Police dispatcher did not act as a government agent when he prank searched a fellow dispatcher’s phone and found child pornography

In a recent Bedford County case, the Tennessee Court of Criminal Appeals determined that a prank search by a sheriff’s department employee did not violate the defendant’s constitutional right to be free from illegal searches and seizures.  Both the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution protect against unreasonable searches and seizures.  However, neither constitution protects against unreasonable searches and seizures by private individuals.  They only protect against unreasonable searches and seizures by the government.

To determine whether a search is conducted by a private individual or the government, Tennessee courts use the “legitimate independent motivation test.”  See State v. Burroughs, 926 S.W.2d 243, 245 (Tenn. 1996).  Under the legitimate independent motivation test, courts should consider: (1) the government’s knowledge of and acquiescence in the search and (2) the intent of the party performing the search.

Here, no one instructed the dispatcher to search the phone.  Further, he did not expect to find child pornography on the phone but merely intended to play a practical joke on his coworker.  Since the dispatcher was not acting with the government’s knowledge or acquiescence and since he had a purely private motivation for the search, the court of criminal appeals held that the prank search did not violate the defendant’s constitutional rights against unreasonable searches and seizures.  Accordingly, the appellate court affirmed the defendant’s convictions for the sexual exploitation of a minor.

State v. Spray, No. M2016-00879-CCA-R3-CD (Tenn. Crim. App. Sept. 26, 2017)

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