dissenting.
I respectfully dissent from section I.C. of the majority’s opinion. It is clear from the record that Lee Edwards, a FedEx employee, only became involved in the investigation of Smith’s package at the behest of the government, and only after the government realized that it could not constitutionally undertake a further search of the package without first obtaining, a warrant. To allow the government to employ private individuals to perform searches in a manner that the government itself legally could not, does not conform to my concept of constitutionally acceptable conduct.
On Friday, April 13, 2001, a number of police officers were stationed at the FedEx shipping facility in Hawthorne, California to investigate potential drug trafficking. As explained by Officer Melanie Newen-ham, she was stationed at a large conveyor belt, watching for what she considered to be suspicious packages. Smith’s package caught her eye because of its distinct box and a sticker indicating that the sender had requested Saturday delivery. When she removed the package from the belt, she saw that it had a handwritten airbill, scratched-out address form, was paid for in cash, and was a person-to-person delivery. Based on her training and experience, including her belief that California was a source state for drugs, she decided to have Detective Julian Catano conduct further investigation of the package.
Catano agreed that the box looked suspicious. He called on his canine partner, Bailey, to sniff the box for the odor of *708drugs. Bailey alerted to the box, indicating to Catano that it contained narcotics. Despite his belief that the package contained drugs, Catano did not seek to procure a warrant, even though he recognized that he could not open the box himself without a warrant. Consequently, Catano brought the package to Lee Edwards, a FedEx employee and manager at the shipping facility. According to Catano, he next advised Edwards that he “had a suspicion that this package may contain something illegal and told her that we had a dog alert on it and pointed out some of the other indicators, at which time she asked me if I wanted her to open it.” (Suppression Hr’g Tr. at 23.) In response to this query, Catano advised Edwards that it was “fine” for her to open the package if she so desired. (Id.) Under Catano’s watchful eye, Edwards opened the package for him and found cocaine.
At oral argument, the government conceded that if Edwards was acting as a government agent, she violated Smith’s Fourth Amendment rights by opening the box without a warrant. “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.” United States v. Souza, 223 F.3d 1197, 1201 (10th Cir.2000) (quoting Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir.1989)). In order to determine whether Edwards was acting as a government agent, we consider the totality of circumstances surrounding her conduct. United States v. Jarrett, 338 F.3d 339, 344 (4th Cir.2003); Souza, 223 F.3d at 1201; accord United States v. Crowley, 285 F.3d 553, 558 (7th Cir.2002) (instructing courts to determine whether a private party is acting as an instrument or agent of the government “on a case-by-case basis in light of all the circumstances”). “Two critical factors in assessing whether a private party acts as an agent of the government are (1) the government’s knowledge of and acquiescence in the search, and (2) the intent of the party performing the search.” United States v. Parker, 32 F.3d 395, 398 (8th Cir.1994). Other important factors which inform this determination include whether the government requested that the search be performed, and whether the government offered to reward the private party for performing the search. United States v. Malbrough, 922 F.2d 458, 462 (8th Cir.1990).
I agree with the majority that the government clearly knew of and acquiesced in the search; indeed, the search would not have happened but for the government’s involvement. I cannot agree, however, that Edwards intended to further her own ends by opening the package. No evidence adduced at the suppression hearing supports such an inference. Edwards did not testify, and no other testimony established any motive for her action beyond helping law enforcement. This case is distinct from Parker, in which a UPS employee opened a box and discovered a large amount of cash that eventually led to a drug seizure. In that case, our court held that the employee was not a government agent because “UPS opened the package pursuant to its policy to inspect the packaging of packages insured for more than $1,000.00.” Parker, 32 F.3d at 399. The majority suggests that it was permissible for Edwards to open the package pursuant to FedEx’s “ ‘duty to refrain from carrying contraband.’” Ante at 705 (quoting Illinois v. Andreas, 463 U.S. 765, 769 n. 1, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983)). To my mind, this misses the point: Smith does not argue that Edwards could not open the package; rather, he argues that the government could not open the package, and that Edwards was acting as an agent of the government. And while Edwards may well have harbored many ap*709propriate motivations for opening the box, the record contains none of them. Only Catano and Newenham were called to testify, and Newenham indicated that she had no contact with Edwards. Thus, we are guided in our analysis only by the testimony of Catano. Catano stated that after he and his fellow officers extinguished their ability to search the package without a warrant, he physically brought the box to Edwards. He told her that a number of factors indicated to him that the package contained drugs. In so doing, Catano was not simply relaying information, but attempting to evoke some response.3 Edwards herself recognized as much, and asked Catano if he wanted her to open the box. According to his testimony, Catano replied “that if she wanted to open it that would be fine.” 4 (Suppression Hr’g Tr. at 23.)
I find this case similar to United States v. Souza, 223 F.3d 1197 (10th Cir.2000). There, government agents were stationed at a UPS facility for training purposes. One agent, Detective Sloan, found a package he considered to be suspicious, so he pulled it off of the conveyor belt. Special Agent Rowden then inspected the package, and had his drug dog sniff the package. The dog alerted to the package, and the agents began the process of getting a search warrant. In the meantime,
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.”
Souza, 223 at 1200. Denning began opening the package, and with the assistance of the agents, found methamphetamine inside.
In reviewing the legality of Denning’s search, the court noted that the first issue to consider was whether Denning, although a UPS employee, was nonetheless acting as a government agent. The court answered in the affirmative for three reasons: 1) government agents initiated the seizure of the box; 2) officers encouraged Denning to open the box; and 3) agents physically assisted Denning with the search. Id. at 1202. It also recognized that “[wjhile companies such as UPS have legitimate reasons to search packages independent of any motivation to assist police, there is no evidence that in this instance Denning had a legitimate, independent motivation to open the package.” Id. (citation omitted).
Had Edwards (or any other qualified party, for that matter) testified that she was motivated by some cause other than to assist Catano, I would agree with the majority that she was not an agent or instrumentality of the government. This is not the case. Instead, we are required to infer Edwards’s intent in opening the package. The majority sees fit to speculate that Edwards’s goal in performing the search *710was to ensure that FedEx was not shipping contraband. It may be true that Edwards was motivated by some principle other than to assist law enforcement when she searched Smith’s package. She may well have sought to keep drugs out of FedEx’s facilities, or she may have sought to expedite the search so that the package would arrive on time. I have found no evidence to indicate as much, however, and cannot agree that the such conjecture survives scrutiny when measured by the testimony adduced at the suppression hearing. We cannot invent a motive for Edwards’s search which is not supported by the record. I would reverse the district court’s finding that Edwards undertook the search for the benefit of FedEx and was thus acting in her private capacity. Her actions were motivated, overseen, and in part directed by law enforcement officers. She was acting on behalf of the government when she opened Smith’s package, and thus could not constitutionally do so without a warrant. The district court’s holding to the contrary was error, and I thus dissent from that portion of the majority’s affirming opinion.
. Catano testified that it was his practice to bring suspicious packages to FedEx employees to see if they would open the packages before he tried to obtain a warrant.
. The majority notes that Catano "made it clear that he was not asking or ordering Edwards to open the package.” Ante at 705. While he may not have directly asked her to open the box, the insinuation was unmistakable. We would be remiss to focus on the presence or absence of magic words in determining whether an officer encouraged or instructed a private party to perform a search.