United States v. Allan Gale Cleaveland, 38 F.3d 1092 (9th Cir. 1995). · Go Syfert
United States v. Allan Gale Cleaveland, 38 F.3d 1092 (9th Cir. 1995). Cases Citing This Book View Copy Cite
103 citation events (88 in the last 25 years) across 18 distinct courts.
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Cited for
At page 1093 Determining government involvement in private searches23 citing cases“government involvement in a private search.”4 citing courts quote it · 20 listed here
  • United States v. Azucenas, No. 23-783 (9th Cir. Oct. 8, 2024).unpublished
    To determine whether a private party acted as an agent of the government under the Fourth Amendment, courts consider “(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the sear…
  • United States v. Carsten Rosenow, 50 F.4th 715 (9th Cir. 2022).published 9 cites
    In assessing whether a sufficient nexus exists, “the relevant inquiry is: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement effort…
  • Mooney (thomas) Vs. State, 2018 NV 65 (Nev. 2018).published 8 cites
    And it is the defendant's burden to establish "government involvement in a private search." United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994).
  • Mooney v. State, No. 72736-COA (Nev. Aug. 30, 2018).published 2 cites
    And it is the defendant's burden to establish "government involvement in a private search." United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994).
  • Michael Jayne v. Steve Blunk, 502 F. App'x 641 (9th Cir. 2012).unpublished
    (explaining that unless the government acquiesces in a private party’s search, the search does not implicate the Fourth Amendment)
  • State v. Gomez, 937 So. 2d 828 (Fla. 4th DCA 2006).published
    In State v. Iaccarino, 767 So.2d 470, 475 (Fla. 2d DCA 2000)(citing United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994)), the court stated, "To determine whether a private individual acts as an instrument of the state, courts lo…
  • State v. Collins, 790 A.2d 660 (Md. 2002).published
    See United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987) ("Our review of the foregoing cases makes clear that ... two critical factors in the 'instrument or agent’ analysis are whether the government knew of and acquiesced in the intr…
  • United States v. Mark Leroy Sparks, 265 F.3d 825 (9th Cir. 2001).published
    See generally Coolidge v. New Hampshire, 403 U.S. 443, 487 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994).
  • Collins v. State, 771 A.2d 478 (Md. Ct. Spec. App. 2001).published
    See United States v. David, 943 F.Supp. 1403, 1409 (E.D.Va.1996); United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994), amended by 38 F.3d 1092 (9th Cir.1995); United States v. Malbrough, 922 F.2d 458, 462 (8th Cir.1990), cert. d…
  • United States v. Anthony Oh YOUNG, 153 F.3d 1079 (9th Cir. 1998).published 3 cites
    See Walter v. United States, 447 U.S. 649, 656 , 100 S.Ct. 2395 , 65 L.Ed.2d 410 (1980); United States v. Reed, 15 F.3d 928, 930-31 (9th Cir.1994); United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1995); United States v. Walther, 6…
Show 10 more citing cases
  • United States v. Moniz, 14 F. Supp. 2d 1194 (D. Haw. 1998).published
    However, a search conducted by a private party not acting as an agent for law enforcement official does not implicate the Fourth Amendment.” United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994) (citations omitted).
  • United States v. David, 943 F. Supp. 1403 (E.D. Va. 1996).published 4 cites
    United States v. Cleaveland, 38 F.3d 1092, 1094 (9th Cir.1995) (finding that where electric company received tip of unlawful activity, and where company initiated plan to inspect meter, and did not exceed authority in inspection, the indep…
  • State v. Delrio, 56 So. 3d 848 (Fla. 2d DCA 2011).published
    (concluding that a search by a private party not acting as an agent for law enforcement does not implicate the Fourth Amendment; where electric company intended to further its own ends by private search, that motivation…)
  • United States v. Landers, 346 F. App'x 184 (9th Cir. 2009).unpublished 4 cites
    See United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1995).
  • United States v. Couch, 378 F. Supp. 2d 50 (N.D.N.Y. 2005).published
    See United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994); see also United States v. Bennett, 709 F.2d 803, 805 (2d Cir.1983).
  • United States v. Allen, 289 F. Supp. 2d 230 (N.D.N.Y. 2003).published
    See United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994).
  • State v. Alexander, 810 So. 2d 552 (Fla. 5th DCA 2002).published
    See United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994); State v. Iaccarino, 767 So.2d 470, 475 (Fla. 2d DCA 2000).
  • Virdin v. State, 780 A.2d 1024 (Del. 2001).published 2 cites
    See Cleaveland, 38 F.3d at 1093 . 20 .
  • State v. Iaccarino, 767 So. 2d 470 (Fla. 2d DCA 2000).published
    See United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994).
  • United States v. Jackson, 617 F. Supp. 2d 316 (M.D. Pa. 2008).published
    Johnson v. United States, 971 F.Supp. 862, 867 (D.N.J.1997); see also United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994); United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987).
At page 1094 Determining private party intent in searches with dual motives15 citing cases“any dual motive to detect or prevent crime or assist the police”8 citing courts quote it · 12 listed here
  • United States v. Serrano, No. 24-7229 (9th Cir. Dec. 30, 2025).unpublished
    “In analyzing the second requirement—the private party’s intent in searching—we look to whether it acted to ‘assist law enforcement efforts,’ or whether it had a ‘legitimate, independent motivation to further its own ends.’” United States…
  • United States v. Azucenas, No. 23-783 (9th Cir. Oct. 8, 2024).unpublished
    To determine whether a private party acted as an agent of the government under the Fourth Amendment, courts consider “(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the sear…
  • State v. T. Larson, 2022 MT 223, 519 P.3d 1243.published 2 cites
    United States v. Cleaveland, 38 F.3d 1092, 1094 (9th Cir. 1994), as amended (Jan. 12, 1995). 10 ¶20 Applying these principles here, we conclude Jacquez was not a state actor when she gave law enforcement Larson’s electronic devices.
  • United States v. Carsten Rosenow, 50 F.4th 715 (9th Cir. 2022).published 9 cites
    In assessing whether a sufficient nexus exists, “the relevant inquiry is: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement effort…
  • Mooney (thomas) Vs. State, 2018 NV 65 (Nev. 2018).published 8 cites
    And it is the defendant's burden to establish "government involvement in a private search." United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994).
  • Mooney v. State, 429 P.3d 953 (Nev. 2018).published
    Cleaveland, 38 F.3d at 1094 (internal quotation marks omitted).
  • United States v. James Burrow, 696 F. App'x 214 (9th Cir. 2017).unpublished 2 cites
    (holding a private person was not acting as an agent for the police when he had “a legitimate, independent motive apart from crime detection or prevention” for the search and the police participation in the search was no…)
  • State v. Santiago, 2009-NMSC-045, 217 P.3d 89.published
    As our Court of Appeals stated in Hernandez, “cooperating with and assisting law enforcement personnel [are] duties ... common to almost all private security personnel, [and] do not suffice to make a private security guard an agent of the…
  • United States v. David, 943 F. Supp. 1403 (E.D. Va. 1996).published 4 cites
    (finding that where electric company received tip of unlawful activity, and where company initiated plan to inspect meter, and did not exceed authority in inspection, the independent and legitimate motive to recover mone…)
  • O'Connor v. Mun. of Anchorage, 907 P.2d 1377 (Alaska Ct. App. 1995).published
    Cleaveland, 38 F.3d at 1094 (internal quotations omitted).
Show 2 more citing cases
  • United States v. Moniz, 15 F. App'x 506 (9th Cir. 2001).unpublished
    See United States v. Cleaveland, 38 F.3d 1092, 1094 (9th Cir.1994). 2.
  • People v. Blair, No. H041033 (Cal. Ct. App. Aug. 31, 2015).unpublished
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Allan Gale CLEAVELAND, Defendant-Appellant
93-30440.
Court of Appeals for the Ninth Circuit.
Jan 12, 1995.
Published opinion
38 F.3d 1092
1994 WL 580337
Colleen Scissors, Asst. Federal Public Defender, Portland, OR, for defendant-appellant., Kristine Olson Rogers, U.S. Atty., and J. Richard Scruggs, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.
Thompson, Trott, Tashima.
Cited by 39 opinions  |  Published
Citation check: this opinion cites a case at a citation that does not lead to it (marked in red below).
  • Coolidge v. New Hampshire is at 403 U.S. 443, not 408 U.S. 443. This copy came from Public.Resource.Org; the error may be the copy's, not the court's.
DAVID R. THOMPSON, Circuit Judge:

Allan Gale Cleaveland appeals his conviction following entry of a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He contends the district court erred in denying his motion to suppress evidence seized from his house pursuant to a search warrant. He argues the affidavit used by police to[*1093] obtain the warrant was based on evidence found during a warrantless search by Portland General Electric Company (PGE) employees acting in conjunction with law enforcement officers.

We have jurisdiction under 28 U.S.C. § 1291. Because PGE’s independent motive for its search was not overridden by intrusive police participation, we affirm.

FACTS

PGE’s Energy Recovery Unit (ERU) is responsible for locating power diversions and collecting money owed PGE for the theft of its electricity. The ERU received an anonymous tip there was an illegal power diversion and a possible marijuana grow at Cleave-land’s residence.

In such a case, it is quite common for PGE to contact the police. Thus, when the ERU received the anonymous tip, Steve Sprague, an ERU supervisor, reported this to the Lake Oswego police. He told them he was going to inspect the electric meter at Cleave-land’s house. He wanted the police to be present in the event the situation became dangerous, and if his inspection uncovered the likelihood of a power diversion, he wanted the police to be able to get a warrant to search the house to confirm the power theft.

The next day, Sprague and an ERU electrical technician went to Cleaveland’s house. A Lake Oswego police detective waited in a parked car approximately one block away. Sprague and the technician .went onto Cleaveland’s property and examined the meter which was mounted on the outside of the house. They had authority to do this pursuant to PGE’s Customer Service Agreement.

Although the meter hookup appeared to be normal, when Sprague and the technician removed a weather head at the top of a conduit pipe and looked inside the pipe with a flashlight, they could see additional wires clamped onto the direct incoming PGE lines. When they removed securing brackets and pulled the conduit away from the side of the house, they could see additional lines entering the house from the back side of the pipe.

Based on this evidence, the police detective prepared an affidavit and obtained a warrant to search Cleaveland’s house. Police officers executed the warrant that afternoon. Inside the house they found marijuana plants, several firearms and further evidence of the power diversion.

When Cleaveland’s motion to suppress the evidence found in his house was denied, he entered a conditional guilty plea to being a felon in possession of a firearm. He was sentenced to twenty-one months in prison, and this appeal followed.

DISCUSSION

Cleaveland argues Sprague acted as an agent of the police when he searched the meter and gathered the information which was used to obtain the warrant to search the house. Thus, he contends, the search of the house was illegal and the evidence found during that search, including the firearms, should have been suppressed.

“Where a private party acts as an ‘instrument or agent’ of the state in effecting a search or seizure, Fourth Amendment interests are implicated.” Coolidge v. New Hampshire, 408 U.S. 443[incorrect citation], 487, 91 S.Ct. 2022, 2048-49, 29 L.Ed.2d 564 (1971). However, a search conducted by a private party not acting as an agent for law enforcement officials does not implicate the Fourth Amendment. See United States v. Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 1657-58, 80 L.Ed.2d 85 (1984); United States v. Black, 767 F.2d 1334, 1339 (9th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d 557 (1985).

In determining whether a private party’s search implicates the Fourth Amendment, the relevant inquiry is: “(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.” United States v. Reed, 15 F.3d 928, 931 (9th Cir.1994) (quoting United States v. Miller, 688 F.2d 652, 656 (9th Cir.1982)); see also United States v. Walther, 652 F.2d 788, 791-92 (9th Cir.1981). The defendant has the burden of establishing government involvement in a private search. See United States v. Snowadzki, 723 F.2d 1427, 1429 (9th Cir.), cert. denied, 469 U.S. 839, 105 S.Ct. 140, 83 L.Ed.2d 80 (1984).

[*1094] Here, the police knew of and acquiesced in PGE’s search of the meter at Cleaveland’s house. The question we must decide is whether, in performing that search, PGE intended to assist law enforcement efforts or further its own ends.

We conclude PGE had a “legitimate, independent motivation” to further its own ends. See Walther, 652 F.2d at 792; Reed, 15 F.3d at 931. That motivation was not negated by any dual motive to detect or prevent crime or assist the police, or by the presence of the police nearby during the search.

It was PGE, not the police, who initiated the plan to inspect the meter. There was “no reason why the [detective] should have restrained [Sprague] or discouraged him” in his search, Miller, 688 F.2d at 657, because Sprague never exceeded his authority under the Customer Service Agreement to go on the property and inspect the meter. Compare Reed, 15 F.3d at 931-32 (after confirming hotel room’s condition, manager proceeded to rummage unlawfully through defendant’s dresser drawers and luggage while police watched). Once Sprague confirmed that Cleaveland was stealing power, he broke off the search. See Miller, supra; see also Reed, 15 F.3d at 932-33 n. 6 (distinguishing Miller on the ground the search in Miller was limited, and independent motivation existed during the “entire course” of the search, despite the fact that police were present).

Rather than acting as a “lookout” and actively participating in the search, see Reed, 15 F.3d at 932, here the detective’s only purpose for being in the area was to ensure Sprague’s safety. See Miller, 688 F.2d at 656, 658; cf. Howerton v. Gabica, 708 F.2d 380 (9th Cir.1983) (where ‘ police merely “stand by in case of trouble” during unlawful eviction, no state action exists under 42 U.S.C. § 1983); Harris v. City of Roseburg, 664 F.2d 1121 (9th Cir.1981) (same in context of creditor repossession).

While Sprague may have had dual motives for conducting the search — to recover money for PGE’s loss of power on the one hand, and to assist the police in capturing the power thief (and perhaps uncovering a marijuana grow) on the other — his motive to recover for PGE’s loss of power was a legitimate, independent motive apart from crime detection or prevention. That motivation was not overridden by the fact the police stood by during the search, and used the fruits of that search to obtain a warrant to search Cleave-land’s house. Miller, 688 F.2d at 658.

We recognize that the mere existence of a legitimate, independent motive apart from crime detection or prevention does not immunize a search from scrutiny regardless of the level of government involvement. See Corngold v. United States, 367 F.2d 1, 5-6 (9th Cir.1966) (en banc). However, in this case the government’s participation was not so extensive as to trigger Fourth Amendment scrutiny.

We conclude the district court did not err in denying Cleaveland’s motion to suppress evidence seized from his residence pursuant to the search warrant which was obtained as a result of PGE’s search of the meter.

AFFIRMED.