Case Document 80 Filed 10/30/15 Page 1 of 17 Page ID #2394 James D. Riddet, Esq. (SBN 39826) iriddet?lbmkattornevseom BIENERT, MILLER KATZMAN, PLC 903 Calle Amanecer, Suite 350 San Clemente, California 92673 Telephone (949) 369?3700 Facsimile (949) 369-3701 Attorneys for Defendant Mark Rettenmaier IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Case No. SA CR 14?0188 CJC Plaintiff V. Date: 2/1/16 MARK RETTENMEIER, Time: 9:00 AM Defendant NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMAIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND AUTHORITIES IN EXHIBITS 278421-1 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMAIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND AUTHORITIES IN EXHIBITS Case Document 80 Filed 10/30/15 Page 2 of 17 Page ID #2395 TABLE OF CONTENTS Table of Contents ii Table of Authorities Notice of Motion 1 Motion of Defendant Mark Rettenmaier to Suppress Evidence Based on Illegal Search of Defendant?s Computer by Personnel of Best Buy 2 Memorandum of Points and Authorities in Support of Motion to Suppress Evidence 3 Introduction 3 Statement of Facts 3 A. The Evidence Seized from Defendant?s Personal Computer During Search by a Private Person and Then Turned over to Authorities Was Unlawful Within the Fourth Amendment and Must Be Suppressed 7 Conclusion 13 Exhibits Proof of Service ii NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMAIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND AUTHORITIES IN EXHIBITS KC) CXD -J 111 Li) Ix) h?A Case Document 80 Filed 10/30/15 Page 3 of 17 Page ID #2396 TABLE OF AUTHORITIES Cases: Burdeau v. McDowell, 256 US. 465 7 Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) 7 Lustig v. United States, 338 US. 74 (1949) 7 Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989) 11 Thacker v. Commonwealth, 310 Ky. 702, 221 682 (1949) 8 United States v. Andrews, 618 F.2d 646, 650 (10th Cir. 1980) 11 United States v. Miller, 688 F.2d 652 (9th Cir. 1982) 7 United States v. Reed, 15 F.3d 928 (9th Cir. 1994) 7 United States v. 84 F.3d 1240, 1242 (10th Cir. 1996) 11 United States v. Storey, 2013 US. Dist. Lexis 158017, 11 Walter v. United States, 47 US. 649 10 Publications: ave, Search and Seizure: A Treatise on the Fourth Amendment (3rd) (1996), (311.1, 1.8(b) 7, 8 Note 19 Stanford L. Rev. 608, 614-615 (1967) 13 277894-1 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMAIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND AUTHORITIES IN EXHIBITS Case Document 80 Filed 10/30/15 Page 4 of 17 Page ID #2397 James D. Riddet, Esq. (SBN 39826) jriddet@bmkattomeys.com BIENERT, MILLER KATZMAN, PLC 903 Calle Amanecer, Suite 350 San Clemente, California 92673 Telephone (949) 369-3700 Facsimile (949) 369-3701 Attorneys for Defendant Mark Rettenmaier IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION UNITED STATES OF AMERICA, Case No. SA CR 14-0188 Plaintiff NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMAIER To SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF MARK RETTENMEIER: COMPUTER BY PERSONNEL OF BEST POINTS AND AUTHORITIES IN Defendant EXHIBIT 3 FILED CONCURRENTLY UNDER SEAL Testimony Required Date: 2/1/16 Time: 9:00 AM NOTICE TO: PLAINTIFF, UNITED STATES ATTORNEY, CENTRAL DISTRICT OF CALIFORNIA, GREGORY SCALLEY, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on Monday, February 1, 2016 at 9:00 Defendant, Mark Rettenmaier, by and through counsel of record, James D. Riddet, Bienert, Miller Katzman, will bring on for hearing the following motion: 1 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND EXHIBITS Case Document 80 Filed 10/30/15 Page 5 of 17 Page ID #2398 MOTION Defendant, Mark Rettenmaier, by and through counsel of record, James D. Riddet, Bienert, Miller Katzman, moves this Court for an order suppressing any and all evidence including fruits derived therefrom as a result of the search of defendant?s computer by Best Buy/Geek Squad personnel. The basis for this motion is set forth in the attached Memorandum of Points and Authorities, together with any and all evidence presented at the hearing of this motion. Dated: October 2015 2 Respectfully submitted, BIENERT, MI LER KATZMAN Jame D. Riddet Attorneys for Mr. Rettenmaier NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND AUTHORITIES: EXHIBITS Case Document 80 Filed 10/30/15 Page 6 of 17 Page ID #2399 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE INTRODUCTION: This motion addresses a search of a Seagate 1 Terabyte internal hard drive, serial number 9TE243V2 (?Seagate Hard Drive?) which was conducted by personnel of Best Buy/Geek Squad, to whom the defendant delivered his computer for repair. In this motion, defendant argues that the search by the personnel at Best Buy/Geek Squad was a government search without warrant, and thus illegal unless the government can establish an exception to the warrant requirement. Although the search was conducted by a private person a technician at Best Buy/Geek Squad the evidence will show that in actuality the search qualifies as a government search. STATEMENT OF FACTS: On or about November 11, 2011, Defendant delivered the Seagate Hard Drive to a local Best Buy location for repair. The computer was transferred to a location in Kentucky where it was searched by an employee of Best Buy/Geek Squad by the name of Trey Westphal.1 Prior to the filing of this motion, counsel for Dr. Rettenmaier sought an order from this Court authorizing the issuance and service of a Rule 17(b) subpoena on Best Buy. In addition, the government disclosed in discovery the personnel file of Westphal. From the discovery produced and the documents produced in answer to the subpoena on Best Buy, a number of records were revealed which demonstrate that the search by Westphal of the Seagate Hard Drive was a government search and not a private search.2 Attached as Exhibit 1 is a document produced in discovery that appears to be authored by Trey Westphal. As the Court can see, Westphal states the following: (1) 1 The date that the computer was actually delivered to Best Buy is not clear, because there are two records from Best Buy, one with a date of November 1, 2011, and another with a date of November 25, 2011. 2 At the time of preparation of this motion, both the government and the defense have not been able to locate Westphal and interview him. 3 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST BUY: POINTS AND EXHIBITS Case Document 80 Filed 10/30/15 Page 7 of 17 Page ID #2400 He was performing ?a data review of the format recovery that was ran.? (2) Westphal looked for ?client mission criticals (sic) of Pictures and Video. (3) ?While the search information populated? he observed ?a lot of Album Art pictures coming up. (4) He elected to ??lter them out by revising my search to ?kind: picture (5) He observed a ?lot of corrupt images.? (6) He believed at that time, he ?felt [he] needed to review due to what appeared to be inappropriate content.? Attached as Exhibit 2 to this motion are portions of the personnel file of Trey Westphal. A number of pages from this personnel file reveal that Westphal was a troublesome employee. For example, the Court is directed to the following pages of the personnel file: Page 593 Westphal threw an object at another employee: 6/11/14 Page 595 Westphal acknowledged being placed on suspension: 8/23/12 Page 602 Westphal refused to abide by a new call policy: 6/ 12/13 Page 608 Westphal bit another employee: 6/30/11 Page 612 History of non-verbal behavior, intimidation: 2/6/14 Page 614 History of inappropriate behavior including intimidation, disregard of leadership direction. What is more important to this motion is evidence that Westphal went beyond what he was required to do on occasions. For example, on Page 610, there is a Performance Counseling Record dated 11/19/13 stating that Westphal spends ?excessive amount of efforts on projects that haven?t been assigned to him? and has been ?wandering around the department, away from his work area without work related reasons.? The report further states that Westphal ?has been injecting himself into projects that he hasn?t been assigned On Page 61 1, there is another Performance Counseling Record dated 1 1/22/ 13. This refers to the earlier date and states that the company had a discussion with Westphal ?about not reaching processing duties unless authorized.? This demonstrates that Best Buy spoke to Westphal telling 4 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND EXHIBITS Case Document 80 Filed 10/30/15 Page 8 of 17 Page ID #2401 him that he should not reach beyond processing duties unless authorized. On the top of that page, there is a notation which states the following: ?On November 20th, Trey Westphal engaged in an unapproved project, cleaning of the DRD NAS, after being informed not to work on assignments outside of his designated duties? and that on the same date he ?sent an email to SSCIA Deven Hall that was sarcastic and retaliatory in nature.? This apparent penchant of Westphal to reach beyond ?processing duties? must be considered in light of written policies at Best Buy regarding working with law enforcement. Filed concurrently and under seal is Exhibit 3 is a record produced by Best Buy in response to a defense subpoena. The title of the record is ?Child Pornography on a Client PC (California) Geek Squad Services.? On the ?rst page of the document, employees are instructed never to search the content of a client?s PC. The remainder of the record provides guidance on how to interact with law enforcement. Employees are instructed to notify a Front End Leader if an agent suspects child pornography and that the Front End Leader is instructed to notify law enforcement. There are also records disclosed in discovery which demonstrate a continuing and close relationship between Special Agent Riley who is the agent on this case who was contacted by Best Buy and seized the computer from them. For example, attached as Exhibit 4 is an FBI document entitled CHS Reporting Document dated 7/27/10. This record shows that Special Agent Riley communicated with Source 62, who, as shown below, is Best Buy employee Justin Meade. On the second page (Bates 529) Agent Riley states the following: ?Source reported all has been quite (sic) for about the last 5 6 months, however, source agreed that once school started again, they may see an in?ux of This suggests that Agent Riley is periodically checking in with Meade. Attached as Exhibit 5 is another of the same type of report from Agent Riley stating that Source 62 (Meade) contacted her on 9/20/10 (two months later) and advised that a ?customer had a potential The agent went to that location and seized the NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST BUY: POINTS AND EXHIBITS Case Document 80 Filed 10/30/15 Page 9 of 17 Page ID #2402 6 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST BUY: POINTS AND EXHIBITS Case Document 80 Filed 10/30/15 Page 10 of 17 Page ID #:403 hard drive. Attached as Exhibit 6 is another of the same type of report dated 10/25/ 10 in which Source 62 (Meade) reported a thumb drive ?thought to have CP on it.? Attached as Exhibit 7 is another of the same report of a contact by Source 62 (Meade) in which Meade contacted Agent Riley that a customer submitted a computer ?to have its erased hard drive recovered? and that CP was viewed.? Attached as Exhibit 8 is another report dated 3/29/11 in which Source 62 (Meade) contacted Riley about another computer with CP. Attached as Exhibit 9 is another report dated 8/5/11 in which Source 62 (Meade) contacted Riley of ?potential CP on a hard drive.? Attached as Exhibit 10 is another report of a contact by Source 62 (Meade) of another ?possessor of CP and possibly a trader.? Attached as Exhibit 11 is another report of a contact by Source 62 (Meade) regarding an inquiry by ?Squad 6 SA Joe Ranieri. Attached as Exhibit 12 is another report of a contact by Source 62 (Meade) dated 1/9/ 12. The report discusses the contact of Agent Riley regarding a page of images and known CP. Attached as Exhibit 13 is another report of an attempted contact by Agent Riley of Source 62 (Meade) but he was on vacation. Attached as Exhibit 14 is another report dated 8/14/12 of a contact by Source 62 (Meade) of a thumb drive with at least one image of CP. This series of contacts between one source at Best Buy demonstrates a very close and continuing relationship between Best Buy and the FBI. But there is more. Attached as Exhibit 15 is a record of emails between the FBI and Best Buy. The email exchange is between Meade and Agent Riley and begins on Page 542. Meade emails Agent Riley using the agents ?rst name, Tracey, and states that ?we have another one out of California we want you to take a look at, when can you swing by?? Meade was interviewed by the FBI on 3/27/15 regarding this case. 7 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND EXHIBITS Case Document 80 Filed 10/30/15 Page 11 of 17 Page ID #:404 A. THE EVIDENCE SEIZED FROM PERSONAL COMPUTER DURING THE SEARCH BY A PRIVATE PERSON AND THEN TURNED OVER TO AUTHORITIES WAS UNLAWFUL WITHIN THE FOURTH AMENDMENT AND MUST BE SUPPRESSED Although the Supreme Court has held that the exclusionary rule does not apply to illegal searches conducted by private citizens (Burdeau v. McDowell, 256 US. 465) it is not a private person search if police officers participated in the search in some way, even if not involved in the physical search itself. ?[E]ven when the physical act of searching is by a private person, it may generally be said that the search is still governmental action if it is instigated by the authorities or the authorities have participated in the search is some way.? ave, Search and Seizure: A Treatise on the Fourth Amendment (3rd) (1996), Ch.1, p. 222.) In United States v. Reed, 15 F.3d 928 (9th Cir. 1994), officers were present when a private person searched a motel room. The Court held this was state action, subject to the exclusionary rule. In Lustig v. United States, 338 US. 74 (1949) the Court held that it is not essential that the governmental official be involved in the endeavor at the very outset. It is ?immaterial? whether the government of?cial ?originated the idea or joined in it while the search was in progress? and it is suf?cient that the of?cial ?was in it before the object of the search was completely accomplished.? See also, Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) [government agents joined actively in the search by private persons] The Ninth Circuit has also held that an inforrnant?s intent to assist law enforcement is relevant. In United States v. Miller, 688 F.2d 652 (9th Cir. 1982) the Court held that is was relevant that the intent of the private searcher was or was not to help the police enforce the law. Here, it is evident that the policy statements of the Geek Squad are designed to assist law enforcement in searching for child pornography, and the printed literature of the company clearly states that it has that policy. 8 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND AUTHORITIES: EXHIBITS Case Document 80 Filed 10/30/15 Page 12 of 17 Page ID #:405 In addition, any pre-search governmental encouragement is relevant, such as when agents encourage or assist private persons who have access to private information or property to search it for contraband. In one case, where the police made an appeal to the public at large to make a citizen?s arrest of a named person wanted for murder, and a citizen?s group does so and searched him, the incidental search was held government action in hacker v. Commonwealth, 310 Ky. 702, 221 682 (1949). LaFave also says that where there is general police encouragement to search coupled with no legitimate private purpose in such a search, other than to help the police, it is governmental action. Here, the employee had no legitimate private purpose in searching the unallocated space of Defendant?s computer. In fact, the search of the unallocated space was nothing more than an effort to respond to the company policy that expresses a zero tolerance for child pornography. The Geek Squad had inquired of Dr. Rettenmaier whether he needed the data on the computer, or not, and he indicated to them that he did not care about the data but wanted the computer to work. He was perfectly willing to have them replace the hard drive with a new one, so there was no legitimate purpose for searching the hard drive, let alone searching the unallocated Space on it. Thus there was no independent private purpose other than to detect crime and assist in prosecution, which is the ongoing policy of the Geek Squad. (Please see Policy Statement, filed concurrently and under seal, Exhibit 3.) In the present case, the apparent purpose of the actions of the Best Buy/Geek Squad personnel is to search computers whenever possible to look for contraband, and in particular for child pornography. First, the apparent purpose of employee Westphal in ??ltering? the ?Album art? that was populating his search was to look for a particular kind of picture despite the 9 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST POINTS AND EXHIBITS Case Document 80 Filed 10/30/15 Page 13 of 17 Page ID #:406 fact that there was no specific customer complaint regarding pictures or particular types or sizes of images. Second, it is apparent that Westphal?s actions were consistent with his habit of going beyond what is required to do to fulfil his obligations under his repair order, even in violation of company policy. Third, there is no reason to believe that any of Westphal?s searching actions searches of Defendant?s computer hard drive) were either assigned to him, or necessary to complete the task for which Defendant sent his computer to Best Buy. This conduct shows individual action that contradicts the written policy of Best Buy, and further supports the conclusion that Westphal was determined to search Defendant?s computer solely to look for and subsequently report ?inappropriate? content, without authorization from Defendant or his employer. (See under seal Exhibit 3). There is a series of reports from the FBI of a number of contacts with Source 62, who is the supervisor who reported the Rettenmaier case to Agent Riley. These reports are summarized on Exhibits 4 15. These reports are strong evidence that there is a continuing relationship between Source 62 and Agent Riley, the agent in our case. Exhibit 4 seems to be Source 62 checking in with Agent Riley and telling her that all has been quiet (report mistakenly states quite? but it is clear that it means quiet. Source 62 tells Agent Riley that ?they may see an in?ux of when school starts. Then following Exhibit 4, there are several in which Source 62 is dutifully reporting to Riley what they found. This two-way thoroughfare of information suggests that the FBI considers Source 62 (the Supervisor who reported the suspected child pornography in this case to the FBI) to be a partner in the ongoing effort of law enforcement detect and prosecute child pornography violators, and that Source 62 agrees. 10 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST BUY: POINTS AND AUTHORITIES: EXHIBITS Case Document 80 Filed 10/30/15 Page 14 of 17 Page ID #:407 This inference that the FBI and Source 62 are working together is reinforced by the fact that the FBI is giving Source 62 instructions going forward, clearly anticipating additional instances of him detecting child pornography which will then be handed over to the FBI. In what is widely recognized as the strongest statement of the rule prohibiting suppression of evidence when it is the result of a private party search, Justice Blackman expressed his own view that the Court had gone too far in Walter v. United States, 47 US. 649. Even Justice Blackman?s statement of the rule, however, supports Defendant?s position that here the search is subject to Fourth Amendment strictures. ?The Court at least preserves the integrity of the rule specifically recognized long ago in Bardeau v. McDowell, 256 US. 465 (1921). That rule is to the effect that the Fourth Amendment proscribes only governmental action, and does not apply 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.? Blackman, ., dissenting in Walter v. United States, 47 US. 649, 662 (1980). Here it is very clear that Best Buy, and specifically the Supervisor who reports its technician?s discovery of ?inappropriate? content on customer?s computers, are not only working together, but actually planning to conduct more such searches in the future. When, Special Agent Riley states, ?they may see an in?ux? of such content, he is imparting ?knowledge of a governmental official? to the Best Buy agent, and advising him that the government will be anticipating future discoveries by the Best Buy technicians to be handed over to the FBI. These conversations appear to meet the ?participation or knowledge of any governmental o?icial? requirement set forth by Justice Blackman. 11 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST BUY: POINTS AND AUTHORITIES: EXHIBITS Case Document 80 Filed 10/30/15 Page 15 of 17 Page ID #:408 Applying this test, the Court in United States v. Storey, 2013 U.S. Dist. Lexis 158017, upheld a private person search stating: ?There is no evidence that any FedEx employee received instructions, directions, encouragement, aid, or a tip from law enforcement. There is no evidence that any law enforcement officer received a tip about the package. The Court finds that law enforcement did not instruct, direct, aid, instigate, or encourage any FedEx employee to inspect, begin opening, or continue Opening the package or its contents. The Court further finds that law enforcement did not receive any tip about the package or provide any tip to any FedEx employee.? The Court cited case law holding that the Fourth Amendment ?does not protect against searches and seizures, even unreasonable ones, by private individuals who are not acting as agents of the government or with the knowledge or participation of a government official.? The Court went on to explain, that ?if the government dominates, coerces, or directs a private person's actions, a resulting search and seizure may violate the Fourth Amendment. Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989). Id., at In order to determine whether the private person has become the instrumentality of the government, the Court asks, did the government know of and acquiesce to the conduct and (2) did the party performing the search intend to assist law enforcement efforts or further his own ends?? citing United States v. 84 F.3d 1240, 1242 (10th Cir. 1996). Id., at *10. The knowledge and acquiescence inquiry make it clear that a government agent affirmatively encourage, instigate, or initiate the private action so long as the government agent knew about it and acquiesced in it. Id. at 1243. See also United States v. Andrews, 618 F.2d 646, 650 (10th Cir. 1980) (discussing a situation in which the government ?neither indirectly encouraged? nor directly participated? in the search.) 12 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTEN MEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST BUY: POINTS AND AUTHORITIES: EXHIBITS Case Document 80 Filed 10/30/15 Page 16 of 17 Page ID #:409 Here, the objective facts clearly show that the FBI agent encourages the Best Buy employee to conduct future searches for child pornography, referring to the lull in activity and their mutual expectation that activity would increase in the next season. This exchange appears to constitute direct encouragement, but without doubt establishes at lease ?indirect encouragement.? This series of exhibits starting with Exhibit 4 is strong evidence of a government involved search, such that the search is not justified without compliance with the Fourth Amendment. Moreover, Westphal has been found to go beyond what he is supposed to do under Best Buy?s written policy, even though that policy already instructs employees to cooperate with the FBI. All of this raises a strong inference that the searches by Best Buy are government searches. The above demonstrates a ?very close relationship? between one source at Best Buy and law enforcement and shows that the purpose of the searching in this case was for the benefit of law enforcement, not for the benefit of the customer It is evident that this conduct transgressed the line between a private person search, and one undertaken by a private person for the benefit of law enforcement, and for no legitimate purpose. In short, under these circumstances, the Best Buy source was an agent of law enforcement, and his actions (undertaken without a search warrant) are subject to the rigors of the Fourth Amendment, under which they fail as a valid search or seizure. The basis of the exclusionary rule is deterrence. When a private group is performing ?essentially a public function? (like detecting and prosecuting crime), exclusion should be required if there is any police encouragement or participation if: the searcher [has] an interest in obtaining convictions?; and the searcher ?commit[s] 13 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST BUY: POINTS AND AUTHORITIES: EXHIBITS KCL11 tx) CID Case Document 80 Filed 10/30/15 Page 17 of 17 Page ID #:410 searches and seizures regularly in order to be familiar enough with the rules to adapt his methods to conform to them.? (See Note 19 Stanford L. Rev. 608, 614?615 (1967).) Conclusion Here, the con?uence of the policy memorandum, specifically instructing the searching technicians on methods to use to conform to rules that apply in this area, together with the stated policy to turn over such evidence if found to the authorities, and the fact that there was no legitimate private purpose to the search of Defendant?s computer, compels the Court to conclude this was a search under the Fourth Amendment, conducted without probable cause or a warrant, and thus that the evidence seized, and any fruits thereof, must be suppressed. Dated: October 2015 Respectfully submitted, BIENERT, MILLER KATZMAN N, 10 James DIRiddet Attorneys for Mr. Rettenmaier 277847-1 14 NOTICE OF MOTION AND MOTION OF DEFENDANT MARK RETTENMEIER TO SUPPRESS EVIDENCE BASED ON ILLEGAL SEARCH OF COMPUTER BY PERSONNEL OF BEST BUY: POINTS AND AUTHORITIES: EXHIBITS