THE COURT AND SEARCH AND 'SQUEEZE'

WASHINGTON - Steven Dewayne Bond was on a Greyhound bus, traveling from
California to Arkansas, minding his own business. Unfortunately, his
business involved trafficking in illegal drugs. So now he is a footnote in
constitutional history, having contributed to the creation of "a
constitutional jurisprudence of `squeezes.' " His case illustrates how
reasonable Supreme Court justices can disagree about how finely some
procedural hairs should be split.

On Monday the Supreme Court ruled 7-2 that Bond's conviction on conspiracy
and drug possession charges was improper because of the way the drugs he
was transporting were found. A Border Patrol agent squeezed Bond's canvas
carry-on bag.

When the bus pulled in, as it was required to do, at the immigration
checkpoint on Interstate 10 near Sierra Blanca, Texas, the agent, working
from the front to the back, checked that the approximately 45 passengers
were legally in the country. Then, working from back to front, he looked
for drugs by squeezing luggage in overhead bins.

When he felt a "brick-like" object in Bond's bag, and noted that Bond
seemed nervous, he asked for and received Bond's permission to open the
bag. What he found, wrapped in tape and wrapped additionally in a pair of
pants, was methamphetamine. After his arrest, Bond made incriminating
statements.

But before his trial he remembered the Fourth Amendment ("The right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . ."). At trial
he argued that the drugs were found by an illegal search, and that his
statements were inadmissible as evidence because they were a consequence of
the search.

The court was not persuaded. He was sentenced to 57 months in prison. He
appealed, but the appellate court affirmed his conviction. It noted that
when he stored his bag overhead, it was reasonable for him to expect that
it would be moved and handled without his permission, by other passengers
or people working for Greyhound making more room overhead. The court also
said there was no constitutional importance in the fact that passengers
touching his bag would have a purpose unlike that of the agent.

Then the Supreme Court, which has lots of experience fine-tuning the
meaning of the Fourth Amendment, decided to get more such experience.
Writing for the majority, Chief Justice William Rehnquist used his mental
micrometer to distinguish this case from two others in which the court
upheld the constitutionality of police searches. One was the observation,
from a police airplane at 1,000 feet, of marijuana growing in the back yard
of a private residence. The other was the observation, from a police
helicopter at 400 feet, of drugs growing in a greenhouse adjacent to a
private residence.

Bond's case, Rehnquist reasoned, is different because tactile examination
of a person's "effects" is different - constitutionally different - than
visual examination: "Physically invasive inspection is simply more
intrusive than purely visual inspection." Bond reasonably did not expect
passengers or Greyhound employees to "feel the bag in an exploratory manner."

Dissenting, Justice Stephen Breyer, joined by Antonin Scalia, said, in
effect, that Fourth Amendment casuistry could make your head hurt. The
court has held that it is not an illegal search for a police officer to
smell luggage, or to get a trained dog to smell it (or for an officer to
examine the contents of a garbage bag put out for collection), but a police
officer cannot touch Bond's bag in a way no more forceful than another
passenger might.

"Privacy," said Breyer, "itself implies the exclusion of uninvited
strangers, not just strangers who work for the government." And "in
determining whether an expectation of privacy is reasonable, it is the
effect, not the purpose, that matters." This is so because "a Fourth
Amendment rule that turns on purpose could prevent police alone from
intruding where other strangers freely tread." And by the way, surely
whether tactile investigation is more or less intrusive than visual
investigation depends on circumstances - think of observing someone through
a lighted window.

A few years ago Kansas City detectives on an Amtrak train bound for Los
Angeles noticed a bag with no identification tag. They checked its weight
by lifting it and pressed its sides hard enough to expel air from it. The
air smelled of marijuana. The Eighth Circuit called that an unreasonable
search.

So it seems Bond did not quite pioneer what Breyer calls "a constitutional
jurisprudence of `squeezes.' " And he has not occasioned the last word on
police practices and the Fourth Amendment.