                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0251n.06

                                        Case No. 18-4160

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                   FILED
UNITED STATES OF AMERICA,                           )                        May 10, 2019
                                                    )                    DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
CHARLES FORTNEY,                                    )       OHIO
                                                    )
       Defendant-Appellant.                         )

____________________________________/

Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge. Defendant Charles Fortney appeals his conviction

for possessing an unregistered firearm. He pleaded guilty pursuant to a Rule 11 agreement,

waiving his right to appeal most issues. But he reserved his right to appeal the district court’s

denial of his motion to suppress evidence. The suppression matter forms the basis of this appeal.

We now reverse.

                                       I. BACKGROUND

       Most of the evidence revealing what happened to Fortney comes from a state court

proceeding. Before the United States filed the indictment in this case, the State of Ohio prosecuted

Fortney for criminal trespass based upon his having a weapon at the warehouse. He moved to

suppress evidence and the Ohio court held a hearing. Fortney, his former boss, and a police officer
Case No. 18-4160, United States v. Fortney


testified at the hearing. That same testimony formed the relevant evidence in Fortney’s federal

suppression motion, which we now review.

                                          A. The Search

       In early 2018, Fortney was working for ALDI grocery stores in the warehouse of one of its

distribution centers. Michael Aschbrenner was in charge of the warehouse and was Fortney’s

superior. In February 2018, warehouse workers told Aschbrenner that Fortney had harassed a

coworker. They also told him that Fortney was rumored to keep a gun in the backpack he brought

to work each day. Aschbrenner resolved to speak with Fortney about the harassment. Due to the

gun rumor, however, he first got in touch with the local police department and arranged for officers

to be present on the day he met with Fortney.

       The meeting took place on an early Monday morning. Fortney arrived at his usual time of

4:00 a.m. and began working. Three police officers arrived at another part of the warehouse two

hours later and Aschbrenner ushered them into an office adjacent to his own. Meanwhile,

Fortney’s supervisor, John King, told Fortney that Aschbrenner wanted to see him. King escorted

Fortney to Aschbrenner’s office. Inside the office, Aschbrenner confronted Fortney about the

accusations and after twenty minutes or so, he told Fortney that he was fired and that this would

be his last day.     Aschbrenner later confirmed that, at this point, Fortney was terminated.

Aschbrenner then told Fortney about the gun rumor, informed Fortney that he needed to search his

backpack, and disclosed that police officers were standing by for safety purposes. According to

Fortney, Aschbrenner did not ask him whether he indeed brought in a gun, and both of them agreed

that Fortney said he did not consent to a search. Specifically, Fortney testified as follows during

cross examination:




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Case No. 18-4160, United States v. Fortney


          FORTNEY:              After I was terminated, [Aschbrenner] tried to tell me he was
                                going to search my backpack. And I said that I was no longer
                                an employee and that I do not consent to a search.

          PROSECUTOR:           You didn’t want him to search the backpack, right?

          FORTNEY:              No, I did not.

          PROSECUTOR:           Because you had a gun in the backpack?

          FORTNEY:              No. Because I believe that’s my right.

          Fortney left the office abruptly but was immediately stopped by the police officers, who

by this time had emerged from the other office and were milling about in the hall. Aschbrenner

testified that he had asked the police officers to prevent Fortney from going to the locker room and

that they did so. One of the police officers testified that, “by chance we just kind of were all in a

triangular around him, and he stopped and just sort of -- you know, just kind of put his hands up

and stopped.” Fortney confirmed that they were in a triangle formation around him, and added

that the officers “all had their hands on their firearms not drawn, which I then put my hands up

and I said -- you know, I put my hands out in front of me because I did not want to cause them to

have any issue to pull a firearm.” Fortney explained that the officers were acting “timid” and that

he “wasn’t sure of the situation, so [he] stood still and [] wasn’t able to go anywhere.” He also

testified that he did not think he could leave because he “couldn’t go through the police officers”

without bumping into them and could not leave the warehouse without first retrieving his bag,

which contained his driver’s license and his keys.1 He later testified that he believed he was under

arrest.




1
  There was no testimony at the state court’s suppression hearing that the keys were in the bag.
But at the motion hearing before the district court, Fortney, not then under oath, averred that they
were. The district court considered this additional detail in making its decision and we thus do
likewise.

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Case No. 18-4160, United States v. Fortney


       Fortney, like other workers at the warehouse, kept his backpack in a locker elsewhere in

the building, and secured it with his own lock. After Fortney halted in front of the officers outside

Aschbrenner’s office, everyone—Fortney, Aschbrenner, King, and the three officers—headed

toward the locker. Aschbrenner and Fortney walked side-by-side while the police officers

followed behind. When they arrived at the locker, Aschbrenner asked Fortney to unlock it, and he

complied. Aschbrenner then removed the backpack and began going through the pockets. During

the search, Fortney stood with his back to the exit while Aschbrenner and the officers stood in

front of him, about six to eight feet away.

       At the outset of the search, one of the officers asked Fortney whether there was a firearm

in the bag. Aschbrenner did not remember how Fortney responded, but one officer testified that

Fortney told them no, there was no firearm in the bag. Fortney, on the other hand, testified that he

told the officer there was no firearm to the best of his knowledge. According to Fortney, he did

not believe he had a firearm in his bag because he usually took it out of his bag when he was out

with his children. All agree, however, that Fortney advised them that there was a single, .45 caliber

bullet or casing in one of the pockets.2 This prompted one of the police officers to ask Fortney if

he had “a permit for the ammunition.” Fortney confirmed he had a permit in his wallet and

identified the pocket where it could be found. When Aschbrenner found Fortney’s wallet, he gave

it to the officer to “identify if [Fortney] had the proper permit.” The officers found the permit and

examined it while Aschbrenner continued unzipping pockets.

       The final pocket Aschbrenner unzipped contained the firearm. Aschbrenner recognized it

was a gun but testified, “I obviously didn’t want to pull the gun out myself, so I showed it to the



2
  It is not clear from the testimony whether it was merely a casing or a bullet. Fortney described
it as, “a piece of artwork, I guess you could say, that people usually put a chain through.”

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Case No. 18-4160, United States v. Fortney


officer and allowed him to obviously take it out of there for security.” The gun had a loaded, 30-

round magazine attached and there were two more loaded, 30-round magazines in the same pocket.

One of the officers, or perhaps Aschbrenner, removed the extra magazines, too. The officers asked

Fortney why he had not told them about the gun, and he told them he had forgotten about it.

       At this point, Aschbrenner told Fortney he was not allowed back at the warehouse and the

officers escorted him out to his truck. The officers asked Fortney if they could search the truck

for additional weapons. He permitted the search, but the police found no other weapons. The

officers kept the gun from Fortney’s bag and issued him a receipt for it. Fortney then left.

                                       B. The Proceedings

       Two months after the search, a federal grand jury indicted Fortney for possessing an

unregistered firearm, in violation of 26 U.S.C. § 5861(d). Fortney never contested that the gun

found in his bag was unregistered. But early in the case, he moved to suppress “all evidence and

statements obtained from [him] stemming from” the search. The government filed a response and

the court held a hearing. At the hearing, and after argument from both sides, the court denied the

motion from the bench and memorialized the decision in a written opinion soon after. Fortney

entered into a plea agreement a few days later.

                                 II. STANDARD OF REVIEW

       We review the district court’s decision under two standards of review. We review its

factual findings for clear error and review its conclusions of law de novo. United States v. Ursery,

109 F.3d 1129, 1132 (6th Cir. 1997). In doing so, we view the evidence “in the light most likely

to support the district court’s decision.” United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir.

1994) (quoting United States v. Gomez, 846 F.2d 557, 560 (9th Cir. 1988)). “A factual finding

will only be clearly erroneous when, although there is evidence to support it, the reviewing court



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on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” Ursery, 109 F.3d at 1132.

                                       III. DISCUSSION

       The Fourth Amendment protects the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures,” and it is enforceable

against a state through the Fourteenth Amendment’s Due Process Clause. U.S. Const. amend. IV;

Mapp v. Ohio, 367 U.S. 643, 655 (1961). The right “proscrib[es] only governmental action; it is

wholly inapplicable ‘to a search or seizure, even an unreasonable one, 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, 113–14 (1984) (quoting Walter

v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). The obverse is that a

private party’s conduct can be “imputed to the government” when the conduct is made possible by

government officers. United States v. Booker, 728 F.3d 535, 541 (6th Cir. 2013).

                                         A. State Action

       The district court denied the motion to suppress on the grounds that there was no relevant

state action. We must therefore determine whether the search of Fortney’s bag constituted “state

action” or merely private action at which government actors (the police) were simply present. In

cases past, we have used several different tests to make this determination. At the district court,

the parties suggested two of those tests: the state-compulsion test and the nexus test, sometimes

called the symbiotic-relationship test. The district court applied both tests and also analyzed the

case under an “agency test” that we have used when evaluating actions committed solely by a

private party. See, e.g., United States v. Bowers, 594 F.3d 522, 525–26 (6th Cir. 2010).




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Case No. 18-4160, United States v. Fortney


                                       1. The Agency Test

       The agency test calls us to look at two factors: “(1) the government’s knowledge or

acquiescence to the search, and (2) the intent of the party performing the search.” Id. at 526

(quoting United States v. Hardin, 539 F.3d 404, 418 (6th Cir. 2008)). “If the intent of the private

party conducting the search is entirely independent of the government’s intent to collect evidence

for use in a criminal prosecution, then the private party is not an agent of the government.” Id.

(quoting Hardin, 539 F.3d at 418) (emphasis omitted). No one contends that the police officers

were attempting to collect evidence and the record clearly establishes that Aschbrenner searched

Fortney’s bag out of a personal concern for safety. The district court properly determined that

Aschbrenner’s actions were not state actions under the agency test.

                                  2. The State-Compulsion Test

       Under the state-compulsion test, the state must “exercise such coercive power or provide

such significant encouragement, either overt or covert, that in law the choice of the private actor

is deemed to be that of the state.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (citing

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). As applied here, that means considering whether

the searcher, not the searched, was coerced by the state. Again, the record is clear that Aschbrenner

accompanied Fortney to his locker and searched the bag due to his own personal concern about

safety and did so of his own volition. There is no evidence that the state, vis-à-vis the police

officers, encouraged or coerced Aschbrenner to do anything.            The district court properly

determined that Aschbrenner’s actions were not state actions under the state-compulsion test.

                          3. The Symbiotic Relationship or Nexus Test

       “Under the symbiotic relationship or nexus test, the action of a private party constitutes

state action when there is a sufficiently close nexus between the state and the challenged action of



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Case No. 18-4160, United States v. Fortney


the regulated entity so that the action of the latter may be fairly treated as that of the state itself.”

Id. (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). The test requires

demonstrating that the state was “intimately involved in the challenged private conduct” such that

the conduct can “be attributed to the state[.]” Id. The district court found that Fortney did not

satisfy this test because the “three officers on site did not play an active role in the search.” Here

we part ways with the district court.

        The facts of this case align closely with a body of case law concerning repossessions of

personal property where police officers are on hand to keep the peace. Fortney drew this

connection at the district court and revives the comparison on appeal. He specifically likens his

case to one of our prior decisions about a vehicle repossession gone awry, Hensley v. Gassman,

693 F.3d 681 (6th Cir. 2012). The government agrees that this is a generally correct approach for

looking at police action, and we too find the comparison useful.

        By way of background, repossession cases arise when creditors invoke self-help remedies.

Many states adopt the Uniform Commercial Code provision that permits a private secured party

to take possession of collateral “without judicial process, if it proceeds without breach of the

peace.” U.C.C. § 9-609 (2017). Generally, states that adopt this rule require the creditor to

“abandon his efforts to repossess” when the debtor objects to the repossession, “particularly . . .

by physical obstruction[.]” Hensley, 693 F.3d at 689–90. Creditors, realizing that tensions may

run high, sometimes request a police officer to be present, and we have observed that “a police

officer’s presence during a repossession solely to keep the peace, i.e., to prevent a violent

confrontation between the debtor and the creditor, is alone insufficient to convert the repossession

into state action.” Id. at 689. But police actions fall on a spectrum, and as the “officers take a

more active role in the repossession,” the likelihood that we will find state action increases and



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“[a]t some point, as police involvement becomes increasingly important, repossession by private

individuals assumes the character of state action.” Id. (quoting Howerton v. Gabica, 708 F.2d 380,

383 (9th Cir. 1983)).

       Despite the useful parallels, this is not a repossession case. There are salient differences.

First, Aschbrenner was not acting under a statutory right to search Fortney’s bag without first

obtaining his consent. He was acting as Fortney’s former employer and ALDI’s current employee

charged with ensuring a safe workplace. His authority, if any, to search Fortney’s bag had to

therefore stem from one or both of those roles. Second, unlike a creditor who encounters

resistance, Aschbrenner was not statutorily obligated to cease his efforts once Fortney opposed

them. With those caveats in mind, we take a closer look at repossession cases and their likeness

to the case at hand.

       Although Fortney points us to Hensley, we find another repossession case aligns more

closely to the facts here and reveals an important difference. In United States v. Coleman, a man

named Clarke was hired to repossess a truck. 628 F.2d 961 (6th Cir. 1980). He planned to do it

discretely one night but before doing so he made arrangements with the local police. At his

request, the police agreed to be on hand in case trouble arose. Clarke informed them that after he

repossessed the truck, he intended to “stop off at the police station to deposit any personal effects

of [the debtor truck owner]’s that he might find in the truck.” Id. at 962. This was because “his

authority was limited to repossessing the truck; his authorization did not extend to the seizure of

personal property inside the truck”; and also, he planned to take the truck 200 miles away, so

“[d]epositing any personal effects at the police station would spare [the owner] the inconvenience

of [a long drive] to retrieve them.” Id. at 962–63. The repossession went smoothly: the police

“parked down the street and around the corner” while Clarke “entered the truck, started the engine,



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and drove away without incident.” Id. at 963. But once inside the truck, Clarke noticed “a quantity

of what appeared to be marijuana on the seat, and the butt end of a rifle protruding from behind

the seat.” Id. After rendezvousing at the police station, Clarke told the police officers “that he had

found a rifle in the truck,” and “pulled the seat up to show them the gun and then handed the gun

to the officers.” Id. He “then opened a briefcase that he had found in the truck and discovered a

shotgun inside that briefcase. Clarke then handed the open briefcase containing the shotgun to the

officers.” Id. The truck’s owner was later charged with possessing an unregistered firearm (the

shotgun from the briefcase) and he moved to suppress the evidence.

       The district court found that the search was unlawful and thus granted the motion and

suppressed the shotgun as evidence. Id. The court reasoned that “Clarke would not have

repossessed the truck at the time and place he did but for the police assurances of assistance,” and

thus concluded “that the repossession was accomplished by virtue of state power.” Id. The court

also “held that because the seizure of the truck was the product of police action, the subsequent

search was not a private search.” Id. at 964.

       We reversed, first explaining that the police’s involvement in the seizure of the truck

amounted to “mere acquiescence” which is insufficient to establish state action. Id. (relying on

Flagg Bros. v. Brooks, 436 U.S. 149 (1978)). In reaching that conclusion, we emphasized that the

police’s role was confined to “passive surveillance”—they parked down the street and around the

corner—in contrast to cases where police accompanied the repossessor in his mission. Id. at 964

n.1 (citing Walker v. Walthall, 588 P.2d 863 (Ariz. 1978) and Stone Machinery v. Kessler, 463

P.2d 651 (Wash. Ct. App. 1970) (both observing that the presence of police tended to intimidate

the debtor and thus rose to state action)). We then went on to explain that by simply receiving the

items from Clarke, rather than independently searching for them, the police were exercising



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“community caretaking functions, totally divorced from the detection, investigation, or acquisition

of evidence relating to the violation of a criminal statute.” Id. at 965 (quoting Cady v. Dombrowski,

413 U.S. 433, 441 (1973)).

       The search of Fortney’s bag parallels the search of the truck in Coleman. In both cases, a

private party performed the search for reasons of his own. Right or wrong, those searches were

not at the police’s behest nor performed to collect evidence of a crime. Both cases also involved

a certain measure of caretaking. In Coleman, the police’s involvement allowed Clarke to return

the property to its rightful owner without burdening the owner with a lengthy trip or inviting a

violent confrontation. Here, the police took possession of the gun, thereby ensuring that the

recently terminated Fortney left without using it.

       This case breaks with Coleman, however, in the commencement of the search. In Coleman,

Clarke took control of the truck and searched it without any aid from the police officers and

unbeknownst to the owner. Here, the record reveals that Fortney unambiguously objected to the

search. By everyone’s account, Fortney attempted to promptly and independently retrieve his

property after he was fired but stopped this effort because three police officers triangulated around

him. Then, as the three officers looked on—and in contrast to his earlier refusal—he allowed

Aschbrenner to search every pocket of his bag, remove his wallet, and hand the wallet to the police

so that they could go through its contents.

       It is worth pausing to recognize the circumstances that were at play. The Supreme Court

has repeatedly emphasized that divining state action is a case-by-case inquiry that requires us to

pay close attention to the facts. See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715, 726

(1961) (recognizing that state action “can be determined only in the framework of the peculiar

facts or circumstances present”). Here, a recently fired employee was heading abruptly toward a



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Case No. 18-4160, United States v. Fortney


bag believed to contain—and in truth did contain—a gun. Slowing him down and supervising his

departure were fully consistent with simply “prevent[ing] a violent confrontation[.]” Hensley, 693

F.3d at 689. Under the circumstances, these actions would not necessarily slide the police conduct

into the state-action side of the spectrum.

       The officers’ presence, however, did more than prevent violence. It enabled the search. In

Hensley, we observed that “[e]ven without active participation . . . an officer’s conduct can

facilitate a repossession if it chills the [debtor]’s right to object.” 693 F.3d at 689. “A police

officer’s arrival and close association with the creditor during the repossession may signal to the

debtor that the weight of the state is behind the repossession and that the debtor should not interfere

by objecting.” Id. at 690 (citing Booker v. City of Atlanta, 776 F.2d 272, 274 (11th Cir. 1985) and

Jones v. Gutschenritter, 909 F.2d 1208, 1213 (8th Cir. 1990)). Fortney testified that as he stood

in front of the officers, he believed he was under arrest. Although the district court seems to have

found that Fortney “was free to leave the building, albeit without his backpack,” in this context

what matters is what a reasonable person in Fortney’s position would have believed.3 Cf. Howes

v. Fields, 565 U.S. 499, 509 (2012) (observing that in the context of Miranda warnings, courts

begin by determining whether a reasonable person would have felt he was free to leave). Given

the police officers’ involvement in Aschbrenner’s search of the bag and Fortney’s yielding to the

search despite his clear protestations, we cannot conclude that the police were mere bystanders



3
  Given the deferential standard of review that guides us on findings of fact, we stress a distinction.
Fortney had argued that the police officers “exercised coercive power by not allowing [him] to go
to the locker, grab his bag, and leave the premises.” The district court observed that the argument
was “belied by the record,” given that Aschbrenner and an officer later “testified that Defendant
was free to leave the building, albeit without his backpack” and “Defendant does not deny this.”
To be clear, Fortney did not deny that this was their testimony, or that at the time they believed in
their own minds that he was free to go. But he did testify, and has always asserted, that as he stood
in front of the officers, he believed he was under arrest.

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Case No. 18-4160, United States v. Fortney


who simply surveilled a private action. Fortney changed his behavior and acquiesced to the search

because the police were present and supporting Aschbrenner’s pursuit of the bag. The search

would not have occurred but for the police officers’ active involvement. We therefore conclude

that Aschbrenner’s search constituted state action.

                                        B. Reasonableness

         The government insists that even if there was state action here, the search was reasonable

and thus does not run afoul of the Fourth Amendment. Specifically, the government contends that

the police were acting in their community caretaking function. But the government failed to raise

this argument in the district court and thus forfeited it. See Hunter v. United States, 160 F.3d 1109,

1113 (6th Cir. 1998) (recognizing that the government can forfeit an argument “by failing to raise

it in a timely fashion”). We sometimes make exceptions to this rule, but only for “exceptional

cases”—and this is not one of them. See United States v. Ellison, 462 F.3d 557, 560 (6th Cir.

2006).

                                       IV. CONCLUSION

         The district court denied Fortney’s motion because it found there was no state action. As

explained, we disagree. We therefore VACATE the district court’s order granting the motion to

suppress and REMAND the case for further proceedings consistent with this opinion.




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