Search and Squeeze
This one’s going out to all you Slate readers involved in the transporting of illegal drugs over interstate lines: Justice Scalia says buy hard luggage.
Here’s a handy pullout guide to things state agents cannot do to you under the Fourth Amendment prohibition against “unreasonable searches and seizures.” The truly addled among you may want to paste this outside your glove box for easy reference.
The current jurisprudence of criminal procedure holds that the police/border patrol/FBI agent in question may:
Things the police cannot do to you and your bags, absent your consent or a warrant, are measured against your “reasonable expectation of privacy.” Today’s case, Bond vs. United States, is about whether you have a reasonable expectation of privacy when you place your drugs in the overhead compartment of a Greyhound bus.
Stephen Dewayne Bond and his drugs left California on a bus traveling to Arkansas at approximately 65 miles per hour … Bond had a “brick” of methamphetamine in a soft bag he stowed in the overhead compartment. The bus was pulled over in Texas, and border patrol agent Cesar Cantu boarded the bus for a routine immigration inspection. As you know from the handy guide supra, Cantu’s behavior was limited to asking questions and checking documents. But once he did so, Cantu made his way back to the front of the bus, squeezing and feeling the luggage in the overhead compartments. Cantu felt Bond’s brick and grew suspicious, Bond consented to a search, drugs were found, and Bond confessed.
Bond tried to suppress the drugs (and resulting confession) on the grounds that Cantu’s fondling of his bag violated his Fourth Amendment guarantee against unreasonable searches. Both the district court and the Fifth Circuit disagreed, and Bond got 57 months in prison. The question before the Supremes is whether public bag squeezing by state officials constitutes a search under the Fourth Amendment. The court must locate this case within a continuum of existing case law by deciding whether Cantu’s act was closer to permissible garbage-rooting or impermissible frisking. And that will turn on the rather mushy notion of what we consider “private” when we take our bodies and our stuff out for walks in public spaces.
Bond’s attorney, Carolyn Fuentes, tries to analogize the Bond facts to a frisk. She says we expect people to move our luggage on overhead racks, but we have no expectation they will squeeze and feel it, just as we don’t expect strangers to squeeze and feel us (unless we’re in Paris). But Justice Scalia is itching to put forth his “reasonable expectation of privacy” theory, and it’s this: We don’t expect reasonable, polite people to squeeze our overhead bags any more than we expect reasonable, polite people to peep in our windows. But the privacy standard isn’t limited to our expectations of nice people. He hypothesizes “nasty passengers” who joyfully squeeze strangers’ bags. Why have an expectation of privacy that excludes them?
(Scalia returns to this theme several times and it puzzles me—does he really believe the world to be so teeming with nasty bag-squeezers that they create a reasonable social expectation that it happens?)
Justice Breyer, inspired perhaps by Bond’s unsolicited confession to Cantu, almost immediately confesses that he frequently flies to Boston and pushes other people’s bags around the overhead bins in order to shove his own in. He asks how one can expect privacy in those bags if everyone is moving them.
Now cover your ears, Jed Purdy, because irony is alive and thriving in the Supreme Court, and here’s why. Yesterday, in the death penalty case, the guards outside the courthouse refused to let me in with a book—Kafka’s The Trial. I swear. Today’s irony is almost better—Bond asserts Cantu’s search was excessive because his drugs were so well disguised—the brick was wrapped in duct tape until the package was oval. Then wrapped in a pair of pants! Then packed in a canvas bag! Cantu’s search had to have been wildly intrusive to discern the brick under all that illegal concealment of an illegal substance. Fuentes gets impressively aggrieved on his behalf.
Justice Scalia tells her flat out that if she’s asking for a test based on “degree of manipulation,” he’s unlikely to go along. Kennedy is bothered because the case law says the subjective purpose of the searcher is irrelevant, yet Fuentes’ test seems to require it. She replies that the case is not about the “motive” of the squeezer but the “manner.” In other words, we may reasonably expect strangers to move our bags for any number of reasons but not to “squeeze and shake” them, as Cantu did. Put another way, Bond’s contention is that bags should only be stirred, not shaken.
It’s at this point that Scalia interrupts to tell Fuentes that he’d “feel a lot sorrier for your client if there weren’t an easy way to avoid this. It’s called hard luggage.” Scalia is enfuego today.
Justice Kennedy is hung up on the fact that Bond never asked Cantu to stop searching his bag and is unimpressed when Fuentes suggests border guards tend to have a rather intimidating air of authority. Kennedy asks how you can have a reasonable expectation of privacy if you refuse to avail yourself of the power to protect it.
Scalia cuts in to ask whether fellow passengers have the right to sniff your luggage.
Jeffrey A. Lamken represents the solicitor general’s office, and he reels off long, long sentences, frequently without breathing. He almost immediately gets tangled up in a colloquy with Kennedy over whether Bond might have some civil tort remedies against bag-squeezers. He says Bond has suffered no harm. Kennedy tells him Bond’s attorney will probably beg to differ since her client is in jail.
A gloriously funny moment arrives when Scalia asks: Suppose identifying the item in the bag would have required pulling and squeezing beyond foreseeable pulling or grabbing by other passengers? Since honesty is a virtue, Lamken replies, “Then we would lose.” To which Scalia rejoins, “Then you may lose.”
Judge Souter tries to press him on the difference between “touching and looking” for Fourth Amendment purposes. We reasonably expect strangers to look at us or our stuff. We do not expect them to touch us. Justice Kennedy wonders if the issue is the length of time the officer takes to manipulate the bag. Justice Ginsburg asks him to read something from the record, and Lamken scrambles to find it, emitting a sigh so loud it almost wakes Justice Thomas.
Breyer warns (echoing Scalia’s earlier point) that it would be “a mistake to generate a jurisprudence of hard squeezes.” Unless this is Charmin Court.
Stevens reels off a list of hypos that leave Lamken breathless: What if Bond kept his bag in his lap (can’t touch); what if he kept it under the seat (also can’t touch); well what if he was sharing the space under the seat (still can’t)? What, Stevens asks, about that shared compartment underneath the bus?
“I’m not understanding the situation you’re describing,” replies Lamken.
“You never ride on buses? Only airplanes?” asks Stevens—also enfuego today. Lamken replies that this compartment can presumably be searched if other passengers touch the bags.
Scalia: “How about if only the driver can touch the bags? If he takes them out, one by one. ‘Jones! Jones!’ This is a slow bus.” Lamken looks like he’s been beaten to within an inch of his life with blunt hypos.
Wherever the court draws the line between “good touch” and “bad touch” today, one pragmatic point is clear: If you ever have to pick which justice to sit beside on a plane, go with Ginsburg. Breyer is a self-confessed luggage-mover, and Scalia may well be a closet luggage-sniffer.
