UNITED STATES COURT OF APPEALS for the Fifth Circuit
_____________________________________
No. 93-2056 _____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
MARY JANE JENKINS, EVAN PETER PIGMAN, JO ANN ROCHELLI, DAVID CARL STUBBS, RICKIE HERBERT RANNEY, and LARRY WAYNE MALADY,
Defendants-Appellees.
______________________________________________________
Appeal from the United States District Court for the Southern District of Texas ______________________________________________________ (February 20, 1995) Before WISDOM, KING and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
The government appeals from the grant of Appellees'1 motions
to suppress evidence. For the reasons below, we find that the
district court's holding was based on a misapprehension of the
applicable law, and therefore we reverse, render and remand.
I. PROCEDURAL BACKGROUND
In April 1991, a grand jury for the Southern District of Texas
indicted Appellees for racketeering and interstate shipment of
obscene materials via common carrier. Appellees moved to suppress
evidence obtained from five searches of bookstores and businesses
1 Co-defendants Larry Wayne Malady, Jo Ann Rochelli and Rickie Herbert Ranney are not party to this appeal. owned or controlled by Jenkins in Alabama, Louisiana, Missouri,
Tennessee and Texas, and from the search of a vehicle owned by
appellee Stubbs. These searches were made pursuant to warrants
issued on probable cause, based on evidence gathered without a
warrant by virtue of a cooperating witness. As will be discussed
more fully below, the propriety of the search warrants is not
directly at issue. Rather this appeal addresses Appellees'
contention that the preliminary warrantless search--involving
allegedly obscene videotapes made available by the cooperating
witness--was constitutionally infirm.2
Following an evidentiary hearing, the district court
suppressed all evidence seized as a result of the warrantless,
preliminary search. The government moved for reconsideration
raising for the first time the issue of the Appellees' standing to
challenge the preliminary search. The district court denied the
motion, and the government filed the instant appeal.
II. FACTUAL BACKGROUND
A. The Appellees
Mary Jane Jenkins, a resident of St. Louis, owned and operated
Phoenix and Associates Management, Ltd., a Missouri corporation
formed to manage 17 "adult" bookstores. Evan Peter Pigman, also a
resident of St. Louis, worked as general manager and president of
2 We note that the validity of similar search warrants has previously been appealed to the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit remanded the case to the district court for an evidentiary hearing on the exact issue presently before us. See White Fabricating Co. v. United States, 903 F.2d 404 (6th Cir. 1990).
2 Phoenix and Associates. Each of Jenkins' 17 adult bookstores
included a "video arcade," consisting of "peep machines," that
exhibited pornographic videotapes. Customers viewed the videotapes
by inserting coins or tokens into the machines. White Fabricating,
located in Cleveland, Ohio, owned and operated the peep machines
and supplied videotapes for exhibition in the machines.
Each week, White Fabricating's regional representatives would
receive videotapes shipped by White Fabricating via United Parcel
Service (UPS). The White representatives would then proceed to
Jenkins' stores, insert new videotapes into the machines, retrieve
the prior weeks' videotapes and remove money from the machines.
David Stubbs, a resident of Houston, supervised the installation of
videotapes in adult bookstores throughout the south for White.
B. The Searches
The search warrants were executed as part of a series of
multi-city searches of adult bookstores purportedly exhibiting
obscene videotapes. Much of the evidence adduced at the
suppression hearing was identical to evidence presented to the
United States Court of Appeals for the Sixth Circuit. See White
Fabricating Co. v. United States, 903 F.2d 404 (6th Cir. 1990).
As described in White Fabricating, Cleveland FBI agent Jim
Larkin drafted a model "national affidavit" detailing shipments of
allegedly obscene videotapes from a source in Cleveland to various
adult bookstores located throughout the United States. Agent
Larkin used this affidavit to obtain warrants authorizing the
search of Diversified Industries and White Fabricating, the alleged
3 source of the obscene videotapes. FBI agents used portions of this
affidavit to obtain warrants authorizing the search of adult
bookstores that had allegedly received copies of the obscene
videotapes for their peep machines.
The affidavit asserted that the plaintiffs were involved in a pattern of racketeering activity, interstate transportation of obscene material and transportation of obscene material for sale and distribution, conspiracy to defraud the United States, money laundering, and aiding and abetting in these criminal activities. The allegations contained in the affidavit were based on a six-month investigation by the FBI which involved the plaintiffs and two other companies. The investigation disclosed a pattern of weekly shipments of allegedly obscene video tapes from Cleveland, Ohio to adult book stores and peep shows throughout the United States.
The investigation revealed that DI [Diversified Industries] manufactured video peep show booths which were subsequently installed in adult book stores. DI also supervised regional companies that oversaw peep show operations in their various geographic areas. These service companies would receive the video tapes, place them in a video machine in a peep show booth, occasionally service the machine, keep records of profits generated from the machines, and send back to DI a certain percentage of the proceeds generated. The investigation also revealed a meticulous method of accounting for profits which included the use of locked cash boxes which required keys to open, profit and balance sheet records, extensive use of cashier's checks, and the disbursal of deposits of cash into a number of banks to avoid the $10,000 minimum reporting requirement imposed on these banks.
White was allegedly one of DI's service companies. The investigation indicated that White was substantially engaged in the duplication, installation, and distribution of the allegedly obscene video tapes which were placed in the various peep show booths. White would first receive approximately fifteen "master" video tapes, which White would duplicate, using some one hundred video cassette recorders. White's employees would then package the video tapes for shipment to adult book stores scattered throughout the country.
4 Government agents, for five weeks, monitored the shipment of video tapes from White to a "cooperating witness," an employee or associate of one of the plaintiffs. His particular job allegedly involved receiving the shipment of video tapes from White in Cleveland, and then installing the various duplicated video tapes in adult book stores in a particular city. On approximately June 1, 1988, this cooperating individual allegedly began to allow law enforcement officials to examine the video tape cassettes and to make copies of them for subsequent viewing. The government agents viewed seventy-five different tapes, drafting detailed written descriptions of the contents of fifty video tapes.
Based on this information, along with other information allegedly supplied by cooperating witnesses, Agent Larkin concluded that probable cause existed to support the search warrants authorizing the search of the plaintiffs' premises. Written descriptions of the content of the allegedly obscene fifty video tapes were furnished to the magistrate, along with the extensive affidavit. Based on the affidavit, the fifty written descriptions, and after personally viewing four of the video tapes, the magistrate issued the warrants.
Id. at 406-07. At issue in the instant appeal is whether the
Appellees' Fourth Amendment rights were violated when the
government obtained access to the videotapes via the cooperating
witness without a specific warrant.
During the initial stages of the investigation, FBI agents
obtained permission from UPS to examine certain parcels shipped
from White Fabricating to various locations. From the exterior of
the parcels, the agents could ascertain their destination, but were
not able to learn any information about their contents. FBI
agents visited the establishments designated for receipt of the
parcels, and viewed the videotapes in the same manner as an
ordinary customer, i.e., by inserting coins or tokens in the peep
machines.
5 This process, however, proved expensive and unworkable because
the FBI was unable to link the allegedly obscene videotapes viewed
to the UPS parcels, and was therefore unable to track their
shipment in interstate commerce. The agents decided to recruit a
cooperating witness who could permit access to the contents of the
UPS shipments. After some investigation, the agents determined to
approach Mark Boyd (Boyd), the sole White Fabricating employee in
Memphis, Tennessee.
Two FBI agents approached Boyd and informed him that he had
been identified as a possible prosecution target for interstate
transportation of obscene materials. The agents asked Boyd if he
would cooperate in their investigation, and he agreed. The
district court did not find that the FBI promised Boyd immunity or
any other incentive for his cooperation. The district court
specifically found, however, that the FBI failed to apprise Boyd of
his right to refuse to cooperate.
Essentially, Boyd agreed that he would continue to follow his
normal routine. As usual, he picked up the White Fabricating
shipment at the Paris Theater in Memphis. However, after
retrieving each parcel, he met with the FBI and the local police.
Boyd opened the parcels in the presence of the agents, who
photographed and inventoried their contents. As set forth in the
district court's memorandum opinion,
Generally, Boyd would receive four sets, or "libraries", of 15 video-tapes on each delivery. He would provide one library of 15 video-tapes to the FBI, which included seven duplicate copies that the FBI was permitted to keep. The eight "original" video-tapes would be returned to Boyd the following morning after the
6 FBI had copied them. This procedure occurred on five occasions in June of 1988, resulting in a total collection of 75 video-tapes. Of that collection, 50 video-tapes were viewed and written reports were prepared by various FBI agents and presented to Special Agent Larkin.
Boyd was the sole employee of White Fabricating in Memphis. He received all of his instructions from management and reported directly to the Cleveland office. It is undisputed that Boyd did not have permission from his employer to provide originals and copies of various video-tapes to the FBI. Further, no dispute exists that Boyd was not the owner of the video-tapes at any time, was not a manager or owner of the company that produced the video-tapes, and that Boyd was not to reveal his agreement and conduct with the FBI to his employers. The testimony establishes that Boyd was not and has not been charged in any indictment. Special Agent Larkin further testified that he was not aware of any payment(s) made to Boyd by federal or local officials, and that he had not authorized any payment, even for reimbursement for expenses.
III. CONSTITUTIONALITY OF THE SEARCH
Simply put, warrantless searches are per se unreasonable, and
therefore unconstitutional, unless they fall into one of the few
specifically established and well-defined exceptions to the general
rule. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.
2041, 2043 (1973). "[O]ne of the specifically established
exceptions to the requirements of both a warrant and probable cause
is a search that is conducted pursuant to consent." Id. at 2043-
44. The government's ability to rely upon the consent exception
depends on two factors. First, the
government must show that the consent was given voluntarily. See
Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792
(1968),
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving
7 that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.
(footnotes omitted). Second, the prosecution must show that either
the defendant himself consented to the search or that consent was
obtained from a third party that had the ability to furnish valid
consent. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct
988, 993 (1974). We will address the issues of voluntariness and
authority to consent seriatim.
A. Standard of Review
The standard of review of a district court's ruling on a
motion to suppress is well defined in this Circuit. "We employ a
two-tier standard...reviewing the district court's factual findings
for clear error and its ultimate conclusion as to the
constitutionality of the law enforcement action de novo." United
States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993). "We
consider the evidence in the light most favorable to the prevailing
party when we review the granting of a motion to suppress. The
district court's factual findings are accepted unless they are
clearly erroneous. Questions of law are reviewed de novo.".
United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).
B. Voluntariness of Consent
The Supreme Court has set forth the standard by which the
voluntariness issue must be assessed. See Schneckloth v.
Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2047-48,
[T]he question whether consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.
8 We have previously enumerated six factors relevant to this
"totality of the circumstances" test:
(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse to consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found.
In doing so, we have noted that "although all of the above factors are highly relevant, no one of the six factors is dispositive or controlling of the voluntariness issue."
United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir.
1988)(citations omitted).
The district court relied on six factors in determining that
Boyd's consent was not voluntary, however, of these six factors
only one appears among the list we have set forth. The first
factor relied on by the district court is that Boyd was not
apprised of his right to refuse to cooperate. While this factor is
certainly relevant to the analysis, the district court appears to
have ascribed it far too much weight.
"While knowledge of the right to refuse to consent is one
factor to be taken into account, the government need not establish
such knowledge as the sine qua non of an effective consent."
Schneckloth v. Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2048; see
also, United States v. Davis, 749 F.2d 292, 296 (5th Cir.
1985)("Proof of knowledge of the right to refuse consent is not
required to show voluntariness."). The district court's reliance
on authority to the contrary from the Sixth Circuit is misplaced.
9 United States v. Jones3 is inapplicable for the very reason
that the district court confesses. The Sixth Circuit concluded
that, at the time of the search, Jones had been placed in custody
but had not been informed of his Miranda rights. Because the court
determined that Jones had in fact been arrested, and not apprised
of his rights, all indicia of voluntariness were lacking. In
contrast, there is no evidence that Boyd was ever taken into
custody or otherwise made subject to the control of law enforcement
officers. Likewise, in United States v. Grant4 the court found
that "Grant was improperly seized by the agents [and therefore],
his subsequent consent to the search of his carry-on bag did not
overcome the taint of the agents' prior conduct." Id. at 388.
The district court listed five other factors on which its
voluntariness ruling appears to be based.
(a) Boyd was not indicted, (b) Boyd did not have the consent of his employer to permit the FBI to inventory and copy the video-tapes and the packages' content; (c) Boyd was to keep his activities a secret and not reveal his conduct to his employer; (d) Boyd did not own any part of the business or the video-tapes; and (e) all parties knew that Boyd would be acting on behalf of the FBI in providing copies of video-tapes to the FBI.
The simple fact is that while some of these factors may be relevant
to the issue of Boyd's authority to consent, none of these factors
relates to the voluntariness of his consent. For example, the fact
that Boyd was not indicted could also be indicative of voluntary
3 846 F.2d 358 (6th Cir. 1988). 4 920 F.2d 376 (6th Cir. 1990).
10 consent, because it tends to indicate a lack of coercion by law
enforcement officials.
The fact that Boyd did not have his employer's consent to
allow the FBI to copy the videotapes, and the fact that Boyd was to
keep his activities a secret are not relevant to the voluntariness
analysis because they are true in almost every confidential
informant or cooperating witness situation. Despite the existence
of these factors, it is beyond question that the government has the
right to investigate possible illegal activity,5 and this
investigative power encompasses the right to use confidential
sources.6 Persons who engage in illegal activities involving
others assume the risk that their confidences may be betrayed, and
that evidence of illegality may be disclosed to law enforcement
authorities. See, e.g., Hoffa v. United States, 385 U.S. 293, 301-
03, 87 S.Ct. 408, 413-14 (1966).
Turning to the factors which we have determined are relevant
to the question of voluntariness, we find that they, based on the
record before us, militate in favor of a finding that Boyd's
consent was voluntary.
1. Voluntariness of Boyd's Custodial Status
5 See e.g. Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 543-45, 83 S.Ct. 889, 892-93. 6 See, e.g., Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427 (1966)("Such a rule [prohibiting the use of undercover agents] would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest."); Pleasant v. Lovell, 974 F.2d 1222, 1232 (10th Cir. 1992)("The government has the right to use informants and to keep abreast of possible criminal activity.").
11 The record contained no facts upon which it could reasonably
be concluded that Boyd was in any form of custodial status when he
consented to cooperate. Boyd was approached either at home or in
a parking lot, there was no one other than Boyd, perhaps his wife,
and two FBI agents--in plain clothes, and not displaying firearms--
present, Boyd had no pending legal problems, and he was apprised
that his cooperation would be strictly voluntary. Furthermore, the
record does not indicate any restrictions on Boyd's movements, and
in fact indicates that Boyd continued in his normal routine
throughout the period of cooperation.
2. Coercive Police Procedures
Likewise, the record contains no evidence of coercive police
procedure. The only fact that can even remotely be placed in this
category is that Boyd was informed by the FBI that he was a
potential target for criminal prosecution. The record indicates
that this statement was true, and there is no showing that the
statement was made in an effort to coerce cooperation. In
addition, Boyd was also informed that his cooperation was voluntary
and would not be rewarded financially or with immunity from
prosecution.
Finally, there is no indication that Boyd's cooperation was
immediate. While he apparently agreed during the initial meeting
to cooperate, the actual plan for cooperation was not conceived
until a second meeting with the FBI, and his actual cooperation,
and consent to the search, did not commence until the first time he
met the FBI with a shipment of videotapes. The lack of immediacy
12 of cooperation infers that Boyd had time to consider his decision
outside of law enforcement presence, and therefore indicates a lack
of coercion.
3. Extent and Level of Cooperation
The extent and level of Boyd's cooperation weigh heavily in
favor of a finding of voluntariness. Boyd cooperated with the FBI
over a period of five weeks. He met with the FBI on two occasions
prior to the first shipment of videos being made available to the
FBI. He picked up each of the five shipments and brought them to
a predetermined location to meet with the FBI. He opened the boxes
in the presence of the FBI, and permitted the FBI to retain a set
of videotapes overnight for the purpose of copying them. Boyd
further allowed the FBI to retain seven "duplicate" videotapes. In
addition, as mentioned above, the fact that a period of time
elapsed between the time Boyd was asked to cooperate and the
commencement of his actual cooperation indicates that he had time
to consider his decision. The plain inference to be drawn from the
extent and duration of Boyd's cooperation is that his cooperation
was voluntary.
4. Boyd's awareness of his right to refuse to consent
While the district court concluded that Boyd had not been
appraised of his right to refuse to cooperate, FBI Agent Larkin
merely testified that "I don't know the answer to that question"
when he was asked whether the agents had informed Boyd that he
could refuse to cooperate. However, assuming that the district
court's conclusion was correct, Larkin also testified that the
13 agents made Boyd aware that his cooperation was strictly voluntary.
Based on the other details of Boyd's cooperation, and the fact that
he was specifically informed that his cooperation was voluntary,
the fact that he may not have been specifically told "you may
refuse to cooperate" does not provide much, if any, indicia of
involuntariness.
5. Boyd's Education and Intelligence and His Belief that the Search would not Reveal Incriminating Evidence.
The record is insufficient for us to render an informed
analysis of the last two items. While it is undisputed that Boyd
lacked a college degree, no testimony was adduced that Boyd
suffered under-average intelligence or was otherwise deficient in
his ability to understand the FBI request. In fact, the indication
is that Boyd participated in the development of the plan by which
the FBI gained access to the tapes. Absent a contrary finding by
the trial court, we can infer from the evidence the Boyd is of at
least average intelligence and had the ability to render informed
consent. On the issue of Boyd's belief that the search would
reveal no incriminating evidence, the record is silent. Due to the
paucity of evidence on these two elements, we do not consider them
in our overall analysis.
6. Conclusion
Even without evidence sufficient to reach a conclusion on the
last two factors, consideration of the first four factors leads to
a conclusion different from the conclusion reached by the district
court. Because we find that the district court gave improper
weight to certain factors, considered a number of inappropriate
14 factors and did not properly consider a number of relevant factors
which lead to a contrary conclusion, we find the district court's
holding to be clearly erroneous and the result of the application
of an incorrect legal standard. For the reasons set forth above,
we hold that Boyd's consent was voluntary.
C. Effectiveness of Consent
The district court found that Boyd lacked the authority to
permit the government to copy the videotapes, and thereby concluded
that Boyd's consent, even if voluntary, was not effective. The
district court's holding seems to be based on two theories, both of
which are based on a flawed application of settled law. First, the
court decided that Boyd became an "agent" of the United States by
allowing the government access to the videotapes. The court also
determined that Boyd lacked sufficient authority to allow the
government access to the tapes. We will address these theories in
reverse order.
1. Authority to Consent
As with all explorations of Fourth Amendment jurisprudence
addressing the validity of searches, whether a constitutional
interest has been violated depends on whether the questioned
governmental conduct infringed upon a reasonable expectation of
privacy. See e.g. United States v. Jacobsen, 466 U.S. 109, 113,
104 S.Ct. 1652, 1656 (1984). The constitution does not guarantee
that a citizen will never be subjected to any search, but rather
that a citizen is entitled to be free from unreasonable searches.
15 See Illinois v. Rodriguez, 497 U.S. 177, 183-84, 110 S.Ct. 2793,
2799 (1990),
What Rodriguez is assured by the trial right of the exclusionary rule, where it applies, is that no evidence seized in violation of the Fourth Amendment will be introduced at his trial unless he consents. What he is assured by the Forth Amendment itself, however, is not that no government search of his house will occur unless he consents; but that no such search will occur that is "unreasonable."
(citation omitted). As discussed previously, one of the exceptions
to the presumptive illegality of a warrantless search is consent to
the search. At the outset, we note that the Supreme Court has held
that the Fourth Amendment does not have to be waived through a
"knowing and intelligent" waiver by the person asserting the right.
There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring "knowing" and "intelligent" waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.
Schneckloth v. Bustamonte, 412 U.S. at 241, 93 S.Ct. at 2055.
Since a "knowing" and "intelligent" waiver is not required by the
individual whose right is being waived, there is no prohibition
against a third party waiving that right by granting consent to
search. See United States v. Matlock, 415 U.S. at 171, 94 S.Ct at
993,
[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
16 Because the government relies on the effectiveness of Boyd's
consent, the government must show that Boyd had sufficient
authority to permit the agents to copy and view the videotapes.
While it is clear that Boyd was not the owner of the videotapes,
ownership is not the sine qua non of authority to consent. See
e.g., United States v. Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at
993 n. 7,
The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co- inhabitants has the right to permit the inspection of his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
(citations omitted, emphasis supplied). Thus, the district court's
task was to determine whether the record supported the government's
reliance on Boyd's joint access or control over the videotapes.
Our starting point must be the court's holding.
In its memorandum opinion the district court held,
The Court is of the opinion that no presumption of authority arises simply because Boyd had lawful access to the video-tapes. See Walter v. United States, 447 U.S. 649 (1980). Assuming that such a presumption existed, it is rebutted by the fact that Boyd was instructed by the FBI not to disclose his activities to his employer.
It is imperative to note that Boyd did not share ownership of the video-tapes with his employer, as one who might share in the ownership of a piece of property. It is undisputed that Boyd needed permission from his employer to do anything with the video-tapes other than that called for in his job. Because no presumption of authority exists or arises, the government cannot rely upon the officials "good faith" belief that consent given by Boyd was effective. See Mengarelli, 426 F.2d at 988.
17 This is so because the Court distinguishes between mere possession and possession with authority.
In the case at bar, the evidence shows mere possession. Simply because the handyman picks up the mail each day and delivers it to the appropriate location, does not give the handyman the authority to open the mail and share it with others. Walter, 447 U.S. 649. Thus, authority to possess and handle is not authority to view and share. The evidence fails to establish by a preponderance that Boyd had any authority beyond possessory authority.
Our reading of the above language indicates that the district
court's conclusion as to Boyd's authority was based on two
misguided interpretations of law. First, the district court states
that possession with apparent authority is insufficient grounds for
the government to show consent. Second, the district court
concluded that Boyd lacked actual authority to consent to the
government's copying and subsequent viewing of the tapes. Because
we find that Boyd had actual authority over the videotapes, we need
not engage in a detailed discussion of apparent authority.
a. Indicia of authority
Certain facts relevant to Boyd's control over the videotapes
are uncontroverted. Boyd was the sole White Fabricating employee
in Memphis, he was the intended recipient of the packages shipped
by White Fabricating, he was authorized to open the packages, he
was authorized to extract the videotapes, he had sufficient
dominion and control over the packages that he could pick them up
and carry them away7 and the agent's testimony indicates that he
7 The status of the seven "duplicate" videotapes that Boyd allowed the government to keep is not clear from the record. However, there is no indication from the record that White Fabricating ever missed the videotapes when they were not returned.
18 had, at minimum, apparent authority to view the videotapes, at
least to the extent necessary to make sure that the machines were
functioning correctly. Boyd was the only person in Memphis with
the foregoing authority over the videotapes.
To complete the district court's handyman analogy, this
handyman's job was not only to pick up the mail and take it to the
appointed spot, but also to open the mail and tack it up for public
display at a quarter per peek. Appellees argue, and the district
court found, that White Fabricating never gave Boyd permission to
allow the FBI to copy or view the videotapes. While this fact is
clearly true, it is a red herring which has no effect on Boyd's
actual or apparent authority.
b. Assumption of risk
Having vested possession and almost absolute control in Boyd,
the law is well settled that Appellees assumed the risk that Boyd
would engage in unauthorized conduct with the videos. See e.g.
United States v. Matlock, 415 U.S. at 171 n. Frazier v. Cupp, 394
U.S. 731, 740, 89 S.Ct. 1420, 1425 (1969),
The police, while arresting Rawls, asked if they could have his clothing. They were directed to the duffel bag and both Rawls and his mother consented to its search. During the search, the officers came upon petitioner's clothing and it was seized as well. Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court's past decisions, they were clearly permitted to seize it. Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no
It is fundamental that if ownership of the seven videotapes was given to Boyd, he was authorized to dispose of them as he saw fit.
19 authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls' consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside.
(citations omitted); United States v. Schuster, 684 F.2d 744, 748
(11th Cir. 1982),
Under the "misplaced trust" theory, the government contends that once Schuster revealed the location of the counterfeit currency to Poteat and provided him with access to the apartment, he took the risk that his confidence might be misplaced and that other agents might become privy to the information revealed. This is precisely what happened. Poteat revealed the information to Agent Bowron, who together with Poteat conducted the authorized search.
M M M M
The search and seizure which took place was precisely that consented to by the defendant. He must suffer the consequences of misplacing his trust in Poteat. Indeed, "[t]he risk of being...betrayed by an informer or deceived as to the identity of one whom one deals is probably inherent in the conditions of human society." In other words, "that's life."
(citations omitted), reh'g granted and opinion adopted, 717 F.2d
537 (1983)(en banc), cert. denied, 465 U.S. 1010, 104 S.Ct. 1008
(1984).
Indeed, turning back to the Appellee's reasonable expectation
of privacy, it was patently unreasonable for Appellees to have any
expectation of privacy vis-a-vis Boyd. He had unlimited access to
the videotapes, absolute dominion and control over the videotapes
and no direct supervision, or indeed any fellow employees in the
geographic vicinity. See e.g. Marshall v. Barlow's, Inc., 436 U.S.
307, 314-15, 98 S.Ct. 1816, 1821 (1978),
20 Employees are not being prohibited from reporting OSHA violations. What they observe in their daily functions is undoubtedly beyond the employer's reasonable expectation of privacy.
(emphasis supplied); United States v. Murphy, 506 F.2d 529, 530
(9th Cir. 1974),
We conclude that Tucker's custody of the key gave him sufficient dominion over the premises to enable him to grant the necessary consent. Since Murphy himself put the premises under the immediate and complete control of Tucker, who voluntarily consented to the search, we hold that the search was not unreasonable.
cert. denied, 420 U.S. 996, 95 S.Ct. 1433 (1975).
c. Authority to view--Walter v. United States
Both the district court and the Appellees also contend that
even if the FBI agents were entitled to watch Boyd open the box and
extract the videotapes, the subsequent viewing of the videotapes
violated their rights. For this proposition, they rely heavily on
the Supreme Court case of Walter v. United States. Walter involved
the interstate shipment of several boxes of obscene film which were
mistakenly delivered to a third party rather than the consignee.
Employees of the third party opened the packages and discovered
individual film boxes, each containing a graphic description and
suggestive drawings indicating the films contents. An employee
opened one or two of the containers and attempted, without success,
to view the film by holding it up to the light.
The third party notified the FBI, who took possession of the
packages, and viewed the films without securing a warrant. In
reversing this Court, a plurality of the Supreme Court found that
the warrantless viewing of the films was a "second" search which
21 violated the Fourth Amendment rights of the owner of the films.
While a cursory reading of the facts of the Walter opinion may lead
one to believe that its holding is dispositive of the case at hand,
a more thorough study of the opinion demonstrates its
inapplicability.
The most important distinction between Walter and our present
case is that in Walter the FBI obtained the films from a third-
party who had no actual or apparent authority over the packages.
While the third-party was not authorized to open the packages, the
fact that they did so was not governmental action, and therefore
not violative of the Fourth Amendment. See e.g. Coolidge v. New
Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 2048-50 (1971).
Once the agents came upon the scene, they were not required to
avert their eyes or ignore what was before them, but instead the
Court held that "[T]here was nothing wrongful about the
Government's acquisition of the packages or its examination of
their contents to the extent that they had already been examined by
third parties." Walter v. United States, 447 U.S. at 656, 100
S.Ct. at 2401.
The Fourth Amendment violation occurred where the government
did something it was not authorized to do--conduct a more extensive
search without a warrant. See id. 100 S.Ct. at 2402-03, 447 U.S.
at 658-59,
If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official use of a private party's invasion of another person's privacy. Even though some circumstances--for example, if the results of the private search are in
22 plain view when materials are turned over to the Government--may justify the Government's re-examination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening one could only draw inferences about what was on the films. The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search. That separate search was not supported by any exigency, or by a warrant even though one could have easily been obtained. M M M M
The fact that the cartons were unexpectedly opened by a third party before the shipment was delivered to its intended consignee does not alter the consignor's legitimate expectation of privacy. The private search merely frustrated that expectation in part. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection.
In the present case the government obtained the videotapes from
Boyd, a third party who not only had lawful possession of the
packages, but who had the actual authority to open the boxes, and,
at minimum, apparent authority to view the films. Walter is
plainly inapplicable to the case at hand.8
d. Authority to view--apparent authority
Because Walter does not control this case, we are left to
decide whether, once the government had lawful possession of the
8 Appellee's also mistakenly rely on our decision in United States v. Villarreal, 963 F.2d 770 (5th Cir. 1992). However, Villarreal is inapplicable to the present situation for the same reason that Walter is inapplicable. In Villarreal, U.S. Custom's agents obtained possession from a common carrier who had no actual or apparent authority over the 55 gallon drums containing a controlled substance. Unlike the present situation, the government did not gain the consent of a person with actual or apparent authority over the contents of the drums before the search was conducted.
23 videotapes, a search warrant should have been obtained prior to the
agents' viewing. The evidence adduced regarding Boyd's actual
authority to view the videotapes does not provide an absolute
indication of his authority. At the suppression hearing, the
following exchange occurred during the direct examination of Agent
Larkin:
Q Did part of Mr. Boyd's job of installing the videos put him in a position to be able to view those videos to make sure that the machines were working?
A I'm sure he could do that. Whether he did that, I have no idea, but certainly he had the ability.
Q Was his job as the service person to make sure that the videos were playing in the arcade?
A. I would assume that all servicemen wanted to make sure that before they leave that the videos are functioning properly.
The district court concluded that Boyd did not view the videotapes
as part of his job. While this conclusion seems to belie common
sense,9 the record provides insufficient factual foundation to
resolve that the district court's conclusion was clearly erroneous.
However, based on the above described indicia of Boyd's
control, there is no question that the government could reasonably
have relied on Boyd's apparent authority to consent to their review
9 The parties do not dispute that Boyd was in charge of installing the videotapes and servicing the machines. The purpose of installation of the videotapes was to allow the public to view the movies for a fee. As Agent Larkin testified, sound business practice would dictate that Boyd view at least a small portion of the videotapes to make sure that they were functioning properly. In addition, if a machine malfunctioned, logic dictates that Boyd would be required to view a portion of the videotape to ensure that he had properly repaired the machine. Without clear restrictions to the contrary, authority to view a portion of a videotape is authority to view all of the videotape.
24 of the videotapes.10 Since this reliance was reasonable at the
time, whether they were ultimately correct in their assessment is
not relevant to the analysis.11
e. Authority to view--no reasonable expectation of privacy
In addition to concluding that Boyd had apparent authority to
view the videotapes, we also hold that Appellees could not have had
a reasonable expectation of privacy in their contents.12 First,
10 See, e.g., United States v. Shields, 675 F.2d 1152, 1159 (11th Cir. 1982)(Government need not obtain warrant to listen to audio recordings where valid consent obtained), cert. denied, 459 U.S. 858, 103 S.Ct. 130 (1982); United States v. Buettner-Janusch, 646 F.2d 759, 767 n. 10 (2nd Cir. 1981),
Walter is distinguishable from the instant case in two respects. Unlike the defendant in Walter, Buettner- Janusch had no independent expectation of privacy in the chemicals seized form his laboratory. These substances were either lying open on laboratory benches or were in containers that exposed their contents to the casual observer. Moreover, the governmental intrusion in Walter was not authorized by the consent of a third party who satisfied the Gradowski requirements. Here, however, the DEA obtained the samples from individuals who had access to them and permission to exercise that access. Accordingly, Walter does not require us to suppress this evidence. cert. denied, 454 U.S. 830, 102 S.Ct. 126 (1981). 11 See Illinois v. Rodriguez, 497 U.S. at 188-89, 110 S.Ct. at 2801. As with other factual determinations bearing upon search and seizure, determinations of consent to enter must "be judged against an objective standard: would the facts available to the officer at the moment...`warrant a man of reasonable caution in the belief'" that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). If not, then the warrantless entry without further inquiry is unlawful unless actual authority exists. But if so, the search is valid. 12 See, e.g., United States v. Bonfiglio, 713 F.2d 932, 937 (2nd Cir. 1983), [W]hen items have been lawfully seized, a separate
25 given the extent of Boyd's dominion and control over the
videotapes, Appellees clearly assumed the risk that Boyd would view
them, and therefore had a diminished expectation of privacy in
their contents.13 As discussed above, when Appellees assumed the
warrant is required to conduct a search thereof if the individual has a high expectation of privacy in the item seized. Compare United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977)(separate warrant required to open and search contents of lawfully seized footlocker, in which individual had high expectation of privacy), with Chambers v. Maroney, 399 U.S. 42, 49-51, 90 S.Ct. 1975, 1980-1981, 26 L.Ed.2d 419 (1970)(no separate warrant required to search lawfully seized car, in which individual had diminished expectation of privacy). 13 See, e.g., United States v. Jacobsen, 466 U.S. at 117, 104 S.Ct. at 1658, It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit the governmental use of the now nonprivate information: "This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Governmental authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed." The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. (citations omitted); United States v. Buettner-Janusch, 646 F.2d at 767, In contrast, Buettner-Janusch retained a legitimate expectation of privacy in the container Jolly removed from the freezer, since this object divulged no clues as to its contents until Weber removed the top. By applying Gradowski to that object, we note that Macris had Buettner-Janusch's clear permission to open any of the jars of chemicals in the laboratory. Presumably then, he could have examined the two vials of LSD precursors that Jolly removed from the freezer. Thus, it was lawful for
26 risk that Boyd would watch the videotapes, they also necessarily
assumed the risk that Boyd would allow someone else to view the
videotapes.
Second, it is clear that Appellees could only have had a
reasonable expectation of privacy while the videotapes remained
sealed and in the possession of the common carrier. Once Boyd
gained possession of the packages, that expectation, vis-a-vis
Boyd, all but vanished. Since it was intended that Boyd open the
boxes, and further intended that Boyd place the videotapes on
public display, Appellee's expectation of privacy in the
videotapes--once in the hands of Boyd--is clearly minimal. Based
on the foregoing, we find that the district court's conclusion that
Boyd lacked authority to render effective consent to copy and view
the videotapes was clearly erroneous and contrary to settled law.
2. Agency Theory
The district court also concluded that, as a result of his
cooperation, Boyd became an agent of the government.14 Under this
DEA chemist Weber, who searched the laboratory and vials at Macris's invitation to do the same. (footnote omitted). 14 The "government agent" theory is based on a fundamental concept of Fourth Amendment jurisprudence: no Fourth Amendment violation can occur unless a government actor commits an improper search or seizure. There is no question that "[a] wrongful search or seizure conducted by a private party does not violate the Fourth Amendment, and `such private wrongdoing does not deprive the government of the right to use evidence.'" United States v. Bazan, 807 F.2d 1200, 1202 (5th Cir. 1986), cert. denied, 481 U.S. 103, 107 S.Ct. 1976 (1987), citing, Walter v. United States, 447 U.S. at 656. Courts have found, however, that a private citizen, acting as "an agent or instrument of the government," violates the Fourth Amendment by engaging in an unlawful search. See United States v. Pierce, 893 F.2d 669, 673 (5th Cir. 1990), cert. denied, ___ U.S.
27 theory, Appellees claim Boyd had no more authority to search or
seize evidence than any of the FBI agents. Appellees urge us to
apply a two-part test, developed by the Ninth Circuit, which we
have previously used to determine when a party has become an
"instrument or agent of the government." See United States v.
Bazan, 807 F.2d at 1203,
In United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982), the court held that "two critical factors in the `instrument or agent' analysis are: (1) whether the government knew of or acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." For purposes of reviewing this argument we will assume the adequacy of this formulation.
see also, United States v. Pierce, 893 F.2d at 673.
Appellee's argument suffers from one fatal flaw. Whether Boyd
is an agent of the government or not is of no moment unless his
conduct violated the Fourth Amendment. In other words, becoming an
"agent" for purposes of Fourth Amendment analysis does not
terminate one's right to engage in conduct which was authorized
prior to entering the agency relationship. Even if we assume Boyd
became an agent of the government, he had the exact same actual and
apparent authority after agreeing to cooperate with the government
as he did prior to entering into the agreement. As discussed
above, Boyd's conduct appears from the record to have been within
his actual authority, and not violative of the Appellees'
reasonable expectation of privacy. Since no Fourth Amendment
___, 113 S.Ct. 621 (1992).
28 violation occurred, whether Boyd became a government agent is not
relevant.15
Notwithstanding the foregoing, we have also determined from
the record that even if Boyd did not have actual authority over the
videotapes, the government was entitled to rely on Boyd's apparent
authority. While the government agents clearly knew of Boyd's
actions, they reasonably believed that Boyd had actual authority
over the videotapes, and therefore had no reason to believe that
any of Boyd's conduct violated the Fourth Amendment. Based on
their reasonable belief in the propriety of Boyd's actions, we
cannot say that the government agents "knew of or acquiesced in"
conduct violative of the Fourth Amendment. Appellees therefore
fail to prove the first prong of the Ninth Circuit's Miller test,
and consequently have failed to show that Boyd was acting as an
agent of the government.16 For the above reasons, we find that the
15 See, e.g., Coolidge v. New Hampshire, 403 U.S. at 487-89 (1971)(No Fourth Amendment violation where wife voluntarily turned over husband's clothes and gun to police officers); United States v. Rizk, 842 F.2d 111, 112 (5th Cir. 1988)(No Fourth Amendment violation where government informant had joint access to a briefcase and consented to government search), cert. denied, 488 U.S. 832, 109 S.Ct. 90 (1988); Pleasant v. Lovell, 974 F.2d at 1230 ("[D]efendants could inspect and copy items in Adams' custody that defendants reasonably believed Adams had authority to possess; Adams could share items properly in her custody with defendants without violating plaintiffs' constitutional rights."); United States v. Schuster, 684 F.2d at 748-49(No Fourth Amendment violation where third-party, who had become agent of the government, allowed Secret Service Agent to accompany him on visit to defendant's apartment where defendant had consented to third- party's entry). 16 See, e.g., United States v. Pierce, 893 F.2d at 674 ("There was no evidence that the airline employees opened the package at
29 district court's conclusion that Boyd was an agent of the federal
government was clearly erroneous.
IV. STANDING
Because we find that the district court erroneously granted
the Appellee's motion to suppress, we decline to consider whether
the government's lack of standing assertion was timely.
V. CONCLUSION
Because we find that the district court's opinion was based on
a misapprehension of the applicable law and clearly erroneous
determinations of fact, we hold that the court's decision to grant
the motions to suppress must be reversed. The judgment of the
district court is reversed, Appellees' Motion to Suppress is
denied, and the case is remanded for further proceedings consistent
with this opinion.
REVERSED, RENDERED, and REMANDED.
the direction, or even suggestion, of the DEA. We conclude that the airline employees opened that package to further the airline's own ends, not solely to assist law enforcement officers."); United States v. Bazan, 807 F.2d at 1203-04; United States v. Ford, 765 F.2d 1088, 1090 (11th Cir. 1985)(Government had no prior knowledge of search and did not encourage search); United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982)("Because Szombathy had not proposed to do anything illegal, we see no reason why the officers should have restrained him from visiting Miller's property."); Cf. United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994)("Officers Rose and Sponholz definitely `knew of and acquiesced' in Watson's search. They were personally present during the search, knew exactly what Watson was doing as he was doing it, and made no attempt to discourage him from examining Reed's personal belongings beyond what was required to protect hotel property. Watson reported his findings to them as he searched.").