S. at 120 n.17. Emphasizing this point, and observ ing that “people’s homes contain countless personal, noncontraband possessio ns,” the Fifth Circuit declined “to extend Jacobsen ’s holding ‘to case s invol ving private searches of residences.’” Paige , 136 F.3d at 1020 n.11 (quotin g United States v. Allen , 106 F.3d 695 , 699 (6th Cir.) (deciding search issue on grounds unrelated to Jacobsen ’s private search rule), cert. denied , 117 S. Ct. 2467 (1997)). The Fi fth Circuit did not reject Jacobsen , however. Drawing on pre- Jacobsen circui t precedent, United States v. Bomengo , 580 F.2d 173 , 175-76 (5th Cir. 1978) (involving private sea rch of apartment), cert. denied , 439 U.S. 1117 (1979), the Fifth Circui t tailored th e Jacobsen rule to accommodate the court’s concerns when a police search follows a p rivate party search of a home. In this situation, the Fifth Circuit held, a police search within the scope of an earlier private search is lawful only when “th e private party’s intrusion was reasonably foreseeable.” Paige , 136 F.3d at 1020. We neither adopt nor reject the Fifth Circuit’s rule because the police search in this case would pass muster under both Jacobs enand Paige . It was reasonably foreseeable that the on-duty supervisor of Miller’s treatment facility might forget Miller was out of-5-

town , open his door when he did not respond to his morning medication call, ste p inside his apartment to investigate when she detected a violation of h ouse rules, and see the drug-related items left in open sight.

We rev erse the district court’s order and remand for further proceedings no t inconsistent with this opinion.
MURPHY, Circuit Judge, concurring.
I concur in the result reached by the court because Lorie Fischer’s entry into Mr. Mille r’s room in the halfway house was reasonably foreseeable to him. See Unite d States v. Paige , 136 F.3d 1012, 1020 ( 5th Cir. 1998). We have not previously applied the Jac obsen private search rule to an individual’s residence, see United States v

. Rous e , No. 98-1705, 1998 WL 381725 (8th Cir., July 10, 1998) (package); Unite d States v. Mithun , 933 F. 2d 631, 634 (8th Cir. 1991) (automobile), but the facts of this

cas e make its application here appropriate. Since the home has long been afforde d heightened protection agains t invasions of privacy, see California v. Carney , 471 U.S. 386, 390 (1985); Paige , 135 F.3d at 1021 n.11, I would not extend the Jacobsen rule bey ondcircumstances where an intrusion by a private actor into a residence wa s reasonably foreseeable to the owner or tenant.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.