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Search & Seizure – Applicability of Exclusionary Rule: Private Government Search – Off-Duty Police Officer Acting in Private Capacity – Opening Misaddressed Letter

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue: Whether the action of a police officer in opening a letter misaddressed to the officer’s residence from a House of Correction inmate was private and therefore outside fourth amendment scrutiny.


¶13   There appears to be no Wisconsin case addressing the issue when an off-duty law enforcement officer acts in a private capacity rather than as a government agent for purposes of the Fourth Amendment. However, there appears to be general agreement in other jurisdictions that have considered the issue that “[government] involvement [in a search] is not measured by the primary occupation of the actor, but by the capacity in which he acts at the time in question”; therefore, an off-duty officer acting in a private capacity in making a search does not implicate the Fourth Amendment. State v. Pearson, 514 P.2d 884, 886 (Or. Ct. App. 1973) (emphasis in original).  AccordUnited States v. Ginglen467 F.3d 1071, 1074-76 (7th Cir. 2006); United States v. Couch 378 F. Supp. 2d 50, 58 (N.D.N.Y 2005); State v. Walker, 459 N.W.2d 527, 533 (Neb. 1990); State v. Castillo, 697 P.2d 1219, 1221 (Idaho Ct. App. 1985); People v. Luetkemeyer, 393 N.E.2d 117120 (Ill. App. Ct. 1979); State v. Woods, 790 S.W.2d 253, 257 (Mo. Ct. App. 1990); State v. Andrews 637 A.2d 787, 790-91 (Conn. App. Ct. 1994); People v. Wolder, 84 Cal. Rptr. 788, 793 (Cal. Ct. App. 1970). We agree with this conclusion. We therefore examine the totality of the circumstances, see Payano-Roman, 290 Wis. 2d 380, ¶21, to determine whether Detective Kostopulos was acting in her private capacity as a citizen or in her official capacity as a detective for the sheriff’s department when she opened Cole’s letter.

¶19      Considering the totality of the circumstances, we conclude that Detective Kostopulos was acting in her private capacity, not her official capacity, when she opened Cole’s letter. The activity she was engaged in when she opened Cole’s letter—opening mail that had been delivered to her home—was that of a private citizen.  Even given our assumption that she saw the front of the envelope before she opened it and so knew it was not intended for her, she did not know Willie Cole or Charnaye Cole or have reason to suspect that she might discover criminal activity by opening the letter. There is no evidence she was aware of any pending case or investigation relating to Cole when she opened the letter.

That the detective waited two days before turning over the letter doesn’t affect the court’s conclusion; for that matter, whatever she did subsequent to opening the envelope is seemingly irrelevant to whether her “act [of] simply opening and reading the letter” was in her private capacity, ¶20.The letter, by the way, was written by an HOC inmate awaiting trial on a battery, addressed to his sister and telling her to prevent the victim (his wife) from testifying against him. Correct name but as you can see wrong address. What might the odds have been that the address belonged to a detective?


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