Jerry G. Gundlach v. Theodore J. Janing, Sheriff

Eighth Circuit

Jerry G. Gundlach v. Theodore J. Janing, Sheriff

536 F.2d 754, 1976 U.S. App. LEXIS 8852

CourtCourt of Appeals for the Eighth Circuit

DecidedMay 26, 1976

Docket75-1932

StatusPublished

Cited by7 cases

This text of 536 F.2d 754 (Jerry G. Gundlach v. Theodore J. Janing, Sheriff) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jerry G. Gundlach v. Theodore J. Janing, Sheriff, 536 F.2d 754, 1976 U.S. App. LEXIS 8852 (8th Cir. 1976).

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Opinion

PER CURIAM.

Jerry G. Gundlach, a Nebraska state prisoner, brings this 28 U.S.C. § 2254 petition claiming that his state convictions for receiving stolen goods and automobiles 1 were tainted by evidence discovered through search and seizure of his property made in violation of his fourth amendment constitutional rights. His claims arise from an initial search of his property made by a private party. Petitioner asserts that the search violated his constitutional rights because the Omaha Police Department, upon being informed that the private party was considering making a search, did not notify the private party that a search would possibly be illegal, nor dissuade that party from making that search.

The record discloses that the Omaha police did not participate in the questioned search or in any way encourage the private party to conduct the search. The fourth amendment affords no protection against a wrongful search and seizure of property by an individual absent any government participation. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); cf. United States v. Luciow, 518 F.2d 298, 300 (8th Cir. 1975); United States v. Burton, 475 F.2d 469, 471 (8th Cir. 1973).

The district court (Judge Robert V. Denney) in a well-reasoned and persuasive opinion denied petitioner’s application for a writ of habeas corpus. We agree and affirm on the basis of that opinion. 2

1

. The Nebraska Supreme Court affirmed petitioner’s convictions, State v. Gundlach, 192 Neb. 692, 224 N.W.2d 167 (1974), cert. denied, 421 U.S. 933, 95 S.Ct. 1663, 44 L.Ed.2d 92 (1975).

2

. Gundlach v. Janing, 401 F.Supp. 1089 (D.Neb. 1975).

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PER CURIAM.

Jerry G. Gundlach, a Nebraska state prisoner, brings this 28 U.S.C. § 2254 petition claiming that his state convictions for receiving stolen goods and automobiles 1 were tainted by evidence discovered through search and seizure of his property made in violation of his fourth amendment constitutional rights. His claims arise from an initial search of his property made by a private party. Petitioner asserts that the search violated his constitutional rights because the Omaha Police Department, upon being informed that the private party was considering making a search, did not notify the private party that a search would possibly be illegal, nor dissuade that party from making that search.

The record discloses that the Omaha police did not participate in the questioned search or in any way encourage the private party to conduct the search. The fourth amendment affords no protection against a wrongful search and seizure of property by an individual absent any government participation. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); cf. United States v. Luciow, 518 F.2d 298, 300 (8th Cir. 1975); United States v. Burton, 475 F.2d 469, 471 (8th Cir. 1973).

The district court (Judge Robert V. Denney) in a well-reasoned and persuasive opinion denied petitioner’s application for a writ of habeas corpus. We agree and affirm on the basis of that opinion. 2

1

. The Nebraska Supreme Court affirmed petitioner’s convictions, State v. Gundlach, 192 Neb. 692, 224 N.W.2d 167 (1974), cert. denied, 421 U.S. 933, 95 S.Ct. 1663, 44 L.Ed.2d 92 (1975).

2

. Gundlach v. Janing, 401 F.Supp. 1089 (D.Neb. 1975).

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536 F.2d 754, 1976 U.S. App. LEXIS 8852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerry-g-gundlach-v-theodore-j-janing-sheriff-ca8-1976.

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