UNIVERSITY OF THE DISTRICT OF - UDC Law Review

after rejecting the Court of Appeals’ decision invalidating
the field test as an illegal expansion of the private search.
Third, if this case must be judged on the basis that the
plastic bags and their contents were concealed when the
first agent arrived, I disagree with the Court’s conclusion
that the agent could, without a warrant, uncover or
unwrap the tube *129 and remove its contents simply
because a private party had previously done so. The
remainder of this opinion will address this issue.
The governing principles with respect to the constitutional
protection afforded closed containers and packages may
be **1665 readily discerned from our cases. The Court
has consistently rejected proposed distinctions between
worthy and unworthy containers and packages, United
States v. Ross, 456 U.S. 798, 815, 822-823, 102 S.Ct.
2157, 2171-2172, 72 L.Ed.2d 572 (1982); Robbins v.
California, 453 U.S. 420, 425-426, 101 S.Ct. 2841, 2845-
2846, 69 L.Ed.2d 744 (1981) (plurality opinion), and has
made clear that “the Fourth Amendment provides
protection to the owner of every container that conceals
its contents from plain view” and does not otherwise
unmistakably reveal its contents. United States v. Ross,
supra, 456 U.S., at 822-823, 102 S.Ct., at 2171-2172; see
Robbins v. California, supra, 453 U.S., at 427-428, 101
S.Ct., at 2846-2847 (plurality opinion); Arkansas v.
Sanders, 442 U.S. 753, 764, n. 13, 99 S.Ct. 2586, 2593, n.
13, 61 L.Ed.2d 235 (1979). Although law-enforcement
officers may sometimes seize such containers and
packages pending issuance of warrants to examine their
contents, United States v. Place, 462 U.S. ----, ----, 103
S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983); Texas v. Brown,
460 U.S. ----, ----, 103 S.Ct. 1535, 1547, 75 L.Ed.2d 502
(1983) (STEVENS, J., concurring in the judgment), the
mere existence of probable cause to believe that a
container or package contains contraband plainly cannot
justify a warrantless examination of its contents. Ante, at
1657; United States v. Ross, supra, 456 U.S., at 809-812,
102 S.Ct., at 2164-2166; Arkansas v. Sanders, supra, 442
U.S., at 762, 99 S.Ct., at 2592; United States v. Chadwick,
433 U.S. 1, 13, and n. 8, 97 S.Ct. 2476, 2485, and n. 8, 53
L.Ed.2d 538 (1977).
This well-established prohibition of warrantless searches
has applied notwithstanding the manner in which the
police obtained probable cause. The Court now for the
first time sanctions warrantless searches of closed or
covered containers or packages whenever probable cause
exists as a result of a prior private search. It declares, in
fact, that governmental inspections following on the heels
of private searches are not searches at all as long as the
84
police do no more than the private parties have already
done. In reaching this conclusion, the Court excessively
expands our prior decisions recognizing *130 that the
Fourth Amendment proscribes only governmental action.
Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65
L.Ed. 1048 (1921); Coolidge v. New Hampshire, 403 U.S.
443, 487-490, 91 S.Ct. 2022, 2048-2050, 29 L.Ed.2d 564
(1971).
As the Court observes, 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 governmental official.’ ” Ante, at 1656 (quoting
Walter v. United States, 447 U.S. 649, 662, 100 S.Ct.
2395, 2404, 65 L.Ed.2d 410 (1980) (BLACKMUN, J.,
dissenting)). Where a private party has revealed to the
police information he has obtained during a private search
or exposed the results of his search to plain view, no
Fourth Amendment interest is implicated because the
police have done no more than fail to avert their eyes.
Coolidge v. New Hampshire, supra, 403 U.S., at 489, 91
S.Ct., at 2049.
The private-search doctrine thus has much in common
with the plain-view doctrine, which is “grounded on the
proposition that once police are lawfully in a position to
observe an item first-hand, its owner’s privacy interest in
that item is lost ....” Illinois v. Andreas, 463 U.S. ----, ----,
103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983) (emphasis
added). It also shares many of the doctrinal underpinnings
of cases establishing that “the Fourth Amendment does
not prohibit the obtaining of information revealed to a
third party and conveyed by him to Government
authorities,” United States v. Miller, 425 U.S. 435, 443,
96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976), although the
analogy is imperfect since the risks assumed by a person
whose belongings are subjected to a private search are not
comparable to those assumed by one who voluntarily
chooses to reveal his secrets to a companion.
**1666 Undoubtedly, the fact that a private party has
conducted a search “that might have been impermissible
for a government agent cannot render otherwise
reasonable official conduct unreasonable.” Ante, at 1657.
But the fact that a repository of personal property
previously was searched by a private party has never been
used to legitimize governmental conduct that otherwise
would be subject to challenge under *131 the Fourth
Amendment. If government agents are unwilling or
unable to rely on information or testimony provided by a
private party concerning the results of a private search