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Filed 1/25/16 P. v. Korby CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

---- THE PEOPLE,

Plaintiff and Respondent,

v. DONNA EDNA KORBY,

Defendant and Appellant. C076916
(Super. Ct. No. CM035909)

Following the trial court’s denial of her motion to suppress evidence and to quash
and traverse a search warrant, defendant Donna Edna Korby pleaded no contest to the cultivation of marijuana

. (Heath & Saf. Code, § 11358

-- count 1

. ) The trial court

s uspended imposition of sentence and placed defendant on pro bation for 36 month s. Defendant now contends the trial court erred in denying her m otion to suppress evidence and to quash and traverse the search warrant because an employee of Pioneer Auto Body and Shipping (Pioneer Shipping) , acting as an agent for law enforcement, unlawfully opened and searched defendant’s package without a search warrant or legal justification. Viewing the record in the light most favorable to the trial court’s ruling,

w e conclude the trial court did not err in denying defendant’s motion. We will affirm the judgment.2 BACKGROUND
We limit o ur review to the matters before the trial court when it heard the motion. ( United States v. Jacobsen (1984) 466 U.S. 109, 112, f n. 2 [80 L.Ed.2d 85, 93, fn. 2] ( Jacobsen ); In re Arturo D. (2002) 27 Cal.4th 60, 77, fn. 18

. ) Racquel Nolind, the operations manager of Pioneer Shipping, reported that a

woman came to Pioneer Shipping to ship a package. Surveillance video showed defendant delivering the package to Pioneer Shipping, and an invoice receipt showed defendant’s name. A fter defendant left, Nolind opened the package because she smelled the odor of marijuana coming from it

. I t wa s the policy of Pioneer Shipping to open packages believed to contain contraband. A sign posted at Pioneer Shipping read , “PIONEER SHIPPING RESERVES
THE RIGHT TO INSPECT ANY AND ALL PACKAGES TENDERED FOR
SHIPPING

. [¶] ALCOHOL

- TOBACCO

- FIREARMS

- DRUGS ARE PROHIBITED TO
BE SHIPPED VIA PIONE ER SHIPPING. [¶] PROHIBITED ITEMS WIL L BE
DISPOSED OF OR TURNE D OVER TO THE POLICE .” Pioneer Shipping was an authorized Federal Express “ship center.” Nolind testified that Pioneer Shipping’s policy of openin g packages was based on the terms and conditions of the contract between Pioneer Shipping and Federal Express. Those terms and conditions provided, “We may, at our sole discretion, open and inspect any shipment without notice.” According to Nolind, the c ontract between pioneer Shipping and Federal Express made Pioneer Shipping responsible for everything it shipped , and Pioneer Shipping’s Federal Express
account would be at risk f or shipp ing prohibited items. When Nolind opened the package, she found a smaller package with six clear glass jars. The jars contained what appeared to be marijuana. Nolind contacted the Butte County Interagency Narcotics Task Force (Narcotics Task Force) . Agent Nathan Henry responded to the call and Nolind showed Henry the contents of the package. Agent Henry did not manipulate the package before immediately identif ying the substance3

inside the glass jars as marijuana. He seized the jars and the marijuana. The marijuana had a total net weight of 65.29 grams.
Consistent with Pioneer Shipping’s practice, Nolind sent the outer package to the recipient with a security note indicating that the package contained contraband and the
contraband was turned over to the authorities. Law enforcement officials subsequently executed a search warrant at the residence of defendant and Thomas Korby. Law enforcement officers seized approximately
112 pounds of marijuana bud, 53 pounds of marijuana shake, 35 pounds of marijuana on stalks, five pounds of marijuana bud and leaf on s talks, firearms, and over $23,000 in
cash at the property

. At the suppression hearing, Nolind said s he had opened packages on “maybe 10

to 15” occasions because she suspected they contained marijuana. She was familiar with the odor of marijuana because her parents kept marijuana in their home and smoked it.
If Nolind suspected that a package contained a prohibited item, she would open the package to determine whether Pioneer Shipping c ould ship it . If a customer were to disclose that he or she was shi pping marijuana , Nolind would give the item back and t ell
the customer that Pioneer Shipping could not ship marijuana. But if Nolind accept s a package for shipping and later f inds that the package contain s marijuana, she contact s law
enforcement officials to take the marijuana

. N olind said she contact s law enforcement
because she c annot ship the prohibited item, it would be illegal for her to possess marijuana, and she want s law enforcement to take the item off her hand s. Evidence was presented of a t least 10 prior situations in which someone from Pioneer Shipping opened a package, discovered marijuana or other illegal drugs, and
contacted the Narcotics Task Force. Nolind said she had a discussion with Narcotics
Task Force Commander Carl Sturdy abou t her practice of opening packages , but Commander Sturdy never suggested whether Nolind should or should not open packages. Nolind testified that no Narcotics Task Force agent ever suggested that she4

should do something differently. N o one from law enfor cement instructed her on what

to do after she opened a package , n o one ever told her th at the items in a package
constituted evidence and had to be handled in a certain manner , and no one ever promised her anything for helping law enforcement. Nolind did not receive anything from the government for finding marijuana in packages and Agent Henry never talked to Nolind
about her practice of opening packages.
Defendant moved to suppress the evidence obtained from the package and the
evidence obtained from t he search of her residence. She argued that the warrantless search of the package by Nolind violated the Fourth Amendment because Nolind acted

as an agent of the government. Defendant also sought to quash and traverse the search warrant, arguing that it was based on information obtained from the unlawful se arch
of her package.
The trial court denied defendant’s motion. The trial court found tha t law enforcement officers were not present when Nolind opened the package containing marijuana , and Nolind did not receive any direction from law enforcement officers

to open the package. The trial court determined that Nolind’s conduct in opening packag es help ed law enforcement and law enforcement officers thanked her for contacting them . Nevertheless, Nolind had a legitimate business reason for inspecting
the packages she suspected contained contraband, namely her interest in protecting her Federal Exp ress franchise. The trial court concluded that Nolind did not act as an agent of law enforcement when she opened defendant’s package and no search warrant was required for Nolind’s search

. D efendant pleaded no contest to cultivation of marijuana (Health & Saf. Co de, § 11358

-- count 1)

. 1 The trial court dismissed the remaining counts , along with t he

1 Defendant’s hus band Thomas was charged as a co defendant, but his matter was dismissed on March 12, 2014.5

firearms allegation ( Pen

. Code , § 12022, subd

. (a)(1) ) , suspended imposition of sentence , and placed defendant on probation for 36 months.
DISCUSSION
I
Defendant contends the trial court erred in denying her motion to suppress
evidence because Nolind act ed as an agent o f the Narcotics Task Force when she opened
and searched the package containing marijuana without a search warrant or legal justification. In reviewing a n order denying a suppression motion , we defer to the trial court’s factual findings if they are supported by substantial evidence, but we exercise our independent judgment in determining the legality of the search or seizure on the facts so found. ( People v. Tully (2012) 54 Cal.4th 952, 979 ( Tully ) .) The trial court is the fact finder in a proceeding to suppress evidenc e , and it is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, we igh the evidence , and draw factual inferences. ( Ibid. ) Accordingly, w e consider the record in the light
most favorable to the trial court ’ s disposition and accept the trial court’s resolution of disputed facts and its assessment of credibility. ( Ibid. ) We measure the reasonableness of a search or seizure by federal constitutional standards. (Cal. Const., art. I, § 28,
subd. (f ) (2) ; People v. Schmitz (2012) 55 Cal.4th 909, 916 .)
The Fourth Amendment of the federal Constitution protects against unreason able
searches and seizures by the g overnment . ( U.S. Const. , 4th Amend. ) The Fourth
Amendment does not apply to actions by private citizens , unless the private citizen acted as an agent or instrument o f the government

. (U.S. Const., 4th Amend.; People v.
Wilkinson (2008)163 Cal.App.4th 1554, 1564 ( Wilkinson ) .) Thus, p rivate citizens do not violate the Fourth Amendment by independently opening a package and examining its
contents, without a warrant, whether such invasion was accidental or deliberate and6

w hether it was reasonable or unreasonable. ( Jacobsen, supra , 466 U.S. at pp. 114

- 115 [80 L.Ed.2d at p. 95].) Whether a private citizen is acting as a n agent of the government is an issue of fact. ( People v. Warren (1990) 219 Cal.App.3d 619, 622

- 623 ( Wa rren ) .) “ ‘ Determining whether the requisite agency relationship exists “ necessarily turns on the degree of the
Government ’ s participation in the private party ’ s activities,

. . . a question that can only
be resolved ‘ in light of all the circumstances. ’ ” [Citation.] This is

. . . “ a fact

- intensive inquiry that is guided by common law agency principles. ” [Citation.] The defendant bears the burden of proving that an agency relationship exists. [Citation.] ’ ” ( Wilkinson,

supra , 163 Cal.App.4th at pp. 1565

- 1566 [adopting federal standard].)

“ ‘ In order to run afoul of the Fourth Amendment,

. . . the Government must do more than passively accept or acquiesce in a private party ’ s search efforts. Rather, there must be some degree of Government particip ation in the private search

. . . . [ ¶]

. . . [T]wo primary factors

. . . should be considered in determining whether a search conducted by a private person constitutes a Government search triggering Fourth Amendment protections. These are: (1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some other independent motivation. [Citations.] ’ ” ( Wilkinson, supra , 163 Cal.App. 4th at pp. 15 66 .) 2 With regard to the first factor, there must be some

2 Courts of Appeals in the Fourth, Fift h, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits have applied the factors described in Wilkinson in determining whether a private search implicates the Fourth Amendment. ( United States v. Gonzalez (8th Cir. 2015) 781 F.3d 422, 427 [a search b y a private party with no government knowledge or participation does not implicate the 4th Amend.]; United States v. Benoit (10th Cir. 2013) 713 F.3d 1, 9 [the government must in some way affirmatively instigate, orchestrate, encourage or exceed the scope of the private search to trigger the application of the 4th Amend.]; United States v. Aldridge (7th Cir. 2011) 642 F.3d 537, 541

- 542 [considering whether the government directed the private searcher, initiated the search, and offered the private searcher a reward]; United States v. Bowers (6th Cir. 2010) 594 F.3d 522, 5267

evidence of government participation in or affirmative encouragement of the private search. ( Wilkinson, supra , 163 Cal.App.4th at p. 1567.) Viewing the evidence in the light most favorable to the trial court’s ruli ng and applying the two primary factors to this case , we conclude no trial court error occurred.
T here is no evidence that the Narcotics Task Force participated in or affirmatively encouraged Nolind’s search of defendant’s package. Defendant concedes the Narcotics Task Force did not direct or encourage Nolind to open defendant’s package. There is no

[concluding that law enforcement agents were not present or involved in private actor’s search]; U

nited States v. Jarrett (4th Cir. 2003) 338 F.3d 339, 344, 346 ( Jarrett ) [the government must do more than passively accept or acquiesce in a private party’s search efforts; there must be some evidence of government participation in or affirmative encouragement of the private search]; United States v. Steiger (11th Cir. 2003) 318 F.3d 1039, 1045; United States v. Paige (5th Cir. 1998) 136 F.3d 1012, 1017

- 1018; United States v. Ford (11th Cir. 1985) 765 F.2d 1088, 1090 [examining whether the government had preknowledge of the private search and whether government agents openly encouraged or cooperated in the search]; United States v. Walther (9th Cir. 1981) 652 F.2d 788, 791

- 792 ( Walther ) [“ The government must be involved either directly as a participant or indirectly as an encourager of the private citizen ’ s actions before we d eem the citizen to be an instrument of the state. ”]; see United States v. Jackson (M.D. Pa. 2008) 617 F.Supp.2d 316, 325 & fn. 8 [noting that while the Second and Third Circuit Courts of Appeals had yet to articulate a test for determining whether a privat e individual acted as a government agent and the First Circuit Court of Appeals had rejected a test

based approach, eight of 10 courts of appeals have looked at two primary factors: (1) whether the government knew of and 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]; United States v. Pervaz (1st Cir. 1997) 118 F.3d 1, 6 [rejecting any specific standard or test]; cf. United States v. Silva (1st Cir. 2009) 554 F.3d 13, 18 [stating that the First Circuit Court of Appeals had identified three factors as potentially relevant in deciding whether a private party acted as a government agent: the extent of the government’s role in instigating or participating in the search, its intent and the degree of control it exercised over the search and the private party, and the extent to which the private party aimed primarily to help the government or to serve its own interests]; United States v. Capra (2d Cir. 1974) 501 F.2d 267, 272, fn. 4 [stating in dicta that search was not subject to the 4th Amend. because the government did not instigate the search and the search was motivated by a genuine concern on the part of railroad personnel for the safety of railroad prop erty and employees].)8

evidence that the Narcotics Task Force had prior knowledge of Nolind’s search of defendant’s package, was present during h er search , or instructed her with r egard to that
search. Although there was evidence that the Narcotics Task Force was aware of Nolind’s practice of opening suspicious packages and that law enforcement agents thanked Nolind for calling the Narcotics Task Force o n past occasions , mere kno wledge and passive acquiescence by the government is not enough. ( Wilkinson, supra , 163 Cal.App.4th

at p. 1566 ; Jarrett, supra, 338 F.3d at pp. 344, 346 .) Perfunctory expressions of gratitude by government officials are not enough to make Nolind a government agen t

. ( Jarrett , supra, 338 F.3d at p. 346.) The fact that the Narcotics Task Force did not discourage Nolind’s practice does not create an agency relationship. ( Id at p. 347.) In addition, s ubstantial eviden ce supports the trial court’s finding that Nolind
open ed defendant’s package pursuant to Pioneer Shipping’s security policy and for a

reason that is independent of crime detection or prevention. Nolind said she opened packages she suspected contained proh ibited items, including marijuana, in order to determine whether Pioneer Shipping c ould ship th e package under its Federal Express contract. The trial court concluded Nolind’s fear of endangering her Federal Express franchise was reasonable and sincerely held. Nolind testified that she contacted law enforcement once she determined a package contained marijuana because she understood that Pioneer Shipping c ould not keep the marijuana. Even if Nolind was motivated in part to stop crime, “it is no part of t he policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” ( Coolidge v. New Hampshire (1971) 403 U.S. 443, 488 [29 L.Ed.2d 564, 595] ; see Wilkinson, supra , 163 Cal.App.4th at p. 1568 [a dual motive for conducting a search will not necessarily bring the search within the 4th Amend. ] .)
Unlike Nolind, the airline employee i n Walthe r, supra, 652 F.2d 788, a case cited by defendant, conducted a search because h e expected a reward from the Drug9

Enforcement Agency f

or doing so . ( Id. at pp. 792

- 793.) The airline employee did not act out of business considerations such as prevention of fraudulent loss claims. ( Id. at
p. 792.) The present case is more like Warr en , supra, 219 Cal.App.3d 619. In that case ,

a United Parcel Service (UPS) employee opened a package he found suspicious and saw a white substance which was later determined to be methamphetamine . ( Id. at pp. 621

- 62 2 .) The employee informed UPS, which in turn contact ed the authorities . ( Id. at
p. 622 ) Like Nolind , the UPS employee in Warren was not a paid government informant. ( Ibid. ) The trial court in Warren found the UPS employee was acting as a responsible

em ployee and on behalf of the mail companies when he opened the suspicious package. ( Id. at p. 623.) Substantial evidence supports the trial court’s similar finding in this case. (RT 217

- 218) Defendant argues Warren is distinguishable because the employe e in
Warren did not communicate directly with law enforcement. But the fact that Nolind communicated directly with Narcotics Task Force agents does not alter her business

related motive for searching defendant’s package

. Defendant relies on People v. No rth (1981) 29 Cal.3d 509 for the proposition that a private citizen may be deemed to act as a government agent when the government knowingly permit s the citizen to conduct a search for the government’s benefit and the government ma kes no effort to protect the rights of the person being searched. But a s this court pointed out in Wilkinson , supra, 163 Cal.App.4th 1554, the test articulated in
North is no longer good law in California following the adoption of Proposition 8 ( Cal. Const., art. I, § 28, subd. (f ) (2) [formerly Cal. Const., art. I, § 28, subd. (d), renumbered without substantive changes by vote of the people on Nov. 5, 2008] ) . ( Wilkinson , supra , 163 Cal.App.4th at p. 1565.) “[T]o the extent North requires nothing more than the officer’s knowled ge and failure to protect the defendant’s rights to attribute a private search to the government, such a standard is no longer valid.” ( Wilkinson, supra , 163 Cal.App.4th at p. 1565.) Contrary to defendant’s assertion, United States v. Sherwin10

(9th Cir. 1 976) 539 F.2d 1 and United States v. Goldstein (9th Cir. 1976) 532 F.2d 1305 do not adopt a test similar to that stated in North . ( Sherwin, supra , 539 F.2d at p. 6 and fn. 6 [ does not state that a private citizen acts as an agent of the government when th e government knows the citizen conducted a search, but the government makes no effort to protect the defendant’s rights ; finding no official involvement in a private search ] ; Goldstein, supra, 532 F.2d at p. 1311 [ concluding that the government did not participate
in the private actor’s investigation ].)
Nolind did not act as a government agent when she open ed defendant’s package

. S he acted as a private citizen

. Any subsequent invasions by the government are tes ted by the degree to which the invasions exceed the scope of the private search. ( Jacobsen,

supra, 466 U.S. at p. 115 [80 L.Ed.2d at p. 95].) The Fourth Amendment is implicated only if the government exceeded the scope of the private search or used infor mation with respect to which the expectation of privacy has not already been frustrated. ( Id. at
pp. 117

- 122 [80 L.Ed.2d at pp. 97

- 99] [finding that government action which did not exceed the scope of a private search did not constitute a search within th e meaning of the
4th Amend. , and taking control of the package and its contents was a reasonable seizure because it was apparent the package contained contraband].) Defendant does not contend that any search by law enforcement officers exceeded the scope of Nolind’s search of the package.
W e reject defendant’s claim that the trial court erred in denying her suppression
motion

. II
Defendant also contends the trial court erred in denying her motion to quash and

traverse the warrant for the search of her residence

. Defendant moved to quash and traverse the warrant for the search of her residence in the trial court on the ground that the warrant was based solely on the illegal search of the package by Nolind

. Copies of warrants fo r the search of defendant’s residence , and11

for the search of her bank records , were attached to her motion. Defendant now challenges the warrant for the search of her residence on the same ground raised in the
trial court

. We have rejected defendant’s contention that the initial search of the package by
Nolind violated the Fourth Amendment

. The information obtained from Nolind’s search

was obtained lawfully and created a valid basis for a search warrant. The trial court , therefore , did not err in deny ing defendant’s motion to quash and traverse t he warrant.
DISPOSITION
T he judgment is affirmed.

/S/ Mauro, J.

We concur:

/S/ Robie, Acting P. J.

/S/ Hoch, J.