                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 97-3669SD
                                   _____________

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

                            Submitted: February 10, 1998
                                Filed: August 11, 1998
                                 _____________

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

FAGG, Circuit Judge.

       The Government appeals the district court’s order suppressing drug-related
evidence seized from Dominic L. Miller’s efficiency apartment at Bridgeway Treatment
Facility, a halfway house for adults with severe, persistent mental illnesses. We reverse
and remand.




      *
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri, sitting by designation.
       The relevant facts are neither complicated nor disputed. Miller’s mental illness
was controlled by medications, which were centrally dispensed. If Bridgeway residents
failed to show up for their morning medications, staff members would go to their
apartments and rouse them. Because these severely ill persons posed some risk of
danger to themselves and others, staff members also had access to the facility’s
apartments by way of a master key. One Saturday morning, Lorie Fischer, the weekend
supervisor, knocked at Miller’s door. Miller was away for the weekend--residents
were generally free to come and go as they pleased--but Fischer had forgotten that fact.
Receiving no reply, Fischer unlocked Miller’s door and called his name. She then
remembered he was gone, but at the same time she smelled cigarette smoke.
Bridgeway has a strict no-smoking rule, so Fischer stepped inside to investigate. She
saw cigarette butts, ashes, matches--and evidence of drug activity in plain view. This,
too, was against Bridgeway’s rules. After looking around, Fischer relocked the
apartment and called the medical services head, who called Bridgeway’s director and
told him what Fischer had seen. The next day, Fischer entered Miller’s apartment again
with the weekday supervisor, Stephanie Weidemann, who also observed the drug
evidence. Later that day, the director had the locks on Miller’s door changed to keep
Miller from altering the scene. On Monday, the director called the police and admitted
them into Miller’s room. The officers saw what Fischer and Weidemann had seen, and
nothing more. The officers then obtained a search warrant and seized the drug-related
items. Miller’s prosecution followed in due course.

      Miller moved to suppress the seized items, challenging the officers’ first,
warrantless entry on Fourth Amendment grounds. The Government countered that the
entry was lawful because the director consented to it. For a third-party consent to a
warrantless police search to be legally effective, the consenting party must have actual
or apparent authority to give the consent. See United States v. Matlock, 415 U.S. 164,
171 & n.7 (1974) (actual authority); Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990)
(apparent authority). Concluding the director possessed neither, the district court
granted Miller’s motion. On appeal, both the Government and Miller continue to treat

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this as a third-party consent case. After de novo review, see United States v. Leyva-
Serrano, 127 F.3d 1280, 1282 (10th Cir. 1997); see also United States v. Weinbender,
109 F.3d 1327, 1329 (8th Cir. 1997), we conclude otherwise. Because the proper
resolution of this matter is beyond doubt, we exercise our discretion to decide the
Government’s appeal on a different ground altogether. See Washington Gas Light Co.
v. Virginia Elec. & Power Co., 438 F.2d 248, 251 (4th Cir. 1971) (“[I]f deemed
necessary to reach the correct result, an appellate court may sua sponte consider points
not presented to the district court and not even raised on appeal by any party.”); see
also United States Dep’t of Labor v. Rapid Robert’s Inc., 130 F.3d 345, 348 (8th Cir.
1997).

       The Fourth Amendment prohibits unreasonable searches and seizures. Absent
some well-settled exception, unconsented warrantless searches are unreasonable. See
United States v. Boettger, 71 F.3d 1410, 1413 (8th Cir. 1995). Before reaching the
issue of whether the director’s consent rendered the warrantless police intrusion lawful,
however, the preliminary question is whether a Fourth Amendment search has taken
place at all. The Constitution does not apply to searches, reasonable or otherwise, by
private individuals, so long as the private party is “‘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) (quoting Walter v. United States,
447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). Further, to be a Fourth
Amendment search, a governmental intrusion must infringe on a legitimate expectation
of privacy. See id. Because a private search frustrates such an expectation, see id. at
117-18, an ensuing police intrusion that stays within the limits of the private search is
not a search for Fourth Amendment purposes, see id. at 120. Thus, in a private search
case, the legality of later governmental intrusions “must be tested by the degree to
which they exceeded the scope of the private search.” Id. at 115. Our cases following
Jacobsen are to the same effect. See, e.g., United States v. Rouse, No. 98-1705, 1998
WL 381725, at *2 (8th Cir. July 10, 1998); United States v. Mithun, 933 F.2d 631, 634
(8th Cir. 1991).

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

       Before concluding, we take note of a recent opinion issued by the Fifth Circuit,
United States v. Paige, 136 F.3d 1012 (5th Cir. 1998). Like our case, which involves
the search of an apartment, Paige concerns a police intrusion into residential property--
specifically, a detached garage--in the wake of a private search. Jacobsen, by contrast,
dealt with the search of a package, and “it was virtually certain that [the package]
contained nothing but contraband.” Jacobsen, 466 U.S. at 120 n.17. Emphasizing this
point, and observing that “people’s homes contain countless personal, noncontraband
possessions,” the Fifth Circuit declined “to extend Jacobsen’s holding ‘to cases
involving private searches of residences.’” Paige, 136 F.3d at 1020 n.11 (quoting
United States v. Allen, 106 F.3d 695, 699 (6th Cir.) (deciding search issue on grounds
unrelated to Jacobsen’s private search rule), cert. denied, 117 S. Ct. 2467 (1997)). The
Fifth Circuit did not reject Jacobsen, however. Drawing on pre-Jacobsen circuit
precedent, United States v. Bomengo, 580 F.2d 173, 175-76 (5th Cir. 1978) (involving
private search of apartment), cert. denied, 439 U.S. 1117 (1979), the Fifth Circuit
tailored the Jacobsen rule to accommodate the court’s concerns when a police search
follows a private party search of a home. In this situation, the Fifth Circuit held, a
police search within the scope of an earlier private search is lawful only when “the
private party’s intrusion was reasonably foreseeable.” Paige, 136 F.3d at 1020. We
neither adopt nor reject the Fifth Circuit’s rule because the police search in this case
would pass muster under both Jacobsen and Paige. It was reasonably foreseeable that
the on-duty supervisor of Miller’s treatment facility might forget Miller was out of

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

      We reverse the district court’s order and remand for further proceedings not
inconsistent with this opinion.

MURPHY, Circuit Judge, concurring.

       I concur in the result reached by the court because Lorie Fischer’s entry into Mr.
Miller’s room in the halfway house was reasonably foreseeable to him. See United
States v. Paige, 136 F.3d 1012, 1020 (5th Cir. 1998). We have not previously applied
the Jacobsen private search rule to an individual’s residence, see United States v.
Rouse, No. 98-1705, 1998 WL 381725 (8th Cir., July 10, 1998) (package); United
States v. Mithun, 933 F.2d 631, 634 (8th Cir. 1991) (automobile), but the facts of this
case make its application here appropriate. Since the home has long been afforded
heightened protection against invasions of privacy, see California v. Carney, 471 U.S.
386, 390 (1985); Paige, 135 F.3d at 1021 n.11, I would not extend the Jacobsen rule
beyond circumstances where an intrusion by a private actor into a residence was
reasonably foreseeable to the owner or tenant.

      A true copy.

             Attest:

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




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