WASHINGTON -- Steven Dewayne Bond was on a Greyhound bus, traveling from California to Arkansas, minding his own business. Unfortunately, his business involved trafficking in illegal drugs. So now he is a footnote in constitutional history, having contributed to the creation of "a constitutional jurisprudence of squeezes."' His case illustrates how
reasonable Supreme Court justices can disagree about how finely some procedural hairs should be split.On Monday the Supreme Court ruled 7-2 that Bond's conviction on conspiracy and drug possession charges was improper because of the way the drugs he was transporting were found. A Border Patrol agent squeezed Bond's canvas carry-on bag.
When the bus pulled in, as it was required to do, at the immigration checkpoint on Interstate 10 near Sierra Blanca, Texas, the agent, working from the front to the back, checked that the approximately 45 passengers were legally in the country. Then, working from back to front, he looked for drugs by squeezing luggage in overhead bins.
When he felt a "brick-like" object in Bond's bag, and noted that Bond seemed nervous, he asked for and received Bond's permission to open the bag. What he found, wrapped in tape and wrapped additionally in a pair of pants, was methamphetamine. After his arrest, Bond made incriminating statements.
But before his trial he remembered the Fourth Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . . "). At trial he argued that the drugs were found by an illegal search, and that his statements were inadmissible as evidence because they were a consequence of the search.
The court was not persuaded. He was sentenced to 57 months in prison. He appealed, but the appellate court affirmed his conviction. It noted that when he stored his bag overhead, it was reasonable for him to expect that it would be moved and handled without his permission, by other passengers or people working for Greyhound making more room overhead. The court also said there was no constitutional importance in the fact that passengers
touching his bag would have a purpose unlike that of the agent.
Then the Supreme Court, which has lots of experience fine-tuning the meaning of the Fourth Amendment, decided to get more such experience. Writing for the majority, Chief Justice William Rehnquist used his mental micrometer to distinguish this case from two others in which the court upheld the constitutionality of police searches. One was the observation, from a police airplane at 1,000 feet, of marijuana growing in the backyard of a private residence. The other was the observation, from a police helicopter at 400 feet, of drugs growing in a greenhouse adjacent to a private residence.
Bond's case, Rehnquist reasoned, is different because tactile examination of a person's "effects" is different -- constitutionally different -- than visual examination: "Physically invasive inspection is simply more intrusive than purely visual inspection." Bond reasonably did not expect passengers or Greyhound employees to "feel the bag in an exploratory manner."
Dissenting, Justice Stephen Breyer, joined by Antonin Scalia, said, in effect, that Fourth Amendment casuistry could make your head hurt. The court has held that it is not an illegal search for a police officer to smell luggage, or to get a trained dog to smell it (or for an officer to examine the contents of a garbage bag put out for collection), but a police officer cannot touch Bond's bag in a way no more forceful than another passenger might.
"Privacy," said Breyer, "itself implies the exclusion of uninvited strangers, not just strangers who work for the government." And "in determining whether an expectation of privacy is reasonable, it is the effect, not the purpose, that matters." This is so because "a Fourth Amendment rule that turns on purpose could prevent police alone from intruding where other strangers freely tread." And by the way, surely whether tactile investigation is more or less intrusive than visual investigation depends on circumstances -- think of observing someone through a lighted window.
A few years ago Kansas City detectives on an Amtrak train bound for Los Angeles noticed a bag with no identification tag. They checked its weight by lifting it and pressed its sides hard enough to expel air from it. The air smelled of marijuana. The 8th Circuit called that an unreasonable search.
So it seems Bond did not quite pioneer what Breyer calls "a constitutional jurisprudence of 'squeezes.' " And he has not occasioned the last word on police practices and the Fourth Amendment.
Washington Post Writers Group