Bond v. United States – Oral Argument – February 29, 2000

Media for Bond v. United States

Audio Transcription for Opinion Announcement – April 17, 2000 in Bond v. United States

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William H. Rehnquist:

We’ll hear argument first this morning in Number 98-9349, Steven Dewayne Bond v. The United States.

Ms. Fuentes.

M. Carolyn Fuentes:

Mr. Chief Justice, and may it please the Court:–

Mr. Bond’s case presents the question whether a search occurs for purposes of the Fourth Amendment when a law enforcement officer manipulates a bus passenger’s carry on luggage to determine its contents.

If manipulation of luggage is not a search, then law officers will be able to squeeze and feel carry on luggage, as Agent Cantu did in Mr. Bond’s case, free from judicial scrutiny in criminal cases and without any Fourth Amendment requirement that their actions be reasonable.

Over 30 years ago, in Terry v. Ohio, this Court said that it is sheet torture of the English language to suggest that a careful exploration all over the outer clothing of a person’s body is not a search.

The same can be said in this case.

The principles in Terry, as well as those in Dickerson v. Minnesota, govern this case.

Now, the Government says that they do not and says, instead, this Court’s public exposure cases govern the determination in Mr. Bond’s case.

The flaw in the Government’s argument is that it fails to recognize that on the line between Dickerson and Terry on the one hand and the public exposure cases on the other, Mr. Bond’s case falls far closer to the facts, circumstances, and legal principles in Dickerson and in Terry.

For example, Terry and Dickerson involved searches of outer clothing being worn by a person.

Outer clothing, the pockets of outer clothing in particular, serve the function of being a repository of personal effects.

We commonly carry our personal effects on our clothing, in our pockets.

A travel bag, like the one Mr. Bond carried, serves the same function.

Antonin Scalia:

But the difference… the difference, Ms. Fuentes, if there is one, I mean, the difference asserted, is whether there’s a reasonable expectation of privacy, and you do have a reasonable expectation of privacy in your clothing.

You don’t expect somebody to come up and frisk you.

M. Carolyn Fuentes:

I think that’s–

Antonin Scalia:

But you don’t have a reasonable expectation of privacy, your opponents will say, in a soft bag that you chuck into a… you know, a carrier on the airplane.

You know that other passengers can go there and feel it.

M. Carolyn Fuentes:

–Well, of course, we dispute that, Your Honor.

We think that Mr. Bond did have a reasonable expectation of privacy in his luggage, and he had a reasonable expectation to be free from a Government tactile examination of that luggage.

Antonin Scalia:

But… now, how can that be?

Did he have a reasonable expectation other passengers would not be able to feel the luggage and see what was in it?

M. Carolyn Fuentes:

He reasonably expected that other passengers might push or move the luggage if they needed to make room for their own, but that is not what Agent Cantu did.

Antonin Scalia:

They couldn’t have squeezed it?

M. Carolyn Fuentes:

I think they could have squeezed it, but again that is not what Agent Cantu did.

When we get on a bus and we put our luggage overhead, the expectation is that if another passenger needs to come aboard and needs room in that luggage bin, maybe he will push it, maybe he will pull it, I think maybe he could squeeze it.

Antonin Scalia:

But there are some nasty passengers who may go beyond that.

Let’s analogize it to the situation where you leave your window shades up.

Now, you don’t expect your neighbors to peek into your room, but you don’t have a reasonable expectation of privacy, and the police are entitled to observe what is going on in the room if you leave the shades up, isn’t that right?

M. Carolyn Fuentes:

In that–

Antonin Scalia:

Now, it may be a nasty thing for people to look into your room.

M. Carolyn Fuentes:

–In that case, I think it’s correct, Your Honor, but I think one of the major distinctions between Mr. Bond’s case and the public exposure cases are that in fact those observa… the observations in those cases and in the example that you just gave took place from public thoroughfares, and this Court has found that people don’t have a reasonable expectation to be free of visual observations made by those who are in a vantage point where they have a right to be.

That’s–

Ruth Bader Ginsburg:

We had a case that involved an apartment building and the police went right next to the particular apartment.

It wasn’t a public road, and it wasn’t the air space above.

M. Carolyn Fuentes:

–I believe you’re talking about Minnesota v. Carver–

Ruth Bader Ginsburg:

Yes.

M. Carolyn Fuentes:

–Justice Ginsburg, and I think in that case it was still from a public vantage point.

A street, whether it’s an open public thoroughfare or open area next to a house, is entirely different from the surface of Mr. Bond’s luggage.

William H. Rehnquist:

Well, but you would have to contend… well, you don’t contend that the aisle of an interstate bus is not a public place for this purpose?

I mean, Agent Cantu had a perfect right to be in the aisle.

M. Carolyn Fuentes:

He did, and if he had made his observations from the aisle, we might have a bad case, but he did not.

The observations that he made about the contents of Mr. Bond’s luggage were made from the… through the surface of his luggage.

The observations weren’t made just from the bus.

They were made from the luggage.

David H. Souter:

Yes, but he was standing in the aisle.

Isn’t that the point of the analogy?

He did the feeling while he was standing in an aisle where at least public to the extent of bus passengers were free to be, just as the person who peeps in the window is doing so, on your reasoning, from a place where that person has a right to be.

M. Carolyn Fuentes:

I don’t think so.

David H. Souter:

Isn’t–

M. Carolyn Fuentes:

I’m sorry.

David H. Souter:

–Go ahead.

M. Carolyn Fuentes:

I don’t think that is the analogy, and I think the Court recognized as much in the Dickerson case.

The Dickerson case involved a pat down of a person’s outer pockets.

David H. Souter:

Okay, but it seems to me, and this was what I was going to ask you to comment–

M. Carolyn Fuentes:

Certainly.

David H. Souter:

–on.

What is crucial is not where they were standing, but what they were doing.

M. Carolyn Fuentes:

Correct.

David H. Souter:

Don’t we draw a line between looking, which is basically free, and feeling, which is not basically free?

M. Carolyn Fuentes:

Yes, I would agree, and that is another point that distinguishes Mr. Bond’s case from the public exposure cases.

Stephen G. Breyer:

What do I do with the following problem for me, which is, I fly quite a lot up to Boston and so forth, and I put bags all the time in the upper thing, and people are always moving them around.

they push them, they lift them up, they move them to other places, and if they’re soft they would feel just what was in the inside.

Now, that happens all the time, and I do it myself, frankly.

I move somebody else’s bag and push mine in, and I imagine the interstate bus here was no different.

So if that happens all the time, how can I say that your client has some kind of special expectation, since in my own experience, people are always handling this soft luggage?

M. Carolyn Fuentes:

I think that that experience is the reasonable expectation.

They need to move the luggage, and so they push it or they move it.

Agent Cantu was not in that position.

I’ll give you an example.

If you’re on the plane and there are only three people on there, and there’s luggage down the hall and there’s luggage over your head, you don’t expect that someone is going to come into the plane and start squeezing and moving your luggage when–

Sandra Day O’Connor:

Well, Ms. Fuentes, you know, we don’t have a lot of evidence here about exactly what Agent Cantu did.

It’s very sparse.

He felt… the district court said only that Agent Cantu felt the bag, so we really don’t know what’s involved, more than the passenger shoving it around situation.

M. Carolyn Fuentes:

–I think… excuse me, Your Honor.

I think we do have a good idea of what was involved if we look at Agent Cantu’s testimony itself.

Agent Cantu said he squeezed the bag, and he described what he felt.

He felt a brick of methamphetamine, which is a rectangular object.

Now, that brick was wrapped in–

Sandra Day O’Connor:

I thought it turned out it was an oval, not a brick at all.

M. Carolyn Fuentes:

–It was wrapped with duct tape until it became oval shaped.

Then it was wrapped in a pair of pants.

Then it was placed inside a canvas bag which was closed to the public.

William H. Rehnquist:

How large was the brick, Ms. Fuentes?

Does the record show that?

M. Carolyn Fuentes:

The brick was approximately 4 to 5 inches wide by 6 to 7 inches long.

It doesn’t give the third dimension of the brick.

Anthony M. Kennedy:

There’s a difference here in what the police officer did and what the fellow passenger does to Justice Breyer’s luggage.

In this case the purpose of the manipulation, or the touching of the bag, was to see what was inside.

Anthony M. Kennedy:

That, I presume, is not the purpose of a passenger.

On the other hand, I think this is a difference that the law ignores, is it not?

We do not ask about the subjective intention–

M. Carolyn Fuentes:

We do–

Anthony M. Kennedy:

–of the person that touches the bag, or do we?

M. Carolyn Fuentes:

–I–

Anthony M. Kennedy:

Or is there something like an objective purpose that we look… I think this is one of those differences to which the law is blind, or am I wrong about that?

M. Carolyn Fuentes:

–No, I don’t think the law is blind to it.

I think what the law says is that we… is that an officer’s subjective motive, or subjective intent, may not serve to invalidate objectively justifiable behavior, and I think that was the Court’s holding in the Whren case.

Sandra Day O’Connor:

How do we distinguish the dog sniff cases, where we’ve upheld the use of police dogs to sniff luggage for narcotics?

M. Carolyn Fuentes:

There are multiple factors, but I think the most important one is that a dog sniff is incapable of revealing anything to the police except the presence of contraband.

Anthony M. Kennedy:

Well, just to conclude my previous question, do you submit the case on the proposition that the purpose of the search, or, rather, the touching, is irrelevant?

M. Carolyn Fuentes:

No.

I don’t think the purpose is irrelevant to the extent–

Anthony M. Kennedy:

All right.

Do you have some authority for that proposition?

M. Carolyn Fuentes:

–Yes, I hope so.

[Laughter]

To the extent that the purpose serves to describe what the officer has done, I think the Court considers it.

I’m not saying look at what was in Agent Cantu’s head.

I’m saying, look at what Agent Cantu did.

Now, he told you–

David H. Souter:

What he do that’s different, because if you’re… that’s… Justice Kennedy had exactly the question that I was thinking.

Purpose doesn’t seem relevant.

I mean, inso… because if it were relevant, obviously, if you fly the plane over and look down at the marijuana fields, your purpose is a search if you’re a policeman, and not if you’re not.

The Peeping Tom example that Justice Scalia gave is the same.

Did he do something different?

What?

M. Carolyn Fuentes:

–Let me go back first to the purpose, and I think the airplane example is a very good one.

The purpose, the purpose of looking down from an airplane doesn’t make any difference, because the officer has a justifiable reason to be in the air.

M. Carolyn Fuentes:

It’s an open, public air space, and he can be there and he can look down just like anybody else can.

In Mr. Bond’s case, the officer did not have the same sort of right to have his hands on Mr. Bond’s luggage, because the inside of a bus and the surface of luggage is not like open public air space or other–

Sandra Day O’Connor:

Well, did he have as much of a right as a fellow passenger would have–

M. Carolyn Fuentes:

–I don’t–

Sandra Day O’Connor:

–to manipulate the luggage?

M. Carolyn Fuentes:

–I don’t think so, but I don’t know the Court has to reach that issue for the second part of the question that Justice Breyer asked–

Antonin Scalia:

What does the right make any… why does the right make any difference?

I mean, let’s take garbage standing at the curb.

There’s another example where purpose makes no difference.

Do you have a reasonable expectation of privacy in your trash?

We’ve said not, because anybody going by can paw through it.

Now, that’s not a nice thing to do, and it doesn’t make any difference whether somebody paws through it because he’s a busybody or whether a police officer paws through it.

Now, I don’t see why there’s any difference in this pawing over the luggage.

M. Carolyn Fuentes:

–Well–

Antonin Scalia:

Anybody could do it.

It would not be a nice thing for a passenger who sees a nice bag there… doesn’t need the room to… doesn’t need to move it, but says, I wonder what’s in that–

M. Carolyn Fuentes:

–Well–

Antonin Scalia:

–and a passenger can do that.

That’s not a nice thing to do.

It doesn’t make any difference whether it’s a nice thing to do.

It can be done.

M. Carolyn Fuentes:

–In deciding reasonable expectations of privacy I think this Court looks at myriad factors, not just one or two, and in the garbage–

John Paul Stevens:

Do you agree with Justice Scalia… I don’t mean to interrupt you… that if you’re a passenger… first of all, I take it your… a bus case isn’t like an airplane because you don’t have the… luggage doesn’t go through any kind of a detector.

I suppose you have much less expectation of privacy on airplanes than you do on buses.

But do you agree that a person has no right to tell someone else, don’t squeeze my bag to see what you can find, what’s in it, just–

M. Carolyn Fuentes:

–No.

John Paul Stevens:

–What?

M. Carolyn Fuentes:

No, I don’t agree.

John Paul Stevens:

So you don’t agree with the premise of Justice Scalia’s question, then?

M. Carolyn Fuentes:

Correct.

M. Carolyn Fuentes:

I don’t think… a person retains the right to say, get your hands off of luggage, and that helps to define this reasonable expectation.

But I–

Antonin Scalia:

You think a person has a right to say, don’t paw through my garbage?

M. Carolyn Fuentes:

–Yes.

Antonin Scalia:

You think a person has a right to say, don’t peek into my windows?

M. Carolyn Fuentes:

Yes, but–

Antonin Scalia:

I mean, indeed, there are some laws against Peeping Toms.

M. Carolyn Fuentes:

–I agree, but as to–

Antonin Scalia:

But there are Peeping Toms, and when you leave your blinds open, you know you’re exposing yourself to them.

M. Carolyn Fuentes:

–As to the garbage first, the privacy interest in garbage is far different than the privacy interest… the expectations may be the same, they may be similar, but the privacy interest in garbage is far different from the privacy interest in luggage.

Ruth Bader Ginsburg:

Did you make the analogy to abandoned property?

If you put your garbage out there, it’s gone?

M. Carolyn Fuentes:

Correct.

Ruth Bader Ginsburg:

If somebody has a piece of luggage, and the police officer says, whose is this, and nobody answers, then it’s abandoned.

M. Carolyn Fuentes:

Then it’s abandoned.

David H. Souter:

Is there… I beg your pardon.

Ruth Bader Ginsburg:

But here, I think your case is resting on the difference between ordinary pushing and shoving and taking a bag and feeling around like this, which, at least from my experience on airlines, doesn’t happen.

People jam their stuff in.

They don’t take it out and feel here and there.

M. Carolyn Fuentes:

That is one of the major points upon which Mr. Bond’s argument rests, and what Mr. Bond did, Justice Breyer… excuse me.

What Agent Cantu did to Mr. Bond’s luggage that was different than what other passengers do is demonstrated by the agent’s testimony.

Any passenger pushing or pulling luggage, or even squeezing luggage, grasping it, would not have been able to discern the edges of a rectangular brick which had been wrapped in duct tape until it became oval, placed in a pair of pants, wrapped in a pair of pants, put in a canvas bag–

William H. Rehnquist:

Well, I’m not sure that’s right, Ms. Fuentes.

I mean, supposing you had someone who had the same experience Mr. Cantu had, he now retired from the Government service and was simply pushing and shoving without any particular motive, he could have discerned the same thing that Agent Cantu could, could he not?

M. Carolyn Fuentes:

–No.

I think there’s a difference.

I think Agent Cantu’s experience is what led him to think that what he felt was narcotics, but it’s simply the same sort of physical manipulation that anybody could use in finding out what that brick felt like.

I don’t think anyone, whether they’d been trained or not, can feel the details that Agent Cantu described unless they are manipulating that bag in a way that is significantly different from the way passengers are reasonably expected to push and–

William H. Rehnquist:

You don’t mean just with respect to purpose or intent–

M. Carolyn Fuentes:

–Correct.

William H. Rehnquist:

–but you mean a lot more manipulation.

M. Carolyn Fuentes:

In the manner in which the bag was manipulated, that’s correct.

Antonin Scalia:

You want us to decide these cases on that basis, decide in each case what degree of manipulabil… manipulation would have had to occur to… if it was a bigger brick, it might have been… I’m very unlikely to come up with a rule like that, I’ll tell you.

It seems to me–

M. Carolyn Fuentes:

That is–

Antonin Scalia:

–you can either squeeze the bags or you can’t squeeze the bags, but I don’t think we’re likely to make it depend upon how much you squeezed it.

M. Carolyn Fuentes:

–Well, I think that is a very hard question, and I think–

Antonin Scalia:

It is.

M. Carolyn Fuentes:

–the issue in Mr. Bond’s case could be decided by saying, officers cannot squeeze bags.

Anthony M. Kennedy:

On the degree of manipulation point and the questions put to you by Justice Stevens and Justice Scalia, it does seem to me that a passenger does not have the right to start manipulating my luggage to see what’s in it.

Is that a tort?

It’s not a conversion.

There’s no asportation of the property.

I just… it’s not an assault, because an inanimate thing can’t be assaulted.

M. Carolyn Fuentes:

I’m not certain that it rises to the level of a tort.

Anthony M. Kennedy:

I’m not sure it does, although it seems to me that it’s… there’s some level of wrong occurring there.

M. Carolyn Fuentes:

If the officer… if Agent… Agent Cantu took that bag and he converted it to his own purpose.

It doesn’t amount to a conversion because it wasn’t so intrusive that it would be a conversion, but for a dispossession of property in tort law there are some damages.

I don’t know if it would rise to that level, but I think the important point is that tort law provides a privilege to Mr. Bond to stop even harmless interference with is luggage.

Stephen G. Breyer:

Did he object?

M. Carolyn Fuentes:

No, he did not.

Stephen G. Breyer:

And how is it different physically from, say, what happens occasionally… one of the flight attendants, or maybe a passenger will take my canvas bag out, they’ll be holding it, they’ll move it to a different compartment, they’ll push it around, and I guess they can feel something.

Now, how… physically what happened, how is it different from that?

M. Carolyn Fuentes:

Because Agent Cantu was able to feel more than the actions you described–

Stephen G. Breyer:

How do we know that?

M. Carolyn Fuentes:

–By his testimony.

By the fact that it was a rectangular brick whose edges were so disguised by duct tape that it was described as an oval mass, to be able to feel those rectangular edges through duct tape, through–

Stephen G. Breyer:

All right.

So one way you might win is, we’d say there’s a difference between the manipulation physically and taking the bag out and moving it from one place to another.

There had to be more here.

Stephen G. Breyer:

Is there any other way you could win?

M. Carolyn Fuentes:

–I think so, Your Honor, and I think it goes back to expectations of privacy, and not to purpose, but to how… what means are used to achieve that purpose.

For example, reasonable expectations of privacy I think cannot rest on the extremes of conduct, because we have to look at what we as a society, a civil society, expects is the norm, and we expect that maybe the flight attendant, or maybe someone else will push or move our luggage.

But when a uniformed officer comes in and starts squeezing all of the luggage, clearly from his actions you can see he’s trying to find out… and I’m not talking motive, I’m talking manner.

You can see that he’s trying to find out what’s in your luggage, that is an incredible intrusion on personal security.

Antonin Scalia:

You know, I’d feel more sympathetic to your client, you know, from this terrible intrusion on his privacy if there were not some very easy way to avoid it, which is called hard luggage.

If he’s really concerned about the privacy of the contents of whatever he’s carrying, put it in hard luggage.

What’s the big deal?

M. Carolyn Fuentes:

Well, I think that’s very demonstrative of what a reasonable expectation of privacy is.

The way… he kept it with him on the bus.

I don’t think that can be discounted.

I think that probably a passenger’s first line of defense, and best line of defense against others, is keeping his luggage with him.

Hard backed luggage, of course, would have helped–

Antonin Scalia:

Second after that is getting a hard bag, but if he gets a soft bag he knows people are going to be able to feel things through it.

M. Carolyn Fuentes:

–I… he expects that if he doesn’t like the way people are feeling it, he can stop them, and action by a police officer is different.

In addition to that, if you look at the way Mr. Bond wrapped his methamphetamine brick, that wrapping would have withstood any discoveries by passengers who are moving luggage in the way that we would reasonably expect.

Anthony M. Kennedy:

Well, would you agree that the passenger had a right to tell the policeman, don’t feel my bag?

M. Carolyn Fuentes:

I think he did.

I think he had a right to.

Anthony M. Kennedy:

But he didn’t do that.

M. Carolyn Fuentes:

No.

Agent Cantu came on this bus with a show of authority.

The bus was pulled off of IH-10 for border for an immigration inspection–

Anthony M. Kennedy:

Well, we’ve been through that in Florida and Bostick, in which we said that the police officer with a show of authority… two of them in that case, in fact, with guns and so forth… said, may I search your bag, and we said the passenger, the citizen has to exercise his rights.

M. Carolyn Fuentes:

–Agent Cantu did not say, may I squeeze your bag, and that is really the critical–

Anthony M. Kennedy:

But the point is, the passenger was there and didn’t try to stop him.

He had the right to do it if he wanted, I assume.

I’m making that assumption.

M. Carolyn Fuentes:

–I think he did have the right to do it, but the difference is, Agent Cantu came on the bus and started questioning people about their citizenship or other right to be in the country.

He’s coming on board.

M. Carolyn Fuentes:

He’s demanding answers of them.

He doesn’t have to do it in an ugly way, but he is telling them, you must answer me about your citizenship, and then, without a do you mind and may I please, he starts squeezing their luggage.

That is very different than saying, may I squeeze your luggage.

Ruth Bader Ginsburg:

In Bostick it rested on consent.

The question was asked.

Here, there was no–

M. Carolyn Fuentes:

He–

Ruth Bader Ginsburg:

–endeavor to obtain consent.

M. Carolyn Fuentes:

–Correct.

The officer never said, Mr. Bond, may I squeeze your luggage.

David H. Souter:

Did the expectation of privacy change at the moment he saw the officer squeezing and he did not object?

Is that relevant?

M. Carolyn Fuentes:

No.

I think that’s when the expectation of privacy was violated, when he saw the officer squeezing.

He expected, reasonably, as we all do, that other passengers might move or push his luggage to make room for their own, but it is very startling, and it is an invasion of personal privacy, when a law officer gets on and starts squeezing those bags.

Another example, not–

David H. Souter:

What if the officer has stood there squeezing the thing for 15 minutes and he had said nothing?

Would we at that point be able to infer a consent, or at that point, alternatively, would we be able to say, the terms of the bus travel in fact had changed whatever his original expectation may have been, and he no longer had a reasonable expectation of privacy?

Would that be a valid line of reasoning?

M. Carolyn Fuentes:

–I don’t think so, because the longer he squeezes the more intrusive it is.

But in terms of consent for Fourth Amendment constitutional purposes, I don’t think this Court has ever accepted mere acquiescence to a show of authority, whether it is short or whether it is long, as consent.

There has to be an affirmative indication that the person has consented to a search under the Fourth Amendment, and the Court has never accepted any less.

Now, in this case, let me return–

Anthony M. Kennedy:

I suppose what we’d be saying… I’m not sure there’s any authority for it… is that your expectation of privacy is reinforced by the fact that you have at hand the means to protect it.

M. Carolyn Fuentes:

–Yes, I think that’s correct.

Anthony M. Kennedy:

And you haven’t availed yourself of that means.

M. Carolyn Fuentes:

Well, you haven’t… again, the circumstances in this case are, you haven’t availed yourself of it because of the show of authority.

The fact that the right exists, I think, shows–

Anthony M. Kennedy:

But that’s where Bostick comes in, and it seems to me that case is against you.

M. Carolyn Fuentes:

–Again, respectfully, I would disagree, because if Agent Cantu had said to Mr. Bond, may I squeeze your luggage, I would have a much harder case, but he didn’t.

M. Carolyn Fuentes:

He just–

Antonin Scalia:

Do you think your fellow passengers can sniff your luggage?

M. Carolyn Fuentes:

–I think you wouldn’t like it, and I think it would–

Antonin Scalia:

But that’s okay.

You don’t think that would be an invasion of privacy.

M. Carolyn Fuentes:

–Again, you pose a very hard question–

Antonin Scalia:

I mean, you have to say that it wouldn’t, because we’ve said that the police or police dogs can sniff the luggage, right?

M. Carolyn Fuentes:

–Well, we’ve… this Court has approved police dogs sniffing–

Antonin Scalia:

Uh huh.

M. Carolyn Fuentes:

–luggage, and I think that anything–

Antonin Scalia:

Now, do you think it would be an invasion of privacy if you saw a passenger who was moving–

[Laughter]

–you know, as he’s moving one of your bags?

Would you consider that invasion of privacy?

M. Carolyn Fuentes:

–I think I would.

David H. Souter:

Yes, because–

Antonin Scalia:

–I think I would, too, but you know it can happen, and you’ve exposed yourself to it when you put the soft luggage up there–

M. Carolyn Fuentes:

Because–

Antonin Scalia:

–just as you expose yourself when you put your trash out in containers that can be readily opened and looked into.

M. Carolyn Fuentes:

–Again, I find the difference between luggage, which is meant to safeguard personal belongings and kept close by, the difference between that and former possessions that have been placed in a bag and set on the street to be destroyed, to be… it is a qualitative difference that I think shows absolutely different privacy interests.

In this case, again returning to privacy interests, I think that if you were to see… for example, if there were a bored 15-year-old in the front of the bus, tired of the layover, who decided to tap out a tune on the bags in the overhead bins in time with the music he was listening to, I think that would be an invasion of privacy because it’s not what you reasonably expect.

I’d like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Ms. Fuentes.

Mr. Lamken, we’ll hear from you.

Jeffrey A. Lamken:

Mr. Chief Justice, and may it please the Court:–

Placing a bag in the overhead rack of a public conveyance like a bus necessarily subjects it to touching and handling by other members of the traveling public who may need to move or push on the luggage to make room for additional bags, to retrieve previously stowed bags, or–

Sandra Day O’Connor:

Yes, but do they squeeze and manipulate it in such a way as to disclose contents by virtue of the kind of handling that’s done?

I wouldn’t think so.

Jeffrey A. Lamken:

–That very well may occur, Justice O’Connor, because when bags are so handled the sense of touch inevitably operates, so if a passenger places his hands on a piece of luggage to push it or snug it into the rack, he may very well–

Sandra Day O’Connor:

Well, certainly you could, but I would think there would a difference in the kind of squeezing and manipulation that would occur to identify objects within a bag than would occur normally when you just move it to make more room for your own.

Jeffrey A. Lamken:

–That’s possible, Your Honor.

The distinction, however, and the principle that governs the case, is one of knowing exposure.

That which any other member of the traveling public might have observed is knowingly exposed, and the agent does not violate the Fourth Amendment by observing it.

That’s not to say that the agent can manipulate the bag in any way or for any extended period of time.

John Paul Stevens:

Mr. Lamken, supposing the passenger put a sign on his bag that said, fragile, please do not touch?

Jeffrey A. Lamken:

Your Honor, there’s a very good possibility that touching that bag notwithstanding the sign would be a seizure within the meaning of the Fourth Amendment.

I would have a very… I would hesitate to call it a search, on the other hand, because this cases… this Court’s cases in Oliver and Dunn, for example, make it clear that violating signs on land that say, no trespass, do not convert the entry on land into a search, but it may very well be a meaningful deprivation of the individual’s possessory interest–

Anthony M. Kennedy:

Is there–

Jeffrey A. Lamken:

–it would be a search.

Anthony M. Kennedy:

–Is there a seizure or an invasion of privacy if the passenger moves your object, the object for any reason other than to make room for his or her own luggage?

Jeffrey A. Lamken:

Would that constitute… well, if it’s private conduct it would not be governed by the Fourth Amendment at all, but if a passenger moves it for any other reason, I don’t… still don’t think that would be a meaningful deprivation of a possessory interest, which… so it’s not a… it’s not a Fourth Amendment violation.

Anthony M. Kennedy:

Well, a meaningful deprivation of possessory interest is defined how?

The injury caused to the owner, I take it?

Jeffrey A. Lamken:

Yes, that the owner’s dominion or–

Anthony M. Kennedy:

All right.

And here, the injury was very substantial, was it not?

Jeffrey A. Lamken:

–No, Your Honor, I don’t believe there was any injury to the chattel of any variety.

There was no damage to–

Anthony M. Kennedy:

I’m talking about the injury to the owner.

Jeffrey A. Lamken:

–That he was caught with drugs and sent to jail?

I’m not sure that’s an injury that he would have a right to expect that would not occur.

Anthony M. Kennedy:

You’re saying he has no standing to object, he hasn’t been injured.

I don’t understand that.

He’s in jail.

Jeffrey A. Lamken:

Well, no, I’m not saying that he does not have standing to seek… file a motion to suppress, but in terms of the bag being moved, if you’re applying common law standards, which would be neither necessary nor sufficient for a Fourth Amendment violation, there certainly wouldn’t be any sort of tort, because there is no damage to the chattel, the object was not meaningful… he wasn’t deprived of possession of it for any meaningful period of time, and in the absence of those conduct there would be no trespass to chattel.

In addition, the tort of trespass to chattel wouldn’t occur if contact with the bag were privileged, and that is, all the other passengers would be privileged by custom, and I think the Restatement in 892(d) makes it clear, besides which, your… all the other passengers–

John Paul Stevens:

May I ask a question about the… what if he kept it in his lap?

Jeffrey A. Lamken:

–The law treats items that are on the person and in the person’s grasp as if they’re part of the person itself.

If the object is in his lap, the officer would not be permitted to touch it, and no other member of society would–

John Paul Stevens:

What if he had it under the seat?

John Paul Stevens:

What if he had it under his seat?

Jeffrey A. Lamken:

–To the extent that’s an area reserved for the exclusive use of the passenger sitting behind the seat, that would not be a public area.

John Paul Stevens:

Maybe somebody else needed to use it.

Sometimes you have to put two bags under a seat.

If there was another person’s bag under the seat, would it then be okay to search it, or not?

Jeffrey A. Lamken:

I think ordinarily, Justice Stevens, the rule would be that the area under the seat in front of you is reserved exclusively for your use and possession.

It’s part of your seat, effectively.

John Paul Stevens:

What if the bus was empty, except for… and he had the choice of putting it in the seat or an entirely overhead bin, and only one bag up there?

Jeffrey A. Lamken:

Again, I think–

John Paul Stevens:

What about that case?

Jeffrey A. Lamken:

–The happenstance that the bus is empty does not convert an area that is ordinarily shared with other passengers–

John Paul Stevens:

So even on an empty bus, if he made the mistake of putting it up in the overhead bin he would allow it to be searched, but if he put it under the seat, it could avoid that?

Jeffrey A. Lamken:

–I think that would be correct, Your Honor, because the area under the seat is reserved exclusively for his use under most circumstances, and you would not expect other passengers to be pushing or touching or having contact with the bag in that area.

William H. Rehnquist:

Since this case may well turn on rather fine spun distinctions, would there be any difference between the situation where, by simply observing the bag, and there’s something unusually kind of sticking out that you can tell, and this, where apparently there was nothing unusual sticking out, and it required, you know, pushing, feeling, whatever you want to call it, to discern the methamphetamine?

Jeffrey A. Lamken:

I think, Your Honor, in both cases the question is one of knowing exposure.

Was there something that any member of the traveling public, or any other member of the traveling public could have observed during handling of the bag?

If the answer to that is yes, then it’s knowingly exposed and is not a subject of Fourth Amendment protection.

Antonin Scalia:

You do want us to go into the degree of manipulation, then, you’re say.

We’re going to have to decide, you know, whether a normal member of the traveling public would have manipulated it to this degree.

Jeffrey A. Lamken:

No, I don’t think that’s the inquiry, Justice Scalia.

I think the inquiry is one of knowing exposure.

Again, if this is the type of item that another member of the traveling public could have felt while handling the bag, such as by pushing on it to snug into the rack, or grabbing the bag to remove it from the rack, then it’s knowingly exposed, and the officer’s observation–

Antonin Scalia:

Well, okay, suppose I say no.

Jeffrey A. Lamken:

–Pardon me?

Antonin Scalia:

Suppose I… if my answer to that question is no, it would not have been discerned simply by pushing or by grabbing, it would have taken… it would have had to be another member of the traveling public who wanted to know what was in the bag, and who squeezed it to figure it out, you say, if that’s the case, you lose.

Jeffrey A. Lamken:

Yes, I think we would lose if that were the case, and… now–

Antonin Scalia:

I think you may lose.

[Laughter]

Jeffrey A. Lamken:

–I don’t think so, Justice Scalia.

David H. Souter:

I think you’re making two different assertions.

David H. Souter:

You’re saying if the bag and its palpability is knowingly exposed to the public, the police can take advantage of that, and you’re also saying that whatever the public can do, the police can do, the public in this case at least being fellow passengers.

In the latter example, the only thing that you in effect consent or understand that your fellow passengers will do will be to make room for their own luggage.

You do not understand that your fellow passengers are going to work their way up and down the bus feeling other people’s luggage to see if anything interesting turns up.

So if the criterion, it seems to me, is what other passengers can do, then what this officer was doing was outside of that, and would be outside the reasonable expectation.

On the other hand, if you abstract from that and say, anything that could be felt by the public can be felt by the police, you’re at a different level of generality, and I guess my question is, why should we take the abstract proposition, anything feelable can be felt by the police, as opposed to your other proposition, that what the passengers can do the police can do?

Why do we choose one rather than the other to answer the question of what is a reasonable expectation?

Jeffrey A. Lamken:

You would choose the latter, for… because it’s consistent with this Court’s cases, for example.

In Sorallo and Raleigh, for example, the dissent contended that other people flying over the yard wouldn’t stare down.

They might want to glance down–

David H. Souter:

Ah, but you’re making… your argument there makes the assumption that touching and looking are for Fourth Amendment purposes identical, and I don’t see that identity at all.

We in… generally in society I think we accept the fact that what is out there to be seen can be looked at, and we may be irritated when someone stares, for example, but we don’t say, you know, you’re doing something wrong.

It’s a question of etiquette and that’s all.

But when it comes to touching, that’s a very different thing.

People can stare at you on the street, but if they start coming… patting down your pockets, I think you’re going to feel that a different value is involved, and for that reason I don’t see how you can equate looking with touching.

Jeffrey A. Lamken:

–Well, the two… the same Fourth Amendment principles apply to both cases, but they may turn out to yield different results.

There are many fewer–

David H. Souter:

Well, the basic principle is one of reasonable expectation, and the reasonable expectation in looking, or being seen, is different from the reasonable expectation, or the expectation about being touched, or explored by someone who is touching to find out what he can feel.

Jeffrey A. Lamken:

–Your Honor, that is correct, and there are many circumstances where one would knowingly expose their person, for example, to visual observation, and I can’t imagine any circumstances where they’d knowingly expose… we’d say they’d knowingly expose their person to tactile observation.

But one of the few circumstances in which something is knowingly exposed to the touch of other people is when a bag is placed in an overhead rack in a public conveyance.

David H. Souter:

It is… yes, but there again, you make the argument easy when you make it at that generality and say, it’s exposed to touching.

What it is exposed to is to being moved to make room for other luggage.

Jeffrey A. Lamken:

That distinction I think turns on the purpose with which someone is acting.

David H. Souter:

Well, there’s–

Jeffrey A. Lamken:

I think that’s not a purpose that the law recognizes in the Fourth Amendment–

David H. Souter:

–I don’t know that that is so.

I mean, our purpose inquiry, again, turns at different levels.

We say the very fact that you may have a law enforcement objective, purpose in mind as opposed to a private one doesn’t matter, but it seems to me that at a lower level of generality the purpose for which you may engage in touching may very well matter.

David H. Souter:

Take a nonlaw enforcement example.

We both agree that generally speaking we expose ourselves to being looked at, but we don’t expose things that we carry to being touched, so if somebody comes up to you on the street and starts feeling the package you have in mind, you’d tell them to get away.

On the other hand, if you drop the package and someone politely comes along and picks it up for you, even though they’re touching it, you’d say thank you.

David H. Souter:

In that sense, at that level of purpose, purpose matters a very great deal to reasonable expectation, and that’s the suggestion that I’m making about the purpose for which luggage is touched.

It is touched for the purpose of being moved, not for the purpose of being explored, and I don’t see why that is not a relevant consideration for the law in judging reasonable expectation.

Jeffrey A. Lamken:

–Your Honor, those are individual subjective reactions to how certain observations are made.

Purpose may make a difference.

We may respond differently to someone who happens to glance up through a window and see–

David H. Souter:

Yes, but just–

Jeffrey A. Lamken:

–compared to someone–

David H. Souter:

–Just one thought.

I’m intending, at least, to suggest something more than a personal idiosyncracy.

What I was intending to describe I think was a, kind of a generally shared set of expectations.

if you think I’m wrong there, I… you know, I’ll stand corrected, but I think it’s something more than just personal subjectivity here.

Jeffrey A. Lamken:

–I think the… I think you are wrong there, with respect, Justice Souter, and the reason that is as follows.

Whether one’s expectation of privacy is reasonable or not does not vary with the intent of the actor.

It’s either knowingly exposed to the public, and that is the type of thing you would expect to be touched or seen, or it is not, and the actor’s intent–

Anthony M. Kennedy:

Do you have authority for that proposition?

Jeffrey A. Lamken:

–Yes, Your Honor.

The general… Sorallo would probably be our best case.

The dissent again contended that the purpose was law enforcement, and this was not simply a fly by for ordinary purposes like–

Anthony M. Kennedy:

But that was at least… at least that was in the visual context.

I think you’re probably right about that.

Can you come close to the purpose analysis by using the objective criteria of how long and how intrusive the manipulation was?

I make the assumption… there’s nothing in the record.

I make the assumption that the police officer had to manipulate this piece of luggage for a much longer period of time and much more intrusively than he would if he were just moving it from one side of the bin to another.

If I’m right about that, is that a relevant distinction?

Jeffrey A. Lamken:

–I don’t think you’re right about that, and I don’t believe it’s a… well, it is a relevant factor, certainly, because an officer in our view is entitled to–

Anthony M. Kennedy:

A relevant, or irrelevant?

Jeffrey A. Lamken:

–It is relevant.

It is pertinent.

It doesn’t take that long for a law enforcement officer to observe all of those aspects of a piece of luggage that are knowingly exposed to the rest of the public.

Anthony M. Kennedy:

Suppose there were a finding that it takes 10 seconds to move a bag, and it took over 45 seconds to manipulate it, would that be a… there is no such finding, but would that be a basis on which we could and should decide the case if that finding were before us?

Jeffrey A. Lamken:

No, but I think the amount of time spent is a relevant factor, and this is why.

It doesn’t take that long for an officer to observer all those things that were knowingly exposed.

Other passengers, for example, might push on a bag to snug it in a rack.

The officer, therefore, may push on the bag in all of the various locations that a passenger might, because all of those things were knowingly exposed.

Other passengers might grab a bag to remove it from the rack.

The officer therefore may grab the bag from all the different angles another passenger might, because all of those angles are knowingly exposed.

That actually does not take all that long.

The DEA advises us that it’s a reasonably brief period of time, typically far less than 30 seconds, so if the officer took longer than a reasonably brief period of time, it might–

Anthony M. Kennedy:

Is that in the record?

Jeffrey A. Lamken:

–No, it is not.

It’s simply what we have been advised, Your Honor.

Ruth Bader Ginsburg:

But Mr. Lamken, what is in the record is that this was not pushing, shoving, that this was deliberate manipulation, and that’s a distinction that you don’t deal with when you say, well, passengers could grab, passengers could shove.

This was admittedly a manipulation, and I don’t think that there’s an expectation that your fellow passengers are going to take your luggage and go like this around it.

Jeffrey A. Lamken:

The record does not reflect that the officer did this with the bag.

The only thing the record reflects is that the officer grabbed the bag, he squeezed the bag hard, and when he did that, he felt a solid object that he thought might be drugs.

Ruth Bader Ginsburg:

Do we have… you have his exact testimony some place here?

Jeffrey A. Lamken:

Yes.

It’s in the joint appendix, and if you look to page, for example–

John Paul Stevens:

He was squeezing them and moving them from side to side.

Was he shaking any of them?

Yes.

Jeffrey A. Lamken:

–Right.

That’s actually not agent… the agent’s testimony.

That is the defendant’s testimony.

John Paul Stevens:

18.

Jeffrey A. Lamken:

That’s on page 18, but there’s nothing in the record that suggests that he actually handled the bag for a greater period of time… excuse me.

That he had repeated squeezings of the bag or anything else.

The only thing it reflects is that he grabbed the bag once.

Antonin Scalia:

Mr. Lamken–

John Paul Stevens:

–Do you think it would make a difference?

John Paul Stevens:

That’s really the question.

Jeffrey A. Lamken:

No, we don’t believe it would make a difference, because we believe–

John Paul Stevens:

Then why argue it?

Let’s assume he took 45 seconds, then.

You’d say that wouldn’t matter.

Jeffrey A. Lamken:

–Your Honor, if he took 45 seconds, that could raise an inference that he was observing things that other members of the public–

John Paul Stevens:

You’re asking us to draw a line that based between 15 seconds and 45 seconds–

Jeffrey A. Lamken:

–No, Your Honor, we’re not.

John Paul Stevens:

–there’s a constitutional difference between the two?

Jeffrey A. Lamken:

We’re not.

We think the district courts would fulfill their normal fact finding function in this context.

Stephen G. Breyer:

The only thing–

Antonin Scalia:

–You say that if he took more than 45 seconds he would be observing things that other polite members of the public would not observe.

I don’t understand why you take the position that the only thing you expose yourself to when you put a soft piece of luggage in a public space that you know people can paw through is pawing through by other polite members of the public.

Why isn’t the case that he exposed that to somebody else who could readily go in there and manipulate the bag in order to find out what was inside of it?

Now, I agree that that’s not a polite thing to do, but isn’t the question whether he really expected to be protected from that kind of inquiry when he put it in a public place in a soft bag, and it seems to me there are a lot of impolite travelers who might well have done that.

Jeffrey A. Lamken:

Justice Scalia, we could take that position, and it would be certainly a defensible one.

when people do push… in fact, it may be even more defensible than impolite people.

Someone who’s grabbing a bag in order to move it may very well be keenly aware of what they’re grabbing to make sure they don’t break something or to make sure they support a heavy object which is loosely packed in the bag, so people may actually, even when they’re being polite, explore the contents of the luggage to some degree.

However, for purposes of this case, because the contact was not particularly extended, and there’s nothing in the record which suggests–

Antonin Scalia:

Well, it’s not going to be for the purpose of this case.

You’re going to come out with an opinion that says so long as you don’t do, you know, anything more than what a polite member of the public would do, and I’m not sure that’s going to help you, because in every case you’re going to have to get into this inquiry about, was it 45 seconds or 50 seconds, did he really squeeze it hard, or squeeze it more lightly.

I don’t think courts are able to manage this kind of a principle.

Jeffrey A. Lamken:

–Your Honor, I think in most cases it will be relative, a relatively simple process.

David H. Souter:

How is it simple here?

I mean, the only thing I’ve found on this is, the owner says he reached for my bag and he shook it a little and squeezed it, and then sniffed it.

Jeffrey A. Lamken:

Right.

David H. Souter:

Then he says, I squeezed the bag, and how… the way you usually do these inspections, yes, when you squeeze the bag, you squeeze them very hard, yes, okay, so it’s a hard squeeze, and I guess Justice Scalia’s expected you to say, which I rather did, too, that it is a mistake to generate a juris prudence of hard squeezes.

[Laughter]

What we will have is an infinite number of cases trying to decide whether a hard squeeze is more than a soft squeeze, is more than medium squeeze, et cetera.

David H. Souter:

Now, there may be extremes, of course.

But you don’t say that, and I’m rather curious why.

Jeffrey A. Lamken:

Well, actually, I think what I mean to exclude are the extremes, where based on the evidence you have the micromanipulation and the rearrangement of the contents of the luggage, such that it’s… the officer’s enabled to observe that which no other passenger could potentially have observed, and in that case we would say that it would violate the Fourth Amendment.

Anthony M. Kennedy:

Would you accept a rule that the police cannot touch or manipulate or probe baggage to a… any greater degree than a passenger might do in moving it?

Jeffrey A. Lamken:

No, we would not, because that would not be consistent with the principle of knowing exposure.

The officer is permitted to observe all those things that were knowingly exposed to other members of the traveling public.

Objects–

So you think the traveling public has no reasonable expectation that their bags will be left untouched, except for being moved?

Jeffrey A. Lamken:

–Again, because I think that distinction turns on the purpose of the handling, it’s not one that the law recognizes.

David H. Souter:

Do I assume–

Anthony M. Kennedy:

–Well, but you just accepted the previous premise in the answer to my earlier question.

Well, all our cases say about purpose is the fact it’s not a law enforcement purpose doesn’t matter, but we have never said you don’t look at the purpose of the activity.

We’ve never said that.

Jeffrey A. Lamken:

Oh, you have in Sorallo, Your Honor.

You said quite squarely that the officer’s purpose was to observe marijuana is irrelevant.

I mean, the Court used the word irrelevant.

That would be on page 213–

Stephen G. Breyer:

No.

Anthony M. Kennedy:

That’s a different–

Stephen G. Breyer:

–Well, but purpose would certainly matter in Justice Souter’s example, wouldn’t it?

I mean, imagine that I have a particular kind of object, and it’s almost always going to be mine, and no one will ever touch it, but we have… we can dream up some weird purpose for which, I guess, it would be touched.

Well, the fact that 99 percent of the time it wouldn’t be touched, but it would be touched for one weird purpose 1 percent of the time, wouldn’t that be highly relevant to my expectation of privacy?

Jeffrey A. Lamken:

–What it would be relevant to is whether you consider the object knowingly exposed.

The frequency with which other people handle your luggage, for example, if it were never the case that people touch luggage on overhead racks, and it were prohibited–

Stephen G. Breyer:

Ah, so you would say in respect to the fact that I have a package, and the only time I expect somebody else to touch it is when they drop it, is that doesn’t show the purpose of dropping it’s irrelevant.

It just shows it doesn’t happen very much.

Jeffrey A. Lamken:

–Well, it would show that when… if the… unless the package is dropped, you would expect that no one else would handle it, but once the package is dropped, you would expect that people would.

Stephen G. Breyer:

So the person in that case–

Jeffrey A. Lamken:

Whether they’re handling it for law enforcement purposes or otherwise is irrelevant.

Stephen G. Breyer:

–Well, all right, but–

Jeffrey A. Lamken:

But their handling it once it’s dropped, and once it’s dropped on the ground, it’s fair game for someone to pick it up and hand it back to you, regardless of what their subjective intent is.

Sandra Day O’Connor:

–Mr. Lamken, does it make any difference whether the luggage is in a closed luggage compartment or an open one?

On airplanes and some buses there are cupboard doors that close, so the luggage is all in there and behind the door.

Jeffrey A. Lamken:

No, Your Honor, it would–

Sandra Day O’Connor:

Now, is it reasonable to expect that a police officer could come on board and open the luggage compartment and then squeeze?

Does that matter?

Jeffrey A. Lamken:

–No, Your Honor, we don’t believe it would make a difference whether they’re closed or open variety, and the reason is, whether or not it’s closed, it is a shared location with other members of the traveling public.

It is not a location–

John Paul Stevens:

But then if that’s your view, then on a bus sometimes they have a compartment for luggage kind of underneath, and all the stored luggage goes in there together.

He could say to the driver, unload all that luggage.

I want to squeeze it.

Jeffrey A. Lamken:

–Well, if you were to do–

John Paul Stevens:

Is that your view?

Jeffrey A. Lamken:

–Your Honor, we don’t believe that check… there’s a reasonable expectation of privacy with respect to handling of checked luggage, either.

John Paul Stevens:

No, no, not checked.

It’s just, you know, on the… you… the driver, the bus driver often will take the luggage from the passenger and put it in kind of a bin under the truck, and then when they get to the destination they unload it all out together, and you pick out your bag.

Now, would they… would the… would your agent have a right to say to the driver, I want to go through all that luggage down there?

Jeffrey A. Lamken:

No, Your Honor.

I don’t think you would normally expect the bus driver to do it.

John Paul Stevens:

So if it’s closed overhead, he can look at it, but if it’s closed under the bus, he cannot?

Jeffrey A. Lamken:

I… you know, I don’t… the problem is, I’m not understanding the circumstances you’re describing.

Sandra Day O’Connor:

I think–

John Paul Stevens:

–You’ve never ridden on buses, I guess.

You only ride airlines.

Jeffrey A. Lamken:

That’s probably the answer, Justice Stevens.

[Laughter]

That’s probably it.

John Paul Stevens:

You don’t have the expectation of privacy on the airline, because it’s all X rayed as you go in.

Jeffrey A. Lamken:

I don’t think that’s the critical factor.

John Paul Stevens:

That’s an entirely different case.

Jeffrey A. Lamken:

On an airline, sometimes larger bags are taken to another compartment at the front of the airplane, for example, where it’s… other people’s luggage is placed.

John Paul Stevens:

Can–

–Well, could he then say, I want to see all the stuff in the front of the airline?

Jeffrey A. Lamken:

You wouldn’t normally expect him to do that, but you would also expect other people–

John Paul Stevens:

Well, the question is, would it be constitutional if it did?

Jeffrey A. Lamken:

–Unless the bus driver is a Government agent, I’m not sure that it would be a constitutional question, because private conduct doesn’t implicate the Fourth Amendment.

John Paul Stevens:

We may not be understanding… I’m asking if, under your view, if a lot of luggage is put in either the rear of the bus, or underneath the bus as it sometimes is, the agent could say, I want to squeeze all that luggage?

Jeffrey A. Lamken:

Oh, the law enforcement agent.

I’m sorry, I misunderstood your question.

John Paul Stevens:

Yes.

Jeffrey A. Lamken:

Yes.

If it’s a shared location, and other passengers have access… were going to have access to it, like it’s time to unload the stuff, it would be–

Antonin Scalia:

They don’t have access to it.

It’s the bus driver who pulls it out and puts it on the floor.

Jeffrey A. Lamken:

–He pulls it out and puts it on the floor–

Antonin Scalia:

Outside the bus.

Jeffrey A. Lamken:

–Outside the bus–

Antonin Scalia:

Right.

Jeffrey A. Lamken:

–And then all the passengers gather round and grab what’s theirs.

Antonin Scalia:

What’s theirs.

Jeffrey A. Lamken:

Other passengers may handle your bag to get at their bags, they may look at your bag in order to determine whether it’s theirs.

I think again we would consider that knowingly exposed to touching and handling by other members of the traveling public.

David H. Souter:

And if the bus driver alone was the person who put the bags in the compartment, what would your answer then be?

Jeffrey A. Lamken:

And he’s the one who pulls them out, but other members… but they’re presented out on the ground–

Antonin Scalia:

He takes them one by one.

He looks at the name, he says, Jones.

Jones, come on up here.

This is a slow bus.

[Laughter]

William H. Rehnquist:

It’s an unusual bus driver, too.

Jeffrey A. Lamken:

–Yes.

David H. Souter:

What’s your answer?

Jeffrey A. Lamken:

I think as you’re moving the hypothetical towards an example, for example, like a coat check in a restaurant–

David H. Souter:

Okay, but I’ve given you the hypothetical.

I’m not moving it.

Jeffrey A. Lamken:

–Okay.

David H. Souter:

It’s this hypothetical.

What’s the answer in the case of this hypothetical?

Jeffrey A. Lamken:

I think in that case you would have to say that you would have a reasonable expectation of privacy because there’s only one other person with whom you have an established relationship.

That is, the bus–

David H. Souter:

What does it matter whether it’s only the bus driver who can touch it, or a fellow passenger who can touch it?

Jeffrey A. Lamken:

–Well, I think–

David H. Souter:

You have given up… on your theory, you’ve given up your right to demand privacy, and if the law enforcement officer in effect can share in what the fellow passenger can do, why can’t he share in what the bus driver can do?

Jeffrey A. Lamken:

–For the same reason that, for example, in a… you may give access to your hotel room to the maids and the janitors and the manager, but you don’t necessarily mean that the whole world or law enforcement officers can enter your hotel room.

Antonin Scalia:

Okay–

–The bus driver’s a bailee, I assume–

Jeffrey A. Lamken:

Yes.

Antonin Scalia:

–And he probably has some responsibilities as a bailee–

Jeffrey A. Lamken:

He doesn’t–

Antonin Scalia:

–not to feel your luggage.

Jeffrey A. Lamken:

–There’s an established commercial–

Antonin Scalia:

–which the impolite passenger does not.

[Laughter]

David H. Souter:

So in effect I guess you’re saying that the general expectations of what will happen, and by whom things will be done, matters.

Jeffrey A. Lamken:

–Yes, I think that’s correct.

David H. Souter:

And if it matters, why doesn’t it matter that the only general expectation is that a fellow passenger may move the luggage in order to get his luggage in?

That’s all you expect.

Why isn’t that relevant?

Jeffrey A. Lamken:

Well, I think you expect other passengers to have contact with your bag.

David H. Souter:

No, I don’t expect other passengers to walk through the bus and feel my luggage gratuitously.

David H. Souter:

And isn’t that because the general principle of law is, you cannot touch another person’s chattel if that touching is going to cause harm to the owner?

Jeffrey A. Lamken:

No, Your Honor.

David H. Souter:

Which it did here.

Jeffrey A. Lamken:

The principle of law, if you’re looking to common law the principle is that you’d have no expectation that anybody… if it’s placed in a shared and common location, where the custom is that other people handle it, then you would have no cause of action if somebody else handled it, and you’d have no–

Anthony M. Kennedy:

Would you have a cause of action if someone touches your chattel and thereby causes harm to you, if someone trespasses on your chattel and causes harm to you, which is what happened here?

Jeffrey A. Lamken:

–I… Justice Kennedy, I can’t fathom what the nature of the harm is.

I think they’d have to injure the chattel and deprive you of possession of–

Anthony M. Kennedy:

I think your opposing counsel will say that the owner is in jail as a result of the touching.

Jeffrey A. Lamken:

–Yes, but I’m not sure that that… certainly that would give you standing to seek suppression of the evidence, but that would not be sufficient for purposes of a tort action.

William H. Rehnquist:

I don’t think it’s regarded as common law harm.

It–

Jeffrey A. Lamken:

Pardon?

No, it wouldn’t be regarded as a common law harm.

William H. Rehnquist:

–It’s called justice, really, in common law, isn’t it?

Well, if a fellow passenger got up and jarred Bond’s bag, such that the brick fell out, I don’t think the fellow passenger would be liable for damages for his imprisonment.

Jeffrey A. Lamken:

No, I don’t think that would–

[Laughter]

He certainly would not, and I think that’s a very good analogy.

Anthony M. Kennedy:

But that was not intentional.

This is an intentional tort, and that’s the difference.

There’s a difference between intentional and unintentional torts.

Antonin Scalia:

So if the fellow passenger intentionally threw it the ground and the brick fell out, the fellow passenger would be liable for his imprisonment?

Jeffrey A. Lamken:

Again, I think a–

Ruth Bader Ginsburg:

The fellow passenger is not an agent of the State, so it would take away the–

William H. Rehnquist:

–Let’s let counsel–

Jeffrey A. Lamken:

–Exactly, since he’s not an agent of the State.

Ruth Bader Ginsburg:

–But you were about to make a distinction between the cloakroom, and that seems to me the same thing.

You hang up your coat in a public space, so why couldn’t the police go into every coatroom and start manipulating what’s there?

Jeffrey A. Lamken:

The coatrooms that I’ve seen, Your Honor, there would be no reason for anybody else ever to have contact with your possessions, with your coats, and certainly not the pockets.

Ruth Bader Ginsburg:

Well, there are plenty of coatrooms where there is no attendant.

Jeffrey A. Lamken:

Well–

Ruth Bader Ginsburg:

You just put your coat there.

You may put your bag, hard or soft–

Jeffrey A. Lamken:

–Right.

If it begins to resemble and have the characteristics of the overhead rack, then we would agree that you don’t have a reasonable expectation of privacy.

If I could turn to the record for one moment, I’d like to point out one thing.

Whether or not the object was disguised in the various ways that petitioner declares would not make much of a difference to the agent feeling the package, since what they’re attuned to are things that are signature disguises.

But the record also does not reflect that this was a rectangular object that was then so wrapped in duct tape that it somehow became rounded.

At page 23 of the transcript, the agent describes it as a brick with rounded edges, and it was a brick with rounded edges, so it could also be described as an oval mass.

In fact, petitioner’s own brief in the district court described the object as an oval brick.

It’s for that reason I don’t think it’s fair to construe the record as having an object that had sharp edges and was so wrapped up in brick… in tape–

William H. Rehnquist:

–There isn’t any 23, or at least the appendix–

Jeffrey A. Lamken:

–Joint appendix?

William H. Rehnquist:

–The joint appendix doesn’t seem to go… the transcript doesn’t seem to go beyond page 20.

Jeffrey A. Lamken:

26, I think… oh, if you’re talking about–

William H. Rehnquist:

The–

Jeffrey A. Lamken:

–It’s… joint appendix, page 26, is the district court opinion quoting petitioner’s description of it as an oval brick; in the transcript pages, page 53, which does not appear in the joint appendix.

William H. Rehnquist:

–Thanks.

Jeffrey A. Lamken:

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Lamken.

Ms. Fuentes, you have 4 minutes remaining.

M. Carolyn Fuentes:

I think overall, Your Honor, the… all of the Government’s argument is based on the knowing exposure of Mr. Bond’s bag, and those cases that this Court has decided on knowing exposure vary so radically from Mr. Bond’s situation that they should not be applied.

That public exposure principle has been applied primarily for visual observations with very limited exceptions, the garbage case, for example, and luggage is different than garbage, and I believe Maryland v. Macon, where police officers went into a store where people were invited to buy, and they bought.

So they touched it, they bought, they did just what the public could do.

But on that line, what happened to Mr. Bond was much closer to Dickerson and to Terry, and so the public exposure principle should not be applied.

Instead, the limited public access principles in Mancuson v. DeForte, for example, just because other people have access to our office doesn’t mean that the police can have access, those principles, as well as Dickerson and Terry, are more applicable in this case.

I also wanted to say one thing about purpose, and that is that purpose can be instructive if it is manifested by objective actions, and that purpose is what helps to define reasonable expectations.

We do expect that other passengers may move our luggage for the purpose of making room for their own, and when their actions go beyond that, our reasonable expectations of privacy are violated.

More than 30 years ago, in Terry, this Court had to decide whether it wanted to isolate an entire range of police conduct from Fourth Amendment constraints, and really much the same question is before the Court today.

Will the police be permitted to manipulate luggage basically as much as they want under the Government’s theory?

M. Carolyn Fuentes:

If anything could have been observed by a member of the public, then the police are entitled to observe it.

Will they be able to do that outside the constraints of the Fourth Amendment, and I think the answer should be no.

Unless the court has any more questions–

Stephen G. Breyer:

Well, I’ll ask you one… I mean, when I came into this, I thought, well, it isn’t that hard.

Maybe it is harder, but the real question’s just whether, when you put this luggage up in a place, you have a reasonable expectation that somebody could go and feel the brick, and if the answer’s yes, then he has no expectation.

The answer’s no, he does.

All right, now, on that theory the only way… the answer must be yes, there’s a good chance somebody would feel the brick unless it requires a special hard touch, all right?

M. Carolyn Fuentes:

–Yes.

Stephen G. Breyer:

Now what?

I’m not sure.

M. Carolyn Fuentes:

Well, I think the answer is, the reason they will do it is to move their luggage, and your expectations would be violated if it were an empty bus and someone came and started touching your luggage anyway, and when our reasonable expectations of privacy are violated by private persons, that doesn’t matter for Fourth Amendment purposes.

But when the Government does it, and Agent Cantu did it in this case, that is covered by the Fourth Amendment, and unless it is done with some sort of individualized suspicion, it is a violation of the Fourth Amendment.

William H. Rehnquist:

Thank you, Ms. Fuentes.

The case is submitted.