Volume 22, No. 4,
Ernie Lewis, Public Advocate
Bond v. United States
120 S.Ct. 1462
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
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
|Short View. . . Ernie Lewis, Public Advocate
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.
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."
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.
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."
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.
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.
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.
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
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."
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
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.
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
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.
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
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.
There is a fascinating law review article on the Fourth Amendment and its
applicability to technology written by Stephan K. Bayens in 48 Drake L.
R. 239 (2000). The article analyzes the different components of modern
technology and attempts to place those components within the framework
of traditional Fourth Amendment analysis. The conclusion drawn is that
"it appears as thought the Fourth Amendment has finally met its match in
technology…Traditional notions of privacy and possessory interests have
become increasingly difficult to apply with the amorphous world of networks
and the Internet…Electronic communication in its various forms is a practical
necessity despite its inherent dangers. Thus, the judiciary or the legislature
must acknowledge this dilemma and formulate appropriate responses."
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