For the Defense - Vol. 8, Issue 4 - 56

The Right to be Free from
Searches Conducted by Private
Citizens - The Agency Test
William J. Watt, III
T
he Fourth Amendment to the United States
Constitution protects all citizens from unreasonable
searches and seizures by law enforcement. But are
we protected from unreasonable searches and seizures
conducted by private citizens? Common sense would tell us
that searches conducted by private citizens, at the direction
of law enforcement, would violate the Fourth Amendment.
In fact, this has been the law of the land for many years.
However, determining when that private citizen becomes an
agent of the government is not black and white. There is
grey. And when there is grey, we sometimes find flaws in
our rule of law that makes us question whether our laws are
designed to protect the accused.
United States Courts of Appeal from various circuits have
addressed this issue with no clear consensus on the criteria
that is to be used by the trial courts. Until recently, the
United States Court of Appeals for the Third Circuit had no
clearly defined test or analysis to determine when a private
56 For The Defense l Vol. 8, Issue 4
While at the gas station with law enforcement, Mr.
Kramer's wife accessed Mr. Kramer's cell phone,5
emailed
the pictures to herself, and then emailed the pictures from
her email account to law enforcement.6
Upon receiving the
citizen search crosses the line and becomes the action of law
enforcement. On August 1, 2023, the Third Circuit issued a
precedential opinion in United States v. John Lewis Kramer.1
Following a bench trial, Mr. Kramer was convicted of various
sexual offenses that resulted from his wife's " discovery " of
inculpatory pictures on his cellphone.2
Mr. Kramer's wife
claimed she accessed Mr. Kramer's cell phone without his
knowledge while she and Mr. Kramer were living together
in their marital residence.3
She found five (5) images on Mr.
Kramer's phone that appeared to depict Mr. Kramer engaging
in sexual acts with a minor. She contacted law enforcement
and agreed to meet law enforcement at a nearby gas station.
She took Mr. Kramer's cell phone, without his knowledge, to
the gas station to meet with law enforcement.4

For the Defense - Vol. 8, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4

Contents
For the Defense - Vol. 8, Issue 4 - 1
For the Defense - Vol. 8, Issue 4 - 2
For the Defense - Vol. 8, Issue 4 - Contents
For the Defense - Vol. 8, Issue 4 - 4
For the Defense - Vol. 8, Issue 4 - 5
For the Defense - Vol. 8, Issue 4 - 6
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