                                                         134 Nev., Advance Opinion   65
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   THOMAS WILLIAM MOONEY, A/K/A                            No. 72736
                   TOM MOONEY,
                   Appellant,                                                   ALED
                   vs.
                   THE STATE OF NEVADA,                                         AUG 3 20%
                   Respondent.



                               Appeal from a judgment of conviction, pursuant to a jury
                   verdict, of fourteen counts of possession of a component of an explosive or
                   incendiary device with the intent to manufacture an explosive or incendiary
                   device and, pursuant to a guilty plea, of three counts of possession of a
                   firearm by a person previously convicted of a felony offense. Fourth Judicial
                   District Court, Elko County; Alvin R. Kacin, Judge.
                               Affirmed.


                   Kriston N. Hill, Public Defender, and Benjamin C Gaumond, Deputy Public
                   Defender, Elko County,
                   for Appellant.

                   Adam Paul Laxalt, Attorney General, Carson City; Tyler J. Ingram, District
                   Attorney, and David A. Buehler, Deputy District Attorney, Elko County,
                   for Respondent.




                   BEFORE SILVER, C.J., TAO and GIBBONS, JJ.




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                                                    OPINION
                   By the Court, GIBBONS, J.:
                               Aline Mooney opened the locked bedroom door of Thomas
                   William Mooney, her adult son, while a sheriffs deputy stood nearby. The
                   deputy did not ask Aline to open the door or suggest that he wanted to see
                   inside the bedroom. Once the door was open, the deputy saw firearms and
                   bomb-making materials inside the room.
                               This case requires us to consider whether Aline's decision to
                   open Mooney's locked bedroom door in the presence of a law enforcement
                   officer was sufficiently connected or related to governmental action to
                   implicate the protections of the Fourth Amendment. Nevada caselaw,
                   however, provides us with scant guidance on how to resolve this question.
                               Turning to and adopting federal caselaw, we conclude Aline's
                   actions were sufficiently independent as to constitute private conduct.
                   Therefore, we affirm the district court's decision denying Mooney's motion
                   to suppress evidence because the Fourth Amendment's protections are
                   inapplicable to such private conduct.
                                                     FACTS
                               William Mooney dialed 9-1-1 to contact emergency services
                   because his and Aline's adult son, Mooney, and an unidentified woman were
                   allegedly using drugs and the woman was threatening suicide. Elko County
                   Sheriffs Deputy Brian Shoaf was dispatched to William's residence.
                               Upon his arrival at the residence, Deputy Shoaf was invited
                   into the house. William spoke with Deputy Shoaf in the kitchen and, upon
                   inquiry, informed Deputy Shoal that the incidents occurred in Mooney's
                   bedroom, which was located down a hallway. William informed Deputy
                   Shoaf that Mooney and the woman were using drugs, repeatedly stated he

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                   was angry with Mooney, and complained that Mooney had been "destroying
                   a lot of the house." William then guided Deputy Shoaf from the kitchen to
                   the hallway, pointed to a closed door at the end of a hallway, and said,
                   "that's Thomas' [1 bedroom."
                                 At this point, without any prompting or encouragement from
                   Deputy Shoaf or William, Aline approached and attempted to open
                   Mooney's bedroom door Aline, however, could not open the door because it
                   was locked.
                                 Deputy Shoaf made several inquiries regarding William's and
                   Aline's access to Mooney's room, and based on the information he gathered,
                   informed William and Aline that Mooney "had a reasonable expectation of
                   privacy to that room." In response, William became very agitated and
                   denounced Deputy Shoal's admonishment about Mooney's reasonable
                   expectation of privacy because he owned the house and "pay [s] for it."
                                 Though Deputy Shoaf did not ask about a key to the door or
                   request either William or Mine to open the door, they informed Deputy
                   Shoaf that they had a key to the door, and Aline proceeded to get the key.
                   Deputy Shoaf cautioned William and Mine that, even though they had a
                   key to the door, Mooney still had a reasonable expectation of privacy.
                                 Nevertheless, Aline unlocked Mooney's bedroom door and
                   opened it. At this time, Deputy Shoaf was down the hallway approximately
                   ten feet from the doorway, and a majority of the room was out of his sight.
                                 William indicated he wanted Deputy Shoaf to see the condition
                   of Mooney's bedroom. Deputy Shoaf followed William down the hallway,
                   stopping just outside the door. Because it was too dark in the room for him
                   to see anything with his naked eye, Deputy Shoaf stood at the doorway, just
                   outside the room, and shined his flashlight into the room. At some point,

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                   William entered the bedroom and turned on the lights, and Deputy Shoaf
                   could then see the interior of the room without the aid of his flashlight.
                               Standing in the hallway and looking inside the room, Deputy
                   Shoaf observed drug paraphernalia, what appeared to be firearms, and
                   bomb-making materials. Based on his experience in the United States
                   Marine Corps, Deputy Shoaf recognized that some of the bomb-making
                   materials "are very easy to accelerate, very easy to set off." Thus, Deputy
                   Shoaf chose to enter Mooney's bedroom to examine these potentially
                   dangerous objects more closely.
                               Upon entering the• room, Deputy Shoaf handled one of the
                   objects that looked like a bomb or a component thereof. Deputy Shoaf
                   testified that this item's appearance was significant to him because it was
                   "the makeup of an anti-personnel explosive" that could easily explode and
                   cause severe injuries to anyone nearby. Because of this observation, Deputy
                   Shoaf secured and left the room, and he directed William and Mine to a safe
                   location.
                               Deputy Shoaf applied for and obtained a warrant to search
                   Mooney's bedroom. Deputy Shoaf, along with several detectives and
                   members of the Elko County Bomb Squad, executed the warrant and seized
                   "the devices, explosive components and firearms" that Deputy Shoaf had
                   previously observed.
                                            PROCEDURAL HISTORY
                               Mooney moved to suppress all the evidence obtained as a result
                   of Deputy Shoafs observations of his bedroom. He argued that he had
                   exclusive possession and use of the bedroom such that his parents did not
                   have authority to consent to a search of the room. Thus, he argued, Deputy
                   Shoafs observations of his bedroom from the hallway constituted an
                   unreasonable, warrantless search in violation of the Fourth Amendment.
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                               The State opposed Mooney's motion, arguing that Deputy Shoaf
                   did not request to search Mooney's room and Mooney's parents acted
                   independently, not as agents of the state, when Aline opened the locked
                   bedroom door. Accordingly, it argued, the Fourth Amendment's protections
                   did not apply to their actions as private persons, or to Deputy Shoes
                   observations from the hallway, which did not exceed the parents' intrusion.
                   Alternatively, the State argued that William and Aline had authority to
                   consent to a search of Mooney's bedroom,
                               Mooney replied to the State's opposition, arguing that,
                   regardless of whether Aline was a state agent, Deputy Shoes observations
                   from the hallway constituted an unreasonable, warrantless search given
                   what Deputy Shoaf knew about Mooney's history of living in the room and
                   habits concerning keeping the door closed and locked.
                               The district court denied Mooney's motion to suppress evidence.
                   In so doing, it found, in relevant part, that despite Deputy Shoal's
                   admonition that Mooney "had a reasonable expectation of privacy to that
                   room," Aline retrieved her key to the room and proceeded to unlock and open
                   the door to the room "[w]ithout any request or other prompting from
                   [Deputy] Shoaf." It also found "that Aline and William were not acting as
                   agents of the government when they provided [Deputy] Shoaf with a view
                   of the bedroom." As a result, the district court concluded that Deputy Shoaf
                   was not conducting a Fourth Amendment "search" when he made plain-
                   view observations of the bedroom from the hallway. The court further
                   concluded that Deputy Shoaf lawfully entered Mooney's bedroom because,
                   based on his military training and experience, he "had probable cause to
                   believe [Mooney] constructively possessed dangerous, life-threatening
                   contraband" such that "exigent circumstances" justified Deputy Shoaf s

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                   warrantless entry into the room to inspect the bomb-making materials and
                   secure the room before applying for a search warrant.
                               The case against Mooney proceeded to a jury trial on the
                   explosives charges. The jury found him guilty of 14 counts of possession of
                   a component of an explosive or incendiary device with the intent to
                   manufacture an explosive or incendiary device. Subsequently, Mooney
                   pleaded guilty to 3 counts of possession of a firearm by a person previously
                   convicted of a felony offense in exchange for reserving his right to appeal
                   the district court's denial of his motion to suppress evidence. Mooney was
                   sentenced to serve a prison term of 52 months to 11 years. This appeal
                   follows.
                                                    ANALYSIS
                               Mooney raises one issue on appeal: whether the district court
                   erred by denying his motion to suppress evidence. Mooney argues the
                   district court erred by determining that Deputy Shoaf was not conducting a
                   Fourth Amendment search when he saw the bomb-making materials in
                   Mooney's bedroom from the hallway. Specifically, Mooney takes issue with
                   the district court's conclusion that Aline's decision to open Mooney's
                   bedroom door did not implicate the Fourth Amendment because she was not
                   an agent or instrument of the government." Mooney does not challenge the


                         'Evidence of a crime or contraband that is observed by a law
                   enforcement officer from a position that the officer has a right to be in is not
                   a search under the Fourth Amendment as the items were observed in plain
                   view. See State v. Conners, 116 Nev. 184, 187 n.3, 994 P.2d 44,46 n.3 (2000)
                   (noting that under "Et] he plain-view doctrine . . . if police are lawfully in a
                   position from which they view an object, if its incriminating character is
                   immediately apparent, and if the officers have a lawful right of access to the
                   object, they may seize it without a warrant" (internal quotation marks


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                      district court's conclusion that exigent circumstances justified Deputy
                      Shoafs entry into his bedroom, nor does he contest the subsequent issuance
                      and execution of the search warrant. 2
                                     "This court reviews the lawfulness of a search de novo because
                      such a review requires consideration of both factual circumstances and legal
                      issues." Casteel v. State, 122 Nev. 356, 360, 131 P.3d 1, 3 (2006) (internal
                      quotation marks omitted). In so doing, "this court treats the district court's
                      findings of fact deferentially." McMorran v. State, 118 Nev. 379, 383, 46
                      P.3d 81, 84 (2002).
                      State action
                                     The Fourth Amendment to the United States Constitution
                      provides that "Mlle right of the people to be secure in their persons, houses,
                      papers, and effects, against unreasonable searches and seizures, shall not
                      be violated, and no Warrants shall issue, but upon probable cause." The
                      Fourth Amendment's protections, however, only apply to governmental
                      action and are "wholly inapplicable" to any searches or seizures, even those
                      that are unreasonable, that are performed by private individuals not acting


                      omitted)). Therefore, Deputy Shoafs observations from outside the
                      bedroom were not a violation of the Fourth Amendment unless the door to
                      the room was unlawfully opened, which, as explained in this opinion, it was
                      not. Mooney also argues that his parents lacked actual or apparent
                      authority to consent to a search of his bedroom. We do not address this
                      argument in light of our disposition.

                            2 Though  Mooney does not raise this issue on appeal, we agree with
                      the district court's finding that exigent circumstances justified Deputy
                      Shoafs entry into Mooney's bedroom. See Hannon v. State, 125 Nev. 142,
                      147, 207 P.3d 344, 347 (2009) (exigent circumstances justify a warrantless
                      search when law enforcement officers possess "an objectively reasonable
                      basis to believe that there was an immediate need to protect the lives or
                      safety of themselves or others").
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                   as agents for the government or with the knowledge or participation of some
                   government official.   United States v. Jacobsen, 466 U.S. 109, 113 (1984)
                   (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J.,
                   dissenting)).
                                The Nevada Supreme Court has recognized that the Fourth
                   Amendment's protections are limited and generally do not apply to the
                   conduct of private individuals except under specific circumstances with
                   sufficient indicia of governmental involvement. See, e.g., Golden v. State,
                   95 Nev. 481, 482, 596 P.2d 495, 496 (1979) (holding that a search of air
                   freight shipment by an airline employee was a private search that lacked
                   "the significant state involvement required to place it within the purview of
                   the Fourth Amendment"); Radkus v. State, 90 Nev. 406, 408, 528 P.2d 697,
                   698 (1974) ("The Fourth Amendment simply does not apply where evidence
                   is discovered and turned over to the government by private citizens."). Still,
                   the supreme court has only issued one opinion in which it discussed in depth
                   whether a private individual's conduct could be considered sufficiently
                   related to governmental action as to be subject to the protections of the
                   Fourth Amendment. See State v. Miller, 110 Nev. 690, 695-97, 877 P.2d
                   1044, 1047-49 (1994). 3 In Miller, the court did not announce any guiding


                         3 In one other case, the Nevada Supreme Court briefly discussed the
                   limits of "private conduct" for Fourth Amendment purposes. See Barnato v.
                   State, 88 Nev. 508, 501 P.2d 643 (1972). In Barnato, the supreme court
                   considered, in part, whether an animal control officer who suspected
                   appellants were growing marijuana on their property was a state actor
                   when he "surreptitiously entered [appellants] enclosed yard" with a
                   sheriffs deputy and "they took a leaf from one of the plants." Id. at 510, 501
                   P.2d at 644. It concluded summarily that "even if the Control Officer
                   himself may be considered a private citizen, State action clearly was
                   involved when he surreptitiously seized plant samples from the
                   [appellants] garden." Id. at 511-12,501 P.2d at 645.
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                   principles or factors other courts should consider when faced with this
                   question beyond pointing to Jacobsen and other similarly general decisions
                   from the United States Supreme Court. See id. We therefore look primarily
                   to federal caselaw to complete our analysis.
                               While there is no bright line or defined set of features
                   distinguishing purely private conduct from governmental action, it is well
                   established that the Fourth Amendment's protections only apply to
                   searches or seizures conducted by a private individual when that private
                   individual acts as an agent or instrument for the government. See Coolidge
                   v. New Hampshire, 403 U.S. 443, 487 (1971), overruled in part on other
                   grounds by Horton v. California, 496 U.S. 128 (1990). Still, "there exists a
                   gray area between the extremes of overt governmental participation in a
                   search and the complete absence of such participation."      United States v.
                   Reed, 15 F.3d 928, 931 (9th Cir. 1994) (internal quotation marks omitted).
                   "Whether a private party should be deemed an agent or instrument of the
                   Government for Fourth Amendment purposes necessarily turns on the
                   degree of the Government's participation in the private party's activities, a
                   question that can only be resolved in light of all the circumstances." Skinner
                   v. By. Labor Execs.' Ass'n,   489 U.S. 602, 614-15 (1989) (citations and
                   internal quotation marks omitted). "This is a fact-intensive inquiry that is
                   guided by common law agency principles."       United States v. Jarrett, 338
                   F.3d 339, 344 (4th Cir. 2003) (internal quotation marks omitted). And it is
                   the defendant's burden to establish "government involvement in a private
                   search." United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994).
                               When determining whether the requisite agency relationship
                   exists, the majority of the federal courts of appeals that have addressed the
                   issue have held two factors should be considered: "(1) whether the

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                   government knew of and acquiesced in the intrusive conduct, and
                   (2) whether the party performing the search intended to assist law
                   enforcement efforts or to further his own ends." United States v. Miller, 688
                   F.2d 652, 657 (9th Cir. 1982) (internal quotation marks omitted); see also
                   United States v. Ginglen, 467 F.3d 1071, 1074 (7th Cir. 2006); United States
                   o. Alexander, 447 F.3d 1290, 1295 (10th Cir. 2006); United States v. Steiger,
                   318 F.3d 1039, 1045 (11th Cir. 2003); United States v. Young, 153 F.3d 1079,
                   1080 (9th Cir. 1998); United States v. Jenkins, 46 F.3d 447, 460 (5th Cir.
                   1995); United States v. Malbrough, 922 F.2d 458, 462 (8th Cir. 1990). To
                   establish the requisite agency relationship, the defendant must meet both
                   factors.   See Miller, 688 F.2d at 657 (using the conjunctive "and" when
                   describing the two-factor test); cf. Jarrett, 338 F.3d at 345 ("[Tthe
                   Government concedes the existence of the second factor. . . . Thus, the only
                   question before us concerns the first factor. ."); Reed, 15 F.3d at 931
                   (deciding that because the knowledge-and-acquiescence factor was clearly
                   met, the court must determine whether a private individual intended "to
                   further his own ends . . . or assist law enforcement efforts").
                                Concerning the first factor, "[al private person cannot act
                   unilaterally as an agent or instrument of the state; there must be some
                   degree of governmental knowledge and acquiescence."           United States v.
                   Sherwin, 539 F.2d 1, 6 (9th Cir. 1976). "In order to run afoul of the Fourth
                   Amendment, therefore, the Government must do more than passively
                   accept or acquiesce in a private party's search efforts. Rather, there must
                   be some degree of Government participation in the private search." Jarrett,
                   338 F.3d at 344. For example, in Skinner, the United States Supreme Court
                   found that certain federal regulations governing private rail workers
                   demonstrated "the Government did more than adopt a passive position

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                   toward the underlying private conduct," such that the rail workers acted as
                   government actors. 489 U.S. at 615; see also People v. Wilkinson, 78 Cal.
                   Rptr. 3d 501, 513 (Ct. App. 2008) (rejecting the argument that an officer
                   telling a third party he could search the defendant's room was active
                   encouragement under factor one).
                               Concerning the second factor, where a private individual has "a
                   legitimate, independent motivation to further" that individual's own ends,
                   "any dual motive to detect or prevent crime or assist the police" must negate
                   the independent motivation for the private intrusion to be considered
                   governmental action.     Cleaveland, 38 F.3d at 1094 (internal quotation
                   marks omitted). For example, in Cleaveland, the court held that the intent
                   of a power company employee who inspected an electric meter as part of his
                   job duties to determine if the defendant was stealing electricity was not
                   negated by any secondary intent to also assist law enforcement.       Id.   In
                   contrast, in Reed, the Ninth Circuit concluded that a private individual
                   "intended to help police" because that individual testified "that he knew
                   from his previous dealings with the police that he was not an agent of the
                   police department" and he "wanted to give [the police] enough information
                   so that they knew that there may be things happening. . . that they wanted
                   to take action on." 15 F.3d at 931 (alteration in original).
                               We conclude the two-factor approach provides a logical
                   framework for analyzing whether a private party should be deemed an
                   agent of the government, and we adopt that approach. Therefore, when
                   determining whether the requisite agency relationship exists, two factors
                   should be considered: (1) whether the government knew of and acquiesced
                   in the private individual's intrusive conduct, and (2) whether the private
                   individual performing the search or seizure intended to assist law

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                   enforcement or had some other independent motivation. Both factors must
                   be met for a private individual to be considered an agent or instrument of
                   the government and implicate the Fourth Amendment. And the burden to
                   demonstrate that a private individual has acted as a government agent or
                   instrument rests upon the defendant who seeks refuge under the Fourth
                   Amendment's protections. To satisfy the burden to establish the requisite
                   agency relationship under the first factor, the defendant must show
                   government agents knew of the intrusive conduct and acquiesced in the
                   conduct by actively participating in or encouraging the private individual's
                   actions. To satisfy the burden under the second factor, the defendant must
                   show either the private individual solely intended to assist law enforcement
                   when conducting the search or seizure, or, if dual motives exist, any
                   independent motive for conducting the search or seizure was negated by an
                   intent to assist law enforcement efforts.
                               We turn now to apply this test to the facts of the present case.
                   Application to Mooney
                               Although Deputy Shoaf certainly knew Aline was unlocking
                   and opening Mooney's bedroom door, Mooney failed to meet his burden to
                   demonstrate that Deputy Shoaf actively participated in or encouraged
                   Aline's actions. The record demonstrates Deputy Shoaf was present when
                   Mine opened the door and he informed Aline (as well as William) that the
                   fact that she had access to a key to the door did not undermine Mooney's
                   reasonable expectation of privacy in the room. Far from "affirmatively
                   encouragfing], instigat[ingt or initiat[ingl," Wilkinson, 78 Cal. Rptr. 3d at
                   513, Mine's intrusive conduct, Mooney can only show that Deputy Shoaf
                   was physically present and he implicitly discouraged her conduct. Thus, we
                   conclude Mooney failed to demonstrate the requisite agency relationship
                   under the first factor.
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                               Because we conclude that Mooney failed to demonstrate that a
                   government officer acquiesced to Mine's conduct, we need not consider
                   whether Aline intended to assist law enforcement in opening Mooney's
                   bedroom door. Still, to instruct future courts on how to apply this test when
                   faced with a similar scenario, and to provide an alternative basis for our
                   decision, we choose to address the second factor concerning Aline's intent
                   here.
                               Our inquiry focuses on Aline because she retrieved the key and
                   opened the door. The record demonstrates Aline testified that Deputy Shoaf
                   did not ask her to get her key to Mooney's room or to open the door. Rather,
                   she testified that she did not feel compelled or forced "by law enforcement"
                   to open the door, but chose to open the door after overhearing William and
                   Deputy Shoaf go down the hall toward Mooney's room. The record shows
                   that William insisted that Deputy Shoaf see the state of Mooney's bedroom,
                   not because he believed explosives or evidence of a crime were present
                   inside, but because he was angry with the way Mooney had been living.
                   Deputy Shoal's cautionary admonition that Mooney had a reasonable
                   expectation of privacy in his bedroom caused William to become incensed.
                   The record demonstrates that, in response to William's outrage, Aline
                   opened the door. Thus, rather than intending to assist Deputy Shoaf, the
                   record suggests that Aline's only intent was to pacify her husband by
                   opening the bedroom door. Mooney identifies no evidence pointing to
                   another motive. Accordingly, we also conclude that Mooney could not have
                   met his burden to demonstrate the requisite agency relationship under the
                   second factor.
                               As the district court correctly found, the record demonstrates
                   that Deputy Shoal's only participation in Aline's efforts was his physical

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                   presence and several verbal admonishments pointing out that Mooney
                   enjoyed a reasonable expectation of privacy in his bedroom, which was
                   protected by a locked door. Therefore, we conclude that the district court
                   did not err in finding that Aline did not act as an agent of the government
                   when she opened Mooney's door. Consequently, Deputy Shoafs
                   observations of bomb-making materials inside Mooney's room in plain view
                   from the hallway involved no Fourth Amendment search.        See Horton, 496
                   U.S. at 133 n.5. 4 Accordingly, we conclude the district court did not err by
                   denying Mooney's motion to suppress evidence.
                                                 CONCLUSION
                               Searches and seizures conducted by a private individual only
                   implicate the Fourth Amendment when a private individual acts as an
                   agent or instrument for the government. Because there is no bright line or
                   defined set of features for distinguishing purely private conduct from
                   governmental action, turning to federal caselaw, we adopt a two-factor
                   approach for analyzing whether a private party should be deemed an agent
                   of the government. To determine whether the requisite agency relationship
                   exists, two factors should be considered: (1) whether the government knew



                         4 Mooney   argues in his reply brief that "the plain view doctrine" is
                   inapplicable to Deputy Shoafs observation of the items in his room from the
                   hallway because he did not come across these items inadvertently, but was
                   engaged in "a fishing expedition." The United States Supreme Court,
                   however, eliminated the "inadvertence" element from this doctrine in
                   Horton such that it is immaterial whether Deputy Shoaf came across the
                   incriminating evidence in Mooney's room inadvertently or otherwise. See
                   Horton, 496 U.S. at 130 ("[E]ven though inadvertence is a characteristic of
                   most legitimate 'plain-view' seizures, it is not a necessary condition.");
                   United States v. Williams, 592 F.3d 511, 522-23 & n.3 (4th Cir. 2010)
                   (overruling cases requiring "inadvertence" for plain-view seizures due to
                   conflict with Horton). Thus, we reject Mooney's plain-view argument.
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                   of and acquiesced in the private individual's intrusive conduct, and (2)
                   whether the private individual performing the search or seizure intended
                   to assist law enforcement or had some other independent motivation.
                   Applying this test to the facts in this case, we conclude Mooney did not meet
                   his burden and demonstrate Mine was acting as an agent or instrument of
                   the government. We conclude that Deputy Shoaf did not violate Mooney's
                   Fourth Amendment rights by peering into and entering his room to secure
                   it and protect others from the potential harms that may have resulted from
                   the explosives Deputy Shoaf perceived in plain view. We therefore affirm
                   the district court's order denying Mooney's motion to suppress evidence and
                   affirm his judgment of conviction.


                                                                                         J.


                   We concur:


                                                , C.J.
                   Silver



                   Tao




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