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Case: Bond v. United States

Issue: Did a Border Patrol Agent violate a bus passenger's Fourth Amendment expectation of privacy when he physically manipulated the passenger's baggage to learn about its contents?

Facts: After boarding a Greyhound bus (at a permanent Border Patrol checkpoint in Texas), checking the immigration status of passengers, reaching the back of the bus, and satisfying himself that the passengers were lawfully within the United States, a Border Patrol Agent proceeded to walk toward the front of the bus while squeezing the soft luggage stored above some of the passengers' seats. In one canvas bag he noticed a "brick-like" object. Petitioner Bond admitted that the bag was his and allowed the agent to inspect it. Inside, the agent found a "brick" of methamphetamine. The petitioner was indicted, pursuant to 21 U.S.C. § 841 (a) (1), for conspiracy to possess and possession with intent to distribute methamphetamine. Bond moved to suppress the drugs, arguing that the agent had initially conducted an illegal search of his bag by squeezing it. The motion to suppress was denied. On appeal, Bond conceded that other passengers had access to his bag, but stressed that the agent had manipulated it in a way that the other passengers would not have. The United States Court of Appeals for the Fifth Circuit affirmed denial of the motion to suppress, holding that no Fourth Amendment search had occurred. Citing,  California v. Ciraolo, 476 U.S. 227 (1986), the Fifth Circuit noted that the agent’s manipulation of the bag, even in a manner calculated to detect contraband, was irrelevant for purposes of Fourth Amendment analysis.

Holding: "[T]he agent’s manipulation of petitioner’s bag violated the Fourth Amendment."

Reasoning: Chief Justice Rehnquist, joined by Justices Stevens, O’Connor, Kennedy, Souter, Thomas and Ginsburg opined that the petitioner showed an intent to keep his effects private (thereby exhibiting an "actual expectation of privacy") by (1) putting them in an opaque bag and (2) placing the bag directly above his seat. Petitioner’s expectation was "one that society is prepared to accept as reasonable" because, while bus passengers have reason to believe that their bags may be touched or handled by other passengers, or by bus company employees, they have no reason to believe that their bags will be felt in an exploratory manner as petitioner’s was by the agent in this case. The Court distinguished this case from its previous opinions in Ciraolo and  Florida v. Riley, 488 U.S. 445 (1989), by pointing out that those cases involved visual (less intrusive) rather than tactile (more intrusive) inspection.

Other Opinions: Justice Breyer, joined by Justice Scalia, dissented, arguing that the squeezing by the agent was similar in kind to that expected from other passengers and that travelers have no reasonable expectation that strangers will not "push, pull, prod, squeeze, or otherwise manipulate" a soft-sided bag placed in the shared overhead storage compartment of a bus. Breyer noted that privacy "implies the exclusion of uninvited strangers, not just strangers who work for the Government." While the agent’s purpose for squeezing the bag differed "dramatically" from the purpose of a driver or fellow passenger who might squeeze the bag to make room for another, Breyer argued that "it is the effect, not the purpose, that matters" according to Court precedent, particularly  Whren v. United States, 517 U.S. 806, 813 (1996). The reasoning of the majority "could prevent the police alone from intruding where other strangers freely tread." Breyer also rejected the majority’s contention that tactile investigation is necessarily more intrusive than visual investigation, contending that the intrusiveness of a particular investigation depends on the particular circumstances. The dissent predicted a Fourth Amendment jurisprudence of "squeezes" and bemoaned the resulting lack of clarity in law enforcement administration.

Comment: A person’s "effects" according to the Court’s longstanding case law, are not subject to Fourth Amendment protection unless that person has an actual (or subjective) expectation of privacy in the "effects" and society is prepared to accept that subjective expectation as reasonable. The key factors for the majority in this case were the opaque nature of Bond's luggage and the abnormal manner in which it was squeezed.