HIGH COURT LIMITS POLICE LUGGAGE SEARCHES

A bus passenger who puts his luggage in an overhead rack expects privacy
for his belongings, a right that police violate if they squeeze the bags in
a search for drugs, the Supreme Court ruled yesterday.

By a 7-to-2 vote, the justices reversed the conviction of a man who was
found to have a "brick" of methamphetamine in his canvas bag, ruling that
he had been subject to an unreasonable search under the Fourth Amendment. A
federal agent who had checked passengers' immigration status aboard a
Greyhound bus in Sierra Blanca, Tex., discovered the drugs as he began
feeling suitcases in the storage rack.

The somewhat surprising decision written by Chief Justice William H.
Rehnquist strongly rejected the Justice Department's contention that
someone traveling on public transportation who puts his bags where they may
be touched by other passengers loses the expectation of privacy. The court
highlighted the intrusion of "tactile" observation, as opposed to the mere
visual surveillance of a person's property.

Although the decision was foreshadowed by the justices' concerns at oral
arguments last month, it is nonetheless a departure from this court's usual
pattern of giving law enforcement considerable latitude to conduct
searches, even when officers have no specific reasons to believe a crime
has occurred.

The ruling clears up conflicting views among federal appellate courts and
will curtail a drug interdiction practice common along the border. The
narrowly written decision most directly affects bus and train passengers.
It is unlikely to extend in many circumstances to airplane travelers, who
already are subject to numerous security checkpoints.

Rehnquist acknowledged that the court previously had ruled that police
observation of a back yard from a low-flying plane and of a greenhouse from
a helicopter did not violate a reasonable expectation of privacy. Those
cases involved defendants who were growing marijuana.

"But [those cases] are different," he said in yesterday's case of Steven
Dewayne Bond, who had wrapped an oval-shaped brick of methamphetamine in
duct tape and rolled it in a pair of pants before packing into a canvas
bag. "Physically invasive inspection is simply more intrusive than purely
visual inspection."

Rehnquist said the critical factors are that an individual believes his
property will remain private and that society considers that expectation
reasonable. He noted that while a traveler may anticipate some shuffling of
his bags, "he does not expect that other passengers or bus employees will,
as a matter of course, feel the bag in an exploratory manner."

"Travelers are particularly concerned about their carry-on luggage,"
Rehnquist added. "They generally use it to transport personal items that,
for whatever reason, they prefer to keep close at hand." He was joined by
Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, David
H. Souter, Clarence Thomas and Ruth Bader Ginsburg.

Justices Stephen G. Breyer and Antonin Scalia dissented, seeking to uphold
Bond's conviction for conspiracy and drug possession. In an opinion written
by Breyer, they said bus travelers know their bags will be jostled by
strangers and that there is no Fourth Amendment expectation of privacy for
objects a person "knowingly exposes" to the public.

"Of course, the agent's purpose here - searching for drugs - differs
dramatically from the intention of a driver or fellow passenger who
squeezes a bag in the process of making more room for another parcel,"
Breyer wrote. "But in determining whether an expectation of privacy is
reasonable, it is the effect, not the purpose, that matters."

William J. Mertens, who submitted a "friend of the court" brief for the
National Association of Criminal Defense Lawyers on Bond's behalf, said
yesterday's ruling was important because individuals increasingly find
themselves and their belongings in crowded settings where their bags might
be exposed.

"There was a concern that [police touching] would spread to bus stations
outside the border states . . . and maybe other kinds of transportation, if
the court ruled the other way," he said.

On the other side, the National Association of Police Organizations said
the decision in Bond v. United States will hurt efforts to stanch illegal
drug trafficking, particularly at the U.S.-Mexico border.

"Effective law enforcement requires that officers utilize every appropriate
and reasonable method," said Robert T. Scully, the association's executive
director, "including the touching or handling of soft-sided bags placed on
open luggage racks on buses, trains, and airplanes."