United States of America v. Marco A. Avalos

United States Court of Appeals
For the Eighth Circuit
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No. 19-3657
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United States of America
Plaintiff - Appellee
v.
Marco A. Avalos
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 20, 2020
Filed: January 12, 2021
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Before BENTON, ERICKSON, and GRASZ, Circuit Judges.
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BENTON, Circuit Judge.
Marcos A. Avalos pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He reserved the right to appeal
the denial of his motion to suppress. The district court1 sentenced him to 48 months
1 The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, now deceased, adopting the report and recommendations of the

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in prison. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
On October 25, 2018, a Creighton University security officer received a call
from a female student reporting that a man, later identified as Marcus Avalos,
approached her on campus and tried to enter her residence hall. Creighton
University security officers eventually located Avalos in a campus parking lot. He
resisted efforts to detain him. During the struggle, Avalos dropped a concealed
firearm. The security officers retrieved the firearm, handcuffed him, and called
Omaha police.
Avalos was charged with being a felon in possession of a firearm. He moved
to suppress it, claiming the Creighton University security officers violated his Fourth
Amendment rights. The magistrate judge recommended denying the motion, finding
the Fourth Amendment was inapplicable because the security officers were private
individuals. Adopting the magistrate’s recommendation, the district court ruled
there was no evidence the Omaha police and the security officers “were acting
closely together or that the public safety officers had any agency relationship with
[the Omaha police].”
Avalos challenges this ruling, contending the Fourth Amendment applies.
This court analyzes the denial of a motion to suppress under a “mixed standard,”
reviewing findings of fact for clear error and legal findings de novo. United States
v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015).
The Fourth Amendment “is wholly inapplicable ‘to a search or seizure, even
an unreasonable one, effected by a private individual not acting as an agent of the
Government or with the participation or knowledge of any governmental official.’”
United States v. Jacobsen, 466 U.S. 109, 113 (1984), quoting Walter v. United
Honorable Michael D. Nelson, United States Magistrate Judge for the District of
Nebraska.

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States, 447 U.S. 649, 662 (1980). Three factors determine whether a private
individual is acting as, or with the participation of, a government official: “(1)
whether the government had knowledge of and acquiesced in the intrusive conduct;
(2) whether the citizen intended to assist law enforcement or instead acted to further
his own purposes; and (3) whether the citizen acted at the government’s request.”
United States v. Highbull, 894 F.3d 988, 992 (8th Cir. 2018) (cleaned up). Avalos
“bears the burden of proving by a preponderance of the evidence” that the Creighton
University security officers acted as, or participated with, government officials. Id.
As the district court correctly ruled, Avalos cannot meet the burden of proving
that the Creighton University security officers acted as government officials. The
officers were employed by Creighton University, a private institution with no
connection to the Omaha Police Department or any other governmental law
enforcement agency. He also cannot show the security officers participated with
government officials. Id. None of the security officers had received training from
the Omaha police; they did not contact the police before detaining Avalos; they did
not act at the request of the police; and there is no evidence they intended to assist
them. Unlike the Ackerman case cited by Avalos, the security officers here were not
exercising powers authorized by federal statute or beyond those of a private citizen.
See United States v. Ackerman, 831 F.3d 1292, 1296 (10th Cir. 2016) (holding that
a federally created agency acted as a government agent because its “law enforcement
powers extend well beyond those enjoyed by private citizens”).
The district court did not err in determining the Creighton University security
officers were not acting as, or participating with, government officials. There was
no Fourth Amendment violation.
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The judgment is affirmed.
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