UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 99-4935

ROSA GOMEZ MANCHA,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-98-1237)

Submitted: June 27, 2000

Decided: September 12, 2000

Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cain Denny, Charleston, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Miller W. Shealy, Jr., Assistant United
States Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Following her conviction and sentence for possession with intent
to distribute cocaine, Rosa Mancha appeals from the district court's
denial of her motion to suppress evidence discovered during an
inspection of her apartment. She contends that the inspection was per-
formed by persons acting as agents of the government, and therefore
the Fourth Amendment was implicated by the search. We affirm the
district court's decision to deny her motion to suppress and therefore
affirm Mancha's conviction.

The protection afforded by the Fourth Amendment does not apply
to a search conducted by a private individual unless that individual is
acting as an agent of the government or with the participation or
knowledge of a governmental official. See United States v. Jacobsen,
466 U.S. 109, 113 (1984); Coolidge v. New Hampshire, 403 U.S. 443,
487 (1971). The burden of proving that a private party acted as an
agent or instrument of the government is on the defendant. See United
States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994); United States v. Fef-
fer, 831 F.2d 734, 739 (7th Cir. 1987).

The facts presented at the suppression hearing were that Mancha
received housing assistance from the Department of Housing and
Urban Development ("HUD"). She lived at the Boone West Apart-
ment complex, a HUD-subsidized apartment complex owned and
operated by Landmark Home and Realty Company, Inc. During an
inspection of Mancha's apartment pursuant to the lease terms provid-
ing for an inspection every sixty days, the apartment manager and a
maintenance person discovered an unauthorized lock on a hall closet
door. They removed the hinge pins from the door and removed the
door. Inside the closet they saw a cooler. The apartment manager
opened the cooler and discovered what was later determined to be
cocaine. After closing the cooler, replacing the door, and leaving the
apartment, the apartment manager contacted the police. The apart-
ment manager testified that she also conducts sixty-day inspections in
a non-HUD-subsidized apartment complex she manages for Land-
mark and she would have proceeded in the same manner had she dis-
covered an unauthorized lock on a door in one of those apartments.

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Police officers interviewed the apartment manager and the mainte-
nance person and then sought and obtained a search warrant for Man-
cha's apartment. Upon returning and executing the search warrant,
they located the cocaine and arrested Mancha.

In denying Mancha's motion to suppress, the district court deter-
mined that although the inspection was conducted in order to comply
with HUD regulations, the apartment manager and maintenance per-
son were not acting as agents of the government when they conducted
the inspection of Mancha's apartment. The court noted that the
inspection of Mancha's apartment was the same inspection as would
have been done in a privately funded apartment, and if a lock were
found on a door in the privately funded apartments, the apartment
manager and maintenance person would have done the same thing.

On appeal, Mancha contends that because the inspection was per-
formed pursuant to mandatory HUD regulations and using a HUD
checklist, the search constituted governmental action and was there-
fore in violation of the Fourth Amendment. Two critical factors are
relevant to whether a private party's search implicates the Fourth
Amendment. First, it must be determined whether the government
knew of and acquiesced in the intrusive conduct, and secondly, the
court must consider the intent of the person performing the search--
whether it was to assist law enforcement or for his or her own benefit.
See United States v. Kinney, 953 F.2d 863, 865 (4th Cir. 1992).

The factors that weigh in favor of finding an agency relationship
are that the Boone West Apartments are HUD-subsidized. Thus, the
sixty-day inspections were performed to meet the HUD regulations.
However, the regulations did not require inspections every sixty days;
they merely mandated that inspections occur once a year, and at other
times as necessary to insure the tenant's compliance with his duty to
maintain the apartment. See 24 C.F.R. § 882-516(b) (1999). The fact
that Mancha's lease provides that the sixty-day inspections are to
comply with HUD regulations is not compelling because the apart-
ment manager testified that sixty-day inspections also are done on the
non-HUD-subsidized apartments she manages for Landmark. In
inspecting the apartment, the manager used a checklist prepared by
HUD. However, there is no evidence that HUD mandated the use of

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the checklist. Rather, the apartment manager testified that she brought
the checklist with her from a previous employer.

While the government arguably "knew" of the intrusive conduct of
the inspections by virtue of the regulation requiring an annual inspec-
tion, see Kinney, 953 F.2d at 865, that is the extent of the knowledge.
There was no specific knowledge that the search was being performed
at that specific time or even at sixty-day intervals.

As for the intent of the apartment manager and maintenance person
in performing the inspections, we agree with the district court that the
inspection and search were performed to benefit Landmark, as
opposed to law enforcement officials. There was no evidence that the
intent was to assist any law enforcement function. Rather the evi-
dence showed that the apartment manager and maintenance person
were in the apartment to conduct a routine inspection. We find that
Mancha failed to meet her burden of proving otherwise. See Reed, 15
F.3d at 931; Feffer, 831 F.2d at 739.

Whether an agency relationship exists is a question of fact based
on all the circumstances. See United States v. Koenig, 856 F.2d 843,
847 n.1 (7th Cir. 1988). The district court made an explicit factual
finding that the inspection was conducted by persons acting as private
persons, not government agents, and for their own purposes as
opposed to law enforcement purposes when they opened the closet
door and the cooler and there discovered the cocaine. This finding
was not clearly erroneous. See Ornelas v. United States, 517 U.S.
690, 699 (1996).* Accordingly, we affirm the district court's decision
denying Mancha's motion to suppress, and thus affirm her conviction.
_________________________________________________________________
*Mancha cites Skinner v. Railway Labor Executives' Assoc., 489 U.S.
602 (1989), to support her conclusion that the Fourth Amendment was
implicated by the search. In Skinner, the Court held that drug and alcohol
testing mandated by the Federal Railroad Administration ("FRA") were
subject to the reasonableness requirement of the Fourth Amendment
even though the tests were performed by private medical persons rather
than government officials. See id. at 633-34. This case is distinguishable
in view of the fact that the FRA mandated the testing under specified
conditions; whereas here, HUD did not direct the timing or manner of the
apartment inspections, but merely required an annual inspection.

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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