Florida Case Law
STATE v. MONINGER, 2D05-4568 (Fla.App. 2 Dist. 1-5-2007)
STATE OF FLORIDA, Appellant, v. DONALD MONINGER, Appellee.
No. 2D05-4568. District Court of Appeal of Florida, Second
District. Opinion filed January 5, 2007.
Appeal from the Circuit Court for Pasco County; Stanley R.
Mills, Judge.
Bill McCollum, Attorney General, Tallahassee, and Chandra
Waite Dasrat, Assistant Attorney General, Tampa, for
Appellant.
Mark A. Goettel of Mark A. Goettel, P.A., New Port Richey,
for Appellee.
SALCINES, J., Concurs, ALTENBERND, J., Dissents with
opinion.
SILBERMAN, Judge.
The State appeals an order suppressing evidence in the
prosecution of Donald Moninger for lewd or lascivious
molestation, capital sexual battery, and two counts of lewd
or lascivious battery.[fn1] Because the trial court
properly suppressed the challenged evidence, two used
condoms, we affirm the suppression order.
In his motion to suppress, Moninger alleged that on July 8,
2004, Deputy White, Detective Ewald, and Child Protective
Investigator (CPI) Morgan responded to a sexual battery
complaint at Moninger’s residence. The alleged victim is
Moninger’s fifteen-year-old daughter. The motion stated
that the daughter spoke with Detective Ewald and told him
that “condoms were used in the bedroom” of the residence.
Further, the daughter, upon Detective Ewald’s prompting,
went into the residence and returned with two condoms. The
motion contended that Moninger “did not consent to the
unlawful entrance and removal of the condoms” and that the
daughter “was acting as an instrument of the police and, as
such, Detective Ewald searched the Defendant’s residence
without permission of the Defendant.” Based on his
contention that the law enforcement officers improperly
obtained the condoms, Moninger sought an order suppressing
the condoms as evidence.
The trial court conducted a hearing on the motion to
suppress. Although witnesses were available to testify at
the hearing, the parties stipulated to the facts and did
not present any testimony or other evidence. The stipulated
facts expanded on the allegations of Moninger’s motion.
Deputy White and Detective Ewald responded to Moninger’s
residence, where his daughter also lived, to investigate an
allegation of child molestation. CPI Morgan was present and
was going to remove the daughter from the residence to
shelter care. While outside the residence, Detective Ewald
conducted a brief interview with the daughter and asked her
if there was any evidence to substantiate her claim. She
responded that she believed there were “a couple of condoms
in the house.”
Detective Ewald and CPI Morgan “told the victim to go
inside and start packing” her belongings because she was
going to be removed from the home. They also told her that
if she wanted to, she could “grab the condom. And, she did
grab the condoms on her way out after she had packed her
belongings.” The daughter retrieved two condoms from the
trash can in Moninger’s room inside the residence and gave
them to the detectives. The daughter had “access” to
Moninger’s room, and the room had never been locked.
Finally, although “[t]he detectives had never been told not
to enter the premises prior to the obtaining of the
condoms” and consent was never “denied to Detective Ewald
prior to the detective telling the victim to go inside and
start packing,” the stipulation confirmed that “consent was
never requested from the Defendant[.]”
At the conclusion of the hearing, the parties agreed to
provide memoranda to the trial court. The legal issue
presented to the court was whether the daughter was acting
as an instrument or agent of the State when she retrieved
the used condoms from the trash can in Moninger’s bedroom
and gave them to the detectives. In its memorandum in
opposition to the motion to suppress, the State acknowledged
as undisputed facts that Detective Ewald spoke with the
daughter while Deputy White stood by with Moninger and that
Detective Ewald gave the daughter “a bag in which to place
the condoms if she chose to obtain them.”
In its order granting the motion to suppress the condoms,
the trial court stated, in pertinent part, as follows:
Stipulated facts include the investigating officers not
only telling the alleged victim to go into Defendant’s
residence to get her belongings but also telling her that
she could remove two condoms that the defendant had
allegedly used. In addition, the State now acknowledges
in its memorandum that the officers also gave the child a
bag in which to place the condoms. One can hardly imagine
a stronger hint, whether made to an adult or a child. If
the officers had simply obtained a search warrant or told
the victim to go into the residence and get her belongings
and she had, with no encouragement by the officers,
removed the condoms on her own, the Court would have seen
no violation of the defendant’s constitutional protections
against State action. Unfortunately, the actions of a
private individual, such as the alleged victim in this
case, become actions of the government when, as in this
case, the government becomes involved” . . . indirectly as
an encourager of the private citizen’s actions . . .”.
Treadway v. State, 534 So. 2d 825 (Fla. 4th DCA 1988).
Clearly, the officers “encouraged” the child/victim to
obtain the evidence that they could not have validly
obtained without permission or a proper search warrant.
The record reflects no private interests that were
furthered by the alleged victim’s actions in removing the
condoms and delivering them to the investigating
officers. Although the State urges the court to find that
there was a private interest of the alleged victim which
was furthered by the alleged victim’s actions, it does not
seem logical to find that the private interests of the
victim in obtaining corroboration of the alleged offense
is any different than the State’s interest in obtaining
evidence of the crimes the State has charged. It is clear
that the decision to remove the alleged victim from the
defendant’s home had been made prior to her entering the
home and obtaining the condoms. She was told by Child
Protective Investigator Morgan to enter the home for
purposes of obtaining her belongings because she was being
removed from the defendant’s home. This decision having
already been made, the alleged victim needed no
corroboration to further the goal the State assigns to
her. Furthermore, there is no evidence in the record
that the alleged victim was motivated by anything other
than the obvious “hints” provided by Det. Ewald.
(Second and third emphasis added.)
The trial court also noted there was no evidence that
Moninger, who was present at the scene, had consented to
any search, and there was no evidence that the daughter
gave consent or was asked to give consent. Based on the
facts that were presented and the issue that was squarely
before the trial court — whether the daughter was
acting as an instrument or agent of the State — the
court granted the motion to suppress.
In this appeal, the State argues that the daughter did not
act as a government agent but acted out of her own free
will. The State suggests that she gave the condoms to the
officers to further her own purpose, that is, to
substantiate her claim of illegal sexual contact with
Moninger. The stipulated facts do not support the State’s
argument that the daughter was not an instrument or agent
of the State or that she retrieved the condoms for her own
purpose. In Treadway v. State, 534 So. 2d 825, 827 (Fla.
4th DCA 1988), the court recognized that “while a wrongful
search and seizure by a private party does not violate the
fourth amendment, when a private party acts as an
‘instrument or agent’ of the state in effecting a search
and seizure, fourth amendment interests are implicated.”
The court explained that “[t]he government must be involved
either directly as a participant or indirectly as an
encourager of the private citizen’s actions before we deem
the citizen to be an instrument of the state.” Id. (quoting
United States v. Walther, 652 F.2d 788, 791 (9th Cir.
1981)). In State v. Iaccarino, 767 So. 2d 470, 475 (Fla. 2d
DCA 2000), this court stated as follows:
The test for determining whether private individuals are
agents of the government is whether, in consideration of
the circumstances, the individuals acted as instruments of
the state. To determine whether a private individual acts
as an instrument of the state, courts look to (1)
whether the government was aware of and acquiesced in the
conduct; and (2) whether the individual intended to assist
the police or further his own ends.
(Citations omitted.)
Here, the facts of record establish that the daughter’s
action in retrieving the condoms was precipitated by
Detective Ewald’s suggestions and encouragement and that
the interest being fulfilled was the law enforcement
interest in obtaining evidence to support a criminal
prosecution. The daughter was being removed from the home
based on what the officers already knew, and nothing
suggests that the daughter, of her own motivation,
considered taking the condoms to substantiate that she had
been molested or for any private purpose. As recognized in
Treadway, the Fourth Amendment is implicated if the sole
purpose of a private search is to further a government
interest. 534 So. 2d at 827. The stipulated facts do not
suggest that the daughter retrieved the condoms for any
purpose other than the officers’ desire to acquire evidence
without the necessity of a search warrant or requesting and
obtaining consent. Indeed, nothing in the record suggests
that the daughter would even have thought to retrieve the
condoms without the detective’s suggestion that she take
that specific course of action. Because the record supports
the trial court’s conclusion that the daughter was acting
as an instrument or agent of the State, we conclude that
the trial court properly granted Moninger’s motion to
suppress the condoms.
The State also asserts that the daughter “had
joint-ownership rights over the used condoms if the condoms
were used during sexual contact in which she was a party,”
that “she still had joint control over the house and could
have legally provided the condoms” to the officers, and
that Moninger “had no legitimate expectation of privacy.”
However, the State makes these assertions in bare-bones
fashion, without record support or citation of authority.
The stipulation indicated that the condoms were in
Moninger’s bedroom and that the daughter had “access” to the
bedroom, but no evidence was presented as to the daughter’s
“right” to enter Moninger’s room and to remove the condoms
from the trash can. There was also no evidence that the
daughter shared that room with Moninger, that she had
“joint control” over the house, or that she had
“joint-ownership” of the used condoms.[fn2] In its
memorandum in opposition to the motion to suppress, the
State suggested that the daughter “had authority to consent
to law enforcement entry, as well as law enforcement
search, if either had been requested.” (Emphasis added.) In
its order, the trial court correctly noted that there was
“no evidence that the alleged victim gave any consent to
search to the officers or was requested to do so[.]”
It is well established that the officers would need a
search warrant or an exception to the warrant requirement,
such as consent, to validly enter Moninger’s residence to
search for evidence. See V.H. v. State, 903 So. 2d 321, 322
(Fla. 2d DCA 2005). Here, the officers could have sought a
search warrant or could have asked for Moninger’s consent
to search, but they chose neither option.[fn3] Further,
there is no evidence that the daughter consented or had
authority to consent to a search of the home, the bedroom,
or the trash can in the bedroom. The evidence is undisputed
that the daughter was told by law enforcement to go into
the home to pack her belongings. At the same time,
Detective Ewald told her she could “grab” the condoms if
she wanted to, and he gave her a bag in which to put the
condoms.
Although the dissenting opinion suggests that the victim
could not have been a State agent, it gives short shrift to
the stipulated facts: the daughter reentered the home at
the direction of law enforcement; law enforcement
encouraged her to enter Moninger’s room to get the condoms;
and law enforcement gave her a bag in which to place the
evidence that law enforcement believed would assist them in
proving criminal conduct.
As to the burden of proof, the dissent suggests that
Moninger did not meet his burden to show that the seizure
of evidence was as a result of unreasonable government
action. The test in a case such as this is whether the
person who obtained the evidence was acting as an agent or
instrumentality of law enforcement. See Treadway, 534 So. 2d
at 827. The Treadway court recognized that when “a dual
purpose for the search exists such that the private person
is also furthering his own ends, the search generally
retains its private character.” Id. In Treadway, the court
determined that a dual purpose existed when an insurance
agent provided records to the Florida Comptroller’s Office.
Id. The agent worked for Treadway, and the agent accessed
his own investment file, although the office rules
prohibited the agent from reviewing those files. The
documents assisted in a prosecution for organized fraud and
grand theft, but the facts established that the agent had
his own reasons to look into the files, including concern
over his investment and to determine whether the investment
program was being handled properly. Id. at 826.
Nothing in the record here suggests that the daughter
retrieved the condoms to further her own purposes. Although
the dissent speculates as to possible private purposes
— perhaps the daughter might have wanted the condoms
as evidence for a possible civil suit against her father or
for use in a dependency action — the record does not
reflect that the daughter considered retrieving the condoms
for any private purpose. Instead, the State stipulated to
facts that reflect the daughter acted solely at the
direction and encouragement of law enforcement.
Specifically, the daughter retrieved the condoms at the
suggestion of Detective Ewald and delivered the condoms to
him. Further, the daughter was already being removed from
the home to shelter care when Detective Ewald suggested
that she gather the evidence. Notably, this court in
Iaccarino stated that the determination involves “whether
the individual intended to assist the police or further his
own ends.” 767 So. 2d at 47(emphasis added). Thus, the
intent of the individual is a necessary consideration.
Here, the stipulated facts reflect that the daughter’s
intent was to obtain evidence for Detective Ewald.
Finally, the dissent suggests that suppression of the
condoms does not serve to suppress DNA evidence on the
condoms. The State has not made this argument, and the
record does not reflect that any DNA evidence is, in fact,
contained in or on the condoms. Further, it seems
self-evident that the entire purpose of Moninger’s motion
is to challenge the legality of law enforcement’s seizure
of the condoms and whatever evidence is in or on them. In
any event, our review is to determine whether the trial
court properly resolved the issue presented to it, based on
the record evidence and the parties’ arguments, and not to
speculate regarding other theories or strategies that might
have been pursued.
Therefore, because the trial court properly granted
Moninger’s motion to suppress, we affirm the suppression
order.
Affirmed.
[fn1] The State amended the information after the
suppression hearing to add the count of capital sexual
battery and the two counts of lewd or lascivious battery.
[fn2] The State cites no authority for the proposition that
the victim of a crime becomes a joint owner of an
instrument or property used by the perpetrator during the
commission of a crime. For example, does a stabbing victim
become a joint owner of the knife because the victim’s
blood is on it
[fn3] There is no explanation why the officers did not
procure a search warrant. Deputy White was standing outside
the residence with Moninger. Detective Ewald could have
applied for a search warrant while Deputy White stayed with
Moninger.
ALTENBERND, Judge, Dissenting.
I dissent. The issue in this case is whether a
fifteen-year-old girl, who is the alleged victim of a
sexual battery by her father, is an agent of the State who
violates her father’s Fourth Amendment rights and commits
an unconstitutional seizure if she re-enters her home to
retrieve two condoms that have been discarded in a trash
can, when those condoms were allegedly used inside her body
during illegal sexual intercourse. The only reason that she
could be considered an agent of the State is that the
police suggested that while she was retrieving her other
personal belongings in order to move to shelter she could
retrieve the condoms and place them in a bag that the
police provided.
I conclude that this case is controlled by Coolidge v. New
Hampshire, 403 U.S. 443 (1971), and that Mr. Moninger failed
to establish an unreasonable search and seizure by the
government that would support suppression of this evidence.
I also conclude that the stipulated evidence does not
support that Mr. Moninger’s daughter acted as an agent or
instrument of the state, given that she had objectively
independent reasons to retrieve this evidence from her home
and to preserve that evidence against her father. I have
found no case treating such a victim of a crime as a state
agent under similar circumstances and truly doubt the
United States Supreme Court would apply its reasoning in
Coolidge to distinguish this case and exclude this
evidence. Finally, the critical evidence in this case is
DNA evidence that may or may not exist. On remand, if that
evidence is determined to exist, I would require Mr.
Moninger to file a separate motion to suppress that
evidence.
I.
The Fourth Amendment to the United States Constitution
protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. It is, of
course, a basic principle of Fourth Amendment law that
searches and seizures by law enforcement inside a home
without a warrant are presumptively unreasonable. Brigham
City, Utah v. Stuart, 126 S. Ct. 1943, 1947 (2006).
However, the Fourth Amendment is wholly inapplicable to a
search or seizure, even an unreasonable one, that is
effected by a private individual not acting as an agent of
the government or with the participation or knowledge of
any governmental official. United States v. Jacobsen, 466
U.S. 109, 113 (1984).
Two things are thus clear from the undisputed facts in this
case. If Mr. Moninger’s daughter had retrieved the condoms
from the home “wholly on her own initiative,” without any
suggestion from law enforcement that she do so, the condoms
would have been admissible in evidence. See, e.g.,
Coolidge, 403 U.S. at 487. Conversely, if the law
enforcement officers had entered the home without a warrant
and without the consent of one or perhaps both of the
occupants and seized the condoms, the seizure would have
violated the Fourth Amendment. See, e.g., Kirk v.
Louisiana, 536 U.S. 635 (2002). The question presented
here, though, is whether the combination of the officer’s
suggestion and the daughter’s voluntary actions combined in
such a manner to require a court to conclude that the
government performed an unlawful seizure of the condoms. I
conclude this case is controlled by Coolidge, 403 U.S. 443,
and that Mr. Moninger has not established that the
government effected an unreasonable search or seizure under
the facts to which Mr. Moninger stipulated.
Initially, I note that the burden of proof or persuasion in
this case rested on Mr. Moninger, not on the State. Mr.
Moninger bore the burden of establishing that the seizure
of evidence in this case was a result of unreasonable
government action. See Treadway v. State, 534 So. 2d 825,
827 (Fla. 4th DCA 1988); see also United States v. Reed, 15
F.3d 928, 931 (9th Cir. 1994); United States v. Koenig, 856
F.2d 843, 847 (7th Cir. 1988) (citing Nardone v. United
States, 308 U.S. 338, 341 (1939)). Because Mr. Moninger has
not met his burden, I would reverse the order suppressing
the condoms seized by his daughter.
The United States Supreme Court has recognized that in
some circumstances, the actions of a private citizen may be
deemed to be the actions of the government. Coolidge, 403
U.S. at 487. Ironically, the Supreme Court first recognized
this principle in a case in which it held the principle did
not apply. Id.
In Coolidge, police officers appeared at Mr. Coolidge’s
home to investigate his potential role in a crime. Mr.
Coolidge was not home. The officers spoke with his wife and
asked her whether Mr. Coolidge had any guns. The wife
responded that he did and offered to get the guns from the
bedroom. The officers indicated they would accompany the
wife, and they proceeded with the wife into the bedroom and
ultimately accepted possession of the guns she offered to
them. Id. at 486.
The Supreme Court noted, “Had Mrs. Coolidge, wholly on her
own initiative, sought out her husband’s guns and then
taken them to the police station to be used as evidence
against him, there can be no doubt under existing law that
the articles would later have been admissible in evidence.”
Id. at 487. However, Mr. Coolidge contended that the
conduct of the police officers was such as to make Mrs.
Coolidge’s actions the actions of the police for the
purposes of the Fourth Amendment.
“The test,” the Supreme Court held, “is whether Mrs.
Coolidge, in light of all the circumstances of the case,
must be regarded as having acted as an ‘instrument’ or
agent of the state when she produced her husband’s
belongings.” Id. The Court noted that if the exclusionary
rule applied to this evidence, “it must be upon the basis
that some type of unconstitutional police conduct
occurred.” Id. at 488. In holding that no “unconstitutional
police conduct” occurred, the Supreme Court reviewed the
actions of the officers and concluded that the officers
behaved appropriately in their investigation: When they
first appeared at the home they had no intention of
conducting a search or seizure; they properly questioned
Mrs. Coolidge; and once they became aware of the evidence
they did not compel or coerce Mrs. Coolidge to obtain
possession of the guns. Id. at 488-89. The Supreme Court
added that there was nothing “constitutionally suspect” in
the incentives a private citizen might feel to cooperate
with the police. Id. at 488. As such, the Supreme Court
held the items relinquished by Mrs. Coolidge were not
subject to suppression.
The only perceivable differences between the facts
presented in Coolidge and the facts presented here are the
age and relationship of the daughter to Mr. Moninger and
the fact that the daughter did not herself originate the
idea of retrieving the condoms, but simply agreed to do so
when the officer explained that it might assist the
investigation or prosecution. I conclude that these distinct
facts do not permit a finding of unconstitutional police
conduct requiring the application of the exclusionary rule.
The facts to which Mr. Moninger agreed suggest that, like
Mrs. Coolidge, the fifteen-year-old daughter had open
access to the home, the father’s bedroom, and to the
discarded condoms her father had allegedly used in a sexual
battery against her. Given these facts and the facts known
to the police officers after they interviewed the daughter,
I find nothing suspect or sinister in their informing the
daughter that if she had access to this important evidence
and could retrieve it, it would assist in a prosecution.
Before the trial court and in his arguments on appeal, Mr.
Moninger relied upon the Fourth District’s opinion in
Treadway, 534 So. 2d 825, to support his argument that Mr.
Moninger’s daughter acted as an agent of law enforcement.
In Treadway, an insurance agent sifted through private
investment files of his employer and provided government
officials with some of the records he discovered, even
though office rules prohibited the insurance agent from
reviewing those files. The Treadway court focused on the
level of government participation in the insurance agent’s
search and seizure, which was minimal, and the motive of
the insurance agent in performing the search and seizure,
which was to further his own ends as well as those of the
government. The court concluded that based upon these two
factors the insurance agent was not an “agent of law
enforcement” when he performed the search and seizure.
Treadway in turn relied upon the Ninth Circuit’s opinion
in United States v. Walther, 652 F.2d 788 (9th Cir. 1981).
In Walther, an airline employee, who occasionally acted as
an informant to law enforcement regarding drug activity,
opened a customer’s package based upon his suspicion that
the package might contain contraband. Id. at 790. In
assessing whether the airline employee acted as an agent of
the police, the Ninth Circuit held that there were two
“critical factors” in the “instrument or agent” analysis:
(1) the government’s knowledge and acquiescence in the
search and (2) the intent of the party performing the
search. Id. at 792. Based upon a review of these two
factors, the Ninth Circuit held the airline employee acted
as an agent of law enforcement, and the drugs he found were
properly suppressed. Id. at 792-93. See also State v.
Iaccarino, 767 So. 2d 470 (Fla. 2d DCA 2000) (applying
Walther to hold that off-duty police officers’ searches of
musical festival patrons violated the Fourth Amendment).
Each of these cases, however, arose in the context of
inappropriate behavior on the part of the private
individual. In each case, the private individual was
improperly invading the privacy of the suspect. In other
words, the private search or seizure was itself
“unreasonable,” and thus the government’s knowing
participation in or encouragement of such an unreasonable
search or seizure would be in violation of the Fourth
Amendment.
In Coolidge and in this case, however, the private
individual’s conduct is not itself “unreasonable.”
According to the stipulated facts, there was nothing wrong
with Mr. Moninger’s daughter returning into her home and
retrieving not only her personal belongings but also the
condoms she and her father had allegedly recently used and
discarded. The analysis in Walther assumes some unwarranted
intrusion by the private actor vis-?•-vis the suspect; here,
as in Coolidge, there was none. See also United States v.
Novick, 450 F.2d 1111 (9th Cir. 1971) (applying Coolidge to
hold that officers who responded to a suicide and asked the
homeowner if there were any guns in the home did not
violate the Fourth Amendment when they accompanied the
homeowner into a guest room to seize guns, revealing other
contraband belonging to the guest).
My conclusion is supported by the Illinois Supreme Court’s
opinion in People v. Heflin, 376 N.E.2d 1367 (Ill. 1978),
the one case I have discovered with facts somewhat akin to
the unique facts of this case. In Heflin, law enforcement
arrested the defendant upon suspicion of murder and
informed the defendant’s brother of the arrest and charges.
One of the police officers specifically inquired about some
potentially incriminating letters the defendant might
possess and asked the brother if he would get the letters
for the police. The defendant thereafter personally asked
his brother to retrieve the defendant’s car and other
personal belongings and to store them. The brother gathered
the belongings as the defendant requested, and after a
follow-up call from law enforcement, the brother provided
the incriminating letters to the police. Id. at 1373.
The Illinois Supreme Court stated:
The defendant argues that the present situation is
different from that in Coolidge, because here there were
specific requests for his possessions. We do not think
this factor is dispositive. Here, as in Coolidge, we can
find no evidence of unreasonable police conduct or
coercive influence over the private individual who turned
the defendant’s possessions over to the police.
Considering the entirety of the evidence, we think it
sound to conclude that Jon Heflin decided to voluntarily
turn the letters over to the police without their
persuasion. The letters were obtained by Jon Heflin at
the insistence of the defendant, not the police, and Jon
Heflin discussed the letters with the defendant’s
attorney, who gave him no specific orders not to turn them
over. Moreover, the nature of the initial request and the
follow-up requests by the police indicate that no
pressure, subtle or otherwise, was exerted on Jon Heflin
at any time. Consequently, we conclude that Jon Heflin
acted independently and that the search and seizure of
defendant’s possessions was without the requisite degree
of police involvement necessary to invoke the
constitutional guarantees.
Id. at 1374.
Under the analysis of Coolidge, Heflin, and similar cases,
I conclude that no unconstitutional police conduct occurred
in this case. I would therefore reverse the trial court’s
order granting the motion to suppress.
II.
I have concluded above that Coolidge controls this case and
that the analysis applied in Treadway and Walther, arising
as it did in the face of unreasonable private searches and
seizures (i.e., ones in which the private party was
invading an expectation of privacy of the suspect), is
perhaps not appropriately suited to this context. However,
even if this court were to apply the reasoning of Treadway
and Walther, I am convinced that the daughter cannot be
deemed to have acted as a government agent in this context
because the daughter had objective independent reasons to
retrieve evidence from her own home and to preserve that
evidence against her father. This is especially true
because her father had no expectation of privacy that would
require a warrant for such an intrusion by his daughter.
As discussed earlier, the Ninth Circuit has held that the
two “critical factors” to be considered in the “instrument
or agent” analysis are: (1) the government’s knowledge and
acquiescence in the search and (2) the intent of the party
performing the search. Walther, 652 F.2d at 792. The second
prong of this analysis is admittedly a little confusing to
me. It does not test the conduct of the police but rather
the motivation of their borrowed servant. It seems to me
that this test suggests that, even though one may act, in
part, as an agent of the state, the Fourth Amendment does
not render a seizure unconstitutional if the person has an
objective, independent private reason to seize the
property.
If the facts in this case involved a single, adult female
police officer who lived with her father and was raped by
him in the family’s home, no one would suggest that she
needed to obtain a warrant to collect the condoms from the
trash. The fact that she was a sworn, trained state agent
and, as a result, understood the value of evidence would
not override her right as a person and victim to save and
preserve the evidence of a crime committed inside both her
own home and her own body.
Mr. Moninger’s daughter, of course, is not trained in the
law and may have subjectively lacked the knowledge to
understand these valid personal reasons to gather up
evidence against her father. Interestingly, if she had had
a lawyer, the lawyer’s advice to collect the evidence would
not have been state action and would not have transformed
her into a state agent. Just as a police officer’s actions
under the Fourth Amendment are usually tested with an
objective standard, Whren v. United States, 517 U.S. 806,
813 (1996), the same should be true for this teenager.
Objectively, she had an independent private reason to
remove these condoms from her home as evidence in a civil
action against her father and in a dependency proceeding to
place her in a safe environment.
Again, this analysis is all the more compelling in light of
Mr. Moninger’s reduced expectation of privacy in the
condoms. Thus, I am not suggesting that the daughter’s
independent private reasons would necessarily allow her to
invade the privacy of the accused if she were also acting
in part as a state agent. If this case involved an accused
who lived in another residence, she could not burglarize
that dwelling or the accused’s business office at the
suggestion of the police to obtain evidence useful to both
the police and herself. Perhaps if Mr. Moninger had
established that he took the used condoms and locked them
in a closet in his bedroom, the result would be different.
Here, Mr. Moninger has not presented any evidence to
establish that he had an expectation of privacy vis-?•-vis
his daughter in the items he discarded in the trash can in
the unlocked bedroom of this mobile home.
Thus, although I conclude that Coolidge applies and that
the analysis presented in Treadway and Walther is not
adequate to deal with a case in which the victim seizing a
personal item in her own home is the purported state agent,
I also conclude that the daughter’s seizure of this
evidence, which has independent utility for her, is not the
action of a state agent even under the analysis in Treadway
and Walther.
III.
Finally, I am not convinced that the majority’s decision
conclusively decides the issues presented by the seizure of
these condoms. The fact that an adult male has two used
condoms in his bedroom trash can, without more, merely
suggests that he is sexually active. That fact is not
overly relevant to establish that he is molesting his
daughter. If anything, the slight probative value of the
condoms might be outweighed by their prejudicial effect.
See § 90.403, Fla. Stat. (2004). Thus, the evidence
that has been suppressed at this point is evidence that may
not even have been admissible at trial.
The critical, probative evidence that may actually have
been gathered by the deputies on July 8, 2004, is a sample
of the daughter’s DNA on the exterior surface of the
condom. It is not clear that such evidence exists. If that
evidence exists, it could be very helpful in proving her
claim. Ironically, if the condoms were tested and did not
contain evidence of the daughter’s DNA, Mr. Moninger would
probably want to put that fact into evidence to try to
establish that his daughter’s story was a fabrication.
No one has expressly moved to suppress the results of DNA
testing of genetic material located on the exterior of the
condoms. The trial court has not explicitly suppressed that
evidence. I assume that the daughter in this case would be
permitted at trial to testify that her father used a condom
during these sexual batteries even if the actual condom
were suppressed because that testimony would not be fruit of
any poisonous tree. Admittedly, it is a much closer
question, but I am not convinced that the suppression of
the condoms would necessarily require suppression of
evidence of her DNA on the exterior of the condoms. I find
it hard to conclude that she would be a state agent when she
was entering her own home to retrieve a sample of her own
DNA on a discarded item. On remand, if that evidence is
determined to exist, I would require Mr. Moninger to file a
separate motion to suppress that evidence.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED