673 F.2d 912 (6th Cir. 1982), 80-5352, United States v. Barry

Docket Nº:80-5352.
Citation:673 F.2d 912
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard John BARRY, Defendant-Appellant.
Case Date:March 19, 1982
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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673 F.2d 912 (6th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,


Richard John BARRY, Defendant-Appellant.

No. 80-5352.

United States Court of Appeals, Sixth Circuit

March 19, 1982

Argued Oct. 23, 1981.

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David Segal, New York City, J. Brooke Lathram, Burch, Porter & Johnson, Memphis, Tenn., for defendant-appellant.

W. J. Michael Cody, U. S. Atty., Timothy R. DiScenza, Memphis, Tenn., for plaintiff-appellee.

Before EDWARDS, Chief Circuit Judge, MARTIN, Circuit Judge, and FEIKENS, [*] Chief District Judge.

BOYCE F. MARTIN, Jr., Chief Judge.

Barry was convicted by a jury of possessing a schedule II controlled substance (Methaqualone) with intent to distribute, in violation of 21 U.S.C. § 841(a) (1).

The District Court denied Barry's motion to suppress evidence allegedly seized in violation of the Fourth Amendment. The evidence, four bottles containing the controlled substance, was introduced at trial and formed the basis for his conviction. Barry now argues it was error: 1) to deny the suppression motion; and 2) to admit telephone records offered as evidence to show the requisite intent under the charge.

Barry was arrested by agents of the Drug Enforcement Administration on January 24, 1980 after he claimed a package at the Memphis, Tennessee office of Federal Express, a private freight carrier. On the previous day, the package had arrived at the Memphis Federal Express airport facility in a damaged condition. The package was referred to a company service agent who, under normal circumstances, would have taken it to a "rewrap area." However, through a small hole in the parcel, the agent could see four bottles containing pills. Suspecting contraband, the agent called a security manager, Mr. Crump, who took the

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package to his office and opened it. He found inside four large bottles of pills, each labeled "Methaqualone." Although Methaqualone may be possessed legally, Crump's suspicions were raised by the large quantity of pills and by the fact that the pharmaceutical numbers had been effaced. He then called the Drug Enforcement Agency which sent two agents to his office. After examining the package and its contents, the agents took five pills for testing. The tests were positive. Agents then resealed the package and returned it to Federal Express. Barry was arrested when he attempted to claim the package.

At the suppression hearing, Barry contended that the search by Federal Express was conducted for purposes of federal law enforcement and was therefore not a private search under Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). In Burdeau the Supreme Court held that the safeguards against warrantless searches and seizures did not extend to searches undertaken by private parties. Whatever evidence a private citizen might lawfully or otherwise obtain from another individual can, upon its transfer to the government, be used against that individual. The Fourth Amendment, said the Court, secures citizens against only governmental action. It does not prevent the government from using evidence which has fortuitously fallen into its hands. 256 U.S. at 475, 41 S.Ct. at 576. In denying suppression of the pills, the District Court held that the Federal Express investigation was a valid private search conducted under normal company procedures.

Barry also contended at the hearing that confiscation of the pills samples by the DEA constituted a separate governmental search or seizure. According to Barry, this warrantless seizure was illegal because it did not fall within the "plain view" exception to the Fourth Amendment's warrant requirement. Although the pills themselves were in plain view, the fact that they were contraband was not immediately obvious because the agents had to test the pills to confirm that they were in fact Methaqualone. In addition, Barry argued that the inadvertence requirement to this exception was not satisfied. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The District Court disagreed, concluding that the DEA's search was valid under the plain view doctrine. Barry now attacks this conclusion and argues as well that the private search rule of Burdeau was applied incorrectly to the facts of this case.


To support his contention that the search by Federal Express constituted a governmental rather than a private search, Barry cites a number of cases involving the silver platter doctrine. Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927); Lowrey v. United States, 128 F.2d 477 (8th Cir. 1942); Sutherland v. United States, 92 F.2d 305 (4th Cir. 1937). He argues by analogy that Federal's search effectively circumvented the Fourth Amendment. The Supreme Court enunciated a test in Gambino to prevent federal agents from evading the warrant requirement by acting in concert with state police. The Court stated that challenged searches should be reviewed to determine whether the state authorities had, when seizing evidence, acted on behalf of the state or whether they had acted only to assist federal law enforcement officers. In the latter circumstances, the actions of the state agents would be characterized as federal and the constitutional warrant requirements applied to the search. Id. at 314, 315.

For example, in Gambino, liquor seized in a warrantless search by state police was ruled inadmissible in a prosecution under the National Prohibition Act. Because the state prohibition law had been repealed, the Court found that the state troopers had acted only for purposes of federal law enforcement. 275 U.S. at 316, 48 S.Ct. at 138. The Court reached this conclusion despite the absence of any evidence of participation by federal authorities in the search. The Court focused entirely upon the search's purpose:

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We are of opinion that the admission in evidence of the liquor wrongfully seized violated rights of the defendants guaranteed by the Fourth and Fifth Amendments. The wrongful arrest, search, and seizure were made solely on behalf of the United States. The evidence so secured was the foundation for the prosecution and supplied the only evidence of guilt. It is true that the troopers were not shown to have acted under the directions of the federal officials in making the arrest and seizure. But the rights guaranteed by the Fourth and Fifth Amendments may be invaded as effectively by such co-operation as by the state officers acting under direction of the federal officials.

The prosecution thereupon instituted by the federal authorities was, as conducted, in effect a ratification of the arrest, search, and seizure made by the troopers on behalf of the United States. (citations omitted)

Id. at 316-17, 48 S.Ct. at 138.

Barry argues that Federal Express agents opened his parcel solely to check for illegal drugs and therefore acted on behalf of the government. As proof of the nexus between Federal Express and the DEA, he offers a memorandum prepared by the company in conjunction with the DEA. It requests all employees to cooperate in an effort to detect illegal drug shipments. However, employees are told that they should open suspicious packages only if they have valid company policy reasons for doing so. Otherwise, cautions the memo, the owners of the packages could claim that their constitutional rights have been violated. In addition, the memorandum lists specific criteria designed to profile drug parcels.

One could view this document as an attempt by the DEA to coach Federal Express employees to conduct searches that will meet the private search test of Burdeau. Barry invites us to draw this inference. However, this inference is not exclusive. On its face, a memorandum asking employees to follow company policy is benign. Thus, although this memorandum does evidence the company's desire to assist the DEA, it alone does not cloak the company's actions with a federal purpose. Barry's package was pulled from the mainstream of thousands of parcels because it had been damaged. The company had a policy of diverting damaged packages to a resealing center. Thus the package originally came under special scrutiny for private reasons of company policy.

The fact that Federal Express subsequently became suspicious of its contents and exposed the contraband does not render the search federal. The suspicions arose only because of a fortuitous work-related event: the diversion of the package to the resealing center. Thereafter Federal Express performed its duty by preventing the interstate transportation of illegal drugs. We therefore find that the search of Barry's parcel was private and hence not subject to the warrant requirement of the Fourth Amendment. Burdeau v. McDowell, supra.

We recognize that a limit exists to the extent public objectives can be hidden behind ostensibly private ones. Private freight carriers perform a quasi-public function and must do so in a manner consistent with the public trust. If a carrier opened packages randomly or perhaps because they matched the criteria of a drug profile, we would be concerned about the abuse of that trust in the name of law enforcement. But that was not the case here. We therefore reject Barry's contention that Federal Express conducted a governmental search.


We must now determine whether the subsequent seizure by the DEA of pill samples from Barry's open parcel violated his Fourth Amendment rights. Currently, the Supreme Court's interpretation of the law of search and seizure reveals that evidence should not be suppressed unless it was seized by means of: a) unlawful conduct on the part of law enforcement authorities

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which b) violated the Fourth Amendment rights personal to the defendant. The latter criterion...

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