We cannot agree with the government's contention that the pertinent findings below were clearly erroneous. Though Rivard testified that he believed that a federal regulation gave the airlines the right to open any piece of luggage consigned to them for shipping, he also testified that the only reason why he opened the case was his suspicion that it contained illegal drugs. Thus, legitimate business considerations such as prevention of fraudulent loss claims were not a factor. The record contained sufficient evidence for the court to conclude also that Rivard opened the case with the expectation of probable reward from the DEA. Rivard acknowledged that there was no reason that he should not expect a reward, and the testimony of a DEA agent established that it would be reasonable for him to have such an expectation. Our review of the record, therefore, indicates that the evidence supports the district court's findings. We are thus satisfied that Rivard opened the package with the requisite mental state of an "instrument or agent."
We are also satisfied that Rivard's prior experience with the DEA provides proof of the government's acquiescence in the search. While the DEA had no prior knowledge that this particular search would be conducted and had not directly encouraged Rivard to search this overnight case, it had certainly encouraged Rivard to engage in this type of search. Rivard had been rewarded for providing drug-related information in the past. He had opened Speed Paks before, and did so with no discouragement from the DEA. The DEA thus had knowledge of a particular pattern of search activity dealing with a specific category of cargo, and had acquiesced in such activity.
We believe that this degree of knowledge that Rivard was actively involved in illegal searches distinguishes this case from United States v. Valen, 479 F.2d 467 (3d Cir. 1973), wherein the freight company employee had in the past been paid merely for providing "information." Nothing in the Valen opinion suggests that the government knew of any propensity on the part of the employee to open and search luggage, and indeed there was no indication that the employee had ever illegally searched baggage on any prior occasion. In any event, the initial search in Valen was immaterial because the employee did not tell the agents that he had opened the suitcases, but only that he thought he smelled marijuana. We also find United States v. Luciow, 518 F.2d 298 (8th Cir. 1975), distinguishable on similar reasoning.
We emphasize the narrowness of our holding. It is dependent upon the trial court's finding of extensive contact between Rivard and the DEA and its finding on Rivard's motivation for opening the overnight case. The DEA either knew or should have known that Rivard had made it a practice to inspect Speed Paks, and had acquiesced in that practice. [FN3] We do not by this opinion diminish the duty of any private citizen to report possible criminal activity, nor do we frown upon the use of paid informants. We merely hold that the government cannot knowingly acquiesce in and encourage directly or indirectly a private citizen to engage in activity which it is prohibited from pursuing where that citizen has no motivation other than the expectation of reward for his or her efforts.
[FN3] The government notes in its brief that Rivard had not made official contact with the DEA for approximately two years prior to August 17, 1979. We do not find this fact persuasive. Rivard had been on leave of absence for at least part of this time, and had never been notified that his confidential informant file had been closed.
6. In your own words, summarize the court's application of the rule to the facts here. Address the facts that the court found persuasive and explain why the court ruled the way it did.
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