REVISED, March 16, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40236

UNITED STATES OF AMERICA,

Petitioner-Appellee,

versus

MELVIN RAY PAIGE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

March 9, 1998

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.

STEWART, Circuit Judge:

Melvin Ray Paige (“Paige”) appeals his conviction, entered pursuant to a conditional plea of

guilt y, fo r possession of marijuana with intent to distribute. He alleges that the district court

incorrectly denied his motion to suppress marijuana that was discovered in an attic space above an

enclosed room within his home’s detached garage. Conceding that the marijuana was initially

discovered during a private-party search, but emphasizing that one of the private parties who made

the init ial discovery was an off-duty deputy sheriff, Paige contends that his Fourth Amendment rights

were violated when Detective Robert Croft (“Croft”) subsequently conducted a warrantless viewing

of the marijuana and then effected its seizure. Further, Paige argues that the consent form that he

signed, which was presented to him after Croft’s init ial viewing but before the marijuana was hauled1 The consent form allowed the police to search Paige’s “residence, outbuilding, [and] any m otor vehicles on [the] property” and to “take . . . any things which they desire as evidence.”

2 Willard and Windell may hereinafter be referred to as “the workers” or “the roofing employees.”

2 away, did not cure this Fourth Amendment violation. 1 We find that Detective Croft’s init ial

observation of the marijuana did not rise to the level of a Fourt h Amendment search, and that his

warrantless seizure of the marijuana was reasonable under the circumstances. We therefore affirm

the district court’s denial of Paige’s motion to suppress.

I.

On August 21, 1996 , Paige was indicted for federal drug infractions on two counts: (1)

conspiracy to distribute and possess with the intent to distribute marijuana in violation of 21 U.S.C.

§ 846 and (2) possession with intent to distribut e marijuana in violation of 21 U.S.C. § 841(a)(1).

After a hearing, the district court denied Paige’s motion to suppress over 46 pounds of marijuana that

were discovered in his garage attic. Paige pled guilty to Count 2 of the indictment -- reserving his

right to appeal the denial of his suppression motion

-- and received a s entence of 18 m onths

incarceration.

Testimony elicited at the suppression hearing can be summarized as follows:

Willard Cox, III (“Wil lard”) and Jason Windell (“Windell”) were employed as roofers for

W.R. Cox Enterprises, a company owned and operated by Willard’s father, Willard Cox, Jr. (“W.R.

Cox”). 2 Pursuant to a verbal contract between Paige and the company, Willard and Windell began

repairing the roof of the home of Paige and his family in Liberty County, Texas in early December

1994. In addition to Paige’s residence, Paige’s property contained a detached garage, lo cated

approximately 20 to 30 feet away from (but within the same fenced-in area as) the residence, and an

outbuilding (or barn) beyond the fenced-in area. The garage contained a carport, large enough to fit

two cars, and an adjoining enclosed room (“the workroom”) that contained, among other things, a

washer and dryer, a food freezer, and a workbench.

On December 16, 1994, when Paige was not at home, the workers inadvertently damaged a3 The supplies had to be stored in the garage to prevent them from being exposed to moisture or

rain.

4 Willard’s testimony at the suppression hearing indicated that the packages could not be seen from

the floor of the carport section of the garage.

5 There is no indication from the testimony that, prior to his arrival, W.R. Cox knew ( i.e., from

Willard) or should have known ( i.e.

, from past police work) that Paige’s property likely contained

drugs.

3 section of the siding on the house, and went into Paige’s garage to look for additional siding to

replace it. According to Willard, Paige had told them to go to the garage “if [they] needed anything.”

On cross-examination, Willard ackno wledged that Paige had directed him and Windell to the

workroom and had specifically authorized them to access the tool s, sheet met al screws, and other

supplies stored therein. 3

Willard did not find replacement siding in the garage’s carport or in the enclosed workroom

.

Returning to the carport section of the garage, he noticed an “attic space”

-- similar to but smaller

than a hay loft

-- above the ceiling of the enclosed workroom

. Gripping raft ers t hat were

approximate ly seven t o eight feet from the floor, he hoisted himself up to a position where his

shoulders were level with the ceiling joists, and looked into the space. Elevated only for “a second,”

he caught a glimpse of what he thought was a shiny outdoor temperature gauge. He hoisted himself

up again, this time to a position where his waist was level with the ceiling joists, and noticed that the

shiny apparatus was actually a scale, and that several packages, appearing to be “some type of drugs,”

were stored between the ceiling joists. 4 Willard then summoned Windell, who also viewed the hidden

packages.

Willard decided to telephone his father, W.R. Cox, who (in addition to owning the roofing

company) was employed as a Harris County (Texas) Deputy Sheriff, although he was not on duty

with the Sheriff’s Department that day. Willard told W.R. Cox that he needed to come out to the

Paige house because Willard “had something for him to see.” When W.R. Cox arrived, Willard

informed him that “there was some kind of drugs” in the garage’s attic. 5 W.R. Cox promptly got a

ladder, climbed up to the attic space, and looked at the packages. He reached inside a white bag that6 Bates followed W.R. Cox and Croft to Paige’s hom e, but rem ai ned on the road j

ust outsi de

Paige’s property in case they needed backup.

4 “looked like it may be accessible” and pulled out some “gree n leafy lo o king substance,” which he

sniffed and believed to be marijuana. W.R. Cox’s search of the attic space was conducted without

a search warrant.

W.R. Cox told Willard and Windell to keep working while he went and got “some help.” He

went directly to an annex of the Liberty County Courthouse in Cleveland, Texas, where he informed

Detective Bates (“Bates”) of the Liberty County Sheriff’s Department of the drugs on Paige’s

p roperty

. Bates contacted narcotics investigator Robert Croft (“Croft”), who in turn called t he

district attorney

, Jerry Anders (“Anders”). Anders told Croft to meet with W.R. Cox, to proceed to

Paige’s property pretending to be a roofer employed by W.R. Cox’s company, and to attempt to view

the suspect area. Anders instructed Croft to obtain Paige’s consent to search only if after this viewing

he (Croft) believed the packages to contain marijuana. This rather dubious plan was concocted within

a few feet of the Liberty County Justice of the Peace, who remained available during this time (in the

Liberty County Courthouse annex) to consider any application for a search warrant the authorities

may have wanted to proffer.

Croft met with Bates and W.R. Cox at a local school, and then W.R. Cox and Croft drove

to Paige’s home. 6 By this time, Paige had returned home, but he was in the barn when W.R. Cox and

Croft arrived. Croft went directly to the garage, set up the ladder, climbed up, and o bserved the

packages. He did not touch anything. This search was conducted without a search warrant

.

Recognizing the odor of the substanc e within the packages to be that of marijuana, Croft lowered

himself from the ladder and proceeded to go outside to look for Paige.

Croft approached Paige in the yard as Paige was walking towards the garage from the barn,

and told him that he was a narcotics de t ect ive and that he needed to speak with him about the

packages in the garage. Croft’s testimony reveals that Paige was aware that the garage had already

been searched. After Paige allegedly said “you already know what it is” and “there’s fifty pounds of7 (emphasis added).

8 Paige testified that, when he signed the consent form, he be lieved he was not consenti ng to a

search of the garage because Croft “had already searched that.” In addition, he claims that the form’s

use of the word “outbuilding” in the singular indicates that the officers were authorized to search the

barn only, and not the garage.

5 marijuana up there,” Croft o fficially detained him, read him his Miranda rights, and sought his consent

to search the “house and the other buildings on the property .” According to Croft, Paige was aware

that his (Croft’s) intention was to reexamine the garage. However, the written consent form procured

by Croft, which Paige signed after it was read to him twice, specifically gave officers permission to

search only the “residence, outbuilding

, [and] any m otor vehicles on [the] property ” 7 and to “take

from . . . [this] property . . . any things which they desire as evidence.” 8

Croft then went back into the garage and, with the assistance of other officers who had since

arrived on the scene, photographed the packages of marijuana before they were seized and hauled

away. According to Croft, Paige -- although appearing embarrassed

-- remained quite cooperative

throughout. Paige apparently never limited the officers’ subsequent search, and even volunteered

to help them take the packages down. Indeed, Paige voluntarily turned over to Croft a small quantity

of personal use marijuana, which he stored in the enclosed workroom of the garage. It does not

appear from the hearing testimony or the presentence report that marijuana was found elsewhere on

Paige’s property.

Deeming the legality of the search a “very close question,” the district court denied Paige’s

motion to suppress “under the circumstances and evidence offered.” Paige now timely appeals this

denial.

II

“A district court’s ruling on a motion to suppress based upon live testimony at a suppression

hearing is accepted unless clearly erroneous or influenced by an incorrect view of the law.” U .S. v.

Wils on , 36 F.3d 1298, 1303 (5th Cir. 1994). In addition, “we view the facts in the light most

favorable to the prevailing party, which in this case is the government.” United States v. Howard

,6

106 F.3d 70, 73 (5th Cir. 1997) (internal quotati ons omitted). In this case, the district court made

no findings of fact before denying Paige’s motion. Although this allows us to conduct a mo re

searching review, our analysis will be guided by the testimony and o t her evidence adduced at the

suppression hearing. Questions of law, including whether an expect at io n o f privacy is reasonable

under the circumstances, U.S. v. Smith

, 978 F.2d 171, 176 (5th Cir. 1992), cert. denied

, 507 U.S.

999, 113 S.Ct. 1620, 123 L.Ed.2d 176 (1993), and whether the district court’s ultimate conclusions

of Fourth Amendment reasonableness are correct, Wilson

, 36 F.3d at 1304, are reviewed de novo

.

United States v. Blocker , 104 F.3d 720, 724 (5th Cir. 1997).

The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment,

Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), requires that the “right of the

people to be secure in their persons, houses, papers and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrant shall issue but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and the persons or things to be

seized.” U.S. Const. amend IV. The Fourth Amendment clearly protects people from unreasonable

searches and seizures within their homes. U nited States v. Richard

, 994 F.2d 244, 247 (5th Cir.

1993). This court has established a two-step analysis for determining whether governmental

investigative activity violates the Fourth Amendment:

[F]irst, [we] consider whether the activity intrudes upon a reasonable expectation of

privacy in such a significant way to make the activity a “search.” Then, if we find a

“search” has occurred, we determine whether the governmental intrusion was

unreasonable given the particular facts of the case.

United States v. York

, 895 F.2d 1026, 1028 (5th Cir. 1990). In addition, a governmental “seizure”

of property

-- that is, “some meaningful interference with an individual’s possessory interest in that

property ,” United States v . Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85

(1984) -- is “subject to Fourth Amendment scrutiny even [if] no search within the meaning of the

Amendment [takes] place.” Soldal v. Cook County, Illino is

, 506 U.S. 56, 68, 113 S.Ct. 538, 547, 121

L.Ed.2d 450 (1992).

The exclusionary rule requires that “evidence obtained in violation of the Fourth Amendment7

cannot be used in a criminal proceeding against the victim of [an] illegal search . . .” United States

v. Buchanan , 70 F.3d 818, 825 (5th Cir. 1995), c ert. denied

, 116 S.Ct. 1340, 134 L.Ed.2d 490

(1996). The facts of this case present four separate entries into Paige’s garage attic that raise

potential Fourth Amendment implications: (1) the initial discovery of the marijuana by Willard and

Windell; (2) the subsequent search by W.R. Cox; (3) the init ial search by Detective Croft; and (4) the

final examination by Croft and other police officers (pursuant to which the marijuana was

photographed, seized, and hauled away).

A. L EGALITY OF S EARCHES C ONDUCTED BY W ILLARD

, W INDELL

, AND W.R. C OX

We begin our analysis by discussing what Paige does not raise on appeal. Paige wisely does

not argue that the initial search by Willard and Windell violated the Fourth Amendment. It is wellsettled that the protecti on provided by the Fourth Amendment proscribes only governmental action,

and that private party searches of property

, even if wro ngfully conducted, do not raise Fourth

Amendment implications. Blocker

, 104 F.3d at 725. There is no indication from the record (1) that

the government knew of or acquiesced in the intrusive conduct of Willard and Windell, and (2) that

Willard and Windell intended to assist la w enfo rcement efforts in conducting their search. S ee

Blocker

, 104 F.3d at 725 (applying this two-part test, articulated by the Ninth Circuit in United States

v. Miller

, 688 F.2d 652, 657 (9th Cir. 1982), to determine if a private party ac tivates the Fourth

Amendment by acting as an instrument or agent of the government in conducting the search). Willard

and Windell, acting under no suspicion that drugs were contained on Paige’s property

, simply entered

the garage as employees of a roofing company, looking for an extra piece of siding to replace the one

they had damaged. Their purely private search triggered no Fourth Amendment alarm.

The same can be said about W.R. Cox’s search of the attic, although for different reasons.

The government maintains that the facts and circumstances clearly show that W.R. Cox was not an

instrument or agent of the government when he conducted his search. As discussed, in analyzing such

an argument, we have applied the two-part test articulated by the Ninth Circuit in Miller : (1) whether

the government knew or acquiesced in the intrusive conduct; and (2) whether the pri vate party9 When asked at oral argument about which search he was arguing violated the Fourth

Amendment, counsel for Paige responded that the suspect search was Croft’s, not W.R. Cox’s.

8 intended to assist law enforcement efforts or to further his own ends. Blocker

, 104 F.3d at 725. In

arguing that neither prong was met, the government claims that W.R. Cox had no knowledge that

Paige engaged in narcotics activity prior to his viewing of the marijuana, and that W.R. Cox’s sole

motivation in coming to the property was to check on the welfare of his two employees (one of whom

was his son). The government makes this argument knowing that W.R. Cox was informed by Willard

of the marijuana as soon as he (W.R. Cox) arrived on the property (per Willard’s testimony), and that

W.R. Cox was an off-duty deputy sheriff at the time of the search. In addition, the government does

not explain how W.R. Cox’s search in any way related to his concern for the welfare of his

employees. Despite our concerns in this regard, our analysis of the legality of W.R. Cox’s search is

severely circumscribed by the fact that Paige does not raise a Fourth Amendment objection to it. 9

As such, we are constrained to accept the government’s contention that W.R. Cox’s search of the

attic was a private party search raising no Fourth Amendment implications.

B. L EGALITY OF S EARCH C ONDUCTED BY D ETECTIVE C ROFT

Paige argues that Detective Croft’s init ial warrantless search, conducted in his official capacity

as a narcotics investigator, violated the Fourth Amendment. To resolve this issue, we turn to the first

step of our well-established analysis for determining whether governmental investigative activity rises

to the level of a Fourth Amendment transgression. See York , 895 F.2d at 1028.

Did a Fourth Amendment “Search” Take Place?

“The Fourth Amendment does not provide blanket protecti on against searches

. . . on private

property

. Rather, the Fourth Amendment protects [only] those areas in which . . . citizens have a

reasonable expectation of privacy .” U nited States v. McKeever

, 5 F.3d 863, 866 (5th Cir. 1993)

(citing Katz v. United States

, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (emphasis added).

Although it no doubt can be said that our constituti onal precedent on the concept of “reasonable

expectation of privacy” comprises an amorphous realm, this “concept” nonetheless plays the crucial9

gatekeeping role in our inquiry, allowing us to separate that which falls within the ambit of the Fourth

Amendment from that which does not. Only if “[governmental] activity intrudes upon a reasonable

expectation of privacy in a significant way” does the activity constitute a “search” for Fourth

Amendment purposes. York , 895 F.2d at 1028. Moreover, “[a] subjective expectation of privacy

does not, by itself, give rise to Fourth Amendment protection[;]” rather, “the expectation of privacy

must be one that society is prepared to recognize as reasonable.” Smith , 978 F.2d at 177.

Generally speaking, the “right to privacy in the home is certainly a reasonable expectation.”

York

, 895 F.2d at 1029. “Indeed, the right to be free from unreasonable government intrusion into

one’s own home is a cornerstone of the liberties protected by the Fourth Amendment.” I d

. (citing

Pay ton v. New York , 445 U.S. 573, 583-89, 100 S.Ct. 1371, 1378-82, 63 L.Ed.2d 639 (1980)).

However, the protecti on granted the home is not unassailable, and we have noted, for example, that

home occupants lose their expectation of privacy in those portions of t he ho me (and the activities

taking place therein) that can be observed from ou t side the premises through undraped windows.

York , 895 F.2d at 1029. Other similar “activities of [a] home’s occupants[,]” creating comparable

reasonably foreseeable “risk[s] of intrusion,” id

. (internal quotati ons omitted), such as leaving doors

open, likewise compromise any reasonable expectation of privacy. In addition, we have noted that

“activities or circumstances within a dwelling [itself]” may also lessen a n occupant’s privacy

expectat io n, provided that such activities or circumstances create a “risk of intrusion [that] is

reasonably foreseeable.” Id

. (internal quotations omitted) (citing U nited States v. Bomengo

, 580 F.2d

173 (5th Cir. 1978), cert. denied , 439 U.S. 1117, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979)).

In York

, we held that no Fourth Amendment “search” took place within a home when police,

responding to a guest’s request for help in dealing with an intoxicated and belligerent homeowner,

entered the home as “community caretak[ers]” to assist the guest in removing his (and his family’s)

possessions and noticed several illegal firearms in plain view. York , 895 F.2d at 1029-30. Because

the guest had been invited to stay in the house, we found that the homeowner’s threatening behavior,

combined with the guest’s occupancy, made it reasonable for the guest to secure the help of police1 0 The Bom engo court did note that the detective, after viewing the guns, obtained a warrant

before seizing them. B omengo

, 580 F.2d at 176. However, the court did not express an opinion as

to whether the warrant was a necessary predicate to the seizure.

10 in removing his possessions from the home. I d

. Given t hat t he po lice intrusion was a reasonably

foreseeable intrusion (based on the activities and circumstances existing within the home at the time),

the homeowner no longer possessed a reasonable expectation of privacy in the area where the police

observed the firearms in plain view. Id

.

We co nfronted similar factual circumstances, with a slight twist, several years ago in

Bomengo

. In that case, the chief engineer of an apartment complex noticed a large water leak ( i .e.,

a “circumstance within a dwelling”) originating from a temporarily unoccupied apartment. After

attempting unsuccessfully to locate the apartment’s occupant (Bomengo), the engineer entered the

apartment to investigate whether Bomengo was sick or disabled inside and to check on the severity

o f t he wat er leak. In the course of conducting these duties, the engineer observed, two illegal

firearms in plain view within an open closet, prompting him to contact the apartment complex security

guard. The guard then summoned a police detective, who entered the apartment with the engineer

and observed the firearms in the same position in which the engineer had previously discovered them.

Acknowledging as long-rec o gnized the proposition that “a police view subsequent to a search

conducted by private citizens does not constitute a ‘search’ within the meaning of the Fourth

Amendment so long as the view is confined to the scope and product of the init ial search,” Bomengo

,

580 F.2d at 175, we held that the police detective’s viewing of the firearms did not implicate the

Fourth Amendment. 10

The government argues in the instant case that Detective Croft’s inspection of the attic space

was not a “search” under the Fourth Amendment, because its scope was limit ed to that of the search

conducted by private parties Willard and Windell ( i.e.

, a mere viewing) and clearly did not extend to

the lengths of the examination conducted by private party W.R. Cox ( i .e.

, a touching of the

marijuana). In addressing this argument, we note that our decision in B omengo

, although

acknowledging that a prior private-party search may f rust rate one’s reasonable expectation of11

privacy, hinged on the fact that the init ial entry

-- pursuant to which the private-party viewing

occurred

-- was a “reaso nably foreseeable intrusion of privacy,” B omengo

, 580 F.2d at 176,

occasioned by the particular “circumstances within the dwelling” at the time. York

, 895 F.2d at 1029.

Generally speaking, entries into apartment units by apartment maintenance personnel, when made

necessary by emergency s it uat io ns, are by no means unforeseeable intrusions when they occur.

Consequently, in Bomengo

, given that the firearms were left in plain view, Bomengo no longer

possessed a reasonable expectation of privacy in t heir viewing after the engineer’s initial search.

“Because the [subsequent] police view was confined strictly to the scope of the init ial review,”

Bomengo , 580 F.2d at 176, and thus “infringed” only upon that porti on of Bomengo’s expectation

of privacy that had already reasonably been frustrated, we were compelled to hold that no “search”

within the Fourth Amendment had taken place.

In Bomengo

, we also had occasion to survey the line of decisions that preceded our holding

in that case. I d

. at 176; see Barnes v. United States

, 373 F.2d 517 (5th Cir. 1978) (m ote l o wner

searched defendant’s travel bag after it was inadvertently left behind and found suspicious checks;

no Fourth Amendment search where police subsequently examined contents of bag); United States

v. Blanton

, 479 F.2d 327 (5th Cir. 1973) (airline employees, after opening defendant’s unidentifiable,

unclaimed baggage in an effort to determine ownership, found an illegal fire arm; no Fourth

Amendment search where police subseq uent ly reopened and inspected baggage); U nited States v.

McDaniel

, 574 F.2d 1224 (5th Cir. 1978), cert. denied

, 441 U.S. 952, 99 S.Ct. 2181, 60 L.Ed. 1057

(1979) (same factual scenario as Blanton ). The common denominator among these cases is easily

identified: in each, either the “activities” or conduct of the defendant ( i.e., inadvertently leaving travel

bags behind or failing to t imely claim unidentif iable baggage) and/or the “circumstances” of the

situation ( i.e.

, apartment employees trying to stop a water leak or airline employees attempting to find

rightful owner of bags) significant ly lessened the defendant’s reasonable expectation of privacy “by

creating a risk of intrusion [by private parties] which [was] reasonably foreseeable.” York

, 895 F.2d

at 1029. Therefore, the subsequent police search in each case, limited in scope to the initial private1 1 In United States v. Jacobsen

, 466 U.S. 109, 104 S.Ct.1652, 80 L.Ed.2d 85 (1984), the Supreme

Court was likewise called upon to evaluate the actions of a law enforcement official who was

presented with evidence uncovered during a prior private-party search. In that case, employees of

Federal Express had torn open a package that had been inadvertently damaged. Observing a white

powdery su bst ance, t hey called a federal law enforcement agent who, acting without a warrant,

removed a trace of the substance and determined that it was cocaine. The Court stated that “[t]he

additional invasions of

. . . privacy by the government agent must be tested by the scope of the private

search.” Jacobsen , 466 U.S. at 115, 104 S.Ct. at 1657. In holding that the agent’s actions did not

rise to the level of a “search,” the Court noted that the package could “no longer s u pport any

12 search, did not rise to the level of a Fourth Amendment “search.”

Based on the foregoing discussion, we realize that the facts of the instant case implicate two

principles within our precedent on “reasonable expectations of privacy,” which, when applied to this

case, create considerable tension. On the one hand, we have noted that occupants have a “heightened

interest of privacy associated with being free from intrusion in [their] home.” F ontenot v. Cormier

,

56 F.3d 669, 674 (1995); see also York

, 895 F.2d at 1029. This principle, however, is tempered by

our observation that a prior private-party search of an area ordinarily frustrates one’s expectation of

privacy therein, such that a subsequ ent po lice search, limited in scope to the private-party search,

does not cause us much concern. See Bomengo , 580 F.2d 175-76.

In an at t empt to synthesize these principles, and in light of our decisions in B omengo and

York , we find that the proper Fourth Amendment inquiry, when confronted with a police search of

a home t hat extends no further than a previously-conducted private party search, is to determine

whether the homeowner or occupant continues to possess a reasonable expectation of privacy after

the private search occurs. In making this determination, consideration must be given to whether the

activities of the home’s occupants or the circumstances within the home at t he t ime of the private

search created a risk of intrusion by the private party that was reasonably foreseeable. If indeed the

private party’s intrusion was reasonably foreseeable (based on such activities or circumstances), the

occupant will no longer possess a reasonable expectation of privacy in the area or thing searched, and

the subsequent police search will not trigger the Fourth Amendment. If, however, the private party’s

init ial intrusion was not reasonably foreseeable, the occupant’s reasonable expectation of privacy will

survive, and the subsequent police search will indeed activate the Fourth Amendment. 11expectation of privacy, and

. . . it w as virtually certain that it contained nothing but contraband .”

Jacobsen , 466 U.S. at 120 n.17, 104 S.Ct. at 1660 n.17 (emphasis added).

The government has previously argued, before another Circuit court, that J acobsen requires

application of a mechanical rule: that a police officer’s search is constitutionally permissible so long

as his search does not exceed the scope of a prior private-party search. S ee United States v. Allen

, 106 F.3d 695, 699 (6th Cir. 1997). Much like the A l len court did, however, we find Jacobsen

distinguishable on its facts.

“Unlike the package at issue in Jacobsen

, which contain ed ‘not hing but contraband,’” i d

., people’s homes contain countless personal, non-contraband possessions. Certainly, a homeowner’s

legitimate and significant privacy expectation in these possessions cannot be entirely frustrated simply

because, ipso facto, a private party ( e.g.,, an exterminator, a carpet cleaner, or a roofer) views some

of those possessions. See Allen , 106 F.3d at 695. Because Jacobsen was concerned primarily with

mea suring “the scope of a private search of a mail package, the entire contents of which were

obvious,” Allen

, 106 F.3d at 699, we agree with the Allen court’s decision not to extend Jacobsen ’s

holding “to cases invo lving private searches of residences.” A llen

, 106 F.3d at 699. A decision any

other way would make the government the undeserving recipient of considerable private information

of a home’s contents strictly through application of an inflexible rule. We refuse to reward the

government with such a windfall, and find the appropriate analysis in home search cases to be the one

identified in the text above.

13 In the instant case, both Paige’s conduct and the circumstances of the situation created a risk

of intrusion into his garage’s attic that was reasonably foreseeable. Paige himself had hired W.R. Cox

Enterprises to repair his roof, and the roofing employees’ search for siding began only after they

inadvertently damaged the side of his home. Accidents of this type, related to the task at hand and

arising contemporaneously therewith, are reasonably expected to occur. Given Willard’s testimony

that “a lot of people keep [siding] around,” we find it no surprise that he immediately began to look

for replacement siding. According to the unchallenged testimony of Willard, Paige had advised the

workers that they could go into the garage if they needed “anything;” moreover, Paige had

specifically directed the workers to the garage and pointed out various tool s and supplies they could

access. Collectively, Paige’s actions in this regard authorized the workers to enter the garage for any

purpose related to their roofing task

, including, inter alia

, the se curing of materials to replace

damaged siding. Given that Willard’s entry into the garage was thus sufficiently justified, we do not

find unreasonable Willard’s decision to explore the attic, as it was rational to believe that siding could

be stored there. Under the foregoing facts, we find that Willard’s discovery of the marijuana, and the

subsequent s earches by Windell and W.R. Cox, stripped Paige of his reasonable expectation of

privacy in the garage attic. Both the conduct of Paige, and the circumstances of the situation, made14

these intrusions reasonably foreseeable. Consequently, we find that Detective Croft’s subsequent

examination of the attic did not qualify as a “search” for Fourth Amendment purposes.

C. L E GALITY OF S EIZURE OF M ARIJUANA BY D ETECT IVE C ROFT AND O THER P OLICE

O FFICERS

Paige next contends that Croft violated his Fourth Amendment rights by not securing a

warrant before the marijuana was seized and hauled away. The Supreme Court recently made clear

that the protecti on afforded by the Fourth Amendment extends to an individual’s possessory interests

in property

, even if his expectation of privacy in that property has been completely extinguished.

Soldal

, 506 U. S. at 62-63, 113 S.Ct.. at 544. Indeed, “sei zures of property are subj ect to Fourth

Amendment scrutiny even though no search within the meaning of the Amendment has taken place.”

Id

. at 68, 113 S.Ct. at 547; see also Jacobsen

, 466 U.S. at 113, 104 S.Ct. at 1656 (defining “seizure”

of property as “some meaningful interference with an individual’s possessory interests i n that

property ”). Although it has been established that Paige’s privacy interest in the marijuana had been

extin guished prior to i ts sei zure, s ee supra discussion, his possessory interest in it continued to

survive. As such, the government’s seizure of the marijuana invoked the protections of the Fourth

Amendment.

Determining whether the Amendment was in fact violated, however, is a different question,

and requires the weighing of various factors to ascertain the reasonableness o f t he government’s

conduct. Generally, “seizures conduct ed outside the judicial process, without prior approval by a

judge or magistrate, are per se unreasonab l e under the Fourth Amendment--subject only to a few

specifically established and well delineated exceptions." Minnesota v. Dickerson

, 508 U.S. 366, 372,

13 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993) (internal quotati ons and citations omitted). Here, the

government argues that the seizure of the marijuana was excused from the warrant requirement

because it met all the dictates of Fourth Amendment reasonableness expressed in Jacobsen

, 466 U.S.

at 120-22, 104 S.Ct. at 1660-61.

In Jacobsen

, as discussed s upra note 11, Federal Express employees tore open a package that

had been inadvertently damaged. Observing plastic bags containing a white powder, they contacted15

a federal agent, who

-- after arriving without a warrant -- removed the plastic bags from the box and

performed a field test on its contents, which proved to be cocaine. Acknowledging that the agent’s

“assertion of dominion and control over the package and its contents . . . consitute[d] a ‘seizure,’”

id

. at 120, 104 S.Ct. at 1660, the Court nonetheless found the seizure to be reasonable under the

circumstances. The Court first reasoned that “the package could no longer support any expectation

of privacy” and that such packages “[can] be seized, at least temporarily, without a warrant.” Id . at

121, 104 S.Ct. at 1660-61. In addition, the Court noted that “it was apparent that the . . . bags

contained contraband and little el se” and t hat law enforcement officials may make warrantless

seizures of “‘effects’ that cannot support a just ifiable expectation of privacy

. . . , based on probable

cause to believe they contain contraband.” id . at 122-22, 104 S.Ct. at 1661.

Against this backdrop, the government claims that the prior conduct of Willard, Windell, W.R.

Cox, and Croft, as well as Paige himself ( i. e. , “t here’s fifty pounds of marijuana up there”)

,

extinguished any privacy intere st Paige had in the marijuana. We have accepted this contention

above. Moreover, we acknowledge that probable cause to believe the packages contained marijuana

existed, as the attic had been viewed by W.R. Cox and De t ect ive Croft, the latter being an

experienced narcotics investigator. Because Paige no longer possessed a privacy expectation in the

marijuana, and “it was apparent that the [packages] contained contraband a nd lit t le else,” the

government concludes that Jacobsen sanctified the warrantless seizure executed in this case.

We disagree with the government’s argument, and in so doing, refuse to extend the holding

in Jacobsen to cases involving permanent seizures. Unlike the seizure at issue in Jacobsen

-- which

was designed only to be a temporary one for the purpose of investigating, seizing, and t esting the

package’s contents -- the seizure in the instant case was intended to be permanent from the outset.

That the holdin g in Jacobsen was not intended to apply to permanent seizures

-- but only to

temporary investigatory detentions of property -- is made clear by the language used by the Court:

“Such containers [ i.e.

, ones having no justifiable expectation of privacy] may be seized, a t least

temporarily

, without a warrant[,]

. . . based on probable cause to believe they contain contraband.”1 2 In fact, the government has not made the claim, nor does the record support, that the seizure in

this case was a temporary one.

16 Id . at 121, 104 S.Ct. at 1662 (emphasis added); see also United States v. Place , 462 U.S. 696, 103

S.Ct. 2637, 77 L.Ed.2d 110 (1983) (finding that temporary, warrantless investigative detentions of

luggage are justi fied under the Fourth Amendment, provided they are based at a minimum on a

reasonable, articulable suspicion that the luggage contains contraband). Our interpretation of

Jacobsen is consistent with its facts, as the officer in that case seized the package only for the time

necessary to observe the bags contained therein and to perform a field test on a trace amount of the

contents. After the test was complet ed, the package was rewrapped, a warrant was obtained to

search the place to which it was addressed, and the warrant was executed. J acobsen

, 466 U.S. at

112, S.Ct. at 1656. Although it is quite possible that the results of a temporary seizure may thereafter

justify a more permanent seizure, see Place

, 462 U.S. at 708-11, 103 S.Ct. at 2645-47, the Jacobsen

Court did not address this possibility (with respect to the package at issue therein), and the

government does not make that argument here. 1 2 As such, J acobsen

, which evaluated the

reasonableness of an officer’s warrantless, temporary seizure of a package, is distinguishable on its

facts, and we refuse to apply it to the permanent seizure executed in this case.

We nonetheless find the government’s permanent seizure of the marijuana in this case justified

under the plain view doctrine. “It is well established that under certain circumstances the police may

seize evidence in plain view without a warrant.” Horton v. California

, 496 U.S. 128, 134, 110 S.Ct.

2301, 2307, 110 L.Ed.2d 112 (1990) (quoting Coolidge v. New Hampshire

, 403 U.S. 443, 465, 91

S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971)). The Supreme Court has explained that the plain view

doctrine “reflects an application of the Fourth Amendment’s central requirement of reasonableness

to the law governing seizures of property.” Soldal , 506 U.S. at 64, 113 S.Ct. at 546.

To ensure that the protecti ons guaranteed by the Fourth Amendment are not eviscerated by

the plain view doctrine, see Coolidge , 403 U.S. at 465, 91 S.Ct. at 2037 (“[I]t is important to keep

in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at17

least at the time of seizure.”), the Supreme Court has ident ified several conditions that must be

satisfied before a plain view seizure of an object is upheld: (1) the officer conducting the seizure must

lawfully arrive at the position from which the object is plainly seen; (2) the object must be in plain

view; (3) the object's incriminat ing character must be immediately apparent-- i.e.

, the officer must have

probable cause to believe the object is contraband or evidence of a crime; and (4) the officer must

have a lawful right of access to the object itself. H orton

, 496 U.S. at 136-37, 110 S.Ct. at 2307-08;

Dickerson

, 508 U.S. at 374-75, 113 S.Ct. at 2136-37; s ee also Buchanan

, 70 F.3d at 825. After

carefully reviewing the record, we find that each of these elements was satisfied in this case.

As expla ined abo ve, we are satisfied that Detective Croft did not violate the Fourth

Amendm ent in reaching the place from which the marijuana could be seen. While making this

determination ordinarily involves analyzing whether a warrant or an exce ption to the warrant

requirement justified the officer’s arrival at the “plain-viewing” position, we see no reason why this

factor should not be applied literally to the unique f a ctual circumstances of this case. Detective

Croft’s initial “plain” viewing of the marijuana sufficiently fell within the protective umbrella of the

prior private-party searches.

Photographs of the attic introduced at trial show that Croft observed numerous packages

--

wrapp ed in an opaque, cellophane-like covering -- aligned between the ceiling joists, and a scale

stationed nearby. As the storing of marijuana in this manner is to be expected -- i .e. , rarely will the

police come upon such a large quantity of marijuana and find it bare and unwrapped

-- we find that

a further search of the packages to verify their contents was unnecessary

-- especially in light of the

fact that the officer making the plain view was an experienced narcotics investigator who recognized

the smell in the attic to be that of marijuana. In short, the packages were sufficiently exposed for the

plain view doctrine to apply.

The next requirement for a valid plain view seizure is that the incriminating nature of the

evidence must be immediately apparent, such that it gives rise to probable cause. Buchanan

, 70 F.3d

at 825-26 (citation omitted). “Probable cause does not require cert aint y[,] . . . and in reviewing18

probable cause determinations, we must consider t he totality of the circumstances -- including the

officers’ training and experience as well as their knowledge of the situation at hand.” Id . (citations

omitted). Here, Detective Croft was an experienced narcotics investigator working for the narcotics

division of the Liberty County Sheriff’s Department. Prior to his arrival at Paige’s property, he was

informed by W.R. Cox that Paige’s attic likely contained marijuana. Croft’s testimony reveals that

as soon as he got to the top of the ladder, he recognized that he was viewing “compacted, packaged

marijuana for transport.” Under these circumstances, we find that Detective Croft had probable cause

to seize the packages of marijuana when he observed them.

The final requirement for a plain view seizure is that the officer have a rightful access to the

evidence. One Circuit has stated that this prong of H orton is “best understood as emphasizing that

even though contraband plainly can be seen and identified from outside the premises, a warrantless

entry into those premises to seize the contraband would not be justified . . . .” G & G Jewelry, Inc.

v. City of Oakland

, 989 F.2d 1093, 1 101 (9th Cir. 1993). This “factor[, therefore,] is [ordinarily]

implicated in situations such as when an officer on the street sees an object through the window of

a house, or when officers make observations via aerial photography or long-range surveillance. In

those cases, the officers cannot use the plain view doctrine to justify a warrantless seizure, because

to do so would require a war rant less entry upon private premises.” U nited States v. Naugle

, 997

F.2d 819, cert. denied , 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (10th Cir. 1993).

Although our decision in United States v. Whalley , 781 F.2d 417 (5th Cir. 1986), predates

the Supreme C ourt ’s holding in H orton

, our reasoning therein is consistent with current

interpretations of this factor. In W halley

, we held unlawful a warrantless seizure of marijuana

growing on the curtilage of a home, despite the fact that an officer saw the marijuana in plain view

from a lawful position on an adjacent road. Although it was unclear whether the officer had made

a positive identification of the mar ijuana prior to his entry onto the property, our holding was not

based on this factor. Instead, we observed that a warrantless seizure of objects from a residence is

not authorized “upon the mere off-premises sighting of on-premises contraband,” Whalley

, 781 F.2d1 3 Because we find that the warrantless seizure of the marijuana from the garage was justified under

the plain view doctrine, we need not decide whether the government’s consent form

-- which (1) was presented to Paige after the marij uana had already been viewed, and (2) in relevant part, only

authorized seizure of evidence from the outbuilding -- was valid.

19 at 420, and that there is a rightful dist inction made “between the seizure of property in plain view

where there is no invasion of privacy and the situation where the sighted contraband is situated on

private premises to which access is not otherwise available for the seizing officer.” I d

. at 421

(quotations and citations omitted).

In the instant case, not only did the marijuana no longer support an expectation of privacy,

but Detective Croft’s presence on the premises

-- up to and including his viewing of the marijuana

--

was lawful und er t he umbrella of the prior private-party searches. Consequently, we find that

Detective Croft had a rightful access to the packages of marijuana. All the necessary conditions for

a plain view seizure having been satisfied, the seizure of the forty-six (46) pounds of marijuana from

Paige’s attic was reasonable under the circumstances.

In summary, we hold that (1) Detective Croft’s initial viewing of the marijuana did not rise

to the level of a Fourth Amendment search, and (2) the officers’ subsequent seizure of the marijuana,

although not justified under the Supreme Court’s holding in Jacobsen

, was valid under the plain view

doctrine. 13 Therefore, the district court did not err in denying Paige’s motion to suppress.

III

Based on the foregoing reasons, we AFFIRM Paige’s conviction for possession of marijuana

with intent to distribute.