IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2598

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

SANTOS VILLARREAL and

SERGIO GONZALEZ,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

(June 11, 1992)

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

The district court held that a warrantless search of a fiftyfive gallon d rum labeled phosphoric acid and in transit to

defendants by c ommon carrier violated the Fourth Amendment and

suppressed the evidence. The government appeals, arguing that the

defendants had no reasonable expectation of privacy in the drum and

that the agents had consent to perform the search. We find these

arguments without merit and affirm.

I.

One afternoo n in February of 1991, employees at Southwest

Motor Transport's terminal in Brownsville became suspicious of two

fifty-five gallon dr ums that had been delivered for shipment to2

Corpus Christi. The drums were labeled as phosphoric acid, but the

employees thought them too light to contain acid and noticed that

they did not make sloshing noises when moved. They also lacked the

hazardous materials labels normally required for such freight. The

foreman, Joe Gracia, suspected that the drums contained contraband.

He called Forest Kaupert, a senior vice-president at SMT, who told

him to call Customs and have them come over and investigate.

Gracia called Customs, and two agents arrived shortly

thereafter. Gracia showed the agents the shipping order for the

drums, reflecting their contents as phosphoric acid. However, the

weight listed on the order was less than half the expected weight

of drums of liquid. The order showed that Roland Martin of

Brownsville was the consignor and consignee for the drums. The

agents' drug sniffing dog alerted to the drums. Without asking

Gracia whether they could open the drums, and without obtaining a

warrant, they opened one of the drums and discovered marijuana

inside. They then decided to make a controlled delivery, resealed

the drum, and sent both drums to the SMT terminal in Corpus

Christi.

As it turned out, defenda nts Santos Villarreal and Sergio

Gonzalez were the intended recipients of the drums. Roland Martin

was a fictitious name used to ship the drums so that no one could

be connected to the marijuana in case anything we nt wrong.

Villarreal did not speak English so he asked a woman named Sylvia

Villarreal at South Texas Recycling to call SMT and find out how

much the freight charges would be and how arrangements could be3

made to pick up the drums. He told her that the drums were not his

but belonged to an individual named Roland Martin. She called SMT

and obtained the information Villarreal needed.

Villarreal and Gonzales then paid two employees of South Texas

Recycling named Torres and Guzman to pick up the drums for them and

gave them the receipt for the drums. Torres and Guzman then drove

a flatbed truck to the SMT terminal, and Villarreal and Gonzales

followed in Villarreal's red pick-up truck. Torres and Guzman

obtained the drums from SMT and loaded them onto the flatbed. They

returned to South Texas Recycling, again followed by Villarreal and

Gonzales in the pick-up. Torres and Guzman then loaded the drums

from the flatbed into the pick-up. Gonzales drove the pick-up

away, and Villarreal left in Sylvia Villarreal's car. Both men

were arrested shortly thereafter, and the drums were seized from

the pick-up at the Spinning Wheel Bar where Gonzales had parked it.

Villa r real and Gonzales were charged with possessing and

conspiring to possess more t han 100 kilograms of marijuana with

intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B) and 846. At a pre-trial suppression hearing,

defendants argued that the warrantless search of the drum at the

SMT terminal in Brownsville violated their Fourth Amendment rights.

The g overnment contended that the defendants had no reasonable

expectation of privacy in the drums and that the customs agents had

in any event obtained consent to search them. The district court

rejected the government's arguments and granted the defendants'

motion to suppress. The government appeals.4 II.

The Fourth Amendment protects individuals from unreasonable

s earches and seizures that intrude on reasonable expectations of

privacy. Warrantless searches are presumptively unreasonable.

Horton v. California , 110 S. Ct. 2301, 2306 & n.4 (1990); Katz v.

United States , 389 U.S. 347, 357 (1967). To object to a

warrantless search, however, a defendant must manifest a subjective

expectation of privacy in the object of the search, and the

expectation must be one that society is willing to recognize as

reasonable or legitimate. California v. Ciraolo , 106 S. Ct. 1809

(1986); United States v. Hamilton

, 931 F.2d 1046, 1049 (5th Cir.

1991). Individuals can manifest legitimate expectations of privacy

by placing items in closed, opaque contai ners that conceal their

contents from plain view. United States v. Ross , 102 S. Ct. 2157,

2172 (1982); Robbins v. California , 101 S. Ct. 2841, 2846 (1981);

United States v. Chadwick , 433 U.S. 1, 11 (1977). The type of

container generally does not affect the protection afforded by the

Fourth Amendm ent. The Supreme Court has concluded that "a

constitutional distinction between 'worthy' and 'unworthy'

containers would be inappropriate." R oss

, 102 S. Ct. at 2171. Nor

is the fact that a container is not typically used to transport

personal effects particularly relevant to the analysis. Once

placed within a closed container, "a diary and a dishpan are

equally protected by the Fourth Amendment." R obbins

, 101 S. Ct. at

2846.5

Individuals do not surrender their expectations of privacy in

closed containers when they send them by mail or common carrier.

The Supreme Co urt has long recognized that "[l]etters and other

sealed packages are in the general cl ass of effects in which the

public at large has a legitimate expectation of privacy." U nited

States v. Jacobsen

, 104 S. Ct. 1652, 1657 (1984); United States v.

Van Leeuwen

, 397 U.S. 249, 251 (1970); E x Parte Jackson

, 96 U.S.

727, 733 (1878). Both senders and addressees of packages or other

closed containers can rea sonably expect that the government will

not open them. S ee United States v. Jacobsen

, 683 F.2d 296, 298

n.2 (8th Cir. 1982), r ev'd on other grounds

, 104 S. Ct. 1652

(1984); United States v. Givens

, 733 F.2d 339, 341 (4th Cir. 1984);

United States v. Richards

, 638 F.2d 765, 769-70 (5th Cir. 1981).

Of course, common carriers or other private parties do not violate

the Fourth Amendment if they search the packages of others, whether

or not they have authority to do so, since the amendment protects

only against unreasonable governmental action. See Jacobsen , 104

S. Ct. at 1656; Walter v. United States , 100 S. Ct. 2395, 2404

(1980); United States v. Koenig

, 856 F.2d 843, 847 (7th Cir. 1988).

In such cases, "[t]he arrival of police on the scene to confirm the

presence of contraband and to determine what to do with it does not

convert the private search into a government search subject to the

Fourth Amendment." I llinois v. Andreas

, 103 S. Ct. 3319, 3323 n.2

(1983). But if government agents themselves are to open containers

that are sent by mail or private carrier, the requirements of the

Fourth Amendment must be satisfied. Therefore, even if government1 A notable exception exists for mail, packages, or other

containers that are entering the United States from abroad. See

United States v. Ramsey , 431 U.S. 606 (1977). This exception is

not applicable here.

6 agents have probable cause to believe that there is contraband in

a container sent by mail or common carrier, they generally cannot

search it unless they first obtain a warrant, or unless some

exception to the warran t requirement applies. 1 S ee Jacobsen

, 104

S. Ct. at 1660 n.17; W alter

, 100 S. Ct. 2401-02 & n.10; see also

Van Leeuwen

, 397 U.S. at 250-53 (upholding detention of mail while

search warrant could be obtained).

The drum opened by the customs agents in this case was a

closed container sent by common carrier in which the sender and

addressee had a reaso nable expectation of privacy. Despite the

fact that we do not usually expect personal effects to be found in

a fifty-five gallon drum, such drums are not excluded from Fourth

Amendment protection. We are unwilling to draw distinctions based

on the relative degrees of privacy in different containers and

thereby introduce further complexity to a warrant requirement that

is already riddled with exceptions. S ee California v. Acevedo

, 111

S. Ct. 1982, 1992 (1991) (Sca lia, J., concurring) (listing

exceptions). Unless a container is inside an automobile, in which

c ase it can be searched on probable cause without a warrant, s ee

id. at 1991, closed, opaque containers generally remain subject to

the warrant requirement.

Although the consignee of the drums was technically a

fictitious person named Roland Martin, this court has made clear7

that individuals may assert a reasonable expectation of privacy in

packages addressed to them under fictitious names. See Richards

,

6 38 F.2d at 770; s ee also United States v. Pierce

, (No. 91-4907)

(Slip Op. April 21, 1992) at 4236 n.11 (drawing a distinction

between packages addressed to the "alter ego" of a defendant, and

those addressed to individuals other than the defendant). It is

not clear whether Roland Martin was the alter ego of Villarreal or

of Gonzales. Villarreal was in possession of the receipt for the

drums that bore the name Roland Martin. Torres apparently

indicated, however, t hat Gonzales had been identified to him as

Roland Martin. In any event, Villarreal and Gonzales were both the

immediate recipients of the drums, and they conspired together to

get them from the SMT terminal in C orpus Christi. Under these

circumstances, and given the ambiguity associated with the

fictitious name, we find that both Villarreal and Gonzales had a

legitimate expectation of privacy in the drums.

The government has not argued, and we do not find, that the

warrantless search of the drums was justified as an administrative

o r regulatory search. The Court has explained that "legislative

schemes authorizing warrantless administrative searches of

commercial property do not necessarily violate the Fourth

Amendment." D onovan v. Dewey

, 101 S. Ct. 2534, 2538 (1981). Such

searches are cons titutionally valid, however, only if there is a

substantial governmental interest that informs the regulatory

scheme pu rsuant to which the inspection is made, if warrantless

inspections are necessary to further the regulatory scheme, and if8

the inspection program provides a constitutionally adequate

substitute for a warrant, in terms of the certainty and regularity

of its application. N ew Yo rk v. Burger , 107 S. Ct. 2636, 2644

(1987). The government has pointed to no regulatory scheme at all

here, much less one that requires warrantless searches to function

effectively. We cannot sua sponte transform a search for

contraband into a safety inspection.

Nor is this a case where the searching officers had reason to

believe that the container contained a "dangerous instrumentality"

such that opening the container was imperative for safety reasons.

See United States v. Chadwick , 433 U.S. 1, 15 n.9 (1977). The

drums were labeled as phosphoric acid, but the record does not

indicate that they posed a hazard to anyo ne's safety. They were

properly sealed and had been handled without mishap. The customs

agents opened one of the drums to confirm their suspicions that

drugs were inside. This was a search for evidence of a crime, not

an effort to protect the safety of the officers an d the SMT

employees at the Brownsville terminal.

The government argues that defendants abandoned any

exp ectation of privacy they might otherwise have had by

disassociating themselves from the drums. It observes that the

drums were shipped under an assumed name, that Villarreal told

Sylvia Villar real that the drums actually belonged to Roland

Martin, and that the defendants did not pick them up themselves but

hired others to do so. It relies on our decision in U nited States

v. Boruff

, 909 F.2d 111 (5th Cir. 1990), where we found that a9

defendant cannot assert a reasonable expectation of priva cy in a

vehicle if he "has rendered all of the normal incidents of

ownership, including title and possession, to another and disavows

any knowledge of or interest in it." S ee also Pierce

, (No. 91-

4097) (Slip Op. April 21, 1992); United States v. McKennon

, 814

F.2d 1539 (11th Cir. 1987).

This case is distinguishable from Boruff and the other cases

in which courts have found that defendants have no r easonable

expectation of privacy by virtue of their disassociation from the

object of the search. Villarreal and Gonzales never denied their

possessory interest in the drums. They acted through

intermediaries and used fictitio us names in an effort to escape

detection, but they consistently acted as if they were the ones who

were to receive the drums. They retained possession of the receipt

for the drums, which was the only indi cation of ownership

available. They gave the receipt to Torres and Guzman so that

these two could pick up the drums on their behalf, but th ey took

possession of the drums immediately thereafter. Ultimately,

G onzales drove off with the drums in Villarreal's pick-up truck.

It can hardly be said that they disassociated themselves from the

object of the search.

The government also urges that the drums are in the special

category of containers which "by their very nature cannot support

any reasonable expectation of privacy because their contents can be

inferred from their outward appearance." A rkansas v. Sanders

, 442

U.S. 753, 764 n.13 (1979).; s ee also Robbins

, 101 S. Ct. at 2 8462 While both Sanders and Robbins have been overruled, the

logic of the Sanders footnote has survived. See United States v.

Donnes , 947 F.2d 1430, 1437 (10th Cir. 1991).

10 (discussing the scope of the Sanders footnote). 2 The Supreme Court

has offered gun cases and burglar kits as examples of containers

the distinctive characteristics of which proclaim their contents.

We have been careful to construe this exception narrowly, however,

so as not to embroil ourselves in the task of categorizing

containers on the basis of what they typically contain. S ee United

States v. Sylvester

, 848 F.2d 520, 524-25 (5th Cir. 1988). We have

said that camera bags and hunting boxes fall beyond t he scope of

the exception, since thei r contents cannot be inferred simply by

looking at them. Id. ; see also United States v. Donnes , 947 F.2d

1430, 1437-38 (10th Cir. 1991) (r ejecting contention that camera

lens case was excepted from the warrant requirement).

The government argues that the contents of the drums could be

inferred because the drums were labeled as phosphoric acid and the

shipping order indicated that they contained phosphoric acid. Thus

the customs agents vi olated no reasonable expectation of privacy

when they opened one of the drums and found marijuana within. In

the government's view, the defendants never had an expectation of

privacy because the drums literally proclaimed their contents for

all to see.

We are not persuaded. The fact that the exterior of a

container purports to reveal some information about its contents

does not necessarily mean that its owner has no r easonable

expectation that those contents will remain free from inspection by3 We do not consider here whether an individual could

have a reasonable expectation of privacy in a container when he

has plainly communicated its incriminating character to the

public -- if, for example, the drums in this case were labeled as

marijuana.

11 others. Stated another way, a label on a container is not an

invitation to search it. If the government seeks to learn more

than the label reveals by opening the container, it generally must

obtain a search warrant. S ee Walter v. United States , 100 S.Ct.

2395 (1980) (defendants did not lose all expectation of privacy in

pornographic films when their descriptive lab els were exposed to

plain view). It goes without saying that a defendant can orally

inform a police officer what is in a container, yet s tand on his

rights and refuse to allow the officer to search that container.

The same result should obtain when the information is written on

the container rather than orally revealed. 3

If, as some courts have suggested, the rule the gov ernment

seeks to invoke is properly characterized as a "plain view"

exception to the warrant requirement, see Robbins

, 101 S. Ct. at

2846 (referring to the rule of the Sanders footnote as "little more

than another variation of the plain view exception"); Donnes , 947

F.2d at 1437 (referring to t he "plain view container exception"

established by Sanders and Robbins ), the government's theory fares

no better. The labels on the drums did not expose the

incriminating contents of the drums to plain view. In fact, they

masked the true contents of the drums. The plain view exception is

intended to allow police officers to seize incriminating items that

they discover in the course of their legitimate law enforcement4 At least one court has found a Fourth Amendment

violation despite the fact that a common carrier directed police

officers to search a container that was in its custody. United

States v. Grant , 920 F.2d 376, 389 (6th Cir. 1990).

12 activities, see Horton v. California

, 110 S. Ct. 2301, 2307-08

(1990); Donnes

, 947 F.2d at 1438; United States v. Eschweiler

, 745

F.2d 435, 439-40 (7th Cir. 1984), not to justify warrantless,

exploratory searches of containers that purport to contain

innocuous materials. B ut see Sylvester

, 848 F.2d at 524 ("If a

violin case is found to contain a machine gun , so much the worse

for its owner.").

The government also contends that the customs agents obtained

consent to search the drums. Putting aside the question of whether

a common carrier has the authority to consent to a search on behalf

of the consignor and consignee of a package 4

, the district court

properly concluded that no consent was given here. "Where the

validity of a search rests on consent, the State has the burden of

proving that the necessary consent was obtained and that it was

freely and voluntarily given, a burden that is not satisfied by

showing a mere submission to a claim of lawful authority." F lorida

v. Royer

, 103 S. Ct. 1319, 1324 (1983). The government must prove

consent by a preponderance of the evidence. U nited States v.

Hurtado

, 905 F.2d 74, 76 (5th Cir. 1990). Gracia testified at the

suppression hearing that he did not tell the customs agents to open

the drums. Nor did he ask them to do so. He simply informed them

that these drums were suspicious and left it to them to decide what

to do about it. This was company policy. The customs agents did13

not testify that they relied on the consent of SMT employees to

open the drums. The district court was entitled to conclude that

t his was nothing more than a report of some suspicious drums and

that the government failed to prove consent.

In short, we have found no justification for a warrantless

search of the drums. The government clearly had probable cause,

but "'no amount of probable cause can justify a warrantless search

or seizure absent exigent circumstances." H orton

, 110 S. Ct. at

2308 n.7 (quoting Taylor v. United States

, 286 U.S. 1 (1932)). The

government has not shown any exigent circumstances here. Indeed,

it concedes t hat there was plenty of time to obtain a search

warrant and there was no law enforcement value served by performing

the search without one. There was no danger that the drums could

be lost or de stroyed. Government counsel at the suppression

hearing below was at a loss to explain why the customs agents

failed to obtain a warrant. We cannot correct this oversight after

the fact.

AFFIRMED.