In what circumstances will the Fourth Amendment apply to a nominally private search?

In determining whether the fourth amendment applies to a nominally private search, the ultimate test "instrument or agent of the state" is similar to that used in the "silver platter" cases to decide whether the fourth amendment was applicable to searches conducted by state officers. However, the factors leading to this ultimate conclusion have been treated somewhat differently in the two contexts. Compare Coolidge v. New Hampshire, supra, with Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949) (fourth amendment applies if there is some federal involvement) and Gambino v. United States, 275 U.S. 310, 316-18, 48 S.Ct. 137, 72 L.Ed. 293 (1927) (fourth amendment applies even without federal involvement, if sole motive of state officers is to enforce federal statute). Thus we do not believe the governmental/private distinction has been regarded in the same light as the former federal/state distinction.

6 Although the total absence of governmental involvement makes it unnecessary to rely on this additional factor, we observe that the terminal manager's motive was not solely to serve the purposes of the government. His initial purpose was to inventory the contents of the damaged cartons. See United States v. Tripp, 468 F.2d 569 (9th Cir. 1972), cert. denied, 410 U.S. 910, 93 S.Ct. 965, 35 L.Ed.2d 272 (1973). Once the nature of the books became apparent, the manager had the additional private motive of seeking to avoid possible criminal liability for the carrier in the interstate transportation of obscene materials. See United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391, 398-99 (1974), cert. denied, 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828 (1975).