                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
