U.S. v. Villarreal, 91-2598

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GOLDBERG, HIGGINBOTHAM, and DAVIS; PATRICK E. HIGGINBOTHAM
• Citation: 963 F.2d 770
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Santos VILLARREAL and Sergio Gonzalez, Defendants-Appellees.
• Docket Number: No. 91-2598,91-2598
• Decision Date: 11 June 1992

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963 F.2d 770 61 USLW 2047 UNITED STATES of America, Plaintiff-Appellant,
v.
Santos VILLARREAL and Sergio Gonzalez, Defendants-Appellees. No. 91-2598. United States Court of Appeals,
Fifth Circuit. June 11, 1992.
Rehearing Denied Aug. 28, 1992.

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Kathlyn G. Snyder, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S.

Gerald Goldstein, Patrick T. Peranteau, Goldstein, Goldstein & Hilley, San Antonio, Tex., for Santos Villarreal.

L. Aron Pena, Edinburg, Tex., for Sergio Gonzalez.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The district court held that a warrantless search of a fifty-five gallon drum labeled phosphoric acid and in transit to defendants by common carrier violated the Fourth Amendment and suppressed the evidence. The government appeals, arguing that the defendants had no reasonable expectation of privacy in the drum and that the agents had consent to perform the search. We find these arguments without merit and affirm.

I.

One afternoon in February of 1991, employees at Southwest Motor Transport's terminal in Brownsville became suspicious of two fifty-five gallon drums that had been delivered for shipment to Corpus Christi. The drums were labeled as phosphoric acid, but the employees thought them too light to contain acid and noticed that they did not make sloshing noises when moved. They also lacked the hazardous materials labels normally required for such freight. The foreman, Joe Gracia, suspected that the drums contained contraband. He called Forest Kaupert, a senior vice-president at SMT, who told him to call Customs and have them come over and investigate.

Gracia called Customs, and two agents arrived shortly thereafter. Gracia showed the agents the shipping order for the drums, reflecting their contents as phosphoric acid. However, the weight listed on the order was less than half the expected weight of drums of liquid. The order showed that Roland Martin of Brownsville was the consignor and consignee for the drums. The agents' drug sniffing dog alerted to the drums. Without asking Gracia

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whether they could open the drums, and without obtaining a warrant, they opened one of the drums and discovered marijuana inside. They then decided to make a controlled delivery, resealed the drum, and sent both drums to the SMT terminal in Corpus Christi.

As it turned out, defendants Santos Villarreal and Sergio Gonzalez were the intended recipients of the drums. Roland Martin was a fictitious name used to ship the drums so that no one could be connected to the marijuana in case anything went wrong. Villarreal did not speak English so he asked a woman named Sylvia Villarreal at South Texas Recycling to call SMT and find out how much the freight charges would be and how arrangements could be made to pick up the drums. He told her that the drums were not his but belonged to an individual named Roland Martin. She called SMT and obtained the information Villarreal needed.

Villarreal and Gonzales then paid two employees of South Texas Recycling named Torres and Guzman to pick up the drums for them and gave them the receipt for the drums. Torres and Guzman then drove a flatbed truck to the SMT terminal, and Villarreal and Gonzales followed in Villarreal's red pick-up truck. Torres and Guzman obtained the drums from SMT and loaded them onto the flatbed. They returned to South Texas Recycling, again followed by Villarreal and Gonzales in the pick-up. Torres and Guzman then loaded the drums from the flatbed into the pick-up. Gonzales drove the pick-up away, and Villarreal left in Sylvia Villarreal's car. Both men were arrested shortly thereafter, and the drums were seized from the pick-up at the Spinning Wheel Bar where Gonzales had parked it.

Villarreal and Gonzales were charged with possessing and conspiring to possess more than 100 kilograms of marijuana with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846. At a pre-trial suppression hearing, defendants argued that the warrantless search of the drum at the SMT terminal in Brownsville violated their Fourth Amendment rights. The government contended that the defendants had no reasonable expectation of privacy in the drums and that the customs agents had in any event obtained consent to search them. The district court rejected the government's arguments and granted the defendants' motion to suppress. The government appeals.

II.

The Fourth Amendment protects individuals from unreasonable searches and seizures that intrude on reasonable expectations of privacy. Warrantless searches are presumptively unreasonable. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2306 & n. 4, 110 L.Ed.2d 112 (1990); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). To object to a warrantless search, however, a defendant must manifest a subjective expectation of privacy in the object of the search, and the expectation must be one that society is willing to recognize as reasonable or legitimate. California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); United States v. Hamilton, 931 F.2d 1046, 1049 (5th Cir.1991). Individuals can manifest legitimate expectations of privacy by placing items in closed, opaque containers that conceal their contents from plain view. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982); Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 2846, 69 L.Ed.2d 744 (1981); United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977). The type of container generally does not affect the protection afforded by the Fourth Amendment. The Supreme Court has concluded that "a constitutional distinction between 'worthy' and 'unworthy' containers would be inappropriate." Ross, 102 S.Ct. at 2171. Nor is the fact that a container is not typically used to transport personal effects particularly relevant to the analysis. Once placed within a closed container, "a diary and a dishpan are equally protected by the Fourth Amendment." Robbins, 101 S.Ct. at 2846.

Individuals do not surrender their expectations of privacy in closed containers

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when they send them by mail or common carrier. The Supreme Court has long recognized that "[l]etters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy." United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984); United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S.Ct. 1029, 1031, 25 L.Ed.2d 282 (1970); Ex Parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878). Both senders and addressees of packages or other closed containers can reasonably expect that the government will not open them. See United States v. Jacobsen, 683 F.2d 296, 298 n. 2 (8th Cir.1982), rev'd on other grounds, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); United States v. Givens, 733 F.2d 339, 341 (4th Cir.1984); United States v. Richards, 638 F.2d 765, 769-70 (5th Cir.1981). Of course, common carriers or other private parties do not violate the Fourth Amendment if they search the packages of others, whether or not they have authority to do so, since the amendment protects only against unreasonable governmental action. See Jacobsen, 104 S.Ct. at 1656; Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (1980); United States v. Koenig, 856 F.2d 843, 847 (7th Cir.1988). In such cases, "[t]he arrival of police on the scene to confirm the presence of contraband and to determine what to do with it does not convert the private search into a government...