PUBLISH

UNITED STATES COURT OF APPEALS

Filed 5/17/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

vs.

ROGER SMYTHE,

Defendant - Appellant.

No. 95-8036

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

(D.C. No. 94-CR-139)

Laurence P. Van Court, Office of the Federal Public Defender, Cheyenne, Wyoming, for

Appellant.

David A. Kubichek, Assistant United States Attorney, Casper, Wyoming (David D.

Freudenthal, United States Attorney and Patrick J. Crank, Assistant United States

Attorney, Casper, Wyoming, with him on the brief), for Appellee.

Before EBEL, KELLY and LUCERO, Circuit Judges.

KELLY, Circuit Judge.

Mr. Smythe entered a conditional plea to conspiracy to possess with intent to

distribute, to distribute, and to manufacture methamphetamine, 21 U.S.C. § 846, and

carrying and using a firearm during a drug trafficking offense, 18 U.S.C. § 924(c). He
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now appeals the denial of his motion to suppress. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

Background

In October 1994, Mr. McCartney, manager of the Powder River Bus Station in

Sheridan, Wyoming, received a package from two men, one of whom was Mr. Smythe,

requesting that the package be shipped via bus to California. Prior to approaching Mr.

McCartney, one of the men repeatedly exited and reentered the building. 9 R. 45-46. Mr.

McCartney also noticed that the name of the sender was printed on the package as “Jack

A. Lope.” Id. at 42. Aware that a “jackalope” is a fictitious creature resembling a rabbit

with antlers, Mr. McCartney laughed out loud and attempted to joke about it with the

senders. The senders did not appreciate Mr. McCartney’s attempted humor but remained

serious, retorting “is there a problem with that?” Id. at 43-44. Also, the package was

heavily taped, with all of the seams of the box completely sealed. Id. at 47.

After the men left the station, Mr. McCartney became concerned about the

contents of the box, due to the potential threat to passengers on the bus on which the

package was to be shipped. Id. at 51. Mr. McCartney looked through his employee’s

manual and spoke with fellow employees in a futile attempt to discover information

regarding his right to search the package. Id. at 53-56. He then telephoned the Sheridan

Police Department (“SPD”) to inquire whether “they may have some law that they would

let me know about whether it is legal for me to open a package or not,” id. at 57; he spoke
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with Sergeant Walker of the SPD, who arrived at the bus station shortly after the call. 

Once at the bus station, Sergeant Walker informed Mr. McCartney that he, Sergeant

Walker, believed that Mr. McCartney could open the package but that he, Sergeant

Walker, could not. Id. at 58, 102. Sergeant Walker never touched the package, did not

assist, ask or otherwise encourage Mr. McCartney to open the package and stepped away

as Mr. McCartney opened the package. Mr. McCartney testified that the decision to open

the package was entirely his, id. at 59, that he was not acting at the request or as an agent

of the police in opening the package, id. at 60-62, and that he would have opened the

package regardless of whether the police responded to his call, id. at 96.

Mr. McCartney opened the box in the presence of Sergeant Walker and discovered

a number of plastic containers containing thousands of pills. Sergeant Walker then

contacted Mr. Hughes, an agent with the Wyoming Division of Criminal Investigation

with many years of experience investigating narcotics violations. Based upon his

observation, Mr. Hughes concluded that the package contained ephedrine tablets. A field

drug test conducted at that time confirmed Mr. Hughes’ suspicion. Id. at 130-31.

Discussion

A. Standard of Review

In reviewing the district court’s denial of a motion to suppress, we apply the

clearly erroneous standard of review to the district court’s findings of fact and view the

evidence in the light most favorable to the government. United States v. Lewis, 71 F.3d.
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358, 360 (10th Cir. 1995). The reasonableness of a search and seizure is a question of

law we review de novo. United States v. Martinez-Cigaorroa, 44 F.3d. 908, 910 (10th

Cir.), cert. denied, 115 S. Ct. 1386 (1995).

B. Private Searches

The Fourth Amendment protects citizens from unreasonable searches and seizures

by government actors. Burdeau v. McDowell, 256 U.S. 465, 475 (1921). However,

Fourth Amendment protection against unreasonable searches and seizures “is wholly

inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private

individual not acting as an agent of the Government or with the participation or

knowledge of any governmental official.’” United States v. Jacobsen, 466 U.S. 109, 113

(1984) (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J.,

dissenting)); see also United States v. Leffall, 1996 WL 194437, at *3 (10th Cir. April 23,

1996). However, in some cases a search by a private citizen may be transformed into a

governmental search implicating the Fourth Amendment “if the government coerces,

dominates or directs the actions of a private person” conducting the search or seizure. 

Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989). In such a case, the private citizen

may be regarded as an agent or instrumentality of the police and the fruits of the search

may be suppressed.

In Pleasant, we observed that two important inquiries to aid in the determination of

whether a private person becomes an agent or instrumentality of the police are whether
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“the government knew of and acquiesced in the intrusive conduct, and . . . [whether] the

party performing the search intended to assist law enforcement efforts or to further his

own ends.” Id. at 797 (quoting United States v. Miller, 668 F.2d 652, 657 (9th Cir.

1982)). We are satisfied that knowledge and acquiescence, as those terms are used in

Pleasant and the cases cited therein, encompass the requirement that the government

agent must also affirmatively encourage, initiate or instigate the private action. See id. at

797-98. The totality of the circumstances guides the court’s determination as to whether

"the government coerces, dominates or directs the actions of a private person." Id. at 796

(citing Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971) (plurality opinion)). 

It is clear that if a government agent is involved “merely as a witness,” the

requisite government action implicating Fourth Amendment concerns is absent. Leffall,

1996 WL 194437, at *4; accord United States v. Coleman, 628 F.2d 961, 965 (6th Cir.

1980) (requiring more than the mere presence of a police officer to implicate the Fourth

Amendment). In some affirmative way, the police must instigate, orchestrate, encourage

or exceed the scope of the private search to trigger application of the Fourth Amendment.

See United States v. Lambert, 771 F.2d 83, 89 (6th Cir.), cert denied, 474 U.S. 1034

(1985). As stated by the Ninth Circuit:

While a certain degree of governmental participation is

necessary before a private citizen is transformed into an agent

of the state, de minimis or incidental contacts between the

citizen and law enforcement agents prior to or during the

course of a search or seizure will not subject the search to

fourth amendment scrutiny.
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United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981). Fourth Amendment

concerns simply are not implicated “when a private person voluntarily turns over property

belonging to another and the government’s direct or indirect participation is nonexistent

or minor.” Pleasant, 876 F.2d at 797. While government agents may not circumvent the

Fourth Amendment by acting through private citizens, they need not discourage private

citizens from doing that which is not unlawful. Leffall, 1996 WL 194437, at *4.

Here, the search in question is not a governmental search implicating the Fourth

Amendment because Mr. McCartney had a “legitimate, independent motivation” to search

the package, Walther, 652 F.2d at 792; see also United States v. Reed, 15 F.3d. 928, 932

(9th Cir. 1993), namely, his independently formed belief that something was dangerous

about the package, 9 R. 95-96, and his concern for the passengers on the bus on which the

package was to be shipped, id. at 59-60. The police in no way instigated, orchestrated or

encouraged the search. The district court so found. Mr. McCartney testified that the

police neither told nor encouraged him to search the package, id. at 95-96, and the district

court further concluded that Mr. McCartney “would have opened the package even if the

police had not responded to his call,” 3 R. doc. 145 at 7. Fourth Amendment protection

does not apply to the de minimis police involvement in the search of Mr. Smythe’s

package; the search remained a private one. Leffall, No. 95-2074, slip op. at 7. 

We finally note that the drug field test conducted by Agent Hughes of the contents

of Mr. Smythe’s package did not offend the Fourth Amendment because field tests are
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not searches within the meaning of the Fourth Amendment. Jacobsen, 466 U.S. at 122-

23. Such tests determine only whether or not a substance is a controlled substance, a fact
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 that is not the source of a legitimate expectation of privacy. Id.

AFFIRMED.