In United States v. Kramer, ---F. 4th---, 2023 WL 4875890 (3d Cir. 2023), the Third Circuit joined the Fourth, Ninth, Tenth, and Eleventh Circuits in adopting a two-factor test for determining whether a private party was acting as an agent of the government for Fourth Amendment purposes. The two factors are: "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private citizen performing the search intended to assist law enforcement or acted to further her or his own legitimate and independent purposes." The Third Circuit also joined its sister Circuits in holding that the defendant bears the burden of proving the private party was acting as an instrument of the government.
Applying the test to the case at hand, the Third Circuit affirmed the District Court's denial of the defendant's motion to suppress. The Court found that the Fourth Amendment was not implicated because, viewing the record in the light most favorable to the government, the defendant's then-wife searched his cellphone of her own volition without the government's knowledge or acquiescence.