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United States v. Hardin - 539 F.3d 404 (6th Cir. 2008)


The Sixth Circuit uses a two-factor analysis developed by the Ninth Circuit to evaluate whether a private party is acting as an agent of the government, explaining that the critical factors are: (1) the government's knowledge or acquiescence, and (2) the intent of the party performing the search. Where the intent of the private party conducting the search is entirely independent of the government's intent to collect evidence for use in a criminal prosecution, the private party is not an agent of the government. 


Hardin was released from prison and put on federal supervised release. Three months later, a federal warrant for Hardin's arrest issued following a petition to revoke his supervised release. The police received a tip from a confidential informant (CI) that Hardin might be staying with a girlfriend at a certain apartment complex.The CI also described the vehicle that he believed Hardin to be driving, but the CI could not identify which particular apartment he believed Hardin to be staying in, only its approximate area in the building. The officers went to the apartment building, where the officers spotted what they believed to be the described vehicle near the apartment unit, number 48, that they believed the CI had described. The officers talked with the apartment manager, to give him a history on Hardin. The officers watched on CCTV as the manager walked to Apartment 48 and entered it. The manager simply entered the apartment, using a key, and called out "Maintenance." After entering the premises, the apartment manager returned to the officers and told them that "the guy you are looking for is back in the back bedroom on the right laying on the bed talking on the cell phone." After the apartment manager verified Hardin's presence in Apartment 48, the officers entered abruptly, screaming "police" and "get down on the ground." They found Hardin sitting on a couch in the front room. Upon investigation, Turner discovered that the protrusion was a shoe box that contained two more firearms.  In addition to the three firearms, the officers recovered crack cocaine, marijuana, and approximately $ 2,000 in cash from Hardin's pockets. Hardin filed a motion to suppress the evidence, which was denied. He was later convicted of intent to distribute five grams or more of crack cocaine, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a felon. Hardin appealed, arguing that the district court erred in denying his motion to suppress evidence that police officers recovered from an apartment where he was staying as a guest after the officers entered the apartment to execute an arrest warrant for defendant. Defendant contended that the officers lacked probable cause to believe that he was present in the apartment.


Did the Court properly deny Hardin's motion to suppress?




The court reversed the district court's denial of defendant's motion to suppress. The court vacated defendant's convictions and remanded the case for further proceedings. The court held that the officers did not have sufficient evidence to form a reasonable belief that defendant was present. The apartment manager who confirmed defendant's presence was acting as an agent of the Government when he entered the apartment on a ruse, the information provided by a confidential informant was insufficient by itself to establish a reason to believe that defendant was in the apartment, and the officers' search was not valid due to consent.

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