                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3766
                                    ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Northern District of Iowa.
David Hernandez,                     *
                                     * [UNPUBLISHED]
           Defendant-Appellant.      *
                                ___________

                              Submitted: May 12, 2004
                                Filed July 14, 2004
                                   ___________

Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and DORR,* District Judge.
                              ___________

PER CURIAM.

      David Hernandez appeals his conviction for possession of cocaine after a
previous drug felony conviction, 21 U.S.C. §§ 841(1a)(1), 841(b)(1)(C), and 851. On
appeal, Hernandez asserts that the district court1 erred in failing to hold a hearing to




      *
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, sitting by designation.
      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
determine whether the subsequent state search of a Federal Express package exceeded
the scope of the private search conducted by Federal Express.

       On October 14, 2002, Federal Express employees in Pharr, Texas notified local
law enforcement that they had a "suspicious" package. Texas Department of Public
Safety narcotics agents went to the Federal Express terminal where the employees
showed the agents a small, opened cardboard package. The package contained
styrofoam packaging peanuts, which surrounded a taped, clear plastic bag. The clear
plastic bag contained two plastic wrapped rock-like bundles.

      A field test indicated that the rock-like bundles contained cocaine. The agents
then shipped the box to drug enforcement authorities in Cedar Rapids, Iowa. The
DEA secured a search warrant for the package and an anticipatory search warrant for
the address listed on the package.

       After obtaining the warrants, law enforcement officers delivered the package
to the address listed on the package. Hernandez accepted the package. Law
enforcement officers then searched Hernandez's residence but failed to find any
additional drugs.

      The government charged Hernandez in a one-count indictment for the
possession of cocaine while serving probation. At the time of his federal arrest,
Hernandez had been on state probation for approximately two months for drug
possession. Hernandez moved to suppress the cocaine seized from the Federal
Express package. Hernandez argued that the law enforcement's search of the open
package exceeded the search of the Federal Express employees. The district court
denied Hernandez' motion to suppress.

      After the district court denied his motion to suppress, Hernandez pleaded guilty
pursuant to a plea agreement. The plea agreement stipulated to a base offense level

                                         -2-
of 18 based on a drug quantity of between 100 and 200 grams of a mixture containing
cocaine. The district court sentenced Hernandez to twenty-four months of
imprisonment and a five-year term of supervised release.

        Hernandez argues that the district court erred in not holding an evidentiary
hearing to uncover the facts surrounding the Federal Express' search of the package.
Our precedent does not require the district court to hold an evidentiary hearing on a
motion to suppress where the facts are not in dispute. United States v. Mims, 812
F.2d 1068, 1073-74 (8th Cir. 1987) (holding that "[w]hen a motion to suppress is
filed, '[e]videntiary hearings need not be set as a matter of course, but if the moving
papers are sufficiently definite, specific, detailed, and nonconjectural to enable the
court to conclude that contested issues of fact going to the validity of the search are
in question, an evidentiary hearing is required.'" (internal citations and quotations
omitted). In his motion to suppress, Hernandez did not raise any factual issues, nor
did Hernandez request a hearing. Thus, the district court did not err.

       Hernandez next argues that the district court erred in determining that the law
enforcement's search did not exceed the private search conducted by Federal Express
employees. We review the district court's denial of a motion to suppress de novo,
with the underlying factual determinations reviewed for clear error. United States v.
Walker, 324 F.3d 1032, 1036 (8th Cir. 2003).

      The Fourth Amendment "is wholly inapplicable 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 government official."
United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal citations and quotations
omitted). "Because a private search frustrates . . . [a legitimate] expectation [of
privacy], . . . an ensuing police intrusion that stays within the limits of the private
search is not a search for Fourth Amendment purposes." United States v. Miller, 152
F.3d 813, 815 (8th Cir. 1998) (internal citations omitted).

                                         -3-
       No facts exist to show that the law enforcement's search of the package
exceeded the scope of the private search conducted by Federal Express employees.
The district court did not err in denying Hernandez's motion to suppress the cocaine
in the package.

      AFFIRMED.
                      ______________________________




                                        -4-
