United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Bucklo United States District Judge
me is defendant Sonia Verma's motion to suppress directed
to the contents of a package that United Parcel Service
personnel opened and inspected after being alerted that
federal agents were interested in it. For the reasons that
follow, I deny the motion.
Verma is one of several defendants alleged to have
participated in a scheme to export and import “defense
articles” to and from China without first obtaining the
necessary licenses or approvals from the Directorate of
Defense Trade Controls. See generally 01/13/2016
Superseding Indictment. Relevant here is the government's
charge that on or about January 19, 2010, Ms. Verma attempted
to send a defense article via UPS to a manufacturer in China.
Prior to shipment, however, the package containing the
defense article was opened by UPS security representative
Robert Gilbert, who then turned it over to Special Agent
Calvin Sigur of the Department of Homeland Security and
Special Agent Patrick McCurry of the State Department's
Office of Inspector General. At the time, these agents were
investigating Ms. Verma's co-defendant, Vibgyor Optical
Systems, Inc., and several members of the Verma family,
including co-defendant Bharat (Victor) Verma.
motion, Ms. Verma argues that Mr. Gilbert was acting as an
agent of the government at the time he opened the package in
question, and that his warrantless search of its contents
violated the Fourth Amendment. On February 16, 2017, I held
an evidentiary hearing, at which Special Agents Sigur and
McCurry testified, as did Mr. Gilbert and an individual named
David Prang, who at the time was employed at the UPS store in
Arlington Heights, Illinois, where Ms. Verma dropped off the
package for shipment.
McCurry testified that in the late morning on January 20,
2010, he visited the Arlington Heights store at Agent
Sigur's request to “check on a package” at
the store. Tr. of 2/16/2017 Hr'g. at 10:10-13. Agent
McCurry stated that his purpose was “[t]o see who the
package was from and who it was addressed to. And to the
extent that I could tell form the packaging, what it
was.” Id. at 11:6-8. He denied having any
intention of opening the package and stated that he did not,
in fact, open it. Id. at 11:9-11, 13:13-14.
UPS store in Arlington Heights, Agent McCurry spoke with the
store's owner, Ron Levin, and its employee, David Prang.
Agent McCurry viewed the package, noting the addressee and
return address. After concluding that he “had no reason
to seize it or to open it, ” Agent McCurry asked
Messrs. Levin and Prang “to just send the package as
they would normally.” Id. at 14:20-23. Agent
McCurry stated that he did he instruct or ask anyone at the
UPS store to open the package. Id. at 14:3-18.
Prang testified that in late 2009 or early 2010, a federal
agent visited the Arlington Heights UPS store and left his
business card with Messrs. Levin and Prang, asking them to
call him the next time they got any packages from Vibgyor.
Hr'g. Tr. at 101:15-102:8. Prang testified that he and
Mr. Levin followed these instructions after Ms. Verma brought
a package to the store on January 20, 2010, with Mr. Levin
calling the agent who had left his card. Mr. Prang recalls
that two agents then came out to the store. Id. at
103:14-19. The agents did not ask Mr. Prang to open the
package, nor did he hear the agents ask Mr. Levin to open it.
Id. at 106:18-20. Indeed, no one contends that the
package was opened while at the UPS store in Arlington
to Agent McCurry's visit to the Arlington Heights store,
on January 14, 2010, Agent Sigur contacted UPS's security
specialist at its Palatine, Illinois facility, Mr. Gilbert,
“regarding a person or persons illegally exporting
sensitive military technology to China.” UPS
Investigation Report, Gov't. Exh. 4, at 2. Agent Sigur
provided Mr. Gilbert with a residential address, nearby UPS
stores, and several names associated with defendants, and
“asked if Gilbert could find any pattern of pkgs going
to or coming from China.” Id. At the hearing,
Mr. Gilbert testified about the case file he generated as a
result of Agent Sigur's phone call, which he reviewed the
week before the hearing, and which refreshed his recollection
about the events. Hr'g. Tr. at 56:1-14. Tr. Specifically,
he identified his own handwritten notes that read, “all
Int[ernational] for these accts needs to be checked by
security, ” followed by two account numbers.
Id. at 9; Tr. of 2/16/2017 Hr'g., 56:23-25. Mr.
Gilbert stated that he took the same information “down
to the international where we process international packages.
And I let the supervisor know that any shipments for these
accounts going to China I needed to take a look at.”
Hr'g. Tr. at 57:4-9. By “take a look at, ”
Mr. Gilbert meant “checking the customs paperwork,
checking the manifest and checking the contents to make sure
that they match the customs paperwork.” Id. at
57:11-13. Mr. Gilbert testified that the reason he intended
to take these steps was “[b]ecause we do not move
prohibited or illegal items through our system; or we try not
to, anyway.” Id. at 58:1-2.
connection, Mr. Gilbert explained that in his role as a UPS
security representative-a position he has held for about
fourteen years-he opens packages being shipped through UPS
“almost daily.” Hr'g. Tr. at 60:10-15. The
reasons range from damage issues to suspicions that the
packages may contain stolen or illegal items. See
id. at 60:17-61:21. Mr. Gilbert explained that in some
cases, UPS receives “a tip that there may be a package
containing narcotics coming through, ” in which case
UPS employees “pull the package aside” and call
law enforcement, whose agents normally respond by bringing a
drug-detection dog to sniff the package. Id. at
62:12-16. The reason UPS contacts law enforcement in such
cases, Mr. Gilbert reiterated, is that “we do not
transport prohibited or illegal items.” Id. at
respect to the package at issue, Mr. Gilbert testified that
on January 20, 2010, he received a second call from Agent
Sigur informing him that one of the individuals under
investigation for illegal export activity had dropped off a
package for shipment to China at a UPS store in Arlington
Heights. Id. at 58:24-59:7; Gov't. Exh. 4 at 2.
Mr. Gilbert testified that he then “went down and told
the international area supervisor that if there were any
internationals from that one specific UPS store now that we
had narrowed it down that I wanted to take a look at
them.” Id. at 60:4-7. He then “received
a call that there was one package going to China that was
located, ” and went to collect the package Id.
at 60:8-9, 63:20-23.
Gilbert returned with the package to the security office,
where he opened the package and checked the contents.
Id. at 66:23-67:5. Mr. Gilbert testified that he did
not inform Agents Sigur or McCurry that he was going to open
the package, nor was anyone from the government present when
he did so. No one from the government asked Mr. Gilbert to
open the package Id. at 57:17-18, 59:19-24. Mr.
Gilbert further denied that Agent Sigur offered him any
reward for opening the package or threatened him with any
negative consequences if he did not open the package.
Id. at 59:22-60:2. The reason he opened it, Mr.
Gilbert testified, was “[t]o make sure that there [was]
nothing prohibited or illegal in it.” Id. at
opening the package, Mr. Gilbert found two parts he described
in his investigation report as “metal washer-type
parts.” Gov't. Exh. 4 at 2. At the hearing,
however, Mr. Gilbert testified that the items did not appear
to be what he “envisioned aluminum washers to be,
” and that he would not describe the items he found in
the package as washers. Hr'g. Tr. at 70:22-25; 72:6. He
went on to explain that after opening the packages, he
contacted Agent Sigur because “[a]t that point I felt
that there may have been some fraud going on here, so I
contacted...to let him know that I had what could be what he
was looking for. But my basic concern was that it did not
seem to jive (sic) with the export paperwork.”
Id. at 72:17. That paperwork identified the goods as
“[t]wo pieces of aluminum washer.” Id.
at 70:1. Agents Sigur and McCurry then went out to UPS's
Palatine facility, where Mr. Gilbert showed them the package
and its contents. Id. at 74:8-16. The agents then
seized the package.
record reflects that in or around September of 2015, Special
Agent Amber Wigant, who succeeded Agent Sigur as case agent,
wrote an investigation report “to clarify details of
the seizure from UPS in January 2010.” Exh. 9 to
Pl.'s Mot., at 1. According to that report, “SA
Sigur stated that at no time did he instruct UPS to open or
otherwise inspect ...