OCTOBER TERM, 1999
Syllabus
BOND
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 98-9349. Argued February 29, 2000-Decided April 17, 2000
Border Patrol Agent Cantu boarded a bus in Texas to check the
immigration status of its passengers. As he walked off the bus, he
squeezed the soft luggage which passengers had placed in the
overhead storage space. He squeezed a canvas bag above petitioner's
seat and noticed that it contained a "brick-like" object. After
petitioner admitted owning the bag and consented to its search,
Agent Cantu discovered a "brick" of methamphetamine. Petitioner was
indicted on federal drug charges. He moved to suppress the drugs,
arguing that Agent Cantu conducted an illegal search of his bag.
The District Court denied the motion and found petitioner guilty.
The Fifth Circuit affirmed the denial of the motion, holding that
Agent Cantu's manipulation of the bag was not a search under the
Fourth Amendment.
Held: Agent Cantu's physical manipulation of petitioner's
carry-on bag violated the Fourth Amendment's proscription against
unreasonable searches. A traveler's personal luggage is clearly an
"effect" protected by the Amendment, see
United States v.
Place, 462 U.
S. 696, 707, and it is undisputed that petitioner possessed a
privacy interest in his bag. The Government's assertion that by
exposing his bag to the public, petitioner lost a reasonable
expectation that his bag would not be physically manipulated is
rejected.
California v.
Ciraolo, 476 U. S. 207, and
Florida v.
Riley, 488 U. S. 445, are
distinguishable, because they involved only visual, as opposed to
tactile, observation. Physically invasive inspection is simply more
intrusive than purely visual inspection. Under this Court's Fourth
Amendment analysis, a court first asks whether the individual, by
his conduct, has exhibited an actual expectation of privacy; that
is, whether he has shown that "he [sought] to preserve [something]
as private."
Smith v.
Maryland, 442 U. S. 735, 740. Here,
petitioner sought to preserve privacy by using an opaque bag and
placing it directly above his seat. Second, a court inquires
whether the individual's expectation of privacy is "one that
society is prepared to recognize as reasonable."
Ibid.
Although a bus passenger clearly expects that other passengers or
bus employees may handle his bag, he does not expect that they will
feel the bag in an exploratory manner. But this is exactly what the
agent did here. Pp. 336-339.
167 F.3d
225, reversed.
335
REHNQUIST, C. J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which SCALIA,
J., joined,
post, p.339.
M. Carolyn Fuentes argued the cause for petitioner.
With her on the briefs were
Lucien B. Campbell and
Henry
Jeffrey A. Lamken argued the cause for the United
States.
With him on the brief were Solicitor General Waxman, Assistant
Attorney General Robinson, and Deputy Solicitor General Dreeben.
*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case presents the question whether a law enforcement
officer's physical manipulation of a bus passenger's carry-on
luggage violated the Fourth Amendment's proscription against
unreasonable searches. We hold that it did.
Petitioner Steven Dewayne Bond was a passenger on a Greyhound
bus that left California bound for Little Rock, Arkansas. The bus
stopped, as it was required to do, at the permanent Border Patrol
checkpoint in Sierra Blanca, Texas. Border Patrol Agent Cesar Cantu
boarded the bus to check the immigration status of its passengers.
After reaching the back of the bus, having satisfied himself that
the passengers were lawfully in the United States, Agent Cantu
began walking toward the front. Along the way, he squeezed the soft
luggage which passengers had placed in the overhead storage space
above the seats.
*Briefs of
amici curiae urging reversal were filed for
the National Association of Criminal Defense Lawyers et al. by
William J. Mertens and
Barbara Bergman;
and for the Pro Bono Criminal Assistance Project by
David L.
Heilberg.
Stephen R. McSpadden filed a brief for the National
Association of Police Organizations as
amicus curiae urging
affirmance.
336
Petitioner was seated four or five rows from the back of the
bus. As Agent Cantu inspected the luggage in the compartment above
petitioner's seat, he squeezed a green canvas bag and noticed that
it contained a "brick-like" object. Petitioner admitted that the
bag was his and agreed to allow Agent Cantu to open it.1 Upon
opening the bag, Agent Cantu discovered a "brick" of
methamphetamine. The brick had been wrapped in duct tape until it
was oval-shaped and then rolled in a pair of pants.
Petitioner was indicted for conspiracy to possess, and
possession with intent to distribute, methamphetamine in violation
of 84 Stat. 1260, 21 U. S. C. § 841(a)(1). He moved to suppress the
drugs, arguing that Agent Cantu conducted an illegal search of his
bag. Petitioner's motion was denied, and the District Court found
him guilty on both counts and sentenced him to 57 months in prison.
On appeal, he conceded that other passengers had access to his bag,
but contended that Agent Cantu manipulated the bag in a way that
other passengers would not. The Court of Appeals rejected this
argument, stating that the fact that Agent Cantu's manipulation of
petitioner's bag was calculated to detect contraband is irrelevant
for Fourth Amendment purposes.
167 F.3d
225, 227
(CA5 1999) (citing
California v.
Ciraolo, 476 U. S. 207 (1986)). Thus, the Court of Appeals
affirmed the denial of the motion to suppress, holding that Agent
Cantu's manipulation of the bag was not a search within the meaning
of the Fourth Amendment. 167 F. 3d, at 227. We granted certiorari,
528 U. S. 927 (1999), and now reverse.
The Fourth Amendment provides that "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated .... " A
traveler's personal luggage is clearly an "effect" protected by the
Amendment. See
United States v.
1 The Government has not argued here that petitioner's consent
to Agent Cantu's opening the bag is a basis for admitting the
evidence.
337
Place, 462
U. S. 696, 707 (1983). Indeed, it is undisputed here that
petitioner possessed a privacy interest in his bag.
But the Government asserts that by exposing his bag to the
public, petitioner lost a reasonable expectation that his bag would
not be physically manipulated. The Government relies on our
decisions in
California v.
Ciraolo, supra, and
Florida v.
Riley, 488 U. S. 445 (1989), for
the proposition that matters open to public observation are not
protected by the Fourth Amendment. In
Ciraolo, we held that
police observation of a backyard from a plane flying at an altitude
of 1,000 feet did not violate a reasonable expectation of privacy.
Similarly, in
Riley, we relied on
Ciraolo to hold
that police observation of a greenhouse in a home's curtilage from
a helicopter passing at an altitude of 400 feet did not violate the
Fourth Amendment. We reasoned that the property was "not
necessarily protected from inspection that involves no physical
invasion," and determined that because any member of the public
could have lawfully observed the defendants' property by flying
overhead, the defendants' expectation of privacy was "not
reasonable and not one 'that society is prepared to honor.''' See
Riley, supra, at 449 (explaining and relying on
Ciraolo's reasoning).
But
Ciraolo and
Riley are different from this case
because they involved only visual, as opposed to tactile,
observation. Physically invasive inspection is simply more
intrusive than purely visual inspection. For example, in
Terry v.
Ohio, 392 U. S. 1, 16-17 (1968), we stated
that a "careful [tactile] exploration of the outer surfaces of a
person's clothing all over his or her body" is a "serious intrusion
upon the sanctity of the person, which may inflict great indignity
and arouse strong resentment, and it is not to be undertaken
lightly." Although Agent Cantu did not "frisk" petitioner's person,
he did conduct a probing tactile examination of petitioner's
carry-on luggage. Obviously, petitioner's bag was not part of his
person. But travelers are particularly concerned
338
about their carry-on luggage; they generally use it to transport
personal items that, for whatever reason, they prefer to keep close
at hand.
Here, petitioner concedes that, by placing his bag in the
overhead compartment, he could expect that it would be exposed to
certain kinds of touching and handling. But petitioner argues that
Agent Cantu's physical manipulation of his luggage "far exceeded
the casual contact [petitioner] could have expected from other
passengers." Brief for Petitioner 18-19. The Government counters
that it did not.
Our Fourth Amendment analysis embraces two questions.
First, we ask whether the individual, by his conduct, has
exhibited an actual expectation of privacy; that is, whether he has
shown that "he [sought] to preserve [something] as private."
Smith v.
Maryland, 442 U. S. 735, 740 (1979)
(internal quotation marks omitted). Here, petitioner sought to
preserve privacy by using an opaque bag and placing that bag
directly above his seat. Second, we inquire whether the
individual's expectation of privacy is "one that society is
prepared to recognize as reasonable."
Ibid. (internal
quotation marks omitted).2 When a bus passenger places a bag in an
overhead bin, he expects that other passengers or bus employees may
move it for one reason or another. Thus, a bus passenger clearly
expects that his bag may be handled. He does not expect that other
passengers or bus employees will,
2 The parties properly agree that the subjective intent of the
law enforcement officer is irrelevant in determining whether that
officer's actions violate the Fourth Amendment. Brief for
Petitioner 14; Brief for United States 33-34; see
Whren v.
United States, 517 U. S. 806, 813 (1996)
(stating that "we have been unwilling to entertain Fourth Amendment
challenges based on the actual motivations of individual
officers");
California v.
Ciraolo, 476 U. S. 207, 212 (1986)
(rejecting respondent's challenge to "the authority of government
to observe his activity from any vantage point or place if the
viewing is motivated by a law enforcement purpose, and not the
result of a casual, accidental observation"). This principle
applies to the agent's acts in this case as well; the issue is not
his state of mind, but the objective effect of his actions.
339
as a matter of course, feel the bag in an exploratory manner.
But this is exactly what the agent did here. We therefore hold that
the agent's physical manipulation of petitioner's bag violated the
Fourth Amendment.
The judgment of the Court of Appeals is
Reversed.
JUSTICE BREYER, with whom JUSTICE SCALIA joins, dissenting.
Does a traveler who places a soft-sided bag in the shared
overhead storage compartment of a bus have a "reasonable
expectation" that strangers will not push, pull, prod, squeeze, or
otherwise manipulate his luggage? Unlike the majority, I believe
that he does not.
Petitioner argues-and the majority points out-that, even if bags
in overhead bins are subject to general "touching" and "handling,"
this case is special because "Agent Cantu's physical manipulation
of [petitioner's] luggage 'far exceeded the casual contact [he]
could have expected from other passengers.'"
Ante, at 338.
But the record shows the contrary. Agent Cantu testified that
border patrol officers (who routinely enter buses at designated
checkpoints to run immigration checks) "conduct an inspection of
the overhead luggage by squeezing the bags as we're going out."
App. 9. On the occasion at issue here, Agent Cantu "felt a green
bag" which had "a brick-like object in it."
Id., at 10. He
explained that he felt "the edges of the brick in the bag,"
id., at 12, and that it was a "[b]rick-like object ... that,
when squeezed, you could feel an outline of something of [a]
different mass inside of it,"
id., at 11. Although the agent
acknowledged that his practice was to "squeeze [bags] very hard,"
he testified that his touch ordinarily was not "[h]ard enough to
break something inside that might be fragile."
Id., at 15.
Petitioner also testified that Agent Cantu "reached for my bag, and
he shook it a little, and squeezed it."
Id., at 18.
340
How does the "squeezing" just described differ from the
treatment that overhead luggage is likely to receive from strangers
in a world of travel that is somewhat less gentle than it used to
be? I think not at all. See
United States v.
McDonald, 100 F.3d
1320, 1327
(CA7 1996) (" '[A]ny person who has travelled
on a common carrier knows that luggage placed in an overhead
compartment is always at the mercy of all people who want to
rearrange or move previously placed luggage' "); Eagan, Familiar
Anger Takes Flight with Airline Tussles, Boston Herald, Aug. 15,
1999, p. 8 ("It's dog-eat-dog trying to cram half your home into
overhead compartments"); Massingill, Airlines Ride on the Wings of
HighFlying Economy and Travelers Pay Price in Long Lines, Cramped
Airplanes, Kansas City Star, May 9, 1999, p. F4 ("[H]undreds of
passengers fill overhead compartments with bulky carry-on bags that
they have to cram, recram, and then remove"); Flinn, Confessions of
a Once-Only Carry-On Guy, San Francisco Examiner, Sept. 6, 1998, p.
T2 (flight attendant "rearranged the contents of three different
overhead compartments to free up some room" and then "shoved and
pounded until [the] bag squeezed in"). The trial court, which heard
the evidence, saw nothing unusual, unforeseeable, or special about
this agent's squeeze. It found that Agent Cantu simply "felt the
outside of Bond's softside green cloth bag," and it viewed the
agent's activity as "minimally intrusive touching." App. 23 (Order
Denying Motion to Suppress). The Court of Appeals also noted that,
because "passengers often handle and manipulate other passengers'
luggage," the substantially similar tactile inspection here was
entirely "foreseeable."
167 F.3d
225, 227
(CAS 1999).
The record and these factual findings are sufficient to resolve
this case. The law is clear that the Fourth Amendment protects
against government intrusion that upsets an "'actual (subjective)
expectation of privacy''' that is objectively "'reasonable.'''
Smith v.
Maryland, 442 U. S. 735, 740 (1979)
(quoting
Katz v.
United States, 389 U. S. 347, 361
341
(1967) (Harlan, J., concurring)). Privacy itself implies the
exclusion of uninvited strangers, not just strangers who work for
the Government. Hence, an individual cannot reasonably expect
privacy in respect to objects or activities that he "knowingly
exposes to the public."
Id., at 351.
Indeed, the Court has said that it is not
objectively
reasonable to expect privacy if "[a]ny member of the public ...
could have" used his senses to detect "everything that thee]
officers observed."
California v.
Ciraolo, 476 U. S. 207, 213-214
(1986). Thus, it has held that the fact that strangers may look
down at fenced-in property from an aircraft or sift through garbage
bags on a public street can justify a similar police intrusion. See
ibid.; Florida v.
Riley, 488 U. S. 445, 451 (1989)
(plurality opinion);
California v.
Greenwood,
486 U. S. 35,
40-41 (1988); cf.
Texas v.
Brown, 460 U. S. 730, 740 (1983)
(police not precluded from" 'ben[ding] down'" to see since "[t]he
general public could peer into the interior of [the car] from any
number of angles"). The comparative likelihood that strangers will
give bags in an overhead compartment a hard squeeze would seem far
greater. See
Riley, supra, at 453 (O'CONNOR, J., concurring
in judgment) (reasonableness of privacy expectation depends on
whether intrusion is a "sufficiently routine part of modern life").
Consider, too, the accepted police practice of using dogs to sniff
for drugs hidden inside luggage. See,
e. g., United States
v.
Place, 462
U. S. 696, 699 (1983). Surely it is less likely that
nongovernmental strangers will sniff at another's bags (or, more to
the point, permit their dogs to do so) than it is that such actors
will touch or squeeze another person's belongings in the process of
making room for their own.
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. But in determining whether an expectation of
privacy is reasonable, it is the
effect, not the purpose,
that matters. See
ante, at 338, n. 2
342
("[T]he issue is not [the agent's] state of mind, but the
objective effect of his actions"); see also
Whren v.
United States, 517 U. S. 806, 813
(1996);
United States v.
Dunn, 480 U. S. 294, 304-305
(1987). Few individuals with something to hide wish to expose that
something to the police, however careless or indifferent they may
be in respect to discovery by other members of the public. Hence, a
Fourth Amendment rule that turns on purpose could prevent police
alone from intruding where other strangers freely tread. And the
added privacy protection achieved by such an approach would not
justify the harm worked to law enforcement-at least that is what
this Court's previous cases suggest. See
Greenwood, supra,
at 41 ("[T]he police cannot reasonably be expected to avert their
eyes from evidence of criminal activity that could have been
observed by any member of the public");
Ciraolo, supra, at
212-213 (rejecting respondent's argument that the police should be
restricted solely because their actions are "motivated by a law
enforcement purpose, and not the result of a casual, accidental
observation").
Nor can I accept the majority's effort to distinguish "tactile"
from "visual" interventions, see
ante, at 337, even assuming
that distinction matters here. Whether tactile manipulation (say,
of the exterior of luggage) is more intrusive or less intrusive
than visual observation (say, through a lighted window) necessarily
depends on the particular circumstances.
If we are to depart from established legal principles, we should
not begin here. At best, this decision will lead to a
constitutional jurisprudence of "squeezes," thereby complicating
further already complex Fourth Amendment law, increasing the
difficulty of deciding ordinary criminal matters, and hindering the
administrative guidance (with its potential for control of
unreasonable police practices) that a less complicated
jurisprudence might provide. Cf.
Whren, supra, at 815
(warning against the creation of trivial Fourth Amendment
distinctions). At worst, this case will deter law en-
343
forcement officers searching for drugs near borders from using
even the most nonintrusive touch to help investigate publicly
exposed bags. At the same time, the ubiquity of non-governmental
pushes, prods, and squeezes (delivered by driver, attendant,
passenger, or some other stranger) means that this decision cannot
do much to protect true privacy. Rather, the traveler who wants to
place a bag in a shared overhead bin and yet safeguard its contents
from public touch should plan to pack those contents in a suitcase
with hard sides, irrespective of the Court's decision today.
For these reasons, I dissent.
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