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Search & Seizure – Applicability of Exclusionary Rule: Private / Government Search, Generally

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118
For Payano-Roman: Timothy A. Provis


¶17      … Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action. State v. Rogers, 148 Wis.  2d 243, 246, 435 N.W.2d 275 (Ct. App. 1988) ….¶18      The court of appeals in Rogers stated three requirements that must be met for a search to be a private search:

(1) the police may not initiate, encourage or participate in the private entity’s search; (2) the private entity must engage in the activity to further its own ends or purpose; and (3) the private entity must not conduct the search for the purpose of assisting governmental efforts.

Rogers, 148 Wis.  2d at 246.

¶19      Similarly, a search may be deemed a government search when it is a “joint endeavor” between private and government actors ….

¶20      At the same time, however, the mere presence of a government official will not necessarily transform a private search into government action. …

¶23      We agree with the State that Payano-Roman had the burden of proof. Once the State raises the issue, asserting that a search is a private search, the defendant has the burden of proving by a preponderance of the evidence that government involvement in a search or seizure brought it within the protections of the Fourth Amendment. …

¶24      However, the circuit court’s determination of whether the search was a private search or a government search is not a finding of evidentiary or historical fact. Rather, it is ultimately a question of law subject to independent appellate review. …


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