                 UNITED STATES COURT OF APPEALS
                      for the Fifth Circuit

              _____________________________________

                           No. 93-2056
              _____________________________________

                       UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellant,

                                 VERSUS

              MARY JANE JENKINS, EVAN PETER PIGMAN,
               JO ANN ROCHELLI, DAVID CARL STUBBS,
         RICKIE HERBERT RANNEY, and LARRY WAYNE MALADY,


                                                Defendants-Appellees.

     ______________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
     ______________________________________________________
                        (February 20, 1995)
Before WISDOM, KING and DUHÉ, Circuit Judges.


DUHÉ, Circuit Judge:

     The government appeals from the grant of Appellees'1 motions

to suppress evidence.       For the reasons below, we find that the

district court's holding was based on a misapprehension of the

applicable law, and therefore we reverse, render and remand.

                       I.   PROCEDURAL BACKGROUND

     In April 1991, a grand jury for the Southern District of Texas

indicted Appellees for racketeering and interstate shipment of

obscene materials via common carrier.     Appellees moved to suppress

evidence obtained from five searches of bookstores and businesses


1
     Co-defendants Larry Wayne Malady, Jo Ann Rochelli and Rickie
Herbert Ranney are not party to this appeal.
owned or controlled by Jenkins in Alabama, Louisiana, Missouri,

Tennessee and Texas, and from the search of a vehicle owned by

appellee Stubbs.            These searches were made pursuant to warrants

issued on probable cause, based on evidence gathered without a

warrant by virtue of a cooperating witness.                As will be discussed

more fully below, the propriety of the search warrants is not

directly   at    issue.         Rather   this     appeal   addresses   Appellees'

contention      that    the    preliminary       warrantless     search--involving

allegedly obscene videotapes made available by the cooperating

witness--was constitutionally infirm.2

     Following         an     evidentiary       hearing,   the    district   court

suppressed all evidence seized as a result of the warrantless,

preliminary search.             The government moved for reconsideration

raising for the first time the issue of the Appellees' standing to

challenge the preliminary search.                The district court denied the

motion, and the government filed the instant appeal.

                              II.   FACTUAL BACKGROUND

A.   The Appellees

     Mary Jane Jenkins, a resident of St. Louis, owned and operated

Phoenix and Associates Management, Ltd., a Missouri corporation

formed to manage 17 "adult" bookstores.               Evan Peter Pigman, also a

resident of St. Louis, worked as general manager and president of


2
     We note that the validity of similar search warrants has
previously been appealed to the United States Court of Appeals for
the Sixth Circuit.   The Sixth Circuit remanded the case to the
district court for an evidentiary hearing on the exact issue
presently before us. See White Fabricating Co. v. United States,
903 F.2d 404 (6th Cir. 1990).

                                            2
Phoenix and Associates.      Each of Jenkins' 17 adult bookstores

included a "video arcade," consisting of "peep machines," that

exhibited pornographic videotapes. Customers viewed the videotapes

by inserting coins or tokens into the machines. White Fabricating,

located in Cleveland, Ohio, owned and operated the peep machines

and supplied videotapes for exhibition in the machines.

     Each week, White Fabricating's regional representatives would

receive videotapes shipped by White Fabricating via United Parcel

Service (UPS).      The White representatives would then proceed to

Jenkins' stores, insert new videotapes into the machines, retrieve

the prior weeks' videotapes and remove money from the machines.

David Stubbs, a resident of Houston, supervised the installation of

videotapes in adult bookstores throughout the south for White.

B.   The Searches

     The search warrants were executed as part of a series of

multi-city searches of adult bookstores purportedly exhibiting

obscene   videotapes.      Much   of       the   evidence   adduced   at    the

suppression hearing was identical to evidence presented to the

United States Court of Appeals for the Sixth Circuit.             See White

Fabricating Co. v. United States, 903 F.2d 404 (6th Cir. 1990).

     As described in White Fabricating, Cleveland FBI agent Jim

Larkin drafted a model "national affidavit" detailing shipments of

allegedly obscene videotapes from a source in Cleveland to various

adult bookstores located throughout the United States.                     Agent

Larkin used this affidavit to obtain warrants authorizing the

search of Diversified Industries and White Fabricating, the alleged


                                       3
source of the obscene videotapes. FBI agents used portions of this

affidavit to obtain warrants authorizing the search of adult

bookstores that had allegedly received copies of the obscene

videotapes for their peep machines.

          The affidavit asserted that the plaintiffs were
     involved in a pattern of racketeering activity,
     interstate transportation of obscene material and
     transportation of obscene material for sale and
     distribution, conspiracy to defraud the United States,
     money laundering, and aiding and abetting in these
     criminal activities. The allegations contained in the
     affidavit were based on a six-month investigation by the
     FBI which involved the plaintiffs and two other
     companies.   The investigation disclosed a pattern of
     weekly shipments of allegedly obscene video tapes from
     Cleveland, Ohio to adult book stores and peep shows
     throughout the United States.

          The investigation revealed that DI [Diversified
     Industries] manufactured video peep show booths which
     were subsequently installed in adult book stores. DI
     also supervised regional companies that oversaw peep show
     operations in their various geographic areas.       These
     service companies would receive the video tapes, place
     them in a video machine in a peep show booth,
     occasionally service the machine, keep records of profits
     generated from the machines, and send back to DI a
     certain percentage of the proceeds generated.         The
     investigation also revealed a meticulous method of
     accounting for profits which included the use of locked
     cash boxes which required keys to open, profit and
     balance sheet records, extensive use of cashier's checks,
     and the disbursal of deposits of cash into a number of
     banks to avoid the $10,000 minimum reporting requirement
     imposed on these banks.

          White was allegedly one of DI's service companies.
     The investigation indicated that White was substantially
     engaged   in    the   duplication,   installation,    and
     distribution of the allegedly obscene video tapes which
     were placed in the various peep show booths. White would
     first receive approximately fifteen "master" video tapes,
     which White would duplicate, using some one hundred video
     cassette recorders. White's employees would then package
     the video tapes for shipment to adult book stores
     scattered throughout the country.



                                4
          Government agents, for five weeks, monitored the
     shipment of video tapes from White to a "cooperating
     witness," an employee or associate of one of the
     plaintiffs. His particular job allegedly involved
     receiving the shipment of video tapes from White in
     Cleveland, and then installing the various duplicated
     video tapes in adult book stores in a particular city.
     On approximately June 1, 1988, this cooperating
     individual allegedly began to allow law enforcement
     officials to examine the video tape cassettes and to make
     copies of them for subsequent viewing. The government
     agents viewed seventy-five different tapes, drafting
     detailed written descriptions of the contents of fifty
     video tapes.

          Based on this information, along with other
     information allegedly supplied by cooperating witnesses,
     Agent Larkin concluded that probable cause existed to
     support the search warrants authorizing the search of the
     plaintiffs' premises.     Written descriptions of the
     content of the allegedly obscene fifty video tapes were
     furnished to the magistrate, along with the extensive
     affidavit. Based on the affidavit, the fifty written
     descriptions, and after personally viewing four of the
     video tapes, the magistrate issued the warrants.

Id. at 406-07.    At issue in the instant appeal is whether the

Appellees'   Fourth   Amendment   rights   were   violated   when   the

government obtained access to the videotapes via the cooperating

witness without a specific warrant.

     During the initial stages of the investigation, FBI agents

obtained permission from UPS to examine certain parcels shipped

from White Fabricating to various locations.      From the exterior of

the parcels, the agents could ascertain their destination, but were

not able to learn any information about their contents.             FBI

agents visited the establishments designated for receipt of the

parcels, and viewed the videotapes in the same manner as an

ordinary customer, i.e., by inserting coins or tokens in the peep

machines.


                                  5
       This process, however, proved expensive and unworkable because

the FBI was unable to link the allegedly obscene videotapes viewed

to the UPS parcels, and was therefore unable to track their

shipment in interstate commerce.               The agents decided to recruit a

cooperating witness who could permit access to the contents of the

UPS shipments.     After some investigation, the agents determined to

approach Mark Boyd (Boyd), the sole White Fabricating employee in

Memphis, Tennessee.

       Two FBI agents approached Boyd and informed him that he had

been identified as a possible prosecution target for interstate

transportation of obscene materials.                The agents asked Boyd if he

would cooperate        in   their   investigation,         and   he    agreed.     The

district court did not find that the FBI promised Boyd immunity or

any other incentive for his cooperation.                     The district court

specifically found, however, that the FBI failed to apprise Boyd of

his right to refuse to cooperate.

       Essentially, Boyd agreed that he would continue to follow his

normal routine.        As usual, he picked up the White Fabricating

shipment    at   the    Paris    Theater       in   Memphis.      However,       after

retrieving each parcel, he met with the FBI and the local police.

Boyd   opened    the   parcels      in   the    presence    of   the    agents,    who

photographed and inventoried their contents.                 As set forth in the

district court's memorandum opinion,

            Generally, Boyd would receive four sets, or
       "libraries", of 15 video-tapes on each delivery.       He
       would provide one library of 15 video-tapes to the FBI,
       which included seven duplicate copies that the FBI was
       permitted to keep.     The eight "original" video-tapes
       would be returned to Boyd the following morning after the

                                          6
      FBI had copied them. This procedure occurred on five
      occasions in June of 1988, resulting in a total
      collection of 75 video-tapes. Of that collection, 50
      video-tapes were viewed and written reports were prepared
      by various FBI agents and presented to Special Agent
      Larkin.

           Boyd was the sole employee of White Fabricating in
      Memphis.   He received all of his instructions from
      management and reported directly to the Cleveland office.
      It is undisputed that Boyd did not have permission from
      his employer to provide originals and copies of various
      video-tapes to the FBI. Further, no dispute exists that
      Boyd was not the owner of the video-tapes at any time,
      was not a manager or owner of the company that produced
      the video-tapes, and that Boyd was not to reveal his
      agreement and conduct with the FBI to his employers. The
      testimony establishes that Boyd was not and has not been
      charged in any indictment. Special Agent Larkin further
      testified that he was not aware of any payment(s) made to
      Boyd by federal or local officials, and that he had not
      authorized any payment, even for reimbursement for
      expenses.

                 III.     CONSTITUTIONALITY OF THE SEARCH

      Simply put, warrantless searches are per se unreasonable, and

therefore unconstitutional, unless they fall into one of the few

specifically established and well-defined exceptions to the general

rule.    See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.

2041,    2043   (1973).      "[O]ne   of   the   specifically   established

exceptions to the requirements of both a warrant and probable cause

is a search that is conducted pursuant to consent."             Id. at 2043-

44.     The government's ability to rely upon the consent exception

depends on two factors.       First, the

government must show that the consent was given voluntarily.            See

Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792

(1968),

      When a prosecutor seeks to rely upon consent to justify
      the lawfulness of a search, he has the burden of proving

                                      7
      that the consent was, in fact, freely and voluntarily
      given. This burden cannot be discharged by showing no
      more than acquiescence to a claim of lawful authority.

(footnotes omitted). Second, the prosecution must show that either

the defendant himself consented to the search or that consent was

obtained from a third party that had the ability to furnish valid

consent.   See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct

988, 993 (1974).       We will address the issues of voluntariness and

authority to consent seriatim.

A.    Standard of Review

      The standard of review of a district court's ruling on a

motion to suppress is well defined in this Circuit.              "We employ a

two-tier standard...reviewing the district court's factual findings

for    clear   error     and   its     ultimate     conclusion   as   to    the

constitutionality of the law enforcement action de novo."              United

States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993).               "We

consider the evidence in the light most favorable to the prevailing

party when we review the granting of a motion to suppress.                  The

district court's factual findings are accepted unless they are

clearly erroneous.        Questions of law are reviewed de novo.".

United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).

B.    Voluntariness of Consent

      The Supreme Court has set forth the standard by which the

voluntariness    issue     must   be    assessed.       See   Schneckloth    v.

Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2047-48,

      [T]he question whether consent to a search was in fact
      "voluntary" or was the product of duress or coercion,
      express or implied, is a question of fact to be
      determined from the totality of all the circumstances.

                                        8
We   have   previously    enumerated       six   factors    relevant    to    this

"totality of the circumstances" test:

            (1) the voluntariness of the defendant's
            custodial status; (2) the presence of coercive
            police procedures; (3) the extent and level of
            the defendant's cooperation with the police;
            (4) the defendant's awareness of his right to
            refuse to consent; (5) the defendant's
            education and intelligence; and (6) the
            defendant's belief that no incriminating
            evidence will be found.

      In doing so,    we have noted that "although all of the
      above factors    are highly relevant, no one of the six
      factors   is     dispositive  or   controlling  of  the
      voluntariness   issue."

United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir.

1988)(citations omitted).

      The district court relied on six factors in determining that

Boyd's consent was not voluntary, however, of these six factors

only one appears among the list we have set forth.                     The first

factor relied on by the district court is that Boyd was not

apprised of his right to refuse to cooperate.              While this factor is

certainly relevant to the analysis, the district court appears to

have ascribed it far too much weight.

      "While knowledge of the right to refuse to consent is one

factor to be taken into account, the government need not establish

such knowledge as the sine qua non of an effective consent."

Schneckloth v. Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2048; see

also,   United   States   v.   Davis,      749   F.2d   292,    296    (5th   Cir.

1985)("Proof of knowledge of the right to refuse consent is not

required to show voluntariness.").           The district court's reliance

on authority to the contrary from the Sixth Circuit is misplaced.

                                       9
     United States v. Jones3 is inapplicable for the very reason

that the district court confesses.    The Sixth Circuit concluded

that, at the time of the search, Jones had been placed in custody

but had not been informed of his Miranda rights.   Because the court

determined that Jones had in fact been arrested, and not apprised

of his rights, all indicia of voluntariness were lacking.          In

contrast, there is no evidence that Boyd was ever taken into

custody or otherwise made subject to the control of law enforcement

officers.   Likewise, in United States v. Grant4 the court found

that "Grant was improperly seized by the agents [and therefore],

his subsequent consent to the search of his carry-on bag did not

overcome the taint of the agents' prior conduct."    Id. at 388.

     The district court listed five other factors on which its

voluntariness ruling appears to be based.

     (a) Boyd was not indicted, (b) Boyd did not have the
     consent of his employer to permit the FBI to inventory
     and copy the video-tapes and the packages' content; (c)
     Boyd was to keep his activities a secret and not reveal
     his conduct to his employer; (d) Boyd did not own any
     part of the business or the video-tapes; and (e) all
     parties knew that Boyd would be acting on behalf of the
     FBI in providing copies of video-tapes to the FBI.

The simple fact is that while some of these factors may be relevant

to the issue of Boyd's authority to consent, none of these factors

relates to the voluntariness of his consent. For example, the fact

that Boyd was not indicted could also be indicative of voluntary




3
     846 F.2d 358 (6th Cir. 1988).
4
     920 F.2d 376 (6th Cir. 1990).

                                10
consent, because it tends to indicate a lack of coercion by law

enforcement officials.

     The fact that Boyd did not have his employer's consent to

allow the FBI to copy the videotapes, and the fact that Boyd was to

keep his activities a secret are not relevant to the voluntariness

analysis       because   they   are   true   in   almost   every   confidential

informant or cooperating witness situation.            Despite the existence

of these factors, it is beyond question that the government has the

right     to    investigate     possible     illegal   activity,5    and   this

investigative power encompasses the right to use confidential

sources.6       Persons who engage in illegal activities involving

others assume the risk that their confidences may be betrayed, and

that evidence of illegality may be disclosed to law enforcement

authorities. See, e.g., Hoffa v. United States, 385 U.S. 293, 301-

03, 87 S.Ct. 408, 413-14 (1966).

     Turning to the factors which we have determined are relevant

to the question of voluntariness, we find that they, based on the

record before us, militate in favor of a finding that Boyd's

consent was voluntary.

     1.     Voluntariness of Boyd's Custodial Status

5
     See e.g. Gibson v. Florida Legislative Investigation Comm.,
372 U.S. 539, 543-45, 83 S.Ct. 889, 892-93.
6
     See, e.g., Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct.
424, 427 (1966)("Such a rule [prohibiting the use of undercover
agents] would, for example, severely hamper the Government in
ferreting out those organized criminal activities that are
characterized by covert dealings with victims who either cannot or
do not protest."); Pleasant v. Lovell, 974 F.2d 1222, 1232 (10th
Cir. 1992)("The government has the right to use informants and to
keep abreast of possible criminal activity.").

                                        11
      The record contained no facts upon which it could reasonably

be concluded that Boyd was in any form of custodial status when he

consented to cooperate.          Boyd was approached either at home or in

a parking lot, there was no one other than Boyd, perhaps his wife,

and two FBI agents--in plain clothes, and not displaying firearms--

present, Boyd had no pending legal problems, and he was apprised

that his cooperation would be strictly voluntary. Furthermore, the

record does not indicate any restrictions on Boyd's movements, and

in   fact indicates       that   Boyd   continued     in    his    normal   routine

throughout the period of cooperation.

      2. Coercive Police Procedures

      Likewise, the record contains no evidence of coercive police

procedure.    The only fact that can even remotely be placed in this

category is that Boyd was informed by the FBI that he was a

potential target for criminal prosecution.                 The record indicates

that this statement was true, and there is no showing that the

statement    was   made    in    an   effort   to   coerce   cooperation.       In

addition, Boyd was also informed that his cooperation was voluntary

and would    not   be     rewarded    financially     or    with    immunity   from

prosecution.

      Finally, there is no indication that Boyd's cooperation was

immediate.    While he apparently agreed during the initial meeting

to cooperate, the actual plan for cooperation was not conceived

until a second meeting with the FBI, and his actual cooperation,

and consent to the search, did not commence until the first time he

met the FBI with a shipment of videotapes.              The lack of immediacy


                                         12
of cooperation infers that Boyd had time to consider his decision

outside of law enforcement presence, and therefore indicates a lack

of coercion.

       3. Extent and Level of Cooperation

       The extent and level of Boyd's cooperation weigh heavily in

favor of a finding of voluntariness.   Boyd cooperated with the FBI

over a period of five weeks.   He met with the FBI on two occasions

prior to the first shipment of videos being made available to the

FBI.    He picked up each of the five shipments and brought them to

a predetermined location to meet with the FBI.   He opened the boxes

in the presence of the FBI, and permitted the FBI to retain a set

of videotapes overnight for the purpose of copying them.       Boyd

further allowed the FBI to retain seven "duplicate" videotapes. In

addition, as mentioned above, the fact that a period of time

elapsed between the time Boyd was asked to cooperate and the

commencement of his actual cooperation indicates that he had time

to consider his decision.   The plain inference to be drawn from the

extent and duration of Boyd's cooperation is that his cooperation

was voluntary.

       4. Boyd's awareness of his right to refuse to consent

       While the district court concluded that Boyd had not been

appraised of his right to refuse to cooperate, FBI Agent Larkin

merely testified that "I don't know the answer to that question"

when he was asked whether the agents had informed Boyd that he

could refuse to cooperate.     However, assuming that the district

court's conclusion was correct, Larkin also testified that the


                                 13
agents made Boyd aware that his cooperation was strictly voluntary.

Based on the other details of Boyd's cooperation, and the fact that

he was specifically informed that his cooperation was voluntary,

the fact that he may not have been specifically told "you may

refuse to cooperate" does not provide much, if any, indicia of

involuntariness.

     5. Boyd's Education and Intelligence and His Belief that the
     Search would not Reveal Incriminating Evidence.

     The record is insufficient for us to render an informed

analysis of the last two items.         While it is undisputed that Boyd

lacked a    college     degree,   no   testimony   was   adduced   that   Boyd

suffered under-average intelligence or was otherwise deficient in

his ability to understand the FBI request.         In fact, the indication

is that Boyd participated in the development of the plan by which

the FBI gained access to the tapes.         Absent a contrary finding by

the trial court, we can infer from the evidence the Boyd is of at

least average intelligence and had the ability to render informed

consent.    On the issue of Boyd's belief that the search would

reveal no incriminating evidence, the record is silent. Due to the

paucity of evidence on these two elements, we do not consider them

in our overall analysis.

     6.    Conclusion

     Even without evidence sufficient to reach a conclusion on the

last two factors, consideration of the first four factors leads to

a conclusion different from the conclusion reached by the district

court.     Because we find that the district court gave improper

weight to certain factors, considered a number of inappropriate

                                       14
factors and did not properly consider a number of relevant factors

which lead to a contrary conclusion, we find the district court's

holding to be clearly erroneous and the result of the application

of an incorrect legal standard.      For the reasons set forth above,

we hold that Boyd's consent was voluntary.

C.   Effectiveness of Consent

     The district court found that Boyd lacked the authority to

permit the government to copy the videotapes, and thereby concluded

that Boyd's consent, even if voluntary, was not effective.        The

district court's holding seems to be based on two theories, both of

which are based on a flawed application of settled law.    First, the

court decided that Boyd became an "agent" of the United States by

allowing the government access to the videotapes.     The court also

determined that Boyd lacked sufficient authority to allow the

government access to the tapes.     We will address these theories in

reverse order.

     1.    Authority to Consent

     As with all explorations of Fourth Amendment jurisprudence

addressing the validity of searches, whether a constitutional

interest has been violated depends on whether the questioned

governmental conduct infringed upon a reasonable expectation of

privacy.    See e.g. United States v. Jacobsen, 466 U.S. 109, 113,

104 S.Ct. 1652, 1656 (1984).      The constitution does not guarantee

that a citizen will never be subjected to any search, but rather

that a citizen is entitled to be free from unreasonable searches.




                                   15
See Illinois v. Rodriguez, 497 U.S. 177, 183-84, 110 S.Ct. 2793,

2799 (1990),

       What Rodriguez is assured by the trial right of the
       exclusionary rule, where it applies, is that no evidence
       seized in violation of the Fourth Amendment will be
       introduced at his trial unless he consents. What he is
       assured by the Forth Amendment itself, however, is not
       that no government search of his house will occur unless
       he consents; but that no such search will occur that is
       "unreasonable."

(citation omitted). As discussed previously, one of the exceptions

to the presumptive illegality of a warrantless search is consent to

the search.    At the outset, we note that the Supreme Court has held

that the Fourth Amendment does not have to be waived through a

"knowing and intelligent" waiver by the person asserting the right.

       There is a vast difference between those rights that
       protect a fair criminal trial and the rights guaranteed
       under the Fourth Amendment.     Nothing, either in the
       purposes behind requiring "knowing" and "intelligent"
       waiver of trial rights, or in the practical application
       of such a requirement suggests that it ought to be
       extended to the constitutional guarantee against
       unreasonable searches and seizures.

Schneckloth v. Bustamonte, 412 U.S. at 241, 93 S.Ct. at 2055.

Since a "knowing" and "intelligent" waiver is not required by the

individual whose right is being waived, there is no prohibition

against a third party waiving that right by granting consent to

search.    See United States v. Matlock, 415 U.S. at 171, 94 S.Ct at

993,

       [W]hen the prosecution seeks to justify a warrantless
       search by proof of voluntary consent, it is not limited
       to proof that consent was given by the defendant, but may
       show that permission to search was obtained from a third
       party who possessed common authority over or other
       sufficient relationship to the premises or effects sought
       to be inspected.


                                  16
     Because the government relies on the effectiveness of Boyd's

consent,    the   government   must   show   that   Boyd   had   sufficient

authority to permit the agents to copy and view the videotapes.

While it is clear that Boyd was not the owner of the videotapes,

ownership is not the sine qua non of authority to consent.              See

e.g., United States v. Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at

993 n. 7,

     The authority which justifies the third-party consent
     does not rest upon the law of property, with its
     attendant historical and legal refinements, but rests
     rather on mutual use of the property by persons generally
     having joint access or control for most purposes, so that
     it is reasonable to recognize that any of the co-
     inhabitants has the right to permit the inspection of his
     own right and that the others have assumed the risk that
     one of their number might permit the common area to be
     searched.

(citations omitted, emphasis supplied). Thus, the district court's

task was to determine whether the record supported the government's

reliance on Boyd's joint access or control over the videotapes.

Our starting point must be the court's holding.

     In its memorandum opinion the district court held,

          The Court is of the opinion that no presumption of
     authority arises simply because Boyd had lawful access to
     the video-tapes. See Walter v. United States, 447 U.S.
     649 (1980). Assuming that such a presumption existed, it
     is rebutted by the fact that Boyd was instructed by the
     FBI not to disclose his activities to his employer.

          It is imperative to note that Boyd did not share
     ownership of the video-tapes with his employer, as one
     who might share in the ownership of a piece of property.
     It is undisputed that Boyd needed permission from his
     employer to do anything with the video-tapes other than
     that called for in his job. Because no presumption of
     authority exists or arises, the government cannot rely
     upon the officials "good faith" belief that consent given
     by Boyd was effective. See Mengarelli, 426 F.2d at 988.


                                      17
      This is so because the Court distinguishes between mere
      possession and possession with authority.

           In the case at bar, the evidence shows mere
      possession. Simply because the handyman picks up the
      mail each day and delivers it to the appropriate
      location, does not give the handyman the authority to
      open the mail and share it with others. Walter, 447 U.S.
      649.   Thus, authority to possess and handle is not
      authority to view and share.      The evidence fails to
      establish by a preponderance that Boyd had any authority
      beyond possessory authority.

Our reading of the above language indicates that the district

court's    conclusion   as     to   Boyd's    authority   was    based   on   two

misguided interpretations of law. First, the district court states

that possession with apparent authority is insufficient grounds for

the government     to   show    consent.       Second,    the   district   court

concluded that Boyd lacked actual authority to consent to the

government's copying and subsequent viewing of the tapes.                Because

we find that Boyd had actual authority over the videotapes, we need

not engage in a detailed discussion of apparent authority.

      a.   Indicia of authority

      Certain facts relevant to Boyd's control over the videotapes

are uncontroverted.     Boyd was the sole White Fabricating employee

in Memphis, he was the intended recipient of the packages shipped

by White Fabricating, he was authorized to open the packages, he

was   authorized   to   extract     the     videotapes,   he    had   sufficient

dominion and control over the packages that he could pick them up

and carry them away7 and the agent's testimony indicates that he

7
     The status of the seven "duplicate" videotapes that Boyd
allowed the government to keep is not clear from the record.
However, there is no indication from the record that White
Fabricating ever missed the videotapes when they were not returned.

                                       18
had, at minimum, apparent authority to view the videotapes, at

least to the extent necessary to make sure that the machines were

functioning correctly.      Boyd was the only person in Memphis with

the foregoing authority over the videotapes.

     To   complete   the   district    court's   handyman   analogy,   this

handyman's job was not only to pick up the mail and take it to the

appointed spot, but also to open the mail and tack it up for public

display at a quarter per peek.        Appellees argue, and the district

court found, that White Fabricating never gave Boyd permission to

allow the FBI to copy or view the videotapes.         While this fact is

clearly true, it is a red herring which has no effect on Boyd's

actual or apparent authority.

     b.   Assumption of risk

     Having vested possession and almost absolute control in Boyd,

the law is well settled that Appellees assumed the risk that Boyd

would engage in unauthorized conduct with the videos.            See e.g.

United States v. Matlock, 415 U.S. at 171 n.        Frazier v. Cupp, 394

U.S. 731, 740, 89 S.Ct. 1420, 1425 (1969),

     The police, while arresting Rawls, asked if they could
     have his clothing. They were directed to the duffel bag
     and both Rawls and his mother consented to its search.
     During the search, the officers came upon petitioner's
     clothing and it was seized as well. Since Rawls was a
     joint user of the bag, he clearly had authority to
     consent to its search.    The officers therefore found
     evidence against petitioner while in the course of an
     otherwise lawful search.     Under this Court's past
     decisions, they were clearly permitted to seize it.
     Petitioner argues that Rawls only had actual permission
     to use one compartment of the bag and that he had no


It is fundamental that if ownership of the seven videotapes was
given to Boyd, he was authorized to dispose of them as he saw fit.

                                      19
     authority to consent to a search of the other
     compartments.   We will not, however, engage in such
     metaphysical subtleties in judging the efficacy of Rawls'
     consent. Petitioner, in allowing Rawls to use the bag
     and in leaving it in his house, must be taken to have
     assumed the risk that Rawls would allow someone else to
     look inside.

(citations omitted); United States v. Schuster, 684 F.2d 744, 748

(11th Cir. 1982),

     Under the "misplaced trust" theory, the government
     contends that once Schuster revealed the location of the
     counterfeit currency to Poteat and provided him with
     access to the apartment, he took the risk that his
     confidence might be misplaced and that other agents might
     become privy to the information revealed.        This is
     precisely what happened. Poteat revealed the information
     to Agent Bowron, who together with Poteat conducted the
     authorized search.

                           M   M     M   M

     The search and seizure which took place was precisely
     that consented to by the defendant. He must suffer the
     consequences of misplacing his trust in Poteat. Indeed,
     "[t]he risk of being...betrayed by an informer or
     deceived as to the identity of one whom one deals is
     probably inherent in the conditions of human society."
     In other words, "that's life."

(citations omitted), reh'g granted and opinion adopted, 717 F.2d

537 (1983)(en banc), cert. denied, 465 U.S. 1010, 104 S.Ct. 1008

(1984).

     Indeed, turning back to the Appellee's reasonable expectation

of privacy, it was patently unreasonable for Appellees to have any

expectation of privacy vis-a-vis Boyd.       He had unlimited access to

the videotapes, absolute dominion and control over the videotapes

and no direct supervision, or indeed any fellow employees in the

geographic vicinity. See e.g. Marshall v. Barlow's, Inc., 436 U.S.

307, 314-15, 98 S.Ct. 1816, 1821 (1978),


                                   20
     Employees are not being prohibited from reporting OSHA
     violations. What they observe in their daily functions
     is   undoubtedly  beyond  the   employer's  reasonable
     expectation of privacy.

(emphasis supplied); United States v. Murphy, 506 F.2d 529, 530

(9th Cir. 1974),

     We conclude that Tucker's custody of the key gave him
     sufficient dominion over the premises to enable him to
     grant the necessary consent. Since Murphy himself put
     the premises under the immediate and complete control of
     Tucker, who voluntarily consented to the search, we hold
     that the search was not unreasonable.

cert. denied, 420 U.S. 996, 95 S.Ct. 1433 (1975).

     c.   Authority to view--Walter v. United States

     Both the district court and the Appellees also contend that

even if the FBI agents were entitled to watch Boyd open the box and

extract the videotapes, the subsequent viewing of the videotapes

violated their rights.   For this proposition, they rely heavily on

the Supreme Court case of Walter v. United States. Walter involved

the interstate shipment of several boxes of obscene film which were

mistakenly delivered to a third party rather than the consignee.

Employees of the third party opened the packages and discovered

individual film boxes, each containing a graphic description and

suggestive drawings indicating the films contents.     An employee

opened one or two of the containers and attempted, without success,

to view the film by holding it up to the light.

     The third party notified the FBI, who took possession of the

packages, and viewed the films without securing a warrant.      In

reversing this Court, a plurality of the Supreme Court found that

the warrantless viewing of the films was a "second" search which


                                 21
violated the Fourth Amendment rights of the owner of the films.

While a cursory reading of the facts of the Walter opinion may lead

one to believe that its holding is dispositive of the case at hand,

a   more   thorough     study     of    the   opinion    demonstrates    its

inapplicability.

     The most important distinction between Walter and our present

case is that in Walter the FBI obtained the films from a third-

party who had no actual or apparent authority over the packages.

While the third-party was not authorized to open the packages, the

fact that they did so was not governmental action, and therefore

not violative of the Fourth Amendment.           See e.g. Coolidge v. New

Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 2048-50 (1971).

Once the agents came upon the scene, they were not required to

avert their eyes or ignore what was before them, but instead the

Court   held   that    "[T]here    was      nothing   wrongful   about   the

Government's acquisition of the packages or its examination of

their contents to the extent that they had already been examined by

third parties."       Walter v. United States, 447 U.S. at 656, 100

S.Ct. at 2401.

     The Fourth Amendment violation occurred where the government

did something it was not authorized to do--conduct a more extensive

search without a warrant.       See id. 100 S.Ct. at 2402-03, 447 U.S.

at 658-59,

          If a properly authorized official search is limited
     by the particular terms of its authorization, at least
     the same kind of strict limitation must be applied to any
     official use of a private party's invasion of another
     person's privacy. Even though some circumstances--for
     example, if the results of the private search are in

                                       22
     plain view when materials are turned over to the
     Government--may justify the Government's re-examination
     of the materials, surely the Government may not exceed
     the scope of the private search unless it has the right
     to make an independent search.      In these cases, the
     private party had not actually viewed the films. Prior
     to the Government screening one could only draw
     inferences about what was on the films. The projection
     of the films was a significant expansion of the search
     that had been conducted previously by a private party and
     therefore must be characterized as a separate search.
     That separate search was not supported by any exigency,
     or by a warrant even though one could have easily been
     obtained.
                           M M M M

     The fact that the cartons were unexpectedly opened by a
     third party before the shipment was delivered to its
     intended consignee does not alter the consignor's
     legitimate expectation of privacy. The private search
     merely frustrated that expectation in part. It did not
     simply strip the remaining unfrustrated portion of that
     expectation of all Fourth Amendment protection.

In the present case the government obtained the videotapes from

Boyd, a third party who not only had lawful possession of the

packages, but who had the actual authority to open the boxes, and,

at minimum, apparent authority to view the films.        Walter is

plainly inapplicable to the case at hand.8

     d.   Authority to view--apparent authority

     Because Walter does not control this case, we are left to

decide whether, once the government had lawful possession of the


8
     Appellee's also mistakenly rely on our decision in United
States v. Villarreal, 963 F.2d 770 (5th Cir. 1992).       However,
Villarreal is inapplicable to the present situation for the same
reason that Walter is inapplicable. In Villarreal, U.S. Custom's
agents obtained possession from a common carrier who had no actual
or apparent authority over the 55 gallon drums containing a
controlled substance. Unlike the present situation, the government
did not gain the consent of a person with actual or apparent
authority over the contents of the drums before the search was
conducted.

                                23
videotapes, a search warrant should have been obtained prior to the

agents' viewing.   The evidence adduced regarding Boyd's actual

authority to view the videotapes does not provide an absolute

indication of his authority.     At the suppression hearing, the

following exchange occurred during the direct examination of Agent

Larkin:

     Q    Did part of Mr. Boyd's job of installing the videos
     put him in a position to be able to view those videos to
     make sure that the machines were working?

     A    I'm sure he could do that. Whether he did that, I
     have no idea, but certainly he had the ability.

     Q    Was his job as the service person to make sure that
     the videos were playing in the arcade?

     A.   I would assume that all servicemen wanted to make
     sure that before they leave that the videos are
     functioning properly.

The district court concluded that Boyd did not view the videotapes

as part of his job.   While this conclusion seems to belie common

sense,9 the record provides insufficient factual foundation to

resolve that the district court's conclusion was clearly erroneous.

     However, based on the above described indicia of Boyd's

control, there is no question that the government could reasonably

have relied on Boyd's apparent authority to consent to their review

9
     The parties do not dispute that Boyd was in charge of
installing the videotapes and servicing the machines. The purpose
of installation of the videotapes was to allow the public to view
the movies for a fee. As Agent Larkin testified, sound business
practice would dictate that Boyd view at least a small portion of
the videotapes to make sure that they were functioning properly.
In addition, if a machine malfunctioned, logic dictates that Boyd
would be required to view a portion of the videotape to ensure that
he had properly repaired the machine. Without clear restrictions
to the contrary, authority to view a portion of a videotape is
authority to view all of the videotape.

                                24
of the videotapes.10   Since this reliance was reasonable at the

time, whether they were ultimately correct in their assessment is

not relevant to the analysis.11

     e.   Authority to view--no reasonable expectation of privacy

     In addition to concluding that Boyd had apparent authority to

view the videotapes, we also hold that Appellees could not have had

a reasonable expectation of privacy in their contents.12    First,

10
     See, e.g., United States v. Shields, 675 F.2d 1152, 1159 (11th
Cir. 1982)(Government need not obtain warrant to listen to audio
recordings where valid consent obtained), cert. denied, 459 U.S.
858, 103 S.Ct. 130 (1982); United States v. Buettner-Janusch, 646
F.2d 759, 767 n. 10 (2nd Cir. 1981),

     Walter is distinguishable from the instant case in two
     respects.   Unlike the defendant in Walter, Buettner-
     Janusch had no independent expectation of privacy in the
     chemicals seized form his laboratory. These substances
     were either lying open on laboratory benches or were in
     containers that exposed their contents to the casual
     observer. Moreover, the governmental intrusion in Walter
     was not authorized by the consent of a third party who
     satisfied the Gradowski requirements. Here, however, the
     DEA obtained the samples from individuals who had access
     to them and permission to exercise that access.
     Accordingly, Walter does not require us to suppress this
     evidence.
cert. denied, 454 U.S. 830, 102 S.Ct. 126 (1981).
11
     See Illinois v. Rodriguez, 497 U.S. at 188-89, 110 S.Ct. at
2801.
     As with other factual determinations bearing upon search
     and seizure, determinations of consent to enter must "be
     judged against an objective standard: would the facts
     available to the officer at the moment...`warrant a man
     of reasonable caution in the belief'" that the consenting
     party had authority over the premises? Terry v. Ohio,
     392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889
     (1968).   If not, then the warrantless entry without
     further inquiry is unlawful unless actual authority
     exists. But if so, the search is valid.
12
     See, e.g., United States v. Bonfiglio, 713 F.2d 932, 937 (2nd
Cir. 1983),
          [W]hen items have been lawfully seized, a separate

                                  25
given   the   extent    of   Boyd's   dominion   and   control   over   the

videotapes, Appellees clearly assumed the risk that Boyd would view

them, and therefore had a diminished expectation of privacy in

their contents.13      As discussed above, when Appellees assumed the


     warrant is required to conduct a search thereof if the
     individual has a high expectation of privacy in the item
     seized. Compare United States v. Chadwick, 433 U.S. 1,
     13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977)(separate
     warrant required to open and search contents of lawfully
     seized footlocker, in which individual had high
     expectation of privacy), with Chambers v. Maroney, 399
     U.S. 42, 49-51, 90 S.Ct. 1975, 1980-1981, 26 L.Ed.2d 419
     (1970)(no separate warrant required to search lawfully
     seized   car,  in   which   individual  had   diminished
     expectation of privacy).
13
     See, e.g., United States v. Jacobsen, 466 U.S. at 117, 104
S.Ct. at 1658,
     It is well settled that when an individual reveals
     private information to another, he assumes the risk that
     his confidant will reveal that information to the
     authorities, and if that occurs the Fourth Amendment does
     not prohibit governmental use of that information. Once
     frustration of the original expectation of privacy
     occurs, the Fourth Amendment does not prohibit the
     governmental use of the now nonprivate information:
     "This Court has held repeatedly that the Fourth Amendment
     does not prohibit the obtaining of information revealed
     to a third party and conveyed by him to Governmental
     authorities, even if the information is revealed on the
     assumption that it will be used only for a limited
     purpose and the confidence placed in a third party will
     not be betrayed." The Fourth Amendment is implicated
     only if the authorities use information with respect to
     which the expectation of privacy has not already been
     frustrated.
(citations omitted); United States v. Buettner-Janusch, 646 F.2d at
767,
     In contrast, Buettner-Janusch retained a legitimate
     expectation of privacy in the container Jolly removed
     from the freezer, since this object divulged no clues as
     to its contents until Weber removed the top. By applying
     Gradowski to that object, we note that Macris had
     Buettner-Janusch's clear permission to open any of the
     jars of chemicals in the laboratory. Presumably then, he
     could have examined the two vials of LSD precursors that
     Jolly removed from the freezer. Thus, it was lawful for

                                      26
risk that Boyd would watch the videotapes, they also necessarily

assumed the risk that Boyd would allow someone else to view the

videotapes.

     Second, it is clear that Appellees could only have had a

reasonable expectation of privacy while the videotapes remained

sealed and in the possession of the common carrier.            Once Boyd

gained possession of the packages, that expectation, vis-a-vis

Boyd, all but vanished.    Since it was intended that Boyd open the

boxes, and further intended that Boyd place the videotapes on

public    display,   Appellee's   expectation   of   privacy    in    the

videotapes--once in the hands of Boyd--is clearly minimal.           Based

on the foregoing, we find that the district court's conclusion that

Boyd lacked authority to render effective consent to copy and view

the videotapes was clearly erroneous and contrary to settled law.

     2.   Agency Theory

     The district court also concluded that, as a result of his

cooperation, Boyd became an agent of the government.14     Under this


     DEA chemist Weber, who searched the laboratory and vials
     at Macris's invitation to do the same.
(footnote omitted).
14
     The "government agent" theory is based on a fundamental
concept of Fourth Amendment jurisprudence: no Fourth Amendment
violation can occur unless a government actor commits an improper
search or seizure. There is no question that "[a] wrongful search
or seizure conducted by a private party does not violate the Fourth
Amendment, and `such private wrongdoing does not deprive the
government of the right to use evidence.'" United States v. Bazan,
807 F.2d 1200, 1202 (5th Cir. 1986), cert. denied, 481 U.S. 103,
107 S.Ct. 1976 (1987), citing, Walter v. United States, 447 U.S. at
656. Courts have found, however, that a private citizen, acting as
"an agent or instrument of the government," violates the Fourth
Amendment by engaging in an unlawful search. See United States v.
Pierce, 893 F.2d 669, 673 (5th Cir. 1990), cert. denied, ___ U.S.

                                  27
theory, Appellees claim Boyd had no more authority to search or

seize evidence than any of the FBI agents.             Appellees urge us to

apply a two-part test, developed by the Ninth Circuit, which we

have previously used to determine when a party has become an

"instrument or agent of the government."               See United States v.

Bazan, 807 F.2d at 1203,

      In United States v. Miller, 688 F.2d 652, 657 (9th Cir.
      1982), the court held that "two critical factors in the
      `instrument or agent' analysis are:     (1) whether the
      government knew of or acquiesced in the intrusive
      conduct, and (2) whether the party performing the search
      intended to assist law enforcement efforts or to further
      his own ends." For purposes of reviewing this argument
      we will assume the adequacy of this formulation.

see also, United States v. Pierce, 893 F.2d at 673.

      Appellee's argument suffers from one fatal flaw. Whether Boyd

is an agent of the government or not is of no moment unless his

conduct violated the Fourth Amendment. In other words, becoming an

"agent"   for   purposes     of   Fourth   Amendment     analysis    does   not

terminate one's right to engage in conduct which was authorized

prior to entering the agency relationship.         Even if we assume Boyd

became an agent of the government, he had the exact same actual and

apparent authority after agreeing to cooperate with the government

as he did prior to entering into the agreement.                As discussed

above, Boyd's conduct appears from the record to have been within

his   actual    authority,    and   not    violative    of   the    Appellees'

reasonable expectation of privacy.            Since no Fourth Amendment




___, 113 S.Ct. 621 (1992).

                                      28
violation occurred, whether Boyd became a government agent is not

relevant.15



     Notwithstanding the foregoing, we have also determined from

the record that even if Boyd did not have actual authority over the

videotapes, the government was entitled to rely on Boyd's apparent

authority.    While the government agents clearly knew of Boyd's

actions, they reasonably believed that Boyd had actual authority

over the videotapes, and therefore had no reason to believe that

any of Boyd's conduct violated the Fourth Amendment.       Based on

their reasonable belief in the propriety of Boyd's actions, we

cannot say that the government agents "knew of or acquiesced in"

conduct violative of the Fourth Amendment.      Appellees therefore

fail to prove the first prong of the Ninth Circuit's Miller test,

and consequently have failed to show that Boyd was acting as an

agent of the government.16   For the above reasons, we find that the

15
     See, e.g., Coolidge v. New Hampshire, 403 U.S. at 487-89
(1971)(No Fourth Amendment violation where wife voluntarily turned
over husband's clothes and gun to police officers); United States
v. Rizk, 842 F.2d 111, 112 (5th Cir. 1988)(No Fourth Amendment
violation where government informant had joint access to a
briefcase and consented to government search), cert. denied, 488
U.S. 832, 109 S.Ct. 90 (1988); Pleasant v. Lovell, 974 F.2d at 1230
("[D]efendants could inspect and copy items in Adams' custody that
defendants reasonably believed Adams had authority to possess;
Adams could share items properly in her custody with defendants
without violating plaintiffs' constitutional rights."); United
States v. Schuster, 684 F.2d at 748-49(No Fourth Amendment
violation where third-party, who had become agent of the
government, allowed Secret Service Agent to accompany him on visit
to defendant's apartment where defendant had consented to third-
party's entry).
16
     See, e.g., United States v. Pierce, 893 F.2d at 674 ("There
was no evidence that the airline employees opened the package at

                                 29
district court's conclusion that Boyd was an agent of the federal

government was clearly erroneous.

                          IV.    STANDING

     Because we find that the district court erroneously granted

the Appellee's motion to suppress, we decline to consider whether

the government's lack of standing assertion was timely.

                          V.    CONCLUSION

     Because we find that the district court's opinion was based on

a misapprehension of the applicable law and clearly erroneous

determinations of fact, we hold that the court's decision to grant

the motions to suppress must be reversed.     The judgment of the

district court is reversed, Appellees' Motion to Suppress is

denied, and the case is remanded for further proceedings consistent

with this opinion.

     REVERSED, RENDERED, and REMANDED.




the direction, or even suggestion, of the DEA. We conclude that
the airline employees opened that package to further the airline's
own ends, not solely to assist law enforcement officers."); United
States v. Bazan, 807 F.2d at 1203-04; United States v. Ford, 765
F.2d 1088, 1090 (11th Cir. 1985)(Government had no prior knowledge
of search and did not encourage search); United States v. Miller,
688 F.2d 652, 657 (9th Cir. 1982)("Because Szombathy had not
proposed to do anything illegal, we see no reason why the officers
should have restrained him from visiting Miller's property."); Cf.
United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994)("Officers
Rose and Sponholz definitely `knew of and acquiesced' in Watson's
search.   They were personally present during the search, knew
exactly what Watson was doing as he was doing it, and made no
attempt to discourage him from examining Reed's personal belongings
beyond what was required to protect hotel property.          Watson
reported his findings to them as he searched.").

                                  30
