U.S. v. Souza, No. 99-4147

• Citation: 223 F.3d 1197
• Decision Date: 24 August 2000
• Docket Number: No. 99-4147
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff -Appellee, v. LARRY SOUZA, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1197

223 F.3d 1197 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff -Appellee, v. LARRY SOUZA, Defendant - Appellant.

No. 99-4147

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 24, 2000

Appeal from the United States District Court for the District of Utah (D.C. No. 2:97-CR-0276-S) [Copyrighted Material Omitted] Charles Bevan Corry, Salt Lake City, Utah, for Defendant-Appellant.

Leshia M. Lee-Dixon, Assistant United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Before EBEL, PORFILIO, and MAGILL,^* Circuit Judges.

MAGILL, Circuit Judge.

This appeal raises issues concerning the inevitable discovery doctrine in the Tenth Circuit. On May 3, 1999, Larry Souza pled guilty to an indictment charging him with one count of possession with intent to distribute methamphetamine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Souza appeals the district court's¹ denial of his motion to suppress drug evidence discovered as the result of a search, conducted at a United Parcel Service (UPS) facility in Sacramento, California, of a package addressed to him. For reasons to be discussed, we affirm the judgment of the district court.

I. BACKGROUND

This case arises out of the following events. On June 9, 1997, agents of the Drug Enforcement Administration (DEA) were training officers assigned to a Sacramento task force on drug parcel interdiction. The training took place at the UPS office in West Sacramento. Detective Steve Sloan was one of the officers conducting the training at the UPS facility.² At approximately 5:30 p.m., a white cardboard box caught Detective Sloan's attention as he watched packages pass by on a conveyer belt. Detective Sloan believed that the package might contain contraband because it had been sent through third party shipping, the sender had only used a first name, all openings on the box were heavily taped with a clear tape, and the box was solid so that no side of it could be compressed. Detective Sloan testified that he suspected the box was filled with a type of foam that expands and hardens once it is put in the box, a characteristic that he believed, based on his experience as a narcotics detective, indicated that the box contained contraband.

The package was taken off the conveyer belt and placed next to a wall behind Detective Sloan. Special Agent Donald Rowden,³ also part of the interdiction operations, noticed the same suspicious characteristics of the package and decided to conduct a test to see if a narcotics dog would alert to the package. Special Agent Rowden took the package to a parking lot off UPS property and set the package on the ground with four other controlled packages that were placed about three feet apart and placed a plastic milk crate over each package. Special Agent Rowden then directed a narcotics dog, Clause,⁴ to sniff the packages. Clause positively alerted to the package that had been targeted by Rowden and Sloan for the presence of narcotics. Due to the way Clause alerted to the package, Special Agent Rowden was certain the package contained narcotics. Special Agent Rowden returned the package to Detective Sloan and advised him that he wanted to hold the package to write an application for a search warrant based on the probable cause of the narcotics dog alert.⁵ Special Agent Rowden called his office and told an assistant to pull up a statement of probable cause and to stay at the office because they were going to return with a package and "write a warrant" on it.

Detective Sloan took the package and placed it behind him on the floor next to the wall. Subsequently, a UPS employee, April Denning, arrived on the scene. According to Denning's testimony, a conversation was initiated by Detective Sloan who told her that a narcotics dog had alerted to the package and "stated that they couldn't tell me to open the package, they were not authorized to do that, they would have to have a search warrant, but he pointed to where the package was." A couple of minutes later, another officer again told Denning, "I cannot tell you to not open the package, but there it is on the floor." Denning estimated that approximately five minutes passed between the two conversations. She also testified that she was influenced by the statements of the interdiction officers.

After his conversation with Denning, Detective Sloan continued evaluating other packages that were on the conveyer belt. Approximately a minute or two after Detective Sloan continued with his evaluation, Denning picked the targeted package up, took it a few feet away to where her work station was located, and began opening the package. Detective Sloan watched Denning open the package but did not tell her not to open it because he felt it was "not his right to stop her." He also believed that she was acting within UPS policy in opening the package.⁶

Due to hardened foam that completely encased everything, Denning had difficulty opening the package. She started tearing some of the foam away and, at that point, DEA agents intervened using a knife to cut through the foam and located the Tupperware container that was inside the package. The Tupperware container revealed a brownish substance that appeared to be methamphetamine. When Detective Sloan saw the methamphetamine, he took custody of the package. Detective Sloan then turned the package over to Special Agent Rowden, who was upset because he wanted to "get a couple of warrants behind Clause for reliability purposes" and because he knew "it would have been a good warrant." Special Agent Rowden took custody of the package, observed what appeared to be methamphetamine, and issued a property receipt to UPS for the package. Special Agent Rowden then conducted a closer inspection of the package at his office, which revealed that the Tupperware container held plastic bags containing approximately 197 grams of a substance which tested positively for methamphetamine.

The address on the package indicated that it was being sent to Souza in Myton, Utah. The package was sent to Sergeant Hendricks of the Duchesne County Sheriff's Office for a controlled delivery to the address in Myton. After receiving the package, Sergeant Hendricks submitted it to a narcotics dog and the dog alerted to the presence of drugs in the package. Sergeant Hendricks obtained a search warrant for the Souza residence from a state district court judge in Duchesne County prior to the controlled delivery of the package to the Souza residence. The package was then delivered to the Souza residence and Souza was subsequently arrested.

Souza filed a motion to suppress the evidence on October 17, 1997. After a hearing, Magistrate Judge Samuel Alba issued a Report and Recommendation on May 22, 1998, recommending that Souza's motion to suppress evidence and statements be granted. On July 15, 1998, the district court entered an order granting in part and denying in part Magistrate Judge Alba's Report and Recommendation. The district court agreed that the search was in violation of the Fourth Amendment but concluded that the evidence should not be suppressed because "but for the unlawful conduct, which was independent of the investigative means . . . , the evidence inevitably would have been discovered by independent lawful means, specifically, a properly obtained search warrant."

II. ANALYSIS

Souza urges us to affirm the district court's holding that the government impermissibly influenced and participated in the search of the package by Denning, but to conclude that the district court erred by applying the inevitable discovery exception and denying the motion to suppress. The government argues that Souza's Fourth Amendment rights were not violated by the search because when Denning opened the package, she did so pursuant to her training in company policy, which allowed her to conduct searches of packages mailed through UPS, and not as an agent of the government or with the participation or knowledge of any governmental official. The government also argues that even if the search violated Souza's Fourth Amendment rights, the evidence found in the box would have inevitably been discovered through a valid search warrant. Although we review the ultimate Fourth Amendment question de novo, the district court's factual determinations are reviewed only for clear error. See United States v. Humphrey, 208 F.3d 1190, 1203 (10th Cir. 2000).

A. Legality of the Denning Search

The Fourth Amendment protects citizens against unreasonable searches and seizures by government actors. See Burdeau v. McDowell, 256 U.S. 465, 475 (1921). However, the Fourth Amendment does not apply to searches by private parties absent governmental involvement in the search. See Humphrey, 208 F.3d at 1203. A search by a private person becomes a government search "if the government coerces, dominates, or directs the actions of a private person" conducting the search. Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989). In such cases, "the private citizen may be regarded as an agent or instrumentality of the police and the fruits of the search may be suppressed." United States v. Smythe, 84 F.3d 1240, 1242 (10th Cir. 1996).

In determining whether a search by a private person becomes a government search, the following two-part inquiry is utilized: "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." Pleasant, 876 F.2d at 797 (citations and quotations omitted). Both prongs must be satisfied before the private search may be deemed a government search. See United States v. Leffall, 82 F.3d 343, 347 (10th Cir. 1996). The totality of the circumstances guides the court's determination as to whether the two-part inquiry has been met. See Smythe, 84 F.3d at 1243.

If a government agent is involved "merely as a witness," the requisite government...