HANDS OFF LUGGAGE, COURT SAYS

Ruling Supports Passengers' Rights

WASHINGTON -- The Supreme Court on Monday ruled that police officers
cannot squeeze the carry-on luggage of public transit passengers in
searching for contraband without a warrant or reasonable suspicion of
criminal activity.

In their 7-2 decision, the justices overturned a Texas drug
conviction, saying that a passenger has a constitutionally protected
expectation that police, and other travelers, will respect the privacy
of luggage and not grope it in an effort to determine its contents.
Police who conduct such tactile examinations violate the passenger's
Fourth Amendment right against unreasonable searches by law
enforcement, the court said.

The National Association of Police Organizations said the decision
will undermine the ability of police, particularly on the U.S.-Mexico
border, to thwart the many drug traffickers who use public
transportation to elude law enforcement.

"To interdict unlawful drug shipments transported on common carriers
and to apprehend those committing these offenses, effective law
enforcement requires that officers utilize every appropriate and
reasonable method, including the touching or handling of soft-sided
bags placed on open luggage racks on buses, trains and airplanes,"
said Robert Scully, NAPO's executive director. "Unfortunately, the
court disagreed."

The American Civil Liberties Union, however, hailed the court's ruling
as a reaffirmation that the police need "particularized suspicion"
before they can search a person's property for evidence of wrongdoing.

"I'm pleased that they have held the line" against police encroachment
on a person's reasonable expectation of privacy, said Susan Herman,
ACLU's general counsel.

With its decision, the high court said a Border Patrol agent in West
Texas violated the constitutional rights of bus passenger Steven
Dewayne Bond by squeezing his canvas bag, which Bond had stowed in an
overhead compartment. The squeezing led to a search of the bag, which
uncovered illegal methamphetamines, leading to Bond's arrest and
conviction on drug possession charges.

In ruling the officer's search unconstitutional, the court noted that
passengers expect the bags they put in overhead compartments to be
handled, even roughly by other passengers and crew members trying to
make room for their own belongings. But passengers do not expect
others to squeeze and otherwise manipulate their luggage in an effort
to determine the contents, the court held.

"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," Chief Justice William H. Rehnquist wrote in the court's
majority opinion. "He does not expect other passengers or bus
employees will, as a matter of course, feel the bag in an exploratory
manner. But this is exactly what the agent did here."

Border Patrol agent Cesar Cantu boarded the Greyhound bus in July 1997
at a police checkpoint in Sierra Blanca, about 80 miles southeast of
El Paso. Finding no illegal immigrants on the bus, Cantu then
proceeded to squeeze bags in the overhead compartment, settling on
Bond's after he felt a suspicious lump.

After asking for and receiving Bond's permission to open the bag,
Cantu discovered that the swelling was methamphetamines that had been
tightly wrapped in duct tape and rolled in a pair of pants.

Over Bond's objection, the U.S. District Court for Western Texas
allowed the drugs to be admitted into evidence. A jury convicted him
of conspiracy to possess and possession of drugs with intent to
distribute. Bond was sentenced to 57 months in prison to be followed
by three years' supervised released.

The New Orleans-based 5th U.S. Circuit Court of Appeals upheld the
conviction. The court said that Cantu's mere squeezing of the bag,
which Bond had left out in the open for anyone to touch, did not
qualify as a "search" under the Constitution.

But the Supreme Court reversed the conviction, saying that Cantu
violated the Fourth Amendment by manipulating the canvas bag in a
manner that Bond would not reasonably have expected from other passengers.

The case the justices decided focused on the legitimacy of Cantu's
actions in squeezing the bag without Bond's consent. The fact that
Bond later gave Cantu permission to open the luggage was irrelevant to
the underlying question of whether the Constitution permitted the
officer to grope the bag in the first place, a question to which the
court resoundingly answered no.

The decision also has no affect on the more commonplace metal-detector
searches of bags at airports and other public transportation stations.
The ruling is limited to the officer's unwarranted, suspicionless
search of a bag in an overhead compartment on a public conveyance.

Joining Rehnquist's opinion were Justices John Paul Stevens, Sandra
Day O'Connor, Anthony M. Kennedy, David H. Souter, Clarence Thomas and
Ruth Bader Ginsburg.

Dissenting Justices Stephen G. Breyer and Antonin Scalia assailed the
court's decision as preventing police from simply doing what
passengers routinely do, grope at the luggage of fellow travelers in
an effort to make room for their own.

"At worst, this case will deter law enforcement officers searching for
drugs near borders from using even the most non-intrusive touch to
help investigate publicly exposed bags," Breyer wrote in a dissenting
opinion Scalia joined. "The traveler who wants to place a bag in a
shared overhead bin and safeguard its contents from public touch
should plan to pack those contents in a suitcase with hard sides,
irrespective of the court's decision today."