Filed: Nov. 10, 2008
Latest Update: Feb. 21, 2020
Summary: package addressed to Boyd.the hotel.States v. Pervaz, 118 F.3d 1, 6 (1st Cir. Boyds specific challenges to the 3 district courts rationale fall short.requests from Officer Murray to Gulley also is of no import.intended from the outset that Gulley would search the package.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1114
UNITED STATES,
Appellee,
v.
GRANT BOYD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Lipez and Howard,
Circuit Judges.
James H. Budreau on brief for appellant.
Jennifer Hay Zacks, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on motion for summary
disposition.
November 10, 2008
Per curiam. Defendant Grant Boyd conditionally pled
guilty to possessing and conspiring to possess methamphetamine with
intent to distribute, 21 U.S.C. §§ 841(a)(1), 846, and conspiring
to launder money, 18 U.S.C. § 1956. He appeals the district
court’s denial of his pretrial motion to suppress evidence, in
which he contended that a Fedex internal security officer had acted
as an agent and instrument of the government when he opened a
package addressed to Boyd. Finding no error, we summarily affirm
Boyd’s conviction. See 1st Cir. R. 27(c).
In December 2004, Boyd sold methamphetamine to a
confidential informant who was cooperating with an FBI/DEA drug
task force. Massachusetts State Trooper Shawn Murray, a task force
member, learned that a “nervous” Boyd had informed the staff at his
hotel that he was expecting delivery of a package. Officer Murray
contacted the local Fedex office, and asked the internal security
officer Joe Gulley to keep an eye out for any package addressed to
the hotel. Gulley intercepted the package before delivery, and
based on its suspicious appearance (e.g., heavily taped, shipped
from a California freight-forwarding office, and addressed to a
hotel, rather than a business or residence), he decided to open the
package, whereupon he discovered a white powder. Gulley notified
Officer Murray, who confirmed that the powder’s appearance was
consistent with methamphetamine. Boyd was arrested at his hotel
when he accepted receipt of the rewrapped package. Gulley’s
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opening and inspection of the package was one ground for the
issuance of a search warrant to search Boyd’s hotel room, where
police seized further evidence of his drug trafficking.
After Boyd was charged with drug trafficking and money
laundering, he moved to suppress both the metamphetamine seized
from the package and the other evidence found in his hotel room,
based on his contention that his Fourth Amendment rights were
violated because Gulley had not acted as a private party when he
searched the package, but as an “agent” or “instrument” of the
government (viz., Officer Murray). See United States v. Momoh, 427
F.3d 137, 140 (1st Cir. 2005). When the district court rejected
this contention at the close of an evidentiary hearing, Boyd
entered a conditional guilty plea.
We must affirm the district court’s denial of appellant’s
suppression motion “‘if any reasonable view of the evidence
supports the decision.’” United States v. Carrasco, 540 F.3d 43,
49 (1st Cir. 2008) (citation omitted). The district court
correctly applied the three-factor standard set forth in United
States v. Pervaz,
118 F.3d 1, 6 (1st Cir. 1997), which assesses the
extent of the government’s role in instigating or participating in
the search, the government’s intent and the degree of control it
exercised over the search and the private party, and the extent to
which the private party aimed primarily to help the government or
to serve its own interests. Boyd’s specific challenges to the
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district court’s rationale fall short.
He first suggests that Officer Murray “instigated”
Gulley’s search because Gulley would not have located and opened
the package (which was already en route for delivery) but for
Murray’s tip. The “instigation” criterion is not satisfied merely
because the police have made some prior contact with the private
party. Id. at 5. Instigation “properly means ‘affirmative
encouragement,’ or alternatively, ‘coercing,’ ‘dominating,’ or
‘directing’ an individual.”
Momoh, 427 F.3d at 141 (citations
omitted);
Pervaz, 118 F.3d at 6 (affirming a non-instrumentality
determination even though “probably . . . there would have been no
search made by COB employees were it not for Agent Barnard's
telephone call”). The district court credited Officer Murray’s
testimony that he merely told Gulley to keep an eye out for any
package addressed to the Nine Zero Hotel, perhaps with a view to
his obtaining a search warrant to open it, and that he did not
coerce Gulley, or even ask that Gully seize or search the package
on his own. See United States v. Espinoza,
490 F.3d 41, 46 (1st
Cir. 2007) (observing that the district court’s credibility
determinations at a suppression hearing are entitled to utmost
deference). Under Pervaz, therefore, appellant’s attempted
reliance on the cumulative history of similarly non-instigative
requests from Officer Murray to Gulley also is of no import.
With respect to the question of Officer Murray’s intent,
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appellant again suggests that, given the long history of
cooperation between Officer Murray and Gully, “a reasonable
inference could be easily and naturally be drawn that [they] had a
tacit understanding” that Officer Murray intended that Gulley
invariably would search any package which Officer Murray flagged
for him. The district court chose not to draw that inference,
however, id., instead crediting Gulley’s testimony that, when
exercising his prerogatives as Fedex’s internal security officer,
he did not always open and inspect packages after receiving tips
from law enforcement, and that he independently decided to open
appellant’s package because it was heavily taped, it had been
shipped by a freight-forwarding office located in California, and
it was addressed to a hotel, rather than a business or residence.
This evidence undermines the inference that Officer Murray knew or
intended from the outset that Gulley would search the package.
Finally, appellant suggests that, given the long history
of cooperation between Officer Murray and Gulley, “[t]here is only
one reasonable conclusion that can be drawn from Gulley’s
extraordinary effort to secure this package: he wanted to assist
Murray in his investigation,” rather than promoting Fedex’s own
private interests. The mere fact that Gulley may have wanted,
among his many motives in seizing and searching the package, to
help Officer Murray’s criminal investigation does not preclude a
district court determination that Gulley acted with mixed motives,
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and that one of those compelling motives was to protect Fedex’s own
legitimate interests. See Momoh, 427 F.3d at 141-42 (noting that
private carriers have a common-law right to guard against the
transport of contraband, that “it is likely that the company was
motivated by more than a desire to comply with FAA regulations,”
and “had a number of potential reasons, notwithstanding the FAA
regulations, to inspect Momoh's package”);
Pervaz, 118 F.3d at 6.
Fedex paid Gulley to act as its internal security officer, and
specifically to effectuate its stated policy of preventing its
transport of contraband.
The judgment of conviction is affirmed, and the
government’s pending motion to file an appellate brief is dismissed
as moot. See 1st Cir. R. 27.0(c).
Affirmed.
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