to issues were raised on appeal the sentencing issue i believe was agreed upon by both counsel that there should be i mean and then there am only one fact that's not in the briefing that's occurred senses that judge baird has retired which is a further fact i think purportedly conducted under section four eighty two of title nineteen and our position is that that statutory search power is constitutionally limited this was not a border search and our conducted close to a border was not a far removed from the border the question is how to get to that point before and what was the route that it took in order to get there yes it's not just to put a point on that's not really a physical thing i mean the mayor could come into kansas city if the customs people looked at it in situation here here and then the court concluded that while there was no direct evidence certainly the in france and the court found this to be so it was that it was it came in through an international mail facility separate from the local post office and that was the place where customs had people in place to be inspectors this is a case where a criminal law enforcement search was conducted at the request of a postal inspector customs only got involved in this case in fact customs wasn't involved at all there was no suspicion on the part of customs there was no surveillance on the part of customs customs only involved because the post was spector called them up and said pick up this had intercepted it immediately and had a law enforcement purpose that would have been ok yes and that's what happened in the talk is that a case which is where a customs inspector identified a federal express parcel and circumstances they had detained and held custody of the package they had identified witnesses and interviewed witnesses the carrier who took that package out this was a package that had come to the door to a post office some nine days before the search its entry was at the international port but it arrived at the local post office on about november tenth and had been out for delivery in a carrier vehicle and that there were numerous efforts made by the client and his girlfriend to obtain the package and it was at that point that suspicion arose because of the odor is any efforts made by the client to get the package which appeared to the postal people to be suspicious so they then called customs and asked them to do what they cannot do postal inspector could not have conducted a custom search and so it was really an end run around the fourth amendment this was a case where they should have applied to a judge for an objective determination of whether there were facts there to support the issue of civil war and an answer i was a little surprised as i was working on this case that there are essentially they ask another agency to do something they cannot do i think it's a rare circumstance but if the package had been back in the condition that it was when customs searched it when it came in there was if it had been leaking and there was  started to snow and leak customs could have searched it yes so so it's the fact that it left the physical possession of costa and that the deterioration of the package and the other suspicious circumstances happened when it was not in the custody of customs that creates a heightened requirement well i think the customs clearly can perform routine searches and i think even at that international port of entry they could search it without suspicion at all right but what happened here is it days and then they could have searched of that point why does it matter that in that one day period certain things happened that made it even more suspicious well i think it's a question of attenuation for instance if you if you carry that thought one step you know if it's sitting on the perma farmhouse might be a more all right or just let's say that you received it and you send it on to someone else that still has the international label on it and customs just continue to search it days and days and days  places and places some places after it seems to me that one thing that distinguishes our case from those cases is that customs involvement wasn't continuous from the start and it wasn't under their surveillance customs exception and that power to search is limited for a reason and goes back hundreds of years and if we extended it out and continue to water down that limitation then it seems to me the danger there that any agency could and something back to customs merely because it came in at some point from an international source and i'm struggling with this and as i think we all are because we don't have this directly on people coming in without being able to produce i don't know that they're they are fox and so i mean they've got all these circumstances which leads them to believe that there's a crime and one of the crimes may be the primary crime crime are you saying that they can't send it back to customs when they suspect a customs crime i'm saying they can't hand it off for a routine customs search it seems to me what does the word routine have to originated by another agency they can recreate the situation that there was at the border or at the extended border seems to me they can they can ask customs to be involved but they have to follow the constitution they have to get a warrant at that point and then apply to a magistrate for a warrant not simply call up customs to get an agent that has the so called statutory authority by virtue of the job even though it's never been delivered right because if that point and clearly in this case on these specific facts it was a criminal law enforcement investigation it was a postal inspector investigation and they can't do an end run around the fourth amendment simply because at some point earlier on had it then the case customs could have searched a package under their authority thanks also i think well why do i want to save my thirty six with you're honest is is is the question whether the fact that other law enforcement agencies other than customs were involved in this search and in this case somehow dilutes or takes away the clear statutory authority and it has two questions the first one does it make any difference that the package could have been picked up by proper identification in other words it was actually at the end of the road and available for pickup does not make any difference i don't think it does your honor the important point has stayed in the case law is that the package remained unchanged while before the customs search was conducted in this case in other words it was attempted to be delivered on november tenth two thousand and three after that attempt  opened and altered in a back room in the post office so we don't have to decide the case of what happens if it actually had been delivered because it wasn't that's correct your honor i'm not sure this is relevant to our delivered or that has already arrived in the united states and past the border and then the law enforcement agents look at the package and and see whether there's something suspicious about it or not there aren't any cases where involving international packages where someone can talk testify about the condition of the package as it passes the border if that answers your question and the important point i think in the kid in the case law and particularly in cases involving contraband in vehicles is was the contraband still in the vehicle at the time it crossed the border if the first time that the vehicle was searched was some distance from the border in this case there's no question i don't think that contraband the g b i g h b was in the package both at the time that the search was conducted and at the time that the package crossed the border i take it that you would agree though that if this were domestic mail that had never passed through inspector has a case and then simply calls a friend or colleague who works at customs to have that person open up the package and then the case remains with the postal inspection service this is a case where the postal customs is brought in for a some very specific purpose to search the package and then their involvement ends that's not what happened in this case if it had happened maybe there'd be a little bit more traction to the notion that this is an attempt to somehow circumvent the warrant requirement that the postal inspection service is calling in customs simply so that they don't have to bother getting a warrant that's not what happens and when the when the customs inspector as it's called he's not called for the explicit purpose of opening up the package he's called because the postal inspection has the suspicious package and they simply want to transfer both the package and the case to the muslims to investigate the investigation of the package correct we've got a problem cases strongly stating that the involvement of other law enforcement agencies besides customs doesn't somehow take away the power of customs to do what they are also i still wonder for the two in fact this so the case goes a little farther and if the f b i agent in so little so little had actually think ordinary thing with customs in order to search the package in that case that the search might have been ok even though it was an f b i agent who was searching it in this case we don't have the situation even close to that because it's undisputed that a customs agent is the one who searched the package i would submit that creating this kind of doc friend where if if a case or if a package somehow passed through other law enforcement agencies before it got to customs would be a credibly difficult to administer and this isn't in the record i would suggest that it's not infrequent at all that there are many people factors that are most important denial of ownership and relinquish ment of the property in this case both of those factors strongly argue against the ending because the defendant consistently deny that the of these attempts to send the package back were attempts really to protect the privacy of the package to make sure that no one in law enforcement saw its contents that may very well be but you'd have jack to flee what we have of ownership and a request to send the package back and after that there's really nothing much left with respect to the defendant's privacy interest pushed here because number one you're trying to say you on the warranty issue all the cases that the appellee relies on were all cases where customs originated the investigation or had continuing surveillance or continuing oversight over the packages on the standing  issue the court the district court appropriately applied to talladega circumstances test looking at words actions and objectives circumstances denial of ownership is only one of those factors there were numerous other factors in he had made efforts over days he only made the statement return it to sender and this is the district court found it was supported in the record after the postal people made it clear they want to going to give it to if he didn't have identification that's why it was reasonable for the inference that the statement he made was to maintain privacy over the package to keep it from being opened they'd given him the option open it in our presence without id which he declined and then they would