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Owner of hotel was not acting as government agent when he opened hotel door


Santiago Cordova-Espinoza, a Mexican citizen, entered the United States without authorization. He was found at the OYO Hotel in Alpine, Texas, when the hotel’s manager opened the door to Cordova’s room in front of Department of Homeland Security agents.

The suppression hearing produced the following facts. Based on information from other sources reporting multiple undocumented immigrants gathering at the OYO Hotel, six Border Patrol agents went to the hotel. Two agents entered the OYO Hotel’s office and spoke to the desk attendant before ultimately speaking with the hotel’s owner and manager, Yogesh Patel. An agent explained to Patel why the agents were there and asked for details regarding Room 115, where it was believed the undocumented immigrants were residing.

This agent did not ask Patel to open the door to Room 115, but Patel offered regardless. In response, the agent told Patel no, and that he needed to go speak with his supervisor first. The two agents then left the office and returned to the other agents in the parking lot outside of Room 115. Outside Room 115, the agents attempted to knock on the door four or five times, but the occupants did not open the door. Patel then approached an agent in the parking lot and asked him if the agents “wanted in the room.”

This agent responded: “Well, we’ve attempted a knock and talk, but nobody has answered. Outside of that, there is nothing we can do without a warrant.” The agent explained to Patel that the occupants, whoever has rented the room, have a reasonable expectation of privacy from the government. The agent was confident he had told Patel that he needed either consent or a warrant to open the door, but he was unsure whether he clarified that he needed the occupants’ consent or Patel’s consent.

Then, according to the agent, in the middle of this conversation Patel just walked past me and basically left me standing there, opened the door to Room 115, turned around, and walked away leaving the door wide open exposing two individuals in the room.

Patel described his opening the door in some detail. He explained that he saw that the agents were struggling. So Patel had the right to open Patel’s room. So he opened the 115 for them. He said that the agents never asked him to open the door but did tell him that they may go for the warrant. They would go before a judge, which would be a long process for the agents to open the room and break the door.

Patel also cited several reasons for opening the door. Principally, he said it was because he saw that the officers were struggling and wanted to help them. But he also noted that he was concerned illegal activity was taking place in the room and that he did not want the agents to break his door. When asked whether he told the agents that he planned to open the door, Patel ultimately testified that he had, though he could not recall which agent he told.

No agent reported being told that Patel was going to open the door or asking Patel to open the door. And no agent reported encouraging Patel to open the door or compensating Patel for doing so. As Patel walked toward the door, an agent followed Patel at an approximately ten-foot distance but was unsure whether Patel intended to open the door or just knock on it. No agent attempted to stop Patel from acting while he walked toward the door. After Patel opened the door, several agents observed two individuals, one of whom was Cordova, in the room. Upon approaching the entrance of the door and eventually entering the room, they also found pizza, water, soft drinks, and some wet clothes.

Cordova was charged with illegal reentry under 8 U.S.C. Section 1326. He then moved to suppress the fruits of the hotel-room search, arguing that the hotel manager was acting as a Government agent and that the Government lacked a warrant that authorized the search. The district court held a suppression hearing and denied the motion. Cordova thereafter pleaded guilty to illegal reentry under 8 U.S.C. Section 1326, reserving his right to challenge the district court’s denial of his motion to suppress. The 5th affirmed.


The Fourth Amendment’s protection against the unreasonable search of a person’s home also protects guests staying in a hotel room. See U.S. Supreme Court case Stoner v. California, 376 U.S. 483 (1964). Thus, the Government cannot engage in a warrantless search inside a guest’s hotel room, even with the hotel owner’s permission, unless an exception to the warrant requirement applies.

Evidence obtained in a wrongful search or seizure by a private party, however, does not violate a person’s rights under the Fourth Amendment. See United States v. Jacobsen, 466 U.S. 109 (1984). But, of course, the Government cannot use private individuals as agents to circumvent Fourth Amendment protections.

The parties here dispute the proper test we should apply to decide whether Patel acted as an agent of the state. We need not resolve this disagreement because we affirm the judgment of the district court under either of the tests suggested by the parties. We thus do not decide here whether the three factors in Bazan are a test separate from the two-factor Miller test; similarly, we decline to opine on which of these two suggested approaches should control in future cases in this circuit. Under either of the suggested approaches, the district court did not err in finding that Patel was acting as a private party, and not as an agent of the state, when he opened the hotel room door. There was thus no search or seizure by Government officials that implicates the Fourth Amendment.

A. Miller Test, United States v. Miller, 688 F.2d 652 (9th Cir. 1982)

We initially consider the facts under the two-factor Miller test. The first factor requires us to consider whether the Government knew or acquiesced in the intrusive conduct. Such knowledge or acquiescence arises when the Government is either a direct participant or indirect encourager. The district court did not identify any evidence suggesting conduct by the Government that would support a finding of direct Government participation. We must thus consider whether the Government indirectly encouraged the search. The district court found that the Government did not. We agree.

The district court correctly found that the Government had no prior knowledge of and no participatory role in Patel’s search. It found that all agents credibly testified that they did not know Mr. Patel would open the door, a finding supported by the testimony of agents that they were surprised to see Patel opening the door. Additionally, the record shows that the agent told Patel not to open the door until the agent had heard from his supervisor.

The next factor under Miller is whether the private party intended to assist law enforcement efforts or to further his own ends. Mixed motives—where a private party has both a personal motive and an intent to aid the Government—do not necessarily compel a finding of Government involvement in a search. The district court found that Patel was motivated at least partly by a desire to help himself. We agree.

Patel was motivated, in part, by a private interest in protecting and maintaining his property. He was concerned that illegal activities were happening in his hotel and that the agents would break down his door, either of which is a reasonable—and, more to the point, personal— motivation for a hotel manager to have for opening a hotel room. Furthermore, an agent testified that he told Patel not to open the door until the agent had heard from his supervisor. The fact that Patel did so before the agent had heard back also suggests that Patel had an independent, personal motive in opening the door beyond just assisting the agents in their investigation.

B. Bazan Test, United States v. Bazan, 807 F.2d 1200 (5th Cir. 1986)

We next consider the three-factor test from Bazan. As the Bazan court considered these factors in conjunction with its Miller analysis, our discussion of the Miller factors unsurprisingly weighs heavily in our Bazan analysis.

First, we consider whether the Government offered any compensation to Patel to open the door. The district court found that it did not, and no record evidence indicates otherwise.

Second, we consider whether the Government or the private party initiated the idea of conducting a search. This analysis tracks closely to the first Miller factor. As discussed, the record supports the district court’s finding that there was no insinuation from the Government that Patel open the door.

Third, we consider whether the Government lacked specific knowledge that the informant intended a search. The district court credited testimony from agents asserting no prior knowledge of Patel’s opening the door. The record supports this finding. Thus, even applying the Bazan court’s three factors as a separate test yields the same result: Patel was acting as a private party, not a Government agent. Consequently, there was insufficient Government involvement in this case to constitute a state search implicating the Fourth Amendment.