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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-2598

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
SANTOS VILLARREAL and
SERGIO GONZALEZ,
Defendants-Appellees.

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

(June 11, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
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 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
2

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.
3

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, 110 S. Ct. 2301, 2306 & n.4 (1990); Katz v.
United States, 389 U.S. 347, 357 (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, 106 S. Ct. 1809
(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, 102 S. Ct. 2157,
2172 (1982); Robbins v. California, 101 S. Ct. 2841, 2846 (1981);
United States v. Chadwick, 433 U.S. 1, 11 (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.
4

Individuals do not surrender their expectations of privacy in
closed containers 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, 104 S. Ct. 1652, 1657 (1984); United States v.
Van Leeuwen, 397 U.S. 249, 251 (1970); Ex Parte Jackson, 96 U.S.
727, 733 (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, 104 S. Ct. 1652
(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, 100 S. Ct. 2395, 2404
(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 search subject to the
Fourth Amendment." Illinois v. Andreas, 103 S. Ct. 3319, 3323 n.2
(1983). But if government agents themselves are to open containers
that are sent by mail or private carrier, the requirements of the
Fourth Amendment must be satisfied. Therefore, even if government
5

agents have probable cause to believe that there is contraband in
a container sent by mail or common carrier, they generally cannot
search it unless they first obtain a warrant, or unless some
exception to the warrant requirement applies.1 See Jacobsen, 104
S. Ct. at 1660 n.17; Walter, 100 S. Ct. 2401-02 & n.10; see also
Van Leeuwen, 397 U.S. at 250-53 (upholding detention of mail while
search warrant could be obtained).
The drum opened by the customs agents in this case was a
closed container sent by common carrier in which the sender and
addressee had a reasonable expectation of privacy. Despite the
fact that we do not usually expect personal effects to be found in
a fifty-five gallon drum, such drums are not excluded from Fourth
Amendment protection. We are unwilling to draw distinctions based
on the relative degrees of privacy in different containers and
thereby introduce further complexity to a warrant requirement that
is already riddled with exceptions. See California v. Acevedo, 111
S. Ct. 1982, 1992 (1991) (Scalia, J., concurring) (listing
exceptions). Unless a container is inside an automobile, in which
case it can be searched on probable cause without a warrant, see
id. at 1991, closed, opaque containers generally remain subject to
the warrant requirement.
Although the consignee of the drums was technically a
fictitious person named Roland Martin, this court has made clear
1
A notable exception exists for mail, packages, or other
containers that are entering the United States from abroad. See
United States v. Ramsey, 431 U.S. 606 (1977). This exception is
not applicable here.
6

that individuals may assert a reasonable expectation of privacy in
packages addressed to them under fictitious names. See Richards,
638 F.2d at 770; see also United States v. Pierce, (No. 91-4907)
(Slip Op. April 21, 1992) at 4236 n.11 (drawing a distinction
between packages addressed to the "alter ego" of a defendant, and
those addressed to individuals other than the defendant). It is
not clear whether Roland Martin was the alter ego of Villarreal or
of Gonzales. Villarreal was in possession of the receipt for the
drums that bore the name Roland Martin. Torres apparently
indicated, however, that Gonzales had been identified to him as
Roland Martin. In any event, Villarreal and Gonzales were both the
immediate recipients of the drums, and they conspired together to
get them from the SMT terminal in Corpus Christi. Under these
circumstances, and given the ambiguity associated with the
fictitious name, we find that both Villarreal and Gonzales had a
legitimate expectation of privacy in the drums.
The government has not argued, and we do not find, that the
warrantless search of the drums was justified as an administrative
or regulatory search. The Court has explained that "legislative
schemes authorizing warrantless administrative searches of
commercial property do not necessarily violate the Fourth
Amendment." Donovan v. Dewey, 101 S. Ct. 2534, 2538 (1981). Such
searches are constitutionally valid, however, only if there is a
substantial governmental interest that informs the regulatory
scheme pursuant to which the inspection is made, if warrantless
inspections are necessary to further the regulatory scheme, and if
7

the inspection program provides a constitutionally adequate
substitute for a warrant, in terms of the certainty and regularity
of its application. New York v. Burger, 107 S. Ct. 2636, 2644
(1987). The government has pointed to no regulatory scheme at all
here, much less one that requires warrantless searches to function
effectively. We cannot sua sponte transform a search for
contraband into a safety inspection.
Nor is this a case where the searching officers had reason to
believe that the container contained a "dangerous instrumentality"
such that opening the container was imperative for safety reasons.
See United States v. Chadwick, 433 U.S. 1, 15 n.9 (1977). The
drums were labeled as phosphoric acid, but the record does not
indicate that they posed a hazard to anyone's safety. They were
properly sealed and had been handled without mishap. The customs
agents opened one of the drums to confirm their suspicions that
drugs were inside. This was a search for evidence of a crime, not
an effort to protect the safety of the officers and the SMT
employees at the Brownsville terminal.
The government argues that defendants abandoned any
expectation of privacy they might otherwise have had by
disassociating themselves from the drums. It observes that the
drums were shipped under an assumed name, that Villarreal told
Sylvia Villarreal that the drums actually belonged to Roland
Martin, and that the defendants did not pick them up themselves but
hired others to do so. It relies on our decision in United States
v. Boruff, 909 F.2d 111 (5th Cir. 1990), where we found that a
8

defendant cannot assert a reasonable expectation of privacy in a
vehicle if he "has rendered all of the normal incidents of
ownership, including title and possession, to another and disavows
any knowledge of or interest in it." See also Pierce, (No. 91-
4097) (Slip Op. April 21, 1992); United States v. McKennon, 814
F.2d 1539 (11th Cir. 1987).
This case is distinguishable from Boruff and the other cases
in which courts have found that defendants have no reasonable
expectation of privacy by virtue of their disassociation from the
object of the search. Villarreal and Gonzales never denied their
possessory interest in the drums. They acted through
intermediaries and used fictitious names in an effort to escape
detection, but they consistently acted as if they were the ones who
were to receive the drums. They retained possession of the receipt
for the drums, which was the only indication of ownership
available. They gave the receipt to Torres and Guzman so that
these two could pick up the drums on their behalf, but they took
possession of the drums immediately thereafter. Ultimately,
Gonzales drove off with the drums in Villarreal's pick-up truck.
It can hardly be said that they disassociated themselves from the
object of the search.
The government also urges that the drums are in the special
category of containers which "by their very nature cannot support
any reasonable expectation of privacy because their contents can be
inferred from their outward appearance." Arkansas v. Sanders, 442
U.S. 753, 764 n.13 (1979).; see also Robbins, 101 S. Ct. at 2846
9

(discussing the scope of the Sanders footnote).2 The Supreme Court
has offered gun cases and burglar kits as examples of containers
the distinctive characteristics of which proclaim their contents.
We have been careful to construe this exception narrowly, however,
so as not to embroil ourselves in the task of categorizing
containers on the basis of what they typically contain. See United
States v. Sylvester, 848 F.2d 520, 524-25 (5th Cir. 1988). We have
said that camera bags and hunting boxes fall beyond the scope of
the exception, since their contents cannot be inferred simply by
looking at them. Id.; see also United States v. Donnes, 947 F.2d
1430, 1437-38 (10th Cir. 1991) (rejecting contention that camera
lens case was excepted from the warrant requirement).
The government argues that the contents of the drums could be
inferred because the drums were labeled as phosphoric acid and the
shipping order indicated that they contained phosphoric acid. Thus
the customs agents violated no reasonable expectation of privacy
when they opened one of the drums and found marijuana within. In
the government's view, the defendants never had an expectation of
privacy because the drums literally proclaimed their contents for
all to see.
We are not persuaded. The fact that the exterior of a
container purports to reveal some information about its contents
does not necessarily mean that its owner has no reasonable
expectation that those contents will remain free from inspection by
2
While both Sanders and Robbins have been overruled, the
logic of the Sanders footnote has survived. See United States v.
Donnes, 947 F.2d 1430, 1437 (10th Cir. 1991).
10

others. Stated another way, a label on a container is not an
invitation to search it. If the government seeks to learn more
than the label reveals by opening the container, it generally must
obtain a search warrant. See Walter v. United States, 100 S.Ct.
2395 (1980) (defendants did not lose all expectation of privacy in
pornographic films when their descriptive labels were exposed to
plain view). It goes without saying that a defendant can orally
inform a police officer what is in a container, yet stand on his
rights and refuse to allow the officer to search that container.
The same result should obtain when the information is written on
the container rather than orally revealed.3
If, as some courts have suggested, the rule the government
seeks to invoke is properly characterized as a "plain view"
exception to the warrant requirement, see Robbins, 101 S. Ct. at
2846 (referring to the rule of the Sanders footnote as "little more
than another variation of the plain view exception"); Donnes, 947
F.2d at 1437 (referring to the "plain view container exception"
established by Sanders and Robbins), the government's theory fares
no better. The labels on the drums did not expose the
incriminating contents of the drums to plain view. In fact, they
masked the true contents of the drums. The plain view exception is
intended to allow police officers to seize incriminating items that
they discover in the course of their legitimate law enforcement
3
We do not consider here whether an individual could
have a reasonable expectation of privacy in a container when he
has plainly communicated its incriminating character to the
public -- if, for example, the drums in this case were labeled as
marijuana.
11

activities, see Horton v. California, 110 S. Ct. 2301, 2307-08
(1990); Donnes, 947 F.2d at 1438; United States v. Eschweiler, 745
F.2d 435, 439-40 (7th Cir. 1984), not to justify warrantless,
exploratory searches of containers that purport to contain
innocuous materials. But see Sylvester, 848 F.2d at 524 ("If a
violin case is found to contain a machine gun, so much the worse
for its owner.").
The government also contends that the customs agents obtained
consent to search the drums. Putting aside the question of whether
a common carrier has the authority to consent to a search on behalf
of the consignor and consignee of a package4, the district court
properly concluded that no consent was given here. "Where the
validity of a search rests on consent, the State has the burden of
proving that the necessary consent was obtained and that it was
freely and voluntarily given, a burden that is not satisfied by
showing a mere submission to a claim of lawful authority." Florida
v. Royer, 103 S. Ct. 1319, 1324 (1983). The government must prove
consent by a preponderance of the evidence. United States v.
Hurtado, 905 F.2d 74, 76 (5th Cir. 1990). Gracia testified at the
suppression hearing that he did not tell the customs agents to open
the drums. Nor did he ask them to do so. He simply informed them
that these drums were suspicious and left it to them to decide what
to do about it. This was company policy. The customs agents did
4
At least one court has found a Fourth Amendment
violation despite the fact that a common carrier directed police
officers to search a container that was in its custody. United
States v. Grant, 920 F.2d 376, 389 (6th Cir. 1990).
12

not testify that they relied on the consent of SMT employees to
open the drums. The district court was entitled to conclude that
this was nothing more than a report of some suspicious drums and
that the government failed to prove consent.
In short, we have found no justification for a warrantless
search of the drums. The government clearly had probable cause,
but "'no amount of probable cause can justify a warrantless search
or seizure absent exigent circumstances." Horton, 110 S. Ct. at
2308 n.7 (quoting Taylor v. United States, 286 U.S. 1 (1932)). The
government has not shown any exigent circumstances here. Indeed,
it concedes that there was plenty of time to obtain a search
warrant and there was no law enforcement value served by performing
the search without one. There was no danger that the drums could
be lost or destroyed. Government counsel at the suppression
hearing below was at a loss to explain why the customs agents
failed to obtain a warrant. We cannot correct this oversight after
the fact.
AFFIRMED.
13