dissenting.
I respectfully dissent. I agree that appellant had standing under our holding in United States v. Kelly, 529 F.2d 1365, 1370 (8th Cir. 1976). My disagreement is with the majority holding that “the real search [in Denver] was not made by freight employees but solely by agents of the FBI.”
FBI agents brought a projector to the Emery Air Freight office in Denver after being notified that films had been discovered in a lawful private search by Emery Air Freight employees. The contents of the package had been mislabeled as printed matter and a caller had requested that the package be delivered to the Blue Bird Theater, which was not the named consignee. The films were clearly labeled “Sex is my Bag” and “Flaming Youth.” The circumstances were such that the FBI agents were warranted in investigating possible violations of federal law. It is the viewing of the films on the projector which the majority sees as being an invalid search by government agents. I disagree.
The Fourth Amendment prohibits unreasonable searches and seizures. To characterize the inspection of the film by the FBI agents as an independent search requiring application of the exclusionary rule goes too far, in my opinion, and is an unwarranted extension of United States v. Kelly, supra.1
Can it be seriously argued that an agent receiving a suspected book or magazine from a freight carrier employee could not reasonably open the publication and peruse its pages to determine whether its contents offended the law? See United States v. Harding, 475 F.2d 480 (10th Cir.), vacated on other grounds, 414 U.S. 964, 94 S.Ct. 274, 38 L.Ed.2d 211 (1973). Would a government agent who used a magnifying glass or other mechanical aid to identify an object be vulnerable to a claim of an unreasonable search independent of the lawful private search which produced the object? I think clearly not.2
*773The film in this case was not a means of concealing something else. In looking at the film through a projector, the agents did no more than view the motion pictures in the manner in which they were intended to be viewed.
The cases relied upon by the majority for reversal compel, in my view, an opposite result. In United States v. Pryba, 163 U.S. App.D.C. 389, 502 F.2d 391, 401 (1974), cert. denied, 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828 (1975), as in this case, the search was initiated by private officials. There, as here, the FBI supplied the projector. To distinguish Pryba because in that ease the agents watched rather than operated the projector themselves, or because the airline official had previously “eye viewed” two of the films without a projector, is both unrealistic and unreasonable.
In Gold v. United States, 378 F.2d 588, 590 (9th Cir. 1967), the private employees had looked at some of the film, apparently without a projector. Government agents used a projector when called by the freight carrier. The Ninth Circuit upheld the District Court’s refusal to suppress this evidence, holding it to be the fruit of a lawful private search. The fact that an employee in Gold had looked at the film is irrelevant — the government agents in both cases had the same degree of participation. The agents did not unwrap any packages or open any boxes.3 The prior examination by the carrier employees in Gold might have provided probable cause to obtain a warrant; it certainly did not alter the fact that the agents simply viewed the films with a projector.4
The majority attaches crucial importance to the fact that in all of these eases except United States v. Entringer, 532 F.2d 634 (8th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976), the private employee had perused the contents sufficiently to “believe that the material was being illegally transported in interstate commerce.” At 772, n.l. I can find no authority, and none has been cited, for such a distinction. If the search by the freight carrier employee was a private search, as the majority concedes it to be, at 771, then the only question to be resolved is whether the conduct of the FBI agents in viewing the film — their only participation— was a “new or different search.” The sense impressions or legal conclusions of the private employee have no place in that determination. The significant fact is that the freight carrier employees “made [the film] available to the officers.” United States v. Blanton, 479 F.2d 327, 328 (5th Cir. 1973). See Clayton v. United States, 413 F.2d 297 (9th Cir. 1969), cert. denied, 399 U.S. 911, 90 S.Ct. 2204,26 L.Ed.2d 565 (1970); Wolf Low v. United States, 391 F.2d 61 (9th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 136, 21 L.Ed.2d 119 (1968).5 No question of proba*774ble cause to seize is presented here because the films were not seized prior to obtaining a warrant. Thus, the prior knowledge of the private employees has no place in the analysis of the FBI conduct. The films were uncovered by the private employees, not the FBI. For the reasons stated, the use of the projector cannot be characterized as a new search.
I do not understand that the two hours spent observing approximately thirty minutes of each film was per se unreasonable; in any event, I cannot say that the time spent in determining whether there was probable cause to obtain a warrant to seize the films was so unreasonably excessive as to constitute an unreasonable search and seizure. The films were left with the freight carrier employee and the agents did not attempt to direct his conduct.with respect to release of the films. The marking of the films was a reasonable step for purposes of further identification in the event the agents were able to obtain a warrant to seize them. To hold otherwise would run counter to the encouraged use of search and seizure warrants wherever possible.
Since I would have upheld the District Court’s order denying suppression of the films on account of the Denver search, it follows that I do not agree that the search in Des Moines was the product of a prior illegal search, the basis upon which the majority reverses this case. I have carefully considered the other claims made on appeal, which the majority found unnecessary to address in light of its holding, and consider them likewise to be without merit. I would affirm the judgment of conviction.
. In United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976), FBI agents responded to a series of seven different calls in a two-month period. The holding dealt with the warrantless seizure, not the inspection of obscene materials. In each instance government agents took samples of the books and magazines before the packages were rewrapped and shipped.
. An airport private search was upheld in a narcotics case notwithstanding the government agents to whom the contents of an open package were shown made certain chemical tests before the package was returned. United States v. Ford, 525 F.2d 1308 (10th Cir. 1975). The use of an airport X-ray machine was upheld in People v. Fritschler, 81 Misc.2d 106, 364 N.Y.S.2d 801 (Sup.Ct.1975).
The majority seeks to distinguish United States v. Harding, supra, because the FBI “merely inspected” the contents of a package *773,• containing obscene written materials. I have found no prior case holding that the use of a projector to view film was any more of a search than inspecting written materials with eyeglasses.
. Cf. United States v. Issod, 508 F.2d 990 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975); Corngold v. United States, 367 F.2d 1 (9th Cir. 1966).
. In United States v. Sherwin, 539 F.2d 1 (9th Cir. 1976), government agents were called when apparently obscene books were discovered in a damaged shipment. The agents “view[ed] the materials displayed to them by the manager.” 539 F.2d at 7. The Ninth Circuit found no unlawful search from these facts. United States v. Entringer, 532 F.2d 634 (8th Cir. 1976), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976) and United States v. Kelly, supra, cited by the majority, are inapplicable. Both involved warrantless seizures. See note 1, supra.
. In Wolf Low, the Ninth Circuit upheld the use of evidence obtained under the following circumstances:
As we analyze the case, the customs officers made no search at all, within the constitutional meaning of a search. They were notified that if they would come to the airport responsible employees of the airport would show them something which the airport had on view there. They would not have to search for it nor obtain access to any closed container to see it. The customs officers would not know until they looked at the objects what significance, if any, the objects would have for them. When they arrived at *774the airport the airport employees or one of the custom’s officers, opened the suitcases, which had been left unlocked so that they 391 F.2d at 63.