The Advocate
Volume 22, No. 4, 
July 2000

PLAIN VIEW
Ernie Lewis, Public Advocate

Bond v. United States
120 S.Ct. 1462
4/17/2000

The question presented in this case, written by Justice Rehnquist, is "whether a law enforcement officer’s physical manipulation of a bus passenger’s carryon luggage violated the Fourth Amendment’s proscription against unreasonable searches."

The case originated when Bond was on a California bus headed for Arkansas. As the bus went through Texas, Border Patrol Agent Cantu boarded to check the immigration status of the passengers. On his way through the bus, he squeezed the soft luggage in the overhead storage space. One of the pieces of luggage belonged to Bond. Cantu squeezed Bond’s luggage and felt a "brick-like" object. Bond agreed to have Cantu open it, and a brick of methamphetamine was discovered. Bond was prosecuted in federal court and moved to suppress. His motion was denied, he was convicted, and appealed. He lost his appeal to the 5th Circuit, and then sought review by the US Supreme Court, which granted certiorari.

The Supreme Court reversed in a 7-2 opinion. The Court rejected the Government’s position that no search occurred in this case because Bond had no reasonable expectation of privacy in his publicly displayed luggage. The Court focused on the fact that Agent Cantu had physically manipulated the luggage. ""[P]hysically invasive inspection is simply more intrusive than purely visual inspection." While a reasonable person would expect his luggage to be touched during transport, he would not expect a police officer to manipulate it in a search for drugs.

The Court went on to perform classic Fourth Amendment analysis. First, the Court found Bond to have exhibited an actual expectation of privacy by using an opaque bag in which to place his personal items. Second, the Court analyzed whether Bond’s subjective expectation of privacy was one in which the society was prepared to recognize as reasonable. "When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner." Thus, the Court held that society was prepared to recognize as reasonable Bond’s subjective expectation of privacy.

One interesting facet of this case is the voting pattern. Chief Justice Rehnquist wrote the opinion for the 7-judge majority. Justice Breyer wrote the dissent, joined by the more predictable Justice Scalia. Justice Breyer did not believe that society was prepared to recognize as reasonable Bond’s subjective expectation of privacy. Justice Breyer believed the physical manipulation of Bond’s luggage to be no more than what a passenger could have expected his luggage to have received from other passengers of the bus. Justice Breyer feared that the Court’s decision would "deter law enforcement officers searching for drugs near borders from using even the most non-intrusive touch to help investigate publicly exposed bags."

United States v. Allen
6th Cir. , 5/4/2000
211 F.3d 970

An en banc decision of the Sixth Circuit written by Judge Boggs has reversed a panel decision upholding the privacy rights of a defendant. The panel decision had ruled that an affidavit had been insufficient to establish probable cause for the issuance of a warrant. United States v. Allen, 168 F. 3d 293 (6th Cir. 1999). In reversing the panel, the Court held that "an affidavit based upon personal observation of criminal activity by a confidential informant who has been named to the magistrate and who, as the affidavit avers, has provided reliable information to the police in the past about criminal activity, though without further specificity as to the type of such activity, can be sufficient for a magistrate to find probable cause to issue a warrant."

The issue in this case is how much corroboration need be demonstrated in an affidavit in support of a search warrant in order to support a finding of probable cause. The majority and the dissent agree that the issue is to be decided by applying Illinois v. Gates, 462 U.S. 213 (1983) to the facts of the case. Gates, the reader will recall, eliminated the two-part veracity and basis of knowledge test of Aguilar/Spinelli and substituted a totality of the circumstances test for the determination of probable cause supportive of the issuance of a search warrant.

The Court rejects the panel decision’s finding that the affidavit lacked probable cause under the totality of the circumstances. While the panel had found the affidavit wanting due to the lack of specifity regarding the type or amount of cocaine observed, the informant’s lack of familiarity with the appearance of cocaine, the absence of independent police corroboration of the informant’s statements, and the boilerplate nature of the affidavit, the en banc Court declined to address each of the failures. Rather, the Court found that the affidavit was sufficient under the totality of the circumstances. The Court especially was impressed that the informant in this case was one known to the police, rather than being an anonymous informant. Further, he had been involved with giving information to the police over a five-year period of time. "Corroboration is not a necessity in such a case."

The holding of this case is simple: "[W]here a known person, named to the magistrate, to whose reliaibility an officer attests with some detail, states that he has seen a particular crime and particular evidence, in the recent past, a neutral and detached magistrate may believe that evidence of a crime will be found."

Judge Gilman concurred, and wrote while he believed there was an absence of probable cause to support the issuance of the warrant, he would have decided the case based upon the good faith exception of United States v. Leon, 468 U.S. 897 (1984).

Judge Clay wrote a stinging dissenting opinion, saying that the majority opinion had driven "a stake through the very heart of the Fourth Amendment." He characterized the majority holding as follows: "any tip provided by an informant who has provided reliable information to the police in the past is sufficient to constitute probable cause for the warrant to issue, irrespective of the bare, generalized nature of the information provided and without any corroboration by the police."

According to Judge Clay, the majority misreads Gates. Gates requires us to consider the totality of the circumstances when considering probable cause; Gates was not intended to lower the threshold for probable cause. "The flaw in the majority’s holding in the case at hand lies in its failure to comply with Gates’ command to consider the totality of the circumstances; instead, the majority relaxes the probable cause requirement to a degree unsupported by Gates, and allows for a warrant to issue based simply upon the averment that the informant ‘has provided reliable information in the past about criminal activity…without the further specificity as to the type of such activity…’ In other words, the majority’s holding fails to account for the basis of knowledge of the tip."
 
Short View. . . Ernie Lewis, Public Advocate

  1. Bass v. Commonwealth, 525 S.E. 2d 921 (Va. 3/3/00). The Virginia Supreme Court has held that taking a particular evasive action at a checkpoint such as turning into a gas station and going the other direction does not constitute reasonable suspicion sufficient to justify a stopping. Thus, the evidence found supportive of DUI in this case should have been suppressed. The Court categorized turning around near a checkpoint as more a "hunch" than reasonable suspicion.
  1. Smith v. State, 753 So. 2d 713 (Fla. Ct. App. 3/17/00). A general consent to search given during a routine street encounter does not authorize a search of the suspect’s mouth according to the Florida Court of Appeals. Here, the Court held that the suspect, by holding his tongue down, was rescinding his consent, which he had a right to do. The officer instructed the suspect to hold his mouth open. Under these circumstances, the consent was not voluntary, and thus the motion to suppress should have been granted. The Court suggested that the Florida Supreme Court adopt a bright line rule "that requires clear verbal consent before the search of any body orifice. The rule, to insure an individual’s right to privacy, should impose a duty upon law enforcement to inform a person of the right to refuse consent as well as the concomitant right to withdraw previously given consent."
  1. Query v. State, 725 N.E. 2d 129 (Ind. Ct. App. 3/15/00). A police officer has a duty to update his search warrant affidavit, particularly where lab tests come back finding that evidence seized during a controlled buy and found to be methamphetamine during a field test was not in fact methamphetamine. By failing to update the affidavit, the officer had given the magistrate less than the full picture. "The result was that the judge had less than full information to assess whether a search warrant should be issued." The Court further found that this did not qualify under the good faith exception to the exclusionary rule.
  1. Professor Margaret Raymond of the University of Iowa College of Law has written a law review article that is worth noting. It is called Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 40 Ohio St. L. J. 99 (1999). You will recall the recent case of Illinois v. Wardlow, 120 S. Ct. 623 (2000) held that the character of a high crime neighborhood combined with flight from the police is sufficient to establish a reasonable suspicion. Professor Raymond wrote her article prior to Wardlow. Her thesis would have likely changed the calculus in Wardlow. She argues that considering the nature of a high crime neighborhood has a disparate impact on the poor and racial minorities. "Poor people and people of color disproportionately live and work in less secure and more crime-ridden neighborhoods. People found in ‘high-crime areas’ or areas ‘known for drug trafficking’ are, purely as a statistical matter, more likely to be people of color. A standard that considers being situated in a ‘high crime area’ a substantial justification for a police stop disproportionately burdens residents of those communities, subjecting residents of high crime areas to more stops on less suspicion. Using the character of the neighborhood as a factor in the determination of reasonable suspicion results in the consideration by proxy of the impermissible factors of race and poverty. Professor Raymond suggests an alternative. She would allow the use of the character of the neighborhood in the reasonable suspicion calculus, but only to the extent that the person being observed by the police behaves differently than other law-abiding citizens in that neighborhood. She states that "[b]ehavior that would typically be observed amongst law-abiding persons could not by itself support a finding of reasonable suspicion, for it would violate the requirement that reasonable suspicion narrow the stop-eligible class of persons. If such behavior is observed in a high-crime neighborhood, the character of the neighborhood for criminality may bootstrap the observations to reasonable suspicion. To avoid this, the standard requires that the behavior have some potential to narrow the stop-eligible class before the character of the neighborhood is taken into account. This constraint permits the consideration of relevant contextual information in the totality of the circumstances inquiry, while meaningfully enforcing the requirement of Brown v. Texas that stops not be justified purely on the basis of the character of the neighborhood." Significantly, Professor Raymond considers the factors affirmed in Wardlow, and finds them wanting. "Consider, for example, cases which address whether flight in a neighborhood known for drug or other criminal activity can support a finding of reasonable suspicion… The inconsistent and unpredictable outcomes in these cases may stem from the courts’ failure to ask the right question, which is whether flight in the presence of police is sufficiently uncommon among law-abiding persons in the community that it effectively narrows the stop-eligible class. If so, then the character of the neighborhood for criminality may be considered in evaluating whether reasonable suspicion is present,; if not, then it may not."
  1. Governor Paul Patton has issued Executive Order 2000-475 on April 21, 2000, which will be of interest to the readers of this column. During the 2000 General Assembly, Senator Gerald Neal introduced a bill that would have required the collection of data to look at the issue of racial profiling by the police. While Justice Cabinet Secretary Robert F. Stephens, Attorney General Ben Chandler, and Acting State Police Commissioner John Lile were present to endorse Senator Neal’s bill, the bill never got out of the Senate Judiciary Committee. In response, the Governor has now acted by executive order to accomplish the same goal. Through this executive order, the Governor has ordered that "no state law enforcement agency or official shall stop, detain, or search any person when such action is solely motivated by consideration of race, color, or ethnicity, and the action would constitute a violation of the civil rights of the person." Further, the order requires that all law enforcement agencies begin to collect data "to better define the scope and parameters of the problem of racial profiling." This was a welcome and courageous act on the Governor’s part.
  1. People v. Spence, 93 Cal. Rep. 2d 607 (Cal. Ct. App. 3/10/00). Where the police rely upon a document prepared by probation and parole officers in order to conduct a probation search, and the document is incomplete intentionally by omitting a search limitation, the good faith exception to the exclusionary rule does not apply. Unlike clerks in Arizona v. Evans, 514 US 1 (1995), who are not expected to be deterred by the exclusionary rule, the probation and parole officers would be deterred by invocation of the rule.
  1. US v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 4/11/00). The en banc 9th Circuit has decided that having a Hispanic appearance does not create an articulable suspicion for a stopping. The Court stated that demographics have changed significantly since the decision in US v. Brignoni-Ponce, 422 US 873 (1975). "Reasonable suspicion requires particularized suspicion, and in an area in which a large number of people share a specific characteristic, that characteristic casts too wide a net to play any part in a particularized reasonable suspicion determination." The Court went on to hold that having a Hispanic appearance is not an appropriate factor in the reasonable suspicion calculus.
  1. Ex parte Turner, 792 So. 2d 1141 (Ala. 4/7/00). Where authorization for anticipatory search warrants is altered by a higher appellate court, the good faith exception to the exclusionary rule will not save a search conducted pursuant to the earlier authorization. The Alabama Supreme Court went on to affirm that the purpose of the exclusionary rule is not only to deter the police, but also to deter the judiciary, a purpose eschewed in U.S. v. Leon, 468 U.S. 897 (1984). "The appellate courts, including this one, are duty-bound to preserve the rule of law in the issuance of search warrants. Suppression of evidence seized pursuant to a search warrant issued contrary to the rule of law is necessary to preserve the rule of law itself."
  1. United States v. Wald, 208 F.3d 902 (10th Cir. 4/10/00). The smell of burnt methamphetamine does not give probable cause to search the trunk of a lawfully stopped vehicle. In this case, a car was stopped for having a cracked windshield. The officer smelled burnt methamphetamine. He found nothing in the passenger compartment search pursuant to consent. He found two pipes when he patted down the defendant Thereafter, he searched the trunk and found packages of methamphetamine. The 10th Circuit held that the patdown search was illegal because it was unrelated to the safety of the officer. The search of the trunk was not a probable cause search because the smell of methamphetamine was cause to believe the defendant’s had been smoking but not trafficking in methamphetamine. "[T] strong odor of burnt methamphetamine, whether or not it can permeate trunks, does not provide probable cause to search a trunk, because it is unreasonable to think someone smoked drugs in the trunk of a car."
  1. Illinois v. McArthur, 120 S.Ct. 1830 (Mem.). The United States Supreme Court has granted cert. on the question of whether it is constitutionally reasonable "for police officers to secure residence from outside, and prohibit occupant’s entry into that residence for short time while they obtain search warrant based on probable cuase, in light of this court’s suggestion in Segura v. United States, 468 U.S. 796 (1984), that such conduct is reasonable under Fourth Amendment and findings of other courts that similar behavior is consistent with Fourth Amendment and Segura.
  1. Horton v. State, 16 S.W.3d 848 (Tex. App. 4/13/00). The Texas Court of Appeals, Third District, has decided that when a person is detained under the community caretaking function of Cady v. Dombrowski, 413 U.S. 443 (1973), that the limits on the ability of the police to search the car are the same as under Terry v. Ohio, 392 U.S. 1 (1968) and Michigan v. Long, 463 U.S. 1032 (1983). Thus, the police had no right to search the car of a person found either unconscious or drunk, where upon further inquiry the police had no reasonable articulable suspicion that criminal activity was afoot or that the person was armed or a danger to the police.
  1. State v. Grant, 614 N.W. 2d 848 (Iowa Ct. App. 4/28/00). The consent to search given by a renter of an apartment does not extend to allow for a search of a jacket of a guest. The renter could consent only to the search of the apartment, and not to the personal property of guests located in the apartment.
  1. Park v. Commonwealth, 528 S.E. 2d 172 (Va. Ct. App. 5/2/00). Knock and announce rules require more than knocking on the door and entering forcibly at the moment the door opens. Rather, the police must give the person opening the door the opportunity to respond prior to entry, absent some sort of exigent circumstances, which was not shown in this case.

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