|BOND V. UNITED STATES (98-9349) 529 U.S. 334 (2000)
167 F.3d 225, reversed.
[ Rehnquist ]
[ Breyer ]
STEVEN DEWAYNE BOND, PETITIONER v.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[April 17, 2000]
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 arguesand the majority points outthat, even if bags in overhead bins are subject to general touching and handling, this case is special because Agent Cantus physical manipulation of [petitioners] luggage far exceeded the casual contact [he] could have expected from other passengers.
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) (
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
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 th[e] officers observed. California v. Ciraolo, 476 U.S. 207, 213214 (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, 4041 (1988); cf. Texas v. Brown, 460 U.S. 730, 740 (1983) (police not precluded from
Of course, the agents purpose heresearching for drugsdiffers 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 4, n. 2 ([T]he issue is not [the agents] 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, 304305 (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 enforcementat least that is what this Courts 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 212213 (rejecting petitioners argument that the police should be restricted solely because their actions are motivated by a law enforcement purpose, and not the result of a causal, accidental observation).
Nor can I accept the majoritys effort to distinguish tactile from visual interventions, see ante, at 3, 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 enforcement officers searching for drugs near borders from using even the most non-intrusive 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 Courts decision today.
For these reasons, I dissent.