United States v. Highbull, (8th Cir. 2018)
Terance Highbull and his girlfriend were arguing, so the girlfriend’s son called police and reported that Highbull was harassing his mother. As the first officer drove up, Highbull fled on foot, leaving his car behind with the keys in the ignition and motor running. The girlfriend flagged down the officer and told him Highbull had nude pictures of her 13-year-old daughter on his phone.
The officer asked if she had the phone and she replied “no.” The backup officer arrived and the two officers stepped to the side to confer. While they were talking, the girlfriend got into Highbull’s car, found the phone, and gave it to the officers. The officers then obtained a search warrant and a forensic examination revealed nude photos of a juvenile female. Highbull was charged with sexual exploitation of a child.
Highbull argued the pictures should be suppressed, claiming his girlfriend was acting as the officer’s agent when she searched his car. The court rejected his claim. To show that a party is acting as an agent of the police, courts consider “ whether the government had knowledge of and acquiesced in the intrusive conduct;  whether the citizen intended to assist law enforcement or instead acted to further his own purposes; and  whether the citizen acted at the government’s request” (Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989)).
Although the officer may have acquiesced in the search, he never directed the girlfriend to look for the phone. The girlfriend was not primarily motivated by the desire to help police. Rather, the circumstances established she was at least partly motivated by her desire to protect her young daughter.