1 Co-defendants Larry Wayne Malady, Jo Ann Rochelli and Rickie

Herbert Ranney are not party to this appeal. 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 governmen t 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 int erstate shipment of

obscene materials via common carrier. Appellees moved to suppress

evidence obtained from five searches of bookstores and businesses2 We note that the vali dity 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 e videntiary hearing on the exact issue

presently before us. See White Fabricating Co. v. United States

, 903 F.2d 404 (6th Cir. 1990).

2 own ed or controlled by Jenkins in Alabama, Louisiana, Missouri,

Tennessee and Texas, and from the search of a vehic le owned by

appellee Stubb s. 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

alleged ly 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,

pre l iminary 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 A ssociates 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 of3

Phoenix and Associates. Each of Jenkins' 17 adult bookstores

included a "video arcade," consisting of "peep mach ines," that

exhibited pornographic videotapes. Customers viewed the videotapes

by inserting coins or tokens into the machines. White Fabricating,

located i n 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 ev idence presented to the

U nited States Court of Appeals for the Sixth Circuit. S ee White

Fabricating Co. v. United States , 903 F.2d 404 (6th Cir. 1990).

As described in White F abricating , 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 alleged4

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 plaintiff s and two other

companies. The investigation disclosed a pattern of

weekly sh ipments 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 inst alled in adult book stores. DI

also supervised regional companies that oversaw peep show

ope rations in their various geographic areas. These

service companies would rec eive 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 proceed s 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.5 Government agents, for five weeks, monitored the

s hipment of video tapes from White to a "cooperating

witness," an employ ee 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

vid eo 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, al ong 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 wer e violated when the

government obtained a ccess to the videotapes via the cooperating

witness without a specific warrant.

During the in itial 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 con tents. 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.6

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 inc entive 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 Memphi s. 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

permitt ed to keep. The eight "original" video-tapes

would be returned to Boyd the following morning after the7

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 (1 973). "[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 proving8

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. S ee 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 a ccepted unless they are

clearly erroneous. Questions of law are reviewed d e 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. S ee Schneckloth v.

Bustamonte , 412 U.S. at 227, 93 S.Ct. at 2047-48,

[T]he que stion whether consent to a search was in fact

"voluntary" or was the product of duress or coercion,

express or implied, is a question of fac t to be

determined from the totality of all the circumstances.9

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

def endant'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 b y 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.3 846 F.2d 358 (6th Cir. 1988).

4 920 F.2d 376 (6th Cir. 1990).

10 United States v. Jones 3 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 U nited States v. Grant 4 the court found

t hat "Grant was improperly seized by the agents [and therefor e],

his subsequent consent to the sea rch 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 empl oyer 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 voluntary5 See e.g. Gibson v. Florida L egislative 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 us e 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 con sent, 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 bec ause 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

investig a tive 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 e vidence of illegality may be disclosed to law enforcement

authorities. S ee, 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 Status12

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 t rue, 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 immediacy13

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 w hether the agents had informed Boyd that he

could ref use to cooperate. However, assuming that the district

court's conclusion was correct, L arkin also testified that the14

agents made Boyd aware that his cooperation was strictly voluntary.

Based on the other details of Boyd's cooperation, and the fact that

h e was specifically informed that his cooperation was voluntary,

the fact that he m ay 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 reco rd 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, consid ered a number of inappropriate15

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 co urt 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 e xplorations of Fourth Amendment jurisprudence

addressing the validity of searches, whether a constit u tional

interest has been violated depends on whether the questioned

governmental conduct infringed upon a reasonable e xpectation of

privacy. S ee 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.16

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 no t 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 th at 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. S ee United States v. Matlock

, 415 U.S. at 171, 94 S.Ct at

993,

[W]hen the prosecution s eeks 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 author ity over or other

sufficient relationship to the premises or effects sought

to be inspected.17

Because the government relies on the effectiveness of Boyd's

consent, the government must show tha t Boyd had sufficient

authority to permit the agents to copy and view the videotapes.

While it is clear that Boyd was not t he owner of the videotapes,

ownership is not the sine qua non of authority to consent. S ee

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

d oes 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 coinhabitants 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

reli ance 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 undisp uted 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 r ely

upon the officials "good faith" belief that consent given

by Boyd was effective. S ee Mengarelli

, 426 F.2d at 988.7 The status of the seven "duplicate" videotapes that Boyd

allowed the government to keep is not clear from the record.

H owever, there is no indication from the record that White

Fabricating ever missed the videotapes when they were not returned.

18 This is so because the Court distinguishes between mere

possession and possession with authority.

In the ca se at bar, the evidence shows mere

possession. Simply because the handyman picks up the

mail each day and deliver s it to the appropriate

location, does not give the handyman the authority to

open the mail and share it with others. W alter

, 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.

Ou r reading of the above language indicates that the district

court's conclusion as to Boyd's authority was bas ed 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 a ctual 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 th e videotapes, he had sufficient

dominion and control over the packages that he could pick them up

and carry them away 7 and the agent's testimony indicates that heIt 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 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 o nly person in Memphis with

the foregoing authority over the videotapes.

To complete the district court's handyman a nalogy, 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. S ee e.g.

United States v. Matlock

, 415 U.S. at 171 n. F razier 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 consent ed to its search.

During the search, the officers c ame 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 p etitioner while in the course of an

otherwise lawful search. Under this Court's past

decisions, they were cle a rly permitted to seize it.

Petitioner argues that Rawls only had actual permission

to use one co mpartment of the bag and that he had no20

authority to conse nt to a search of the other

compartments. We will not, however, engage in such

metaphysical subtleties in judging the efficacy of Rawls'

consent. P etit ioner, in allowing Rawls to use the bag

and in leaving it in his hous e, 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 Pot eat 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 r evealed. 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 to ok 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...bet rayed by an informer or

deceived as to the identity of one whom one deals is

probably inherent i n the conditions of human society."

In other words, "that's life."

(citations omitted), reh'g granted and opinion adopted

, 7 17 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. S ee e.g. Marshall v. Barlow's, Inc.

, 436 U.S.

307, 314-15, 98 S.Ct. 1816, 1821 (1978),21

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); U nited 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 Appellee s also contend that

even if the FBI agents were entitled to watch Boyd open the box and

extract the videotapes, the subsequent vi ewing of the videotapes

violated their rights. For this proposition, they rely heavily on

the Supreme Court case of Walter v. United States

. W alter involved

the interstate shipment of several boxes of obscene film which were

mistakenly delivered to a third party rather than the con signee.

Em ployees of the third party opened the packages and discovered

i ndividual film boxes, each containing a graphic description and

suggestive dr awings 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 which22

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 thirdparty 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 Amend ment. S ee 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 e yes 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." W alter v. United State s , 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

b y 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 in8 Appellee's also mistakenly rely on our decision in Uni ted

States v. Villarreal

, 963 F.2d 770 (5th Cir. 1992). However,

Villarreal is ina pplicable 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 consen t of a person with actual or apparent

authority over the contents of the drums before the search was

conducted.

23 plain view when materials are turned over to the

Government--may justify the Government's re-examination

of the materials, s urely the Government may not exceed

the scope of the private search unless it has the right

to make an ind ependent 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 s earch

that had been conducted previously by a private party and

therefore m ust 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 th e shipment was delivered to its

intended consignee does not alter the consignor's

legit imate 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 lawfu l possession of the

packages, but who had the actual authority to open the boxes, and,

at minimum, apparent authority to view the films. W alter 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 h ad lawful possession of the9 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 functionin g 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 vie w a p ortion of a videotape is

authority to view all of the videotape.

24 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 no t 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 tha t 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 provid es insufficient factual foundation to

resolve that the district court's conclusion was clearly erroneous.

However, based on the a bove 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 review10 See

, e.g.

, United States v. Shields

, 675 F.2d 1152, 1159 (11th

Cir. 1982)(Government nee d not obtain warrant to listen to audio

recordings where valid consent obtained), c ert. 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 W alter

, BuettnerJanusch 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

con tainers that exposed their contents to the casual

observer. Moreover, the governmental intrusion in W alter

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 exer cise 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 s tandard: would the facts

available to the officer at the moment...`warrant a man

of reasonable caution in the belief'" that the consenting

party had authori ty over the premises? T erry 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 of the videotapes. 1 0 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,warrant is required to conduct a search there of 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 privac y), w ith 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 i ndividual reveals

private information to another, he assumes the risk that

his confidant will revea l 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 o nly 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 priva cy 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 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 theDEA 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, an d `such private wrongdoing does not deprive the

government of the right to use evidence.'" U nited States v. Bazan

, 807 F.2d 1200, 1202 (5th Cir. 1986), cert. denied

, 48 1 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. S ee United States v.

Pierce , 893 F.2d 669, 673 (5th Cir. 1990), cert. denied , ___ U.S.

27 risk that Boyd would watch the videotapes, they also nece ssarily

assumed the risk that Boyd would allow s omeone 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, vi s-a-vis

Boyd, all but vanished. Since it was intended that Boyd open the

boxes, and further intended th at Boyd place the videotapes on

public display, Appel lee'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___, 113 S.Ct. 621 (1992).

28

theory, Appellees claim Boyd had no more authority to search or

seize evidence than any of th e 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." S ee 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' analy sis are: (1) whether the

government kne w 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 doe s not

terminate one's right to engage in conduc t 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 en tering 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 Amendment15 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); U nited 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), c ert. 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 reason ably 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 defendan t had consented to thirdparty'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 violation occurred, whether Boyd became a government agent is not

relevant. 15

Notwithstanding the foregoing, we have also dete rmined 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 actua l 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"

conduc t violative of the Fourth Amendment. A ppellees 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 thet he 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; U nited States v. Ford

, 765

F.2d 1088, 1090 (11th Cir. 1985)(Government had no prior knowledge

of search and did not encourage search); U nited 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.").

30 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 erroneou sly 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 suppre ss must be reversed. The judgment of the

district court is reversed, Appellees' Motion to Supp ress is

denied, and the case is remanded for further proceedings consistent

with this opinion.

REVERSED, RENDERED, and REMANDED.