United States Court of Appeals
For the First Circuit
No. 04-1163
UNITED STATES OF AMERICA,
Appellee,
v.
TIJANI MOMOH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Thomas A. Brant, on brief, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.
November 1, 2005
TORRUELLA, Circuit Judge. In May 2000, Tijani Momoh was
accused of stealing United States mail, in violation of 18 U.S.C.
§ 1708, from a facility at Logan International Airport in Boston,
Massachusetts, where he worked as a mail handler. After the
government filed a felony information charging Momoh with three
counts of theft of mail, Momoh made a motion before the district
court to suppress the evidence against him. The district court,
however, denied this motion after a suppression hearing. Momoh
then waived indictment and entered a conditional guilty plea to the
information, reserving his right to appeal the district court's
denial of his motion. Momoh here exercises that right. After
careful review, we affirm the order of the district court.
I. Factual Background
On January 10, 2000, DHL Worldwide Express ("DHL"), a
private shipping company, received a package at its office in
Wilmington, Massachusetts. The package was purportedly being
shipped to an address in Lagos, Nigeria by one Yosef Feldman of 26
Newhall Street in Lynn, Massachusetts.
On the front of the completed DHL airbill accompanying
the package were the names and addresses of the shipper and the
addressee, and, under the entry for the "full description of
contents," the words "small box chocolates." There was a notation
of $80.40 in total charges, which Momoh had prepaid with a personal
check drawn on a bank account in his name. There was also a
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section of the airbill that stated, in part, "I/we agree that DHL's
standard terms apply to this shipment." Momoh had signed the name
"Yosef Feldman" beneath this provision. The reverse side of the
airbill provided DHL's "Terms and Conditions of Carriage."
Centered above the individual terms and conditions was an
"Important Notice," which stated: "When ordering DHL's services
you, as 'Shipper,' are agreeing, on your behalf and on behalf of
anyone else with an interest in the Shipment, that the Terms and
Conditions shall apply from the time that DHL accepts the Shipment
unless otherwise signed in writing by an authorized officer of
DHL." Term and Condition number 4, entitled "Inspection," provided
that "DHL has the right to open and inspect a Shipment without
prior notice to Shipper."
According to DHL policy, as well as regulations
promulgated by the Federal Aviation Administration ("FAA"), anyone
attempting to ship a package overseas had to register with the FAA,
or his or her package would be subject to opening and inspection.
As a result, DHL employee Jennifer Rodríguez ("Rodríguez"), upon
learning that no one with the name Yosef Feldman was registered
with the FAA, decided to open the Momoh/Feldman package once it
arrived at DHL's Wilmington office. Inside appeared to be a box of
Russell Stover chocolates. The original cellophane wrapping had
been removed, however, and replaced with household plastic wrap.
After removing this wrapping and opening the Russell Stover box
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itself, Rodríguez noticed that half of the chocolates were missing
from their respective molded forms, and the molded template did not
fit neatly into the box. She therefore removed the template from
the box and discovered eight unsigned credit cards in eight
different names. She also found a number of photographs, many of
Momoh himself.
Rodríguez informed her supervisor, who in turn notified
the Massachusetts State Police. The photographs in the Russell
Stover box, as well as the personal check paying for the shipment,
linked Momoh to the package. Subsequent investigation revealed
that all eight credit cards in the box had originally been mailed
through the United States Postal Service to places in the Boston
area. On May 4, 2000, a United States Postal Inspector filed a
"Criminal Complaint" alleging that Momoh had violated 17 U.S.C.
§ 1708. The United States soon took action on this complaint by
filing a three-count felony information against Momoh.
Over two years later, on August 19, 2003, after failing
to appear for a scheduled plea hearing and being arrested as a
result, Momoh filed with the district court a "Motion to Suppress
the Unlawful Search and Seizure." In that motion, he argued that
Rodríguez's search and seizure of the package violated the Fourth
Amendment because Rodríguez was acting not as a private party, but
as an agent of the government, and the FAA in particular, in
conducting the search and seizure. As such, she was required to
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obtain a warrant if she wanted to search the package or at the very
least have "reasonable articulable suspicion premised on objective
facts" (citing the less rigorous standard articulated by the
Supreme Court in United States v. Place, 462 U.S. 696 (1983)).
After a non-evidentiary suppression hearing on November 13, 2003,
the district court denied Momoh's motion, concluding that
Rodríguez's search was a private one. The court also noted that
even if Rodríguez was acting as a government agent, her search of
Momoh's package would have been permissible under the "border
search" exception to the Fourth Amendment.
After this ruling, Momoh waived indictment and
conditionally pled guilty to the three-count information, reserving
his right to appeal the district court's denial of his motion. The
district court sentenced him to five months imprisonment on each
count, to be served concurrently, on and after any prior sentence.
Momoh here appeals the district court's denial of his suppression
motion.
II. Discussion
A. Standard of review
In reviewing the denial of a motion to suppress, we
review a district court's legal conclusions de novo and its factual
findings for clear error. United States v. Meada, 408 F.3d 14, 20
(1st Cir. 2005); United States v. Lawlor, 406 F.3d 37, 41 (1st Cir.
2005). "We will uphold a denial of a motion to suppress if any
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reasonable view of the evidence supports it." United States v.
Kornegay, 410 F.3d 89, 93 (1st Cir. 2005) (internal quotation marks
and citation omitted).
B. The nature of the search
The Fourth Amendment states that the "right of the people
to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated." U.S.
Const. amend. IV. The Supreme Court has "consistently construed"
the Fourth Amendment protection as limiting only governmental
action. United States v. Jacobsen, 466 U.S. 109, 113 (1984). It
is not applicable "to a search or seizure, even an unreasonable
one, effected by a private individual not acting as an agent of the
Government or with the participation or knowledge of any
governmental official." Id. at 113-14 (quoting Walter v. United
States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)).
The key issue here is whether Rodríguez, acting pursuant
to DHL policy and the FAA regulations, was effectively acting as an
agent of the government when she opened Momoh's package, thus
triggering the provisions of the Fourth Amendment. If she was a
government agent, then probable cause and a warrant were required
before any search was undertaken. If, however, she acted in a
private capacity, then government activity is not implicated and
the Fourth Amendment does not apply. The district court held that
when Rodríguez opened Momoh's package, she was not acting as an
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agent of the government and that her search constituted a private
search. We agree.
In United States v. Pervaz, 118 F.3d 1 (1st Cir. 1997),
we noted that "any specific 'standard' or 'test'" attempting to
distinguish government from private action "is likely to be
oversimplified or too general to be of help." Id. at 6. Instead,
we identified several factors that may be relevant, depending on
the circumstances: "the extent of the government's role in
instigating or participating in the search, its intent and the
degree of control it exercises over the search and the private
party, and the extent to which the private party aims primarily to
help the government or to serve its own interests." Id. Applying
these factors to the case at hand, we think it clear that Rodríguez
was acting in a private, rather than governmental, capacity.
First, Momoh concedes that the government did not
participate in the search at issue here. He argues, however, that
"the sole instigating factor" in the search was the FAA
regulations, or more specifically, DHL's desire to comply with
them. Momoh is claiming, in other words, that Rodríguez was a
government agent because she and DHL, in opening the package, acted
only out of a desire to adhere to governmental regulations. We
disagree. Momoh's definition of the word "instigating" in our
opinion in Pervaz is too broad. It properly means "affirmative
encouragement," id. (citing United States v. Smythe, 84 F.3d 1240,
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1243 (10th Cir. 1996) and equating "instigation" with "affirmative
encouragement"), or alternatively, "coercing," "dominating," or
"directing" an individual. See Coolidge v. New Hampshire, 403 U.S.
443, 489 (1971). We define "instigating" in this way because what
we are concerned with when evaluating an actor's status for
purposes of the Fourth Amendment is evidence of extensive
government involvement in a particular action. If such evidence is
present, the provisions of the Fourth Amendment are applicable.
When one defines "instigating" as Momoh does -- i.e., as being
compelled to act by the mere existence of a law or regulation
enacted or promulgated by governmental authorities -- almost any
action can be construed as triggering the Fourth Amendment. Under
such an expansive definition, a private individual crossing the
street at a crosswalk is a government actor simply because he is
compelled to obey the jaywalking laws. Such connections to the
government are not the sort of extensive government involvement
that necessitates application of the Fourth Amendment.
We also disagree with Momoh's argument here for another
reason. Regardless of whether DHL made explicit its objectives
when it formulated its policy or opened Momoh's package, it is
likely that the company was motivated by more than a desire to
comply with FAA regulations. In United States v. Edwards, 602 F.2d
458 (1st Cir. 1979), we noted that an airline's inspection
privilege
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is rooted in the rule of the common law that
common carriers have the right to decline
shipment of packages proffered in
circumstances indicating contents of a
suspicious, indeed of a possibly dangerous,
nature. Justification for the carrier's
refusal is to be found in the exigencies of
safeguarding life and property, and undeniably
the frustration of criminality is likewise a
worthy carrier endeavor. The imperatives of
either objective may warrant inquiry by the
carrier as to the contents of a parcel
tendered for shipment; they may suffice, too,
to justify a reasonable inspection of the
parcel to fulfill that purpose.
Id. at 463 (quoting United States v. Pryba, 502 F.2d 391, 399 (D.C.
Cir. 1973) (internal quotation marks omitted)). Similarly, in
Illinois v. Andreas, 463 U.S. 765 (1983), the Supreme Court noted
that "[c]ommon carriers have a common-law right to inspect packages
they accept for shipment, based on their duty to refrain from
carrying contraband." Id. at 769 n.1. These rights and privileges
exist independently of the FAA regulations. Thus, it may well have
been a concern with "safeguarding life and property," or a concern
about "carrying contraband," rather than its desire to conform to
FAA regulations, that led DHL to inspect Momoh's package. See,
e.g., United States v. Young, 153 F.3d 1079, 1080-81 (9th Cir.
1998) (noting that the policy of Federal Express in carrying out
package searches was based on legitimate business purposes of
protecting safety and security of employees, facilities, and
packages). Momoh, therefore, cannot properly claim that the FAA
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regulations were the "the sole instigating factor" in the search of
his package.
Second, the government exercised little control over
Rodríguez and the search she conducted. DHL's policy gave company
employees full discretion as to whether or not to search a given
package. Such discretion belies any claim of government control.
Furthermore, even if the government did exercise some broad control
over DHL through promulgation of the FAA regulations, that control
does not convert a private actor into a governmental one --
otherwise, as the district court noted, any workplace supervisor
who enforced OSHA regulations would become a government agent. See
also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 354-55
(1974) (noting that the fact that a person works in a regulated
business does not convert his/her every action into a state
action).
Third, Momoh claims that the search of his package was
undertaken primarily to help the government, rather than to serve
DHL's own private interests. He attempts to support his argument
by distinguishing two cases cited by the district court at the
suppression hearing: United States v. Koenig, 856 F.2d 844 (7th
Cir. 1988) and United States v. Pryba, 502 F.2d 391 (D.C. Cir.
1974). In both of these cases, asserts Momoh, "facts and
circumstances independent of any government regulation existed to
permit the conclusion that the carrier was acting for its own
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private purposes." For example, in Koenig, an employee of Federal
Express, after detecting the odor of a substance used to mask the
smell of cocaine, conducted a search to protect the company's
private interest in preventing the shipment of illegal drugs
through its system. Similarly, in Pryba, the carrier had a private
interest in protecting the integrity of its transport systems from
contraband when the shipper acted suspiciously when dropping off a
package. In the instant case, however, such circumstances are
absent, and the only reason for the search, according to Momoh, was
DHL's desire to enforce the FAA regulations.
This is incorrect. As we have already discussed, DHL had
a number of potential reasons, notwithstanding the FAA regulations,
to inspect Momoh's package. In particular, DHL had an interest in
ensuring that its services were not being used for illegal
purposes, and for that reason, its employees were permitted to
exercise their discretion in conducting searches pursuant to DHL
policy. Therefore, it cannot fairly be said that Rodríguez's
search was undertaken primarily to further the interests of the
government, for there is substantial evidence that DHL conducted
the search of Momoh's package to further its own interests.
In addition to his use of the Pervaz factors, Momoh
states that this case is closely analogous to United States v.
Ross, 32 F.3d 1411 (9th Cir. 1994). In Ross, the Ninth Circuit
held that an airline employee's search of a passenger's luggage
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constituted state action where the employee conducted the search
"to conform with the federal efforts to combat hijacking and
terrorism." Id. at 1413-14. The court held that because of the
government's pervasive involvement in promulgating anti-hijacking
regulations, any search conducted pursuant to those regulations,
even when conducted by a private airline employee, constituted
government action for purposes of the Fourth Amendment. Id.
Momoh's use of Ross, however, is misplaced. The court in
that case specifically noted that the district court's factual
findings distinguished that case from those in which the same court
had "upheld airport searches against claimed violations of the
Fourth Amendment because they were private and not governmental
searches." Id. at 1414 n.1. The district court in Ross had found
that in opening the passenger's luggage, the airline employee was
following airline and FAA procedures pursuant to a government
program. Id. at 1413. There was no evidence at all to
substantiate the government's claim that the employee "conducted
. . . the search to satisfy his own curiosity as to whether the
package contained narcotics." Id. at 1414. Thus, in the absence
of any evidence that the search was a private search, the court
held that search constituted state action. In the instant case,
however, the district court expressly found that DHL conducted the
search of Momoh's package to further its own interests and that the
"general safety interest" embodied in the FAA regulations did not
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convert the private employee into a government agent in this case.
Therefore, there are factual findings here, unlike in Ross, that
allow us to conclude that the search at issue was a private search.
For all of these reasons, we hold that Rodríguez was not acting as
an agent of the government when she opened Momoh's package.
C. Applicability of Fourth Amendment exceptions
The district court held that even if Rodríguez was a
government agent, her search did not violate Momoh's rights because
of the "border search" exception to the Fourth Amendment. The
border search exception provides that routine searches of persons
and effects at borders are permitted without the requirement of
probable cause. United States v. Ramsey, 431 U.S. 606, 619 (1977).
The border search exception is not limited to searches that occur
at the border itself but includes searches that take place at the
"functional equivalent" of a border -- such as, for example, at the
airport prior to a package being sent overseas, or at a post office
where incoming international mail is processed. See Almeida-
Sánchez v. United States, 413 U.S. 266, 272-273 (1973); Ramsey, 431
U.S. at 606, 610 n.2. The district court held that the search of
Momoh's package at the DHL office in Wilmington, Massachusetts was
a "border search."
Although we do not need to reach this issue given our
holding, we note that both parties state that the district court's
reliance on the border search exception was incorrect. We agree,
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for the reasons asserted by the two parties in their respective
briefs. First, it is unclear whether the DHL office in Wilmington
was the functional equivalent of a border. As the government
concedes, the record indicates only that the package was searched
at that office and was intended to be shipped to Nigeria. Second,
a border search is valid only if it is conducted by a person or
persons with statutory authority to make such a search, or by
persons empowered by a delegation of authority to conduct border
searches. United States v. Victoria-Peguero, 920 F.2d 77, 81 (1st
Cir. 1990); United States v. Boumelhem, 339 F.3d 414, 419, 423-24
(6th Cir. 2003). Here, however, there is no evidence that
Rodríguez, either in her capacity as an employee of a private
company or as an agent of the FAA, was statutorily authorized to
make a border search or was empowered by a delegation of authority
to conduct such a search.
We also note the government's argument that, even if
Rodríguez was acting as a government agent, the defendant's rights
were not violated because he consented to the search by signing the
airbill and entrusting his package to DHL's care despite the
statement on the airbill that DHL might open the package. The
district court declined to address this argument. Given our
holding that Rodríguez was not acting as a government agent, we
also decline to address this argument.
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III. Conclusion
For the reasons set forth above, we affirm the order of
the district court.
Affirmed.
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