Pubdate: Tue, 18 Apr 2000
Source: Washington Post (DC)
Copyright: 2000 The Washington Post Company
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Author: Joan Biskupic, Washington Post Staff Writer

HIGH COURT LIMITS POLICE LUGGAGE SEARCHES

A bus passenger who puts his luggage in an overhead rack expects privacy 
for his belongings, a right that police violate if they squeeze the bags in 
a search for drugs, the Supreme Court ruled yesterday.

By a 7-to-2 vote, the justices reversed the conviction of a man who was 
found to have a "brick" of methamphetamine in his canvas bag, ruling that 
he had been subject to an unreasonable search under the Fourth Amendment. A 
federal agent who had checked passengers' immigration status aboard a 
Greyhound bus in Sierra Blanca, Tex., discovered the drugs as he began 
feeling suitcases in the storage rack.

The somewhat surprising decision written by Chief Justice William H. 
Rehnquist strongly rejected the Justice Department's contention that 
someone traveling on public transportation who puts his bags where they may 
be touched by other passengers loses the expectation of privacy. The court 
highlighted the intrusion of "tactile" observation, as opposed to the mere 
visual surveillance of a person's property.

Although the decision was foreshadowed by the justices' concerns at oral 
arguments last month, it is nonetheless a departure from this court's usual 
pattern of giving law enforcement considerable latitude to conduct 
searches, even when officers have no specific reasons to believe a crime 
has occurred.

The ruling clears up conflicting views among federal appellate courts and 
will curtail a drug interdiction practice common along the border. The 
narrowly written decision most directly affects bus and train passengers. 
It is unlikely to extend in many circumstances to airplane travelers, who 
already are subject to numerous security checkpoints.

Rehnquist acknowledged that the court previously had ruled that police 
observation of a back yard from a low-flying plane and of a greenhouse from 
a helicopter did not violate a reasonable expectation of privacy. Those 
cases involved defendants who were growing marijuana.

"But [those cases] are different," he said in yesterday's case of Steven 
Dewayne Bond, who had wrapped an oval-shaped brick of methamphetamine in 
duct tape and rolled it in a pair of pants before packing into a canvas 
bag. "Physically invasive inspection is simply more intrusive than purely 
visual inspection."

Rehnquist said the critical factors are that an individual believes his 
property will remain private and that society considers that expectation 
reasonable. He noted that while a traveler may anticipate some shuffling of 
his bags, "he does not expect that other passengers or bus employees will, 
as a matter of course, feel the bag in an exploratory manner."

"Travelers are particularly concerned about their carry-on luggage," 
Rehnquist added. "They generally use it to transport personal items that, 
for whatever reason, they prefer to keep close at hand." He was joined by 
Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, David 
H. Souter, Clarence Thomas and Ruth Bader Ginsburg.

Justices Stephen G. Breyer and Antonin Scalia dissented, seeking to uphold 
Bond's conviction for conspiracy and drug possession. In an opinion written 
by Breyer, they said bus travelers know their bags will be jostled by 
strangers and that there is no Fourth Amendment expectation of privacy for 
objects a person "knowingly exposes" to the public.

"Of course, the agent's purpose here - searching for drugs - differs 
dramatically from the intention of a driver or fellow passenger who 
squeezes a bag in the process of making more room for another parcel," 
Breyer wrote. "But in determining whether an expectation of privacy is 
reasonable, it is the effect, not the purpose, that matters."

William J. Mertens, who submitted a "friend of the court" brief for the 
National Association of Criminal Defense Lawyers on Bond's behalf, said 
yesterday's ruling was important because individuals increasingly find 
themselves and their belongings in crowded settings where their bags might 
be exposed.

"There was a concern that [police touching] would spread to bus stations 
outside the border states . . . and maybe other kinds of transportation, if 
the court ruled the other way," he said.

On the other side, the National Association of Police Organizations said 
the decision in Bond v. United States will hurt efforts to stanch illegal 
drug trafficking, particularly at the U.S.-Mexico border.

"Effective law enforcement requires that officers utilize every appropriate 
and reasonable method," said Robert T. Scully, the association's executive 
director, "including the touching or handling of soft-sided bags placed on 
open luggage racks on buses, trains, and airplanes."
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