                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-1430

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                     Meng Yang,
                                     Appellant.

                               Filed December 29, 2014
                                      Affirmed
                                     Kirk, Judge

                              Scott County District Court
                               File No. 70-CR-12-6857


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Craig E. Cascarano, Minneapolis, Minnesota (for appellant)

Greg S. Paulson, Kurt V. BlueDog, BlueDog, Paulson & Small, P.L.L.P., Minneapolis,
Minnesota (for amicus curiae Shakopee Mdewakanton Sioux Community)


         Considered and decided by Worke, Presiding Judge; Kirk, Judge; and Reyes,

Judge.
                        UNPUBLISHED OPINION

KIRK, Judge

       Appellant challenges his convictions of three counts of controlled substance crime

in the first degree, arguing that security guards employed by the Mystic Lake Casino

Hotel violated his Fourth Amendment protections under the Indian Civil Rights Act and

the United States Constitution when they conducted a warrantless search of his satchel in

a hotel room and discovered methamphetamine and marijuana. Because the security

guards were not acting as tribal governmental agents, appellant’s rights under the Indian

Civil Rights Act were not violated. We affirm.

                                         FACTS

       The facts of this case are undisputed.      On the morning of April 4, 2012, a

housekeeper employed at the Mystic Lake Casino Hotel entered a guest’s hotel room

after receiving a request for the room to be cleaned. While making the bed, she observed

a glass pipe resembling the type commonly used to smoke narcotics partially sticking out

from underneath a pillow.      The housekeeper alerted her supervisor, who contacted

security supervisor Kyle Tutsch.

       When Tutsch entered the guest’s hotel room, he saw the glass pipe on the bed.

Tutsch also observed a small tin canister on a desk containing numerous small baggies.

One of the baggies contained a trace of a white crystal-like substance that appeared to be

methamphetamine. A digital scale and several small paper scoops were located next to

the canister. Tutsch contacted additional security staff, who soon arrived on the scene.




                                             2
      Mystic Lake Casino Hotel, which is owned by the Shakopee Mdewakanton Sioux

Community, has a zero-tolerance policy for drugs, alcohol, and firearms. Guests are

notified of the zero-tolerance policy on the hotel registration form that they complete

during check-in and by signs posted in several areas around the casino and hotel. When a

guest is found to be in possession of narcotics, security will inventory the personal

belongings in the guest’s hotel room and then issue an exclusion barring the guest from

the casino and hotel property for 72 hours. The testimony at the suppression hearing does

not indicate whether this inventory is done as part of a procedure developed by the tribe,

the Mystic Lake Casino Hotel, or by the security staff to protect themselves from later

claims by the excluded guest.

      Tutsch, Karl Kruggel, the security shift manager, and David Janke, the director of

security, inventoried the room. Kruggel searched the contents of a brown satchel and

discovered three plastic bags, each containing a large amount of a white crystal-like

substance that appeared to be methamphetamine, a small plastic bag containing a small

amount of marijuana, and various forms of identification belonging to appellant Meng

Yang. They also searched a blue duffle bag but did not find any contraband. After the

inventory was complete, Janke contacted local law enforcement.

      When Agent Gary Kern of the Southwest Metropolitan Drug Task Force arrived at

the hotel room, all of the drugs and drug paraphernalia were laid out in plain view. Agent

Kern seized the brown satchel and contraband. The security guards and Agent Kern

waited inside the hotel room for appellant and S.P., the room’s registered occupant, to

return. Appellant and S.P. returned to the room later that morning and the security guards


                                            3
detained them and placed them in handcuffs. The security staff served appellant with an

exclusion notice.   Agent Kern conducted separate interviews of appellant and S.P.

Appellant denied having any knowledge of the drugs found in the brown satchel, but

admitted that the satchel belonged to him and that he had observed people using

methamphetamine in the hotel room the previous night. Appellant was placed into the

custody of local law enforcement and respondent State of Minnesota charged him with

manufacture of a controlled substance in the first degree, possession of a controlled

substance in the first degree, and aiding and abetting the sale of a controlled substance in

the first degree.

       Appellant moved to suppress the evidence the security guards found, arguing that

as a non-Indian, the Indian Civil Rights Act protected him from unreasonable searches

and seizures while on Indian land, and the fruits of the search were illegally obtained.

See 25 U.S.C. § 1302(a)(2) (2012). Appellant cited State v. Madsen, 760 N.W.2d 370

(S.D. 2009), for the proposition that the Indian Civil Rights Act applied to warrantless

searches of a casino hotel room by the casino’s security guards.

       After a contested omnibus hearing, the district court denied appellant’s motion,

concluding that the Mystic Lake Casino Hotel security staff did not violate the Indian

Civil Rights Act or the United States Constitution because hotel security considered itself

to be a private entity that did not take direction from law enforcement, and it acted

pursuant to its internal policy to inventory the contents of a hotel room before issuing an

exclusion.    The district court found no evidence of involvement by the Shakopee

Mdewakanton Sioux Community or local law enforcement in the search. The jury found


                                             4
appellant guilty on all counts, and the district court sentenced him to 175 months in

prison.

          Appellant now appeals his convictions.1

                                      DECISION

          “When reviewing pretrial orders on motions to suppress evidence, we may

independently review the facts and determine, as a matter of law, whether the district

court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590

N.W.2d 90, 98 (Minn. 1999). Whether a private citizen has acted as an agent of the

government is a question of fact that must be decided on a case-by-case basis after

considering all of the facts and circumstances relative to the search. State v. Buswell, 460

N.W.2d 614, 618 (Minn. 1990) (citing Skinner v. United States, 489 U.S. 602, 614, 109

S. Ct. 1402, 1411 (1989)). Such factual determinations will be reversed only if clearly

erroneous. Id.

          Both the United States and Minnesota Constitutions prohibit unreasonable

searches and seizures conducted by the government. U.S. Const. amend. IV; Minn.

Const. art. I, § 10. Unregistered hotel guests may have a reasonable expectation of

privacy and may be protected from unreasonable searches of and seizures from their hotel

room. State v. Sletten, 664 N.W.2d 870, 876-77 (Minn. App. 2003), review denied

(Minn. Sept. 24, 2003). However, a private search, even if unreasonable, does not

implicate Fourth Amendment protections. Buswell, 460 N.W.2d at 617-18.

1
  The Shakopee Mdewakanton Sioux Community submitted an amicus brief in support of
the state’s position that the security guards were not acting as government agents of the
tribe.

                                              5
       The Indian Civil Rights Act embodies many of the provisions found in the United

States Constitution’s Bill of Rights, including the Fourth Amendment protection against

unreasonable searches and seizures.2 25 U.S.C. § 1302(a)(2); see Terry v. Ohio, 392 U.S.

1, 20, 88 S. Ct. 1868, 1879 (1968); Red Fox v. Red Fox, 564 F.2d 361, 364 (9th Cir.

1977) (stating that the Indian Civil Rights Act “substantially tracks the precise language

of the Bill of Rights portion of the [United States] Constitution”).

       The Fourth Amendment guarantees provided in the Indian Civil Rights Act have

been extended to non-Indians while in Indian country. See United States v. Terry, 400

F.3d 575, 579-80 (8th Cir. 2005) (holding Indian Civil Rights Act prohibited tribal police

from conducting unreasonable search and seizures of a non-Indian suspected of

committing domestic violence on Indian lands).             Courts have also applied the

exclusionary rule to evidence obtained by Indian tribal officers in violation of section

1302(a)(2). See People v. Ramirez, 56 Cal. Rptr. 3d 631, 640 (Cal. Ct. App. 2007)

(noting that “[t]o conclude Congress did not intend the exclusionary rule to apply to

violations of section [1302(a)(2)] would be to conclude that Congress intended to

sanction a new version of the ‘silver platter’ doctrine the [United States] Supreme Court

rejected in 1960 in” Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437 (1960)).

       The question of whether the security guards acted as agents of the tribal

government, and, if so, whether the provisions of the Indian Civil Rights Act are

2
 25 U.S.C. § 1302(a)(2) states, “No Indian tribe in exercising powers of self-government
shall . . . violate the right of the people to be secure in their persons, houses, papers, and
effects against unreasonable search and seizures, nor issue warrants, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be
searched and the person or thing to be seized.”

                                              6
triggered, are questions of first impression. This court has criminal jurisdiction over this

case by virtue of Public Law 280.3 18 U.S.C. § 1162(a) (2012); see State v. Manypenny,

682 N.W.2d 143, 149 (Minn. 2004) (“Public Law 280 grants the [S]tate of Minnesota

broad criminal and limited civil jurisdiction over all Indian country in the state, with the

exception of the Red Lake Reservation.” (quotation omitted)).

       When determining whether a private individual is acting on behalf of the state for

Fourth Amendment purposes, Minnesota courts “stress[] two ‘critical factors’:

(1) whether the government knew of and acquiesced in the search and (2) whether the

search was conducted to assist law enforcement efforts or to further the private party’s

own ends.” Buswell, 460 N.W.2d at 618 (citing United States v. Walther, 652 F.2d 788,

792 (9th Cir. 1981)).

       Appellant urges us to adopt the reasoning and holding in Madsen from our sister

court in South Dakota. See 760 N.W.2d at 379. We examine appellant’s argument in

light of the two-factor Buswell test and “watch[] for clear indices of significant

government involvement which would convert the conduct of [a private security guard]

into government action.” 460 N.W.2d at 619.

       State v. Madsen

       Madsen involved a set of facts that are similar in some ways and dissimilar in

others to the instant case. The Royal River Casino, owned and operated by the Flandreau

Santee Sioux Tribe, hired tribal members as private security guards to protect the casino


3
 The Shakopee Mdewakanton Sioux Community does not have its own criminal code or
police force.

                                             7
and hotel operations. Madsen, 760 N.W.2d at 372. Two security guards conducted a

warrantless search of Madsen’s hotel room after detecting a strong odor of marijuana

emanating from his room. Id. During the search, they discovered a marijuana bud on the

floor. Id. The security guards handcuffed and detained Madsen and contacted local law

enforcement. Id. at 373. The security guards transferred Madsen over to police custody,

and a police officer later applied for a search warrant of Madsen’s hotel room and car

based in part on the marijuana evidence that the security guards found. Id. After

securing a search warrant, police discovered eight baggies of raw marijuana and drug

paraphernalia in Madsen’s hotel room. Id.

       Madsen moved to suppress the evidence, arguing that the security guards acted as

agents of the Flandreau Santee Sioux Tribe and failed to adhere to the provisions of the

Indian Civil Rights Act, and all evidence obtained under the search warrant should be

excluded as fruit of the poisonous tree. Id. at 374. The South Dakota Supreme Court

concluded that there was sufficient evidence to support a finding that the security guards

acted as agents of the tribe during their private policing of the Royal River Casino and

Hotel, and the warrantless search was subject to the provisions of the Indian Civil Rights

Act. Id. at 381.

       In determining whether the security guards were acting on behalf of the Flandreau

Santee Sioux Tribe, the Madsen court relied in part on the three-part test in United States

v. Reed, 15 F.3d 928, 931 (9th Cir. 1994), that is largely analogous to the Buswell test.

Id. at 380. The Reed test is: (1) whether the tribal government knew of and acquiesced in

the security guards’ activities; (2) whether the security guards intended to assist tribal


                                            8
government; and (3) whether the security guards acted to further the ends of tribal

government rather than their own ends. Id.

      The Madsen court closely examined the tribal government’s exercise of its powers

of self-government through the Indian Gaming Regulatory Act (IGRA), 25 U.S.C.

§§ 2701-2721 (2012). Id. at 378. The IGRA, which Congress enacted in 1988, “creates a

[federal] framework for regulating gaming activity on Indian Lands.” Michigan v. Bay

Mills Indian Cmty., 134 S. Ct. 2024, 2028 (2014); see 25 U.S.C. §§ 2701(5), 2703(4).

Under the IGRA, the tribe is required to provide adequate security measures and

personnel for its gaming operations. 25 U.S.C. § 2710(b)(2)(E)-(F). In Madsen, the

casino had implemented policies and procedures to assist the security guards in

maintaining compliance with the Flandreau Santee Sioux Gaming Commission’s internal

regulations, which included providing safety and security services to the tribe’s hotel

property.4 760 N.W.2d at 378. To that end, the security guards were provided with

casino-issued uniforms, firearms, and handcuffs. Id. at 372. While on duty, the security

guards followed the casino and hotel’s internal policies to report unusual activity to a

security captain before contacting law enforcement. Id. The security guards could detain

suspects until law enforcement arrived. Id.




4
   While it was unclear from the record whether the Flandreau Santee Sioux Tribe
operated the Royal River Casino and Hotel itself or whether it maintained an operating
contract with a third party, the Madsen court concluded that “the casino is authorized
under the Indian Gaming Regulat[ory] [Act], 25 U.S.C. § 2701(5), which permits Indian
tribes to operate gaming operations under specified conditions.” 760 N.W.2d at 372 n.1.


                                              9
       The Madsen court concluded that the security guards were tribal governmental

actors by virtue of their status as employees of the tribal casino operation, which was “a

distinctly [t]ribal governmental operation by virtue of the [IGRA].” Id. at 379. The court

found that the first prong of the Reed test was satisfied through the Flandreau Santee

Sioux Tribal Gaming Commission’s knowledge of the guards’ policies and procedures.

Id. at 381. The court found that the second and third prongs of the Reed test were

satisfied through testimony from a security guard that he conducted the warrantless

search in order to protect casino and hotel property, and not for his own purposes. Id.

For these reasons, the court held that the security guards “were [t]ribal government agents

whose conduct was limited by the constraints of the Indian Civil Rights Act.” Id.

       The Tribe’s Knowledge and Acquiescence

       “Mere antecedent contact between law enforcement and a private party is

inadequate to trigger the application of the exclusionary remedy under the Fourth

Amendment.” Buswell, 460 N.W.2d at 619. Instead, courts look for evidence that the

government took some type of initiative or steps to promote the search so that a private

citizen becomes an agent or instrument of the government. Id.

       Appellant argues by analogy to Madsen that the Shakopee Mdewakanton Sioux

Community’s extensive regulation over the security guards’ behavior and conduct

constitutes sufficient involvement by the tribe so as to implicate the Indian Civil Rights

Act. The state argues that the Indian Civil Rights Act does not apply to for-profit tribal

businesses such as Mystic Lake Casino Hotel.




                                            10
       This is a close case, but we are not persuaded by the state’s argument. We

acknowledge that the Shakopee Mdewakanton Sioux Community has historically played

a direct role in managing and operating its gaming activities. For example, in Gavle v.

Little Six, Inc., the Minnesota Supreme Court recognized that the operation of Little Six,

another casino owned and operated by the Shakopee Mdewakanton Sioux Community,

was so inextricably intertwined with the tribe’s governing structure that it was entitled to

sovereign immunity from a non-Indian security guard’s tort action. 555 N.W.2d 284,

295-96 (Minn. 1996).5

       On the limited record before us, we cannot say that the district court clearly erred

when it found that the security guards did not take direction from law enforcement, which

we broadly infer to mean the Shakopee Mdewakanton Sioux Community tribal

government and local law enforcement. There is insufficient evidence in the instant case

to demonstrate that the tribe exercised a similar quantum of control through its internal

policies and procedures as the tribe in Madsen.        Had appellant proffered evidence

demonstrating that the tribe developed the policies and procedures governing the security

guards’ conduct, our decision in this case may very well have been different.

       While the Shakopee Mdewakanton Sioux Community is a federally recognized

tribe that must comply with the provisions of the IGRA, there was also no evidence

5
  In reaching its decision, the supreme court considered a number of factors, including
whether tribal officials exercised control over the administration or accounting activities
of Little Six. Gavle, 555 N.W.2d at 294. The supreme court noted that Little Six was
owned wholly by tribal members, and Little Six’s articles of incorporation required that
the board of directors be comprised of tribal members, some of whom were members of
the tribal business council. Id. at 295. We note that the Gavle decision benefitted from a
well-developed record, which is lacking in this case.

                                            11
presented at the suppression hearing indicating that the tribe or its gaming commission

did anything to encourage the security guards to conduct the searches or to search for

contraband. See id. We note other differences between the instant case and Madsen.

Unlike in Madsen, Mystic Lake Casino Hotel employs security guards who are not tribal

members.    The Madsen court also credited the police-like powers delegated to the

security guards by the tribe, which included using casino-issued firearms, ammunition,

and handcuffs, and detaining guests suspected of criminal conduct. 760 N.W.2d at 372,

378. Here, the security guards did not use firearms or ammunition, or wear a uniform

similar to a police officer. Instead, the security staff was required to wear either a suit or

a white shirt bearing a security logo and black pants. Moreover, in Buswell, the supreme

court held that the limited power of a private security guard to make a citizen’s arrest

cannot be equated to the plenary police powers of a government law enforcement agent.

460 N.W.2d at 620.

       The record also supports the district court’s determination that Agent Kern did not

know that the security guards had conducted an inventory search prior to his arrival on

the scene. There is no evidence that local law enforcement encouraged or promoted the

security guards to conduct a warrantless search of appellant’s satchel.

       Purpose of Search

       The second prong of the Buswell test examines whether the purpose of the search

was to advance private interests or to aid law enforcement efforts. Id. at 618. Appellant

argues that this court should apply the reasoning of the Madsen court that the security

guards conducted the search in order to protect the casino and hotel property, and not for


                                             12
their own private purposes. Again, on the limited record before us, we cannot say that

the district court clearly erred in determining that there was a legitimate private purpose

for the search. See id. at 620 (concluding that the district court’s finding that private

security guards had private, legitimate reasons for searching cars seeking to enter

international raceway, which included preventing injury or discomfort of other patrons

and to reduce possibility of destruction to property was not clearly erroneous).

       The record developed at the suppression hearing is unclear as to whether Mystic

Lake Casino Hotel had a private interest in lowering its risk of civil liability arising from

a claim of theft by a hotel guest who was excluded from the property. The Madsen court

concluded that the security guards acted to further the ends of the tribal government

through the security guard’s testimony that he conducted the search not for his own

purposes, but to protect casino and hotel property. 760 N.W.2d at 381. In contrast, when

the prosecutor asked Tutsch why he inventoried the hotel room, he replied, “So guests

don’t come back later and, you know, say we may have taken an item of theirs that was

up in the room.” (Emphasis added.) It is unclear from Tutsch’s testimony whether he

was referring to the personal interest of the security guards to avoid an allegation of theft,

or whether he meant that he acted on behalf of Mystic Lake Casino Hotel.

       It is clear that housekeeping staff and security staff observed the glass pipe and

drug paraphernalia in plain view. Had there been evidence showing the guards acted

under the directive of the tribal government, the ensuing inventory search of the hotel

room may have violated the Indian Civil Rights Act warranting suppression of the

evidence. See Buswell, 460 N.W.2d at 617. But on the limited record before us, we are


                                             13
bound to uphold the district court’s determination. We conclude that the district court did

not err when it found the search of appellant’s satchel was private and did not offend the

Indian Civil Rights Act.

       Affirmed.




                                            14
