CA5: USPS letter carrier not a 4A govt actor

A regular USPS letter carrier is not a governmental actor the Fourth Amendment governs. Here, her thumb slipped through a preexisting hole in a package she was delivering, and she became suspicious it contained drugs and wouldn’t leave it at an apartment with kids around. She left it with a building manager who called the police who did a dog sniff and got a warrant for it. United States v. Johnlouis, 2022 U.S. App. LEXIS 22368 (5th Cir. Aug. 11, 2022):

Of course, we have “never limited the [Fourth] Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police.” New Jersey v. T.L.O., 469 U.S. 325, 335, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). “[W]e have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities,” including building inspectors, firefighters, teachers, healthcare workers, and, yes, even USPS employees. Id. After all, “[t]he basic purpose of this Amendment … is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Ct. of City & Cnty. of S.F., 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). “Because the individual’s interest in privacy and personal security suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards, it would be anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when [he] is suspected of criminal behavior.” New Jersey, 469 U.S. at 335 (internal quotation marks and citations omitted).

But the building inspectors, firefighters, teachers, healthcare workers, and USPS employees that courts have identified as government actors to whom the Fourth Amendment applies were all carrying out law enforcement functions. The same cannot be said of Girard. Surely her inspection of the package addressed to 109 Hogan Drive does not resemble the “arbitrary invasions by government officials” that the Fourth Amendment was ratified to protect against. It was not even motivated by a desire to investigate a legal violation. The record reflects that Girard’s thumb slipped through a hole in a package, and that she inspected this package after feeling its contents because of her concern for children and her experience with a relative. She was not inspecting the package to enforce law. We therefore hold that the Fourth Amendment does not per se apply to Girard. As such, we offer a narrow holding tailored to the peculiar facts of this case and the particular activities of individual government actors. Here, despite working for an agency that employs inspectors who undertake law enforcement activities, Girard is not one of them. Notwithstanding that she works for the government, she is not a government actor to whom the Fourth Amendment applies.

Ordinarily, this resolution would not dispose of Johnlouis’s Fourth Amendment claim because he could argue that Girard was a private person acting in the capacity of a government agent by searching the package with the knowledge of, or in order to assist, law enforcement. See United States v. Pierce, 893 F.2d 669, 673 (5th Cir. 1990), cert. denied, 506 U.S. 1007, 113 S. Ct. 621, 121 L. Ed. 2d 554 (1992). Where a search is conducted by someone other than “an agent of the government,” this court has held that it still violates the Fourth Amendment if (1) “the government knew of and acquiesced in the intrusive conduct” and (2) “the party performing the search intended to assist law enforcement efforts or to further his own ends.” Id. But Johnlouis explicitly disclaims any such alternative argument, calling the district court’s characterization of the inspection as a private citizen search “legal error.” He maintains that “the letter carrier is a government employee/actor” who “cannot search a Priority Mail, First Class Mail (sealed mail), without a search warrant” even though “none of her job duties entail law enforcement duties.” Johnlouis has thus abandoned any argument that the Fourth Amendment applies to Girard outside of his contention that her employment by USPS per se renders her subject to the Fourth Amendment. See United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).

Accordingly, because the Fourth Amendment does not per se apply to Girard, the district court correctly concluded that she did not perform an unconstitutional warrantless search of a package that could justify the suppression of evidence. We therefore do not reach Johnlouis’s arguments with respect to the exclusionary rule, the good faith exception, and the inevitable discovery and fruit of the poisonous tree doctrines.

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