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No. 98-9349: Bond v. United States

No. 98-9349

In the Supreme Court of the United States

STEVEN DEWAYNE BOND, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor
General
KIRBY A. HELLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


QUESTION PRESENTED

Whether an officer's handling of the exterior of luggage stored in an overheadbaggage area of a passenger bus is a "search" within the meaningof the Fourth Amendment.


In the Supreme Court of the United States

No. 98-9349

STEVEN DEWAYNE BOND, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (J.A. 36-42) is reported at 167 F.3d225. The orders of the district court denying petitioner's motion to suppress(J.A. 20-25) and his motion for reconsideration (J.A. 26-28) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on February 8, 1999. Thepetition for a writ of certiorari was filed on May 10, 1999 (a Monday),and certiorari was granted, limited to question 1 presented by the petition,on October 12, 1999. 120 S. Ct. 320-321. The jurisdiction of this Courtrests on 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Constitution provides:

The right of the people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures, shall not be violated,and no Warrants shall issue, but upon probable cause, supported by Oathor affirmation, and particularly describing the place to be searched, andthe persons or things to be seized.

U.S. Const. Amend. IV.

STATEMENT

Following a bench trial in the United States District Court for the WesternDistrict of Texas, petitioner was convicted of possessing methamphetaminewith intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and ofconspiring to commit that offense, in violation of 21 U.S.C. 846. He wassentenced to 57 months of imprisonment, to be followed by three years ofsupervised release. J.A. 29-32. The court of appeals affirmed. J.A. 36.

1. On July 17, 1997, petitioner was a passenger on a Greyhound bus whenit stopped at the permanent Border Patrol checkpoint at Sierra Blanca, Texas.J.A. 20, 36-37. The bus, with about 45 passengers on board, was nearly full.Tr. 25, 67. The passengers' luggage was stored in overhead bins above theseats.1 Because of the large number of passengers on board the bus, thebins had "a lot" of luggage in them. Tr. 80.

During the stop, Border Patrol Agent Cesar Cantu boarded the bus and checkedthe immigration status of the passengers, moving from the front of the busto the rear. J.A. 20-21, 37. See also J.A. 8. By the time Agent Cantu reachedthe back of the bus, he was satisfied that all of the passengers were lawfullyin the United States. J.A. 9, 37. Because the bus had no rear door, AgentCantu returned to exit through the front. J.A. 41. See also J.A. 9, 27.

As he walked toward the front of the bus, Agent Cantu "checked theluggage racks above the heads of the seated passengers" and, "onoccasion, he * * * felt the suitcases, clothing bags, backpacks or otheritems contained in the luggage rack." J.A. 21. See also J.A. 27, 37.According to the district court:

As [Agent Cantu] came to [petitioner's] row, something about a softsidedgreen cloth bag in the overhead compartment attracted his attention. Hetouched the outside of the bag, and could feel a bricklike object.

J.A. 27. See also J.A. 11, 21. Based on his experience, Agent Cantu suspectedthat the brick-like object might be a package of narcotics. J.A. 21, 27.See also J.A. 12.

Accordingly, Agent Cantu asked who owned the bag, and petitioner acknowledgedthat the bag was his. J.A. 21, 27, 37. See also J.A. 13. After a short conversation,petitioner-who seemed nervous-consented to a search of the contents of thebag. Ibid. Inside the bag, in the leg of a pair of pants, Agent Cantu discovereda brick of methamphetamine measuring approximately six or seven inches longby four or five inches wide; the brick weighed 1.3 pounds. J.A. 21-22.

After petitioner was advised of his Miranda rights, see Miranda v. Arizona,384 U.S. 436 (1966), he told Agent Cantu that he was delivering the methamphetaminefrom California to Little Rock, Arkansas. J.A. 21-22, 37. Later that sameday, petitioner confessed again, this time to a different law enforcementofficer. J.A. 22, 24; Tr. 47-49.

2. Petitioner moved to suppress the evidence obtained from his bag and hissubsequent statements. The district court held a hearing, at which AgentCantu and petitioner both testified.

Agent Cantu explained that, as he walked down the aisle of the bus, he squeezedpetitioner's green canvas bag and felt a relatively solid, brick-shapedobject inside. J.A. 10-11. He described his squeeze of the bag as "hard,"but not so hard that it would break anything. Id. at 15. Petitioner's testimonydid not contradict Agent Cantu's. He stated that, after Agent Cantu "reachedfor" his bag, Agent Cantu "shook it a little, and squeezed it,and then sniffed it, and then * * * asked me if it was my bag." J.A.18.

Following the hearing, the district court denied petitioner's motion tosuppress. J.A. 20-25. The district court found that Agent Cantu, in thecourse of making an authorized inspection of the bus and its luggage areas,"felt the outside of [petitioner's] softside green cloth bag"and that "[i]n doing so, he felt the presence of a solid mass reminiscentof a brick." J.A. 23. "It is well settled," the districtcourt concluded, "that the minimally intrusive touching of the exteriorof a bag located in the luggage compartment of a common carrier is neithera search nor a seizure within the meaning of the Fourth Amendment."J.A. 23 (citing United States v. Lovell, 849 F.2d 910 (5th Cir. 1988), andUnited States v. Garcia, 849 F.2d 917 (5th Cir. 1988)).2

Petitioner filed a motion for reconsideration, which the district courtdenied. J.A. 26-28. After rejecting petitioner's contention that Agent Cantu'sinspection of the luggage racks caused the bus to be stopped for an unreasonableperiod of time, J.A. 26-27, the district court reiterated that Agent Cantu's"minimally intrusive touching of the exterior of" petitioner'sgreen canvas athletic bag in the overhead luggage compartment "wasneither a search nor a seizure within the meaning of the Fourth Amendment."J.A. 28.

Following a bench trial on stipulated facts, petitioner was convicted onboth counts charged. J.A. 37, 29-35.

3. Petitioner appealed, and the court of appeals affirmed. J.A. 36-42. Thecourt of appeals first rejected petitioner's claim that Agent Cantu, intouching the exterior of petitioner's luggage, had conducted a "search"within the meaning of the Fourth Amendment. Relying on the principle that"[w]hat a person knowingly exposes to the public * * * is not a subjectof Fourth Amendment protection," J.A. 38 (quoting Katz v. United States,389 U.S. 347, 351 (1967)), the court of appeals concluded that petitionerhad knowingly exposed the exterior of his canvas bag to touching by others.Petitioner, the court observed, had stored his gym bag in the overhead luggagebin, a common area of the Greyhound bus, where "it was foreseeablethat [it] would be squeezed, moved, and manipulated by others." J.A.38. As the court explained:

On common carriers, passengers often handle and manipulate other passengers'luggage while stowing or retrieving their own luggage. By placing his bagin the overhead bin, [petitioner] knowingly exposed it to the public and,therefore, did not have a reasonable expectation that his bag would notbe handled or manipulated by others.

J.A. 38-39 (citing United States v. McDonald, 100 F.3d 1320, 1327 (7th Cir.1996), cert. denied, 520 U.S. 1258 (1997); United States v. Guzman, 75 F.3d1090, 1095 (6th Cir.), cert. denied, 519 U.S. 906 (1996); United Statesv. Harvey, 961 F.2d 1361, 1364 (8th Cir.), cert. denied, 506 U.S. 883 (1992)).Petitioner, the court of appeals further noted, "[c]oncede[d] thatother passengers had access to his bag." J.A. 39.

The court of appeals also rejected petitioner's reliance on United Statesv. Nicholson, 144 F.3d 632, 639 (10th Cir. 1998). In that case, the TenthCircuit held that a law enforcement officer's manipulation of luggage storedin an overhead luggage bin constituted a search because the officer's handlingof the bag, unlike the handling that might be expected by a fellow passenger,was designed to reveal contraband. See J.A. 40 (characterizing Nicholson).For Fourth Amendment purposes, the court of appeals held, it was irrelevantthat Agent Cantu's handling of petitioner's bag was calculated to detectcontraband. J.A. 40 (citing California v. Ciraolo, 476 U.S. 207 (1986)).

The court of appeals also rejected petitioner's claim that Agent Cantu discoveredthe methamphetamine during an unlawful detention of the bus, after the immigrationinspection had been completed. J.A. 40-41. Pointing out that there was "noevidence that Agent Cantu's inspection of the overhead luggage compartmentdelayed the bus' departure more than an additional one or two minutes,"the court concluded that "the trivial delay caused by Agent Cantu'sinspection did not violate the strict limits of a border checkpoint stop."J.A. 41.

SUMMARY OF ARGUMENT

I. A Fourth Amendment search occurs when a government official makes observationsthat infringe on a legitimate expectation of privacy. Such an infringementis shown only when an individual has "manifested a subjective expectationof privacy," and society accepts that privacy expectation "asobjectively reasonable." California v. Greenwood, 486 U.S. 35, 39 (1988).In contrast, "[w]hat a person knowingly exposes to the public, evenin his own home or office, is not a subject of Fourth Amendment protection."Katz v. United States, 389 U.S. 347, 351 (1967).

In this case, Agent Cantu acquired, through the sense of touch, only suchinformation about petitioner's soft-sided bag as was made available to thepublic. Petitioner chose to transport his relatively large brick of narcoticshalfway across the country inside a soft, canvas athletic bag-a bag thathad the obvious potential of revealing the presence of solid objects insidewhen compressed-and then placed that soft bag on the bus's overhead rack,an area accessible to and shared with other passengers on the bus. It iswell known that passengers on common carriers and common carrier employeesoften move, push, compress, and otherwise handle luggage stored in sharedareas like overhead racks as they attempt to make room for or remove otherbags.

Under those circumstances, petitioner had no reasonable expectation thatthe brick-like object in his canvas bag-which occupied one third of hisbag's length and one third of its width-would remain undetected by the routinehandling to which the bag was exposed. Indeed, Agent Cantu noticed the brickmerely by squeezing petitioner's soft gym bag, hard but not so hard as tobreak anything inside, J.A. 10-11, 15, 23, an action the district courtdescribed as "minimally intrusive," J.A. 28. It is not a FourthAmendment search for a law enforcement officer to make the same observationsthat could have been made by any other passenger or other member of thepublic handling the bag in a reasonably foreseeable manner.

II. There is no basis for treating Agent Cantu's handling of the bag asa Fourth Amendment search on the theory that his actions were physicallyintrusive or excessively revealing of the contents of the bag. The intrusionwas no more than petitioner could expect from the public. Having exposedhis baggage to such handling by a host of others, he cannot claim an unwantedphysical invasion when similar action is taken by the police-any more thana store owner who invites the public to shop can complain about similarentry by the police, or the former owner of garbage put out in a can forcollection can complain if the can is physically opened and inspected bythe police. Once a possession is opened to public inspection, the policemay inspect it as well, even if that may involve physical entry. And thefact that tactile inspection of a bag's exterior may reveal informationabout its contents no more establishes a search than when officers standingon a public sidewalk or in open fields make observations of the contentsof a car or a house. Cf. United States v. Dunn, 480 U.S. 294 (1987) (observationthrough a window); Texas v. Brown, 460 U.S. 730 (1983) (observation of theinterior of a car).

Petitioner is not assisted by the fact that a Terry frisk-the touching ofa person-is a search. The touching of a bag is quite different from thetouching of one's person. Bags may be placed in locations where they areknowingly exposed to public handling and to consequent tactile observation;but it would be a rare case in which a person's body is said to be so exposed.

In any event, the handling of petitioner's bag in this case was not "physicallyintrusive" or particularly revealing of its contents. Handling a bagdoes not penetrate the physical barrier that the bag creates between itscontents and the rest of the world. And the information that can be learnedfrom such handling extends only to the presence of large and relativelysolid items positioned in a way that exposes them to observation by thesense of touch from the outside, i.e., those items anyone handling the bagmight have detected.

Finally, Agent Cantu's actions cannot be labeled a search on the theorythat they involved a purposeful manipulation in contrast to the sort of"casual" or "incidental" contact that might be expectedfrom other members of the public. The purpose or motive of the officer hasno bearing on whether there has been a "search." And once an itemis exposed to inspection, this Court has held, officers may make more extensive,more thorough, and more focused observations than would ordinarily be madeby members of the public. See United States v. Knotts, 460 U.S. 276 (1983)(surveillance of movements through public streets for extended period oftime); California v. Ciraolo, 476 U.S. 207 (1986) (focused aerial observation);Texas v. Brown, supra (intentional effort to see inside car by changingposition and bending down).

ARGUMENT

AN OFFICER'S TOUCHING OF THE EXTERIOR OF LUGGAGE STORED IN AN OVERHEAD LUGGAGEBIN SHARED WITH OTHER PASSENGERS IS NOT A SEARCH WITHIN THE MEANING OF THEFOURTH AMENDMENT

I. The Handling Of Petitioner's Soft Bag Was Not A Search Because PetitionerKnowingly Exposed It To Public Handling

A. What One Knowingly Exposes To Public Observation Is Not Subject To FourthAmendment Protection

Not all observations made by police, through sight or through other senses,implicate the Fourth Amendment. 1 Wayne R. LaFave, Search and Seizure, §2.1(a), at 380 (3d ed. 1996). Instead, an officer's observation infringeson a constitutionally protected privacy interest, and constitutes a "search"within the meaning of the Fourth Amendment, only if two conditions are met.First, the individual claiming infringement must have "manifested asubjective expectation of privacy"; second, society must accept thatexpectation "as objectively reasonable." California v. Greenwood,486 U.S. 35, 39 (1988); California v. Ciraolo, 476 U.S. 207, 211 (1986);Smith v. Maryland, 442 U.S. 735, 740 (1979).

Consistent with that approach, this Court has long held that "[w]hata person knowingly exposes to the public, even in his own home or office,is not a subject of Fourth Amendment protection." Katz v. United States,389 U.S. 347, 351 (1967); Ciraolo, 476 U.S. at 213; Greenwood, 486 U.S.at 41. Consequently, this Court has also recognized that law enforcementofficers "may see what may be seen 'from a public vantage point'"without triggering constitutional concerns. Florida v. Riley, 488 U.S. 445,449 (1989) (plurality opinion) (quoting Ciraolo, 476 U.S. at 213). As thisCourt explained in Ciraolo, 476 U.S. at 213, "the mere fact that anindividual has taken measures to restrict some views" does not "precludean officer's observations from a public vantage point where he has a rightto be." See also Greenwood, 486 U.S. at 40 (garbage exposed "tothe public sufficiently to defeat the[] claim of Fourth Amendment protection");United States v. Dunn, 480 U.S. 294, 303-304 (1987) (even if building "couldnot be entered * * * without a warrant," observation of interior madefrom outside, while standing in open fields or a public place, not a FourthAmendment search).

The distinction between matters opened to public observation, and thoseprotected against it, is well established. Over a century ago, in Ex ParteJackson, 96 U.S. 727, 733 (1877), this Court explained that postal inspectorscould review the contents of unsealed pamphlets and other open printed materialsplaced in the mail, and could examine sealed letters and packages "asto their outward form and weight," but held that the Fourth Amendmentbarred them from opening printed materials "closed against inspection."Fifty years later, the Court employed similar analysis in United Statesv. Lee, 274 U.S. 559 (1927), to conclude that using a searchlight to observecontraband on a ship's deck was not a "search" within the meaningof the Fourth Amendment. See id. at 561. The contraband, the Court explained,was sitting "on the deck" in public view; the observations weremade before the boat was boarded; and there was no "exploration belowdecks or under hatches." Id. at 563. Under those circumstances, "nosearch on the high seas [was] shown." Ibid.

In the seven decades since Lee, this Court repeatedly has applied the distinctionbetween items protected against observation and those exposed to publicperception. For example, in United States v. Knotts, 460 U.S. 276, 281 (1983),the Court approved extended police surveillance of a car's movements, usinga beeper, because a "person travelling in an automobile on public thoroughfareshas no reasonable expectation of privacy in his movements from one placeto another." Id. at 281. See United States v. Karo, 486 U.S. 705, 715(1984) ("The information obtained in Knotts was 'voluntarily conveyedto anyone who wanted to look.'"). The Court likewise has unanimouslyheld that the police may use a flashlight to examine a car's interior throughthe window, because there is no reasonable privacy expectation in areas"which may be viewed from outside the vehicle by either inquisitivepassersby or diligent police officers." Texas v. Brown, 460 U.S. 730,740 (1983) (plurality opinion); id. at 746 (Powell, J., concurring) (contrabandconcededly "observed in the course of a lawful inspection"); id.at 750 (Stevens, J., concurring) ("I agree that the police officerinvaded no privacy interest in order to see the balloon."). And theCourt has held that the police may constitutionally look through garbageleft for pickup in a closed container outside the home, because the garbageis "exposed * * * to the public sufficiently to defeat the[] claimto Fourth Amendment protection." Greenwood, 486 U.S. at 40.

Even with respect to the home and its curtilage-the areas for which constitutionalprotection is at its apogee-this Court consistently has held that policeobservation from publicly accessible vantage points does not constitutea Fourth Amendment search. See Riley, 488 U.S. at 449 ("[T]he homeand its curtilage are not necessarily protected from inspection that involvesno physical invasion.") (plurality opinion). In Ciraolo, supra, forexample, the officers used an airplane to view the backyard of a house wheretwo tall fences prevented ground-level observation. See 476 U.S. at 209,211. Even on the assumption that the defendant's backyard was subject tothe same protection as the home itself, the Court explained, air travelis now a familiar part of modern life, and "any member of the"flying public "who glanced down could have seen everything that theseofficers observed." Id. at 213-214. The Court thus "readily"concluded that the defendant's "expectation that his garden was protectedfrom such observation is unreasonable and is not an expectation that societyis prepared to honor." Ibid. See also Riley, 488 U.S. at 450-451 (pluralityopinion) (although occupant "intended and expected that his greenhousewould not be open to public inspection," expectation not reasonablebecause any "member of the public could legally have been flying over"and seen inside); id. at 453 (O'Connor, J., concurring); Minnesota v. Carter,525 U.S. 83, 104-105 (1998) (Breyer, J., concurring) (officer's observationof apartment from public vantage point, whether through "gaps"in blinds or blinds "pulled the 'wrong way,'" not an unreasonablesearch); Smith v. Maryland, 442 U.S. at 742 (no reasonable expectation ofprivacy in telephone numbers dialed because that information is conveyedto a third party).

B. Luggage Placed In Overhead Racks Is Knowingly Exposed To Public HandlingAnd The Observations That Can Be Made Through Such Handling

1. The foregoing principles control this case. Petitioner chose to transporthis relatively large brick of narcotics halfway across the country insidea soft, canvas athletic bag, and chose to place that soft bag on the bus'soverhead rack, an area accessible to and shared with other passengers onthe bus. It is common knowledge, born of "mundane observation,"People v. Santana, 73 Cal. Rptr. 2d 886, 888 (Ct. App. 1998), that passengerson common carriers and common carrier employees often handle-sometimes roughly-luggagestored in shared areas. "Any person who has travelled on a common carrierknows that luggage placed in an overhead compartment is always at the mercyof all people who want to rearrange or move previously placed luggage inorder to squeeze additional luggage into the compartment or remove previouslyplaced luggage." United States v. McDonald, 100 F.3d 1320, 1327 (7thCir. 1996), cert. denied, 520 U.S. 1258 (1997). Indeed, other passengersor bus line employees may handle stowed bags in myriad ways-they might grabthem from any number of angles while removing them from the rack; compressor squeeze them by pushing on them with the palms of their hands in an effortto make room for additional luggage; or pat them and press them againstother bags to make them fit or ensure that they are snug in the rack. Thus,once a defendant places his luggage in "an overhead rack on a commoncarrier * * * accessible to other passengers, and where other passengersalso stow[] their luggage":

It is likely that in retrieving or stowing their own bags, other passengers* * * would have to move, touch, or push [the defendant's] bags, and wouldin all probability feel the outside of [his] bags in doing so. [Such a person]can thus be said to have knowingly and voluntarily exposed the exteriorof [his] bags to being physically touched by other persons. In other words,[the defendant cannot] have a reasonable expectation of privacy that theexterior of [his] luggage would not be felt, handled, or manipulated byothers.

Id. at 1326. See J.A. 38-39 (it is "foreseeable that" bags inoverhead rack "would be squeezed, moved and manipulated by others,"because "passengers often handle and manipulate other passengers' luggage,while stowing or retrieving their own").

The correctness of those observations is confirmed by experience. Even aquick glance through contemporary travel accounts reveals acute public awarenessthat luggage stowed in shared compartments on common carriers is regularlyhandled, compressed, pushed, and shoved-even crammed or pounded-by otherpassengers and by common carrier employees seeking to make room for or retrieveother bags, or to ensure that all bags are secure in the rack.3 And roughhandling of luggage during long-haul travel is not a modern phenomenon,but has been documented in travel literature from ages past.4 For that veryreason, travelers concerned about such handling-and the consequences ofsoft bags being grabbed, compressed or squashed- have long had the optionof using hard luggage. See Deborah Shinn et al., Bon Voyage: Designs forTravel 16, 18, 21, 23, 25, 27, 29, 52 (1986) (photographs and drawings ofhard-sided carrying containers and other hard luggage used in ancient Egyptand the 14th through the 18th centuries). See also note 4, supra.

Consistent with those observations, federal courts have agreed that a passengerwho leaves his bag in a publicly accessible part of a common carrier, likean overhead rack, knowingly exposes it to at least some degree of publictouching, feeling, handling, and movement-and that, as a result, policehandling of such luggage does not necessarily constitute a "search"within the meaning of the Fourth Amendment. See, e.g., McDonald, 100 F.3dat 1325 ("[W]e agree with other courts of appeal that have held thatthe reasonable expectation of privacy inherent in the contents of luggageis not compromised by a police officer's physical touching of the exteriorof luggage left exposed in the overhead rack of a bus."); United Statesv. Guzman, 75 F.3d 1090, 1095 (6th Cir.) ("[D]efendant had no reasonableexpectation of privacy in the exterior of his bag when it was on the openluggage rack of a commercial bus."), cert. denied, 519 U.S. 906 (1996);United States v. Harvey, 961 F.2d 1361, 1364 (8th Cir.) (Because "[i]tis not uncommon for the bus driver or a fellow passenger to rearrange thebaggage in the overhead compartment or to temporarily remove the baggageand place it in a seat or in the aisle in order to rearrange and maximizethe use of limited compartment space," passengers "have no objective,reasonable expectation that their baggage will never be moved once placedin an overhead compartment."), cert. denied, 506 U.S. 883 (1992);5cf. United States v. Garcia, 849 F.2d 917, 919 (5th Cir. 1988) ("Theagents' handling of Garcia's bag was certainly no rougher than could beexpected in an airport baggage handling context."); United States v.Bronstein, 521 F.2d 459, 465 (2d Cir. 1975) (Mansfield, J., concurring)("It is common knowledge that luggage turned over to a public carrierwill be handled by many persons who, although not permitted to open it withoutthe owner's permission, may feel it, weigh it, check its locks, straps andseams to insure that it will not fall apart in transit, and shake it todetermine whether the contents are fragile or dangerous."), cert. denied,424 U.S. 918 (1976). The decisions of state courts are in accord.6

2. Petitioner concedes that, when he placed his soft canvas gym bag in theoverhead rack of the bus, he exposed it to public touching and handling.See Pet. Br. 18 (petitioner "may even have expected that other buspassengers would * * * push[] or move[]" his bag "as they storedtheir own luggage"); J.A. 39 (noting similar concession). Consequently,petitioner could have no legitimate expectation that his soft gym bag wouldremain untouched and the presence of the brick-like object inside undetected.Any other passenger or bus line employee pushing, compressing, or grabbingpetitioner's gym bag (while rearranging stowed bags, making room for otherbags, retrieving bags, or ensuring stowed materials are secure in the overheadrack) could have sensed through its soft canvas exterior the same thingthat Agent Cantu noted-that there was a hard, brick-like object inside.As one treatise has explained, once "it is conceded that the defendanthad 'no reasonable expectation that his luggage would not be moved or handled'"by others, an officer's act of "squeez[ing] a piece of soft-sided luggageand [thereby feeling] the unmistakable outline of a gun" or other contrabanddoes "not constitute a search." 1 LaFave, supra, § 2.2(a),at 404-405 (footnotes omitted); cf. United States v. Russell, 670 F.2d 323,325 (D.C. Cir.) (gun held to be in "plain view" where officer"felt the outline of the gun" as he lawfully "grasped thepaper bag" in which the gun was sitting), cert. denied, 457 U.S. 1108(1982).

Indeed, given the size of the methamphetamine brick, it is unlikely thatanyone handling the bag (including Agent Cantu) might have missed it. AgentCantu merely squeezed petitioner's bag ("hard" but not so hardas to break anything inside) and in so doing felt a brick-shaped objectinside the bag. J.A. 10-11, 15. See J.A. 27 (district court finding thatAgent Cantu "touched the outside of the bag, and could feel a bricklikeobject."). The brick, which weighed one-and-one-third pounds, occupiedone third of the bag's length and one third of its width.7 As a result,the district court found that Agent Cantu noticed the brick-like objectwhen he "felt the outside of [petitioner's] softside green cloth bag,"J.A. 23, an action that was "minimally intrusive." J.A. 28.8 BecauseAgent Cantu felt that which anyone else handling the bag might have perceived,his observations did not invade an expectation of privacy that society considersreasonable.

3. Petitioner's claimed expectation of privacy in this case is far lessjustified than the privacy expectations this Court has rejected as unreasonablein the past. In Ciraolo and Riley, for example, the defendants took reasonableprecautions to protect the areas behind their homes from visual observation,erecting tall enclosures; to protect those areas from the aerial visualobservation that occurred would have required extraordinary measures. SeeRiley, 488 U.S. at 454 (O'Connor, J., concurring) (to preserve privacy againstaerial observation would "require individuals to completely cover andenclose their curtilage" and force them "entirely [to] giv[e]up their enjoyment of those areas."). And in Greenwood, the defendantshad no way to protect their garbage from being observed once it was placedout for pick up. Greenwood, 486 U.S. at 55 (Brennan, J., dissenting).

Here, in contrast, petitioner did not employ even ordinary precautions.Nothing prevented petitioner from transporting his narcotics in a hard briefcase,hard luggage, or a cardboard carton, each of which would have protectedit from tactile detection during routine handling of baggage. See pp. 16-17,supra. But petitioner chose not to do so. Instead, he chose to put his brickof narcotics in a soft gym bag and the gym bag in a shared location whereothers would touch, push, move, and handle it. When, as here, an individualfails to employ the "precautions customarily taken by those seekingprivacy," Rakas v. Illinois, 439 U.S. 128, 152 (1978) (Powell, J.,concurring), he "cannot reasonably expect privacy from public observation."Riley, 488 U.S. at 454 (O'Connor, J., concurring).

II. Feeling The Exterior Of Luggage Left Open To Public Touching Is NotA "Search" Of Its Contents

Relying on Terry v. Ohio and other frisk cases, petitioner argues that AgentCantu's handling of his luggage must be a search because it was physicallyintrusive, revealed information about the bag's contents, and exceeded thesort of "casual" or "incidental" contact that petitionerclaims to have expected of other passengers. None of those arguments ispersuasive.

A. Handling The Exterior Of Luggage Exposed To Public Contact Does Not ViolateReasonable Privacy Expectations

1. As petitioner notes (Br. 7-8), luggage is an "effect" traditionallyprotected under the Fourth Amendment. But effects, no less than homes orany other form of property, may be observed by the police if they are exposedto public inspection. And petitioner exposed his soft bag to public touchingand handling here. See pp. 13-22, supra. Petitioner contends that the contactwith the exterior of his luggage was physically intru-sive, Pet. Br. 10-12,and unduly revealing of the bag's contents, id. at 12-15. But even wherethe particular form of observation or inspection can properly be characterizedas "physically intrusive" or revealing, a defendant cannot claiminvasion of a reasonable privacy expectation if he has knowingly exposedhis property to such consequences. Thus, for example, while police entryinto a business is surely "physically intrusive," the owner ofa business open to the public cannot complain when government agents enterduring normal hours. See, e.g., Maryland v. Macon, 472 U.S. 463, 469 (1985)("[R]espondent did not have any reasonable expectation of privacy inareas of the store where the public was invited to enter."). Likewise,an inspection of garbage left out at the curb-which may consist of openingsealed bags and rummaging through them-is "physically intrusive."But the police may conduct such observations where the garbage, becauseit is left out for collection, is exposed to the public. See Greenwood,486 U.S. at 37-38, 40. See also Katz, 389 U.S. at 353 ("[T]he reachof [the Fourth] Amendment cannot turn upon the presence or absence of aphysical intrusion into any given enclosure.").

For the same reason, it makes no difference that Agent Cantu's observationsfrom the outside of the bag may have revealed limited information aboutwhat was inside. Pet. Br. 12-15. So too might looking into a house or carthrough an exposed window, Dunn, 480 U.S. at 304 (even if barn enjoyed FourthAmendment protection, police could peer into it from open fields); Texasv. Brown, 460 U.S. at 740 (police observation of car's interior not a searchbecause area could be "viewed from outside the vehicle by either inquisitivepassersby or diligent police officers"); or observing an enclosed gardenor greenhouse from the air, Ciraolo, supra; Riley, supra. None of thoseobservations constitutes a search, because each is limited to matters thatthe defendant knowingly exposed to view or perusal by total strangers orother members of the public. And even though petitioner shielded the itemsin his gym bag from visual observation by enclosing them in an opaque container,he exposed the rough outlines of some items to tactile observation whenhe placed his soft-sided bag in a publicly accessible location where otherscould be expected to handle it. Cf. Ciraolo, 476 U.S. at 213 ("[T]hemere fact that an individual has taken measures to restrict some views"does not "preclude an officer's observations from a public vantagepoint.").

2. Petitioner is mistaken to rely on the fact that a Terry-frisk of a person,see Terry v. Ohio, 392 U.S. 1 (1968); Minnesota v. Dickerson, 508 U.S. 366,378-379 (1993), or the act of lifting up a stereo component in an apartmentto see its serial numbers, Arizona v. Hicks, 480 U.S. 321, 324-325 (1987),can be characterized as a "search" within the meaning of the FourthAmendment. See Pet. Br. 9-11. In neither Terry, nor Dickerson, nor Hickswas there (nor could there be) any contention that the defendant had knowinglyexposed his person or his possessions to the handling and observations thattook place.

In fact, Dickerson and Hicks are both applications of the rule that "awarrantless search must be 'strictly circumscribed by the exigencies whichjustify its initiation.'" Hicks, 480 U.S. at 325 (quoting Mincey v.Arizona, 437 U.S. 385, 393 (1978)). In Dickerson, for example, the policelawfully stopped respondent and conducted a warrantless frisk of his personfor weapons pursuant to the rule established in Terry v. Ohio, supra. Duringthe course of the frisk, the police explored a lump in the defendant's pocketafter having determined that the defendant was not armed. The Court heldsuch further exploration to be unlawful. Because the warrantless intrusionauthorized by Terry "must be strictly limited to that which is necessaryfor the discovery of weapons," the Court explained, a "protectivesearch [that] goes beyond what is necessary to determine if the suspectis armed" is not "valid under Terry and its fruits will be suppressed."Dickerson, 508 U.S. at 336-337. Thus, Dickerson addresses whether and whenan officer oversteps the limited search authorized under Terry. It doesnot address whether an officer's observation of matters knowingly exposedto public perception constitutes a search in the first instance.

Arizona v. Hicks, supra, is inapt for the same reason. There, the policeentered the defendant's apartment, based on exigent circumstances, to searchfor a suspect who had just fired a shot through the apartment floor andinjured the occupant of the apartment below. 480 U.S. at 323. During thesearch, an officer lifted up a stereo component and noted the serial numberson it; the component was then identified as stolen. Ibid. The Court heldthat, because lifting the component was "unrelated to the objectivesof the authorized intrusion" -catching the shooter-and "produce[d]a new invasion of respondent's privacy unjustified by the exigent circumstancethat validated the entry," it was unlawful. Id. at 325. Hicks thusdid not involve an instance of knowing exposure. Instead, it concerned thescope of a permissible search of matters otherwise hidden from public perception.9

Petitioner argues that, because Terry frisks of a person's body, i.e., "acareful tactile exploration of the clothing on the suspect's body,"are searches, any touching of effects also must constitute a search. Pet.Br. 14 ("'persons' receive no more protection * * * than the 'effects.'").The differences in the items being touched, however, significantly affectsapplication of the principle that governmental observation is a "search"only if it intrudes on a privacy expectation that society accepts as reasonable.See pp. 10-13, supra. Society has always accorded tremendous respect toeach individual's privacy expectation that his person will not be subjectedto uninvited touching. See Terry, 392 U.S. at 17 (frisk of person's clothingis "a serious intrusion upon the sanctity of the person, which mayinflict great indignity and arouse strong resentment"). But that samesolicitude does not extend to the handling or touching of bags and othercontainers checked with carriers or placed in common locations where theypredictably will be touched, moved, and handled by others. Cf. State v.Millan, 916 P.2d at 1118 ("Dickerson involved police intrusions uponthe person during a pat-down search while this case involves intrusionsupon [luggage] relinquished to the possession of a third person in a publicplace. The former implicates privacy rights that the latter does not.").10Thus, while society generally respects every person's expectation that hewill not be subject to rough grabbing or handling in most circumstances,it is both commonplace and accepted that luggage left in publicly accessibleplaces shared with other passengers will be handled in ways that would beintolerable if directed at a person.

For similar reasons, Amicus NACDL is incorrect (Br. 13) to suggest thatprinciples drawn from assault and battery cases support petitioner's position.This Court repeatedly has recognized that property and tort principles areat most "marginally relevant to the question of whether the FourthAmendment has been violated." Karo, 468 U.S. at 713. See also Silvermanv. United States, 365 U.S. 505, 511 (1961) (scope of Fourth Amendment notdefined by the "ancient niceties of tort or real property law").The NACDL's cases, moreover, all recognize the longstanding distinctionbetween an unconsented and offensive touching directed at the person (andmatters, like the clothing worn, on the person) and such touching when directedat chattels or luggage. The former can be an assault or battery. The lattercan be neither. See William L. Prosser & W. Page Keeton, The Law ofTorts § 9, at 39-40 (5th ed. 1984); Cole v. Turner, 90 Eng. Rep. 958(1705) ("[T]he least touching of another in anger is a battery.")(emphasis added).11 Thus, none of the cases NACDL cites would have beenactionable if the touching, rather than being directed at the person oran object intimately connected with the person, had been directed at chattelsleft in a shared and public location.12

3. Petitioner, moreover, is incorrect to characterize the handling of abag's exterior as "physically intrusive," Pet. Br. 10-12, or toargue that it reveals intimate details concerning the bag's contents, id.at 12-15.

Petitioner's claim of "physical intrusion" confuses the examinationof the exterior of a bag with a search of its contents. When an officertouches the outside of a bag, he does not open it; he does not place hishands inside of it; and he does not "rummag[e] through [its] contents."See United States v. Place, 462 U.S. 696, 707 (1983) (noting that caninesniff does not involve opening luggage); Ex Parte Jackson, 96 U.S. at 733("Letters and sealed packages * * * in the mail are" not protected"from examination and inspection" as to "their outward formand weight."). At no time does he pierce the physical barrier the bagcreates, and is intended to create, between the public and the bag's contents.Consequently, such an observation is not "physically intrusive"for constitutional purposes-as this Court's pre-Katz search-and-seizurecases readily attest. Compare Goldman v. United States, 316 U.S. 129 (1942)(where listening was accomplished by placing a device against a common wallwithout penetrating it, observations not a search) with Silverman, 365 U.S.at 509 (where listening "accomplished by means of an unauthorized physicalpenetration," observations amounted to a search).13

Nor does examining the exterior of a bag tend to reveal intimate detailsabout its contents. Very few items have signature shapes that can be discernedfrom handling the exterior of a bag. As one state court has observed, "[i]tis difficult to imagine any contents of ordinary luggage that could be identifiedby feeling its exterior, except" large and solid objects like "marijuanapacked in bricks, large amounts of powdered drugs, and guns." Statev. Quintanilla, No. A-99-201, 1999 WL 1063085, at *6 (Neb. Ct. App. Aug.11, 1999). Consequently, an officer's handling of a bag in general will"tell police very little about the contents, other than drugs, in theluggage." Ibid. Moreover, when law enforcement officers pat, squeeze,grab, or compress luggage, they do not and cannot discern or explore intimatedetails about the bag's contents. Nor can they somehow "feel"their way "through the [bag's] various contents" from outside.Pet. Br. 13. Rather, contact with the outside of the bag permits them tosense only the presence, general shape, and hardness of relatively largeand solid objects inside, and even then only if the objects are situatedin a manner that exposes them to perception from outside the bag. The presenceof such an object is not an intimate fact, and in any event is preciselywhat anyone else grabbing, compressing, or pushing on the bag during foreseeablehandling might sense.

Passengers handling bags in a manner similar to the manner of Agent Cantumay not pay attention to what they sense, or know how to interpret it. Butnothing bars government officers from using specialized knowledge to keepthemselves alert to, and to help them interpret, that which any other memberof the public might have sensed. See Ciraolo, 476 U.S. at 213 ("Thatthe * * * officers were trained to recognize marijuana is irrelevant.").14Instead, so long as what government agents sense could have been sensedby any other member of the public, no Fourth Amendment search has occurred.In this case, nothing in the record suggests that, when Agent Cantu touchedor squeezed petitioner's bag, he sensed anything about its contents otherthan the fact that it had a relatively solid, large, brick-like object insideof it-information that could have been noted by anyone else handling thebag.15

B. Officers Are Not Limited To "Casual" Or "Incidental"Observations Of Matters Exposed To Their Senses

Petitioner also argues that, even though his gym bag was exposed to publictouching, Agent Cantu's handling of it still must be considered a search.In particular, he contends that Cantu handled the "luggage in a mannercalculated to reveal its contents," and did not restrict himself tothe sort of "casual contact" that petitioner claims to have expectedfrom fellow passengers. Pet. Br. 20. Petitioner thus seems to suggest thatan officer violates the Fourth Amendment if he handles luggage placed inthe overhead rack for the purpose of identifying contraband, or if he hasmore than "casual" or "incidental" contact with it.See also NACDL Br. 13-14 (only "incidental, harmless, or accidentaltouching is to be expected and * * * tolerated"). That proposed standardhas no basis in this Court's cases; would be unworkable; and would not renderthe handling of the bag at issue here unlawful in any event.

1. To the extent petitioner's test turns on the fact that Agent Cantu touchedthe bag for the purpose of detecting narcotics, it is inconsistent withthis Court's precedents. Indeed, at the same time petitioner repeatedlyfinds fault with any touching of the exterior of a bag that is "calculatedto determine whether it contained drugs,"16 he properly concedes thatthe purpose or reason for the agent's contact with the bag is irrelevant.Pet. Br. 14 ("subjective intent" does not determine "whethera Fourth Amendment search has occurred."). As this Court has explained,the fact that "police observation * * * was directed specifically atthe identification" of contraband-even contraband inside a protectedplace-is "irrelevant." Dunn, 480 U.S. at 304-305. See Ciraolo,476 U.S. at 212 (rejecting respondent's challenge to "the authorityof government to observe his activity from any vantage point or place ifthe viewing is motivated by a law enforcement purpose, and not the resultof a casual, accidental observation."); Whren v. United States, 517U.S. 806, 813 (1996) (Court consistently "unwilling to entertain FourthAmendment challenges based on the actual motivations of individual officers.").

Petitioner is also incorrect to argue that the handling of luggage exceedsconstitutional bounds unless limited to the sort of "casual" or"incidental" handling petitioner claims to have expected fromother passengers. As an initial matter, it is far from clear that the handlingof luggage by other passengers is strictly "casual" and whollyunintrusive. As noted above, it is well known that passengers and commoncarrier employees often have substantial (and sometimes forceful) contactwith stowed luggage. See pp. 13-19, supra. More fundamentally, whether ornot an officer's observations constitute a search has never depended onwhether the officer's manner of making the observation was the sort of "casual,""incidental," or "fleeting" observation expected fromthe general public. Instead, so long as the matter the officer observesis open to public perception, the officer may observe that matter carefullyand closely, even if the public generally would not be as observant or takesuch advantage of the exposure.

Thus, in United States v. Lee, supra, this Court did not ask whether theboatswain's observation of contraband in open view on the ship's deck wasdifferent or more thorough than the observation expected of other membersof the public, even though the boatswain used a search light. Likewise,in Texas v. Brown, supra, the Court did not ask whether the police officer'sconduct, which consisted of shining a flashlight in the car window, "chang[ing][his] position," and "ben[ding] down at an angle so [he] couldsee what was inside," 460 U.S. at 740 (plurality opinion), exceededthe sort of casual observations expected of other passersby. Instead, because"[t]he general public could peer into the interior of" the automobile"from any number of angles," nothing barred the officer from peeringinto it from any, or all, of those angles as well. Ibid.; id. at 746, 750(concurring opinions). And in Ciraolo, this Court rejected the defendant'sand the dissent's contention that the officers' aerial observations were"searches" because, rather than limiting themselves to the "casual,accidental observation," 476 U.S. at 212, or "fleeting, anonymous,and nondiscriminating glimpse," that most members of the flying publicwould obtain, id. at 223 (dissenting opinion), the officers focused on thedefendant's yard with the purpose of identifying marijuana. Instead, theCourt held, the fact that the yard was knowingly exposed to observationfrom above rendered the asserted privacy expectation unreasonable. 476 U.S.at 213, 214 n.2.

Petitioner's contention that police officers are limited to making the same"casual" observations expected of members of the public is alsoat odds with this Court's decision in United States v. Knotts, supra. InKnotts, the police not only followed the defendant's car as it proceededthrough public streets, but used a beeper (which was installed in a drumof chemicals sold to him) and a helicopter to do so. 460 U.S. at 278. Eventhough no one ordinarily expects others to observe their every movementfor such an extended period of time-at most, they expect to be observed,casually and incidentally, by different people, in different places, atdifferent times17-this Court held that the police could make such observationsbecause the defendant had "voluntarily conveyed to anyone who wantedto look the fact that he was traveling over particular roads in a particulardirection, the fact of whatever stops he made, and the fact of his finaldestination." 460 U.S. at 281-282. In other words, because any memberof the public could have observed any of defendant's conduct, the policewere entitled to observe all of it.

The same analysis applies to an officer's use of his other senses, includingtouch. Just as an officer may make a visual observation from several differentangles open to the rest of the public, see Brown, 460 U.S. at 740, so toomay he touch a bag at different points or in distinct ways, so long as thebag was knowingly exposed to each. And just as an officer's visual observationis not converted into a search just because the officer looks more carefullythan might a member of the public, ibid.; Ciraolo, 476 U.S. at 212 n.1,213, so too an officer's "feel" of a publicly exposed soft bagdoes not become a search simply because it is more focused, calculated,or extensive than the public's ordinarily would be. Instead, when each observationthe officer makes -each squeeze, pat, or grab of the bag-reveals only thatwhich any other passenger might have sensed during foreseeable handlingof the bag, the officer's observations do not infringe on a constitutionallyprotected privacy interest.

2. Petitioner claims support for his proposed rule- that officers are limitedto the sort of "casual contact" allegedly expected from othermembers of the public- from Lo-Ji Sales, Inc. v. New York, 442 U.S. 319(1979). See Pet. Br. 29-30. As an initial matter, Lo-Ji Sales involved thesearch and seizure of potentially expressive materials, presumptively protectedby the First Amendment, from an adult bookstore. That fact alone distinguishesit. As the Court recognized in Lo-Ji Sales itself, 442 U.S. at 326 n.5;accord Macon, 472 U.S. at 468 (citing Lo-Ji Sales), the First Amendment"imposes special constraints on searches for and seizures of materialarguably protected by the First Amendment." No materials even arguablyprotected by the First Amendment are at issue here.

In any event, Lo-Ji Sales was not a case in which law enforcement officersmerely observed publicly exposed materials more closely, more extensively,or less casually than allegedly expected of the public. Instead, the officersthere opened and viewed matters that were closed to public observation.For example, the officers there unwrapped, and reviewed the contents of,magazines that had been "encased in clear plastic or cellophane wrappers"and thus that had their contents sealed against public inspection. See 442U.S. at 323. Likewise the officers insisted on viewing films that, absenta payment the officers did not make, were also closed to public observation.Id. at 322-323, 328. Thus, far from limiting officers to touching or handlingmaterials in the precise or "casual" manner expected of othercustomers, Lo- Ji Sales merely precludes officers from opening and viewingmatters closed to public inspection. See also Ex Parte Jackson, 96 U.S.at 733 (same rule for sealed packages placed in the mail); contrast Macon,472 U.S. at 469 (undercover officers may purchase and view the materialsthey pay for, as might other customers).

Finally, to the extent petitioner (Br 10-11) construes Dickerson, 508 U.S.at 378, and Arizona v. Hicks, 480 U.S. at 324- 325, as limiting officersto "casual" observations, those cases too are inapposite. As explainedabove, see pp. 24-26, supra, those cases were both applications of the rulethat warrantless searches must be strictly confined to the exigency thatgives rise to them. Neither involved the question here, which is whetheran officer's observation of matters exposed to the public-i.e. matters thatany other passenger handling the baggage might have observed-constitutesa "search" within the meaning of the Fourth Amendment.

3. Petitioner's proposed standard is also unworkable. Under it, an officerwould be permitted to handle bags in overhead racks just as other passengersmight, and would be required to terminate contact at the point that an ordinarypassenger would. The extent and manner in which passengers and carrier employeesmight handle stowed bags in individual circumstances, however, may welldepend on a host of subtle and potentially random factors unsuited for applicationby officers in the field.18 The standard, moreover, would make for inconsistentdecisions. Not only might one person's foreseeable handling be another'sunexpected manipulation, but results might turn on nuances of language,as courts attempt to differentiate unconstitutional "manipulation"from mere pressing, grabbing, squeezing, or pushing that corresponds toforeseeable handling. Indeed, even though the Tenth Circuit adopted petitioner'sproposed test just a year ago, its decisions already portend inconsistentresults.19

C. Officer Cantu's Handling Of Petitioner's Gym Bag Did Not MeaningfullyDiffer From Reasonably Foreseeable Handling

Petitioner, in any event, overstates any differences between Agent Cantu'shandling of his bag and that which might be expected of any other passenger.At the hearing, Agent Cantu testified that, when he "felt" a greenbag as he exited the bus, he noted a brick-like object in it. J.A. 10. Hefurther testified that, when he squeezes bags, he squeezes them "hard,"but not so hard as to break anything. J.A. 15. Petitioner did not offerany greater detail. He testified only that Agent Cantu "reached for[his] bag, and he shook it a little, and squeezed it, and then sniffed it."J.A. 18. Based on that testimony, the district court found only that AgentCantu "felt the outside of [petitioner's] softside green cloth bag,"J.A. 23, and characterized that action as a "minimally intrusive touching,"J.A. 28.

Combining Agent Cantu's description of what he did with what that permittedhim to feel (the presence of a relatively hard brick-like object, J.A. 10-11,with edges, J.A. 12, that was covered in a lighter layer, J.A. 11), petitionerattempts to paint a picture of extensive contact between Agent Cantu andthe bag. See Pet. Br. 3, 18-19 (describing it as "manipulation"and "squeezing and feeling"). But neither the record nor the districtcourt's findings support that picture. Agent Cantu apears to have "felt"the bag once, apparently through a squeeze, and thereby discerned the brick-likeobject and the characteristics he described. See pp. 20-21 & note 8,supra. But even if one were to assume that the "feel" and the"squeeze" were separate actions, they hardly exceed the sort ofgrabbing, pressing, squeezing, or pushing one might expect of other passengersor common carrier employees as they remove, replace, or rearrange previouslystowed luggage to make room for or retrieve other bags. See pp. 13-19, supra.Because Agent Cantu's handling of petitioner's bag in this case did notreveal, or permit observation of, anything that could not have been observedby anyone else handling the bag, it violated no constitutionally protectedprivacy expectation.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor
General
KIRBY A. HELLER
Attorney

JANUARY 2000


1 As the court of appeals noted, the record is unclear as to whether theoverhead luggage bins on the bus were of the open or closed type. J.A. 38n.1. See also J.A. 9.

2 The district court did suppress evidence from a search of the backpackof petitioner's traveling companion and co-defendant, Jason Wiggs. The districtcourt found that Wiggs, unlike petitioner, had been arrested without probablecause before methamphetamine was found in Wiggs's luggage. J.A. 24-25.

3 See, e.g., T. Massingill, Decade of Prosperity Means More Fliers, MoreComplaints, Knight-Ridder Tribune Bus. News, Mar. 28, 1999 (United Airlinesspokesman notes that "hundreds of passengers have to cram, recram andthen remove their bulky carry-on bags"); J. Flinn, Confessions of aOnce-Only Carry- On Guy, S.F. Examiner, Sept. 6, 1998, at T2 (reportingthat the flight attendant "rearranged the contents of three differentoverhead compartments to free up some room, and together we lifted, shovedand pounded until my bag squeezed in."); Carry-on Troubles, Kan. CityStar, June 1, 1999, at B6 ("overhead bins are filled to the brim,"and the "flight crews help[] passengers cram the bins full, smashingeverything else that is safely in place."); M. Eagen, Familiar AngerTakes Flight With Airline Tussles, Boston Herald, Aug. 15, 1999, at 8 ("It'sdog-eat-dog trying to cram half your home into overhead compartments.");G. Withiam, About Those Carryons, Cornell Hotel & Rest. Admin. Q., Feb.1, 1998, at 6 (late-arriving passengers "attempt[] to find space inthe overhead compartment, crushing your carefully stowed bag in the process");Rocky Mountain News Television broadcast, United's New Carry-on Rule TakesOff (May 16, 1998) ("Take this bag and shove it-or squeeze it, or foldit-whatever it takes to get it in that overhead bin."); G. Barker,Internet Crosstalk at Issue: Carry-on Bags for Air Travelers, The Fort WorthStar-Telegram, Nov. 23, 1997, at 4 (People "try to jam [their possessions]into the overhead storage, crushing everything that someone else has putthere."); A. Knowles, Get the Complete Picture, Datamation, Oct. 1,1997, at 74 (reporting typical trip in which the traveler "discover[s]that [his] overhead compartment is full" but "stuff[s] [his] luggageinto it anyway"). See also S. Bennett, Airing Out Miles and Miles ofAggravations When Flying, Pittsburgh Post-Gazette, Feb. 3, 1999, at S5;D. Field, Passengers' Horror Stories Illustrate Airlines' Ills, USA Today,Dec. 14, 1999, at 12B; Oh, What A Carry On: Might It Be Time for Airlinesto Restrict Both Luggage and Children on Planes?, The Economist, Dec. 18,1999.

4 One travel account from the late nineteenth century warns that anyoneplanning to visit the United States should "provide himself with sucha strong portmanteau as will resist the notorious 'baggage-smashers,' witha smaller one for use on the rail." Samuel Reynolds Hole, A LittleTour In America 18 (1895) (1971 reprint). Travel by stage coach was morebrutal still, for luggage and passenger alike. Any luggage that could notbe fastened to the exterior was placed on the floor of the coach, resultingin constant collisions between the luggage and travelers as the stage coachlurched over the rough roads. See, e.g., 2 John Bernard, Retrospectionsof America 1797-1811, at 33-34 (1887) (quoted in Oliver W. Holmes &Peter T. Rohrbach, Stagecoach East 42 (1983)) ("[T]he floor was lumberedwith a mail-bag and * * * earthen and hardware jugs * * * and other articles* * * which had the effect before the vehicle was ten minutes in motion,of dyeing our shins all the colours of the rainbow."); 2 John M. Duncan,Travels Through Part of the United States and Canada in 1818 and 1819, at6 (1821-1822) (quoted in Holmes & Rohrbach, supra, at 42) ("Theheavier kinds of boxes and trunks are fastened behind, upon the frame ofthe carriage, but the smaller articles and the mail bag are huddled underthe seats in the inside, to the great annoyance of the passengers, who arefrequently forced to sit with their knees up to their mouths, or with theirfeet insinuated between two trunks, where they are most lovingly compressedwhenever the vehicle makes a lurch into a rut.").

5 Even those few decisions that have suppressed evidence discovered fromthe handling of luggage left in shared parts of a common carrier agree withthe general principle that police handling of soft luggage is not necessarilya search. Nicholson, 144 F.3d at 637 ("The circuits uniformly agreethat an officer's touching of a bag's exterior does not necessarily constitutea search."). As the Tenth Circuit explained in Nicholson:

To be sure, placing a bag in an overhead rack of a commercial bus exposesit to certain intrusions. Seeking to make room for their own articles, otherpassengers may push and move the bag. Therefore, Defendant had no reasonableexpectation that his carry-on would not be touched * * * .

144 F.3d at 639. See also United States v. Gwinn, 191 F.3d 874, 878 (8thCir. 1999) ("Of course, not every intrusion with an individual's luggageconstitutes a search within the meaning of the Fourth Amendment.");United States v. Gault, 92 F.3d 990, 992 (10th Cir.) (No search occurredwhere the information the DEA Agent "obtained from the kick and liftof the bag, its weight and the solidity of its contents, was the same informationthat a passenger would have obtained by kicking the bag accidentally orby lifting it to clear the aisle."), cert. denied, 519 U.S. 939 (1996).

6 See, e.g., State v. Lancellotti, 595 N.W.2d 558, 563 (Neb. Ct. App. 1999)("[P]assengers who place their luggage in the overhead public storageon a commercial carrier can reasonably expect that other passengers willtouch, move, or adjust the luggage in order to retrieve or make room fortheir own luggage."); State v. Quintanilla, No. A-99-201, 1999 WL 1063085(Neb. Ct. App. Aug. 11, 1999) (concluding that police handling and feelingof luggage in an overhead rack is not an illegal search). See also Stanberryv. State, 684 A.2d 823, 832 (Md. 1996) (although the defendant may have"reduced his expectation of privacy by placing his bag on the overheadluggage rack," that reduction did not extend to having his bag opened);cf. Sprowls v. State, 433 So. 2d 1271, 1271-1272 (Fla. Dist. Ct. App. 1983)(officer's "prepping" bag for dog sniff by "press[ing] hishands against [its] sides, forcing air from within to be expelled"not "a search and seizure" within meaning of State or federalconstitution); People v. Burns, 540 N.Y.S.2d 157, 161, 162 (Sup. Ct. 1989)(because "[w]hat is a reasonable expectation * * * varies with locale,"officer's momentary grasp of nylon bag bumped against him in crowded area"not a search in Fourth Amendment terms"), aff'd, 582 N.Y.S.2d234 (App. Div.), appeal denied, 600 N.E.2d 652 (1992); Santana, 73 Cal.Rptr. at 889 ("[W]hen luggage is checked, it is unavoidably subjectto manipulation, handling, and compression. * * * That in any given case[the] bag [is] dropped to the ground, pushed hard against other bags orsqueezed by an officer is of no constitutional significance."); Scottv. State, 927 P.2d 1066, 1068 (Okla. Crim. App. 1996) ("Once a bagis released into the custody of the busline by checking it," the ownerhas "no reasonable expectation that the bag will not be moved or handled.");State v. Peters, 941 P.2d 228, 232 (Ariz. 1997) (because "luggage turnedover to a public carrier will be handled by many persons who, although notpermitted to open it * * * , may feel it * * * and shake it," agent'ssqueezing of checked bag does not violate Fourth Amendment if "neitherviolent nor extreme"); State v. Millan, 916 P.2d 1114, 1117 (Ariz.Ct. App. 1996) (similar).

7 Agent Cantu testified that the bag was about a foot and half long, a foothigh, and a foot wide, more or less. J.A. 12. The brick of methamphetaminewas six or seven inches long, and four or five inches wide. J.A. 21.

8 While Amicus NACDL argues (Br. 7) that the brick was shielded from observationbecause it was "wrapped" inside a pair of pants, the districtcourt found only that the brick was found "[i]nside the leg of a pairof pants." J.A. 21 (emphasis added). Common sense suggests that placinga brick inside a pant leg does not make it any less obvious that it is brick.For similar reasons, NACDL's reliance (Br. 7) on the duct tape that surroundedthe brick is misplaced. Duct tape does not disguise the presence of a brick-likeobject. Instead, together with cellophane or some other wrapping material,it holds the narcotics together in the shape of a brick.

9 Petitioner's reliance on early accounts regarding searches of "travelers'portmanteaus and saddlebags," Pet. Br. 8 n.7, is likewise misplaced,because those reports do not address knowing exposure. Compare note 4, supra(discussing early travel). The "searches" discussed in those materialsappear to have been what everyone would agree is a Fourth Amendment search-aprocess by which the luggage is opened and its contents visually inspected.See Benjamin Gale, Brief Remarks on Several Laws 44 (1782); William J. Cuddihy,The Fourth Amendment: Origins and Original Meaning 1518-1519 (1990).

10 Indeed, the quality of luggage is often promoted based on its abilityto withstand such treatment. Perhaps the most famous example is AmericanTourister's so-called "Gorilla ad," which ran for fifteen yearsand was recently revived in revised form. The advertisement, in obviousreference to the rough treatment bags often receive, featured an ape hurlingand beating an American Tourister suitcase, without causing perceptibledamage. See Barbara Vancheri, Perfect Pitches, Pittsburgh Post-Gazette,June 30, 1999, at E1.

11 It is highly questionable whether the Founders would have consideredthe mere unconsented touching of the exterior of a bag left in a publiclyaccessible location, absent injury to the bag or its contents, to be anysort of tort at all. Traditional tort actions protecting personal property,like trespass to chattel, required proof of meaningful interference withthe owner's possessory interests. Prosser & Keeton, supra, § 14,at 85 (cases involving "carrying off" of, or damage to, chattel);Restatement (Second) of Torts § 218 (1965) (limiting liability fortrespass to actions that "dispossess" another of chattel, impairthe chattel, deprive the possessor of the chattel's use "for a substantialtime" or cause bodily harm to the possessor).

12 In Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967),for example, the waiter did not merely "remove a plate from the table,"NACDL Br. 13, but rather "forceful[ly] dispossess[ed]" the plaintiffof a plate, yanking it from his hand, 424 S.W.2d at 630; NACDL Br. 13. Thecourt expressly recognized that, absent contact with either the plaintiff'sbody or an object in his hand, there would have been no assault or battery.See 424 S.W.2d at 629-630. Similarly, in Jung-Leonczynska v. Steup, 803P.2d 1358 (Wyo. 1990), the defendant did not merely pound on the plaintiff'sdesk, but struck a book that was in or touching the plaintiff's hand; itwas only because of that connection to the plaintiff's person that the suitwas actionable. See 803 P.2d 1363 (dissenting opinion). The remaining casescited by NACDL likewise all involved contact with people or objects on theirperson or in their grasp. See, e.g., Fields v. Cummins Employees Fed. CreditUnion, 540 N.E.2d 631, 640 (Ind. Ct. App. 1989) (proof of battery requiresa harmful or offensive "contact with a person," and proof of assaultrequires an act that "creates an apprehension of" such "aharmful or offensive contact").

13 Indeed, before this Court's decision in Katz v. United States, 389 U.S.347 (and its adoption of the "reasonable expectation of privacy"formula from Justice Harlan's concurring opinion in that case, id. at 360),the Court generally required a physical trespass as a precondition to findinga Fourth Amendment search. See Olmstead v. United States, 277 U.S. 438,457 (1928); Goldman, 316 U.S. at 135. The Court reassessed that approach,and largely abandoned it in favor of the "reasonable expectations"test, in light of technological advances that might otherwise have erodedthe privacy the Fourth Amendment was designed to protect. See Ciraolo, 476U.S. at 214 (abandonment of trespass test and adoption of reasonable expectationtest prompted by "observations about future electronic developmentsand the potential for electronic interference with private communications").In this case, however, the government did not make its observations throughtechnological means that could not have been anticipated by the Foundersor even 19th century courts. Rather, it made the same observations thatcould have been made using techniques available since the dawn of travel.Where an individual does not even make the minimal effort needed to preventa form of observation that has been known for centuries, it is hard to sayhis expectation of privacy is reasonable. See pp. 21-22, supra (individualmust take "customary" precautions to preserve privacy).

14 Cf. Place, 462 U.S. at 707 (dog sniff of luggage not a search). Althoughthe Court in Place did not rely on the principle that what an individualknowingly exposes to the public is not protected by the Fourth Amendment,several lower courts, both federal and state, have relied on Place togetherwith this principle to approve the limited touching that is required toprepare luggage for a canine sniff. See McDonald, 100 F.3d at 1326 n.7 ("Becausethe Supreme Court has approved the canine sniff, it follows that the Courtwould also likely approve some degree of police handling and manipulationof personal luggage in order to make the luggage accessible to the policedog."). See also United States v. Lovell, 849 F.2d at 913; United Statesv. Viera, 644 F.2d 509, 510 (5th Cir.), cert. denied, 454 U.S. 867 (1981);State v. Killean, 907 P.2d 550, 555 (Ariz. Ct. App. 1995), vacated on othergrounds, 915 P.2d 1225 (1996); Lancelotti, 595 N.W.2d at 563.

15 Petitioner's emphasis on what might be "capable" of observationrather than on what was actually observed also ignores this Court's teachingsthat a Fourth Amendment inquiry must focus on what actually occurred inthe case at hand, not on what might occur in some future case. See Dow ChemicalCo. v. United States, 476 U.S. 227, 239 n.5 (1986) ("Fourth Amendmentcases must be decided on the facts of each case, not by extravagant generalizations.");United States v. Karo, 468 U.S. 705, 712 (1984) ("[W]e have never heldthat potential, as opposed to actual, invasions of privacy constitute searchesfor purposes of the Fourth Amendment.").

16 Pet. Br. 7 (emphasis added); Pet. Br. 9, 13 (touch unlawful if "aimedat" and "calculated to reveal items with a size, shape, density,or other characteristics" suggestive of narcotics); Pet. Br. 12-13(handling a search if conducted "in an attempt to find drugs");Pet. Br. 20 (bag touched "in a manner calculated to reveal its contents").That error is duplicated by the cases on which petitioner relies. See Gwinn,191 F.3d at 879 (The "traveling public would not expect their luggage* * * to be subject to a calculated and thorough squeezing.") (emphasisadded); Nicholson, 144 F.3d at 639 ("tactile examination aimed at discoveringthe nature of the contents of the bag" violated defendant's "reasonableexpectation of privacy in the bag") (emphasis added).

17 Indeed, extended observations, if conducted by ordinary members of thepublic, might be condemned as stalking or harassment.

18 For example, one might speculate that, in an uncrowded bus with ampleoverhead space, passengers would expect only limited and relatively lighthandling of their bags, whereas a crowded bus with smaller bins might yieldmore, and more aggressive, handling. The acceptable scope of an officer'sconduct surely should not depend on such subtleties. See Whren, 517 U.S.at 815 ("We cannot accept that the search and seizure protections ofthe Fourth Amendment are so variable, and can be made to turn upon suchtrivialities.") (citations omitted).

19 For example, the Tenth Circuit in Nicholson cited with approval FifthCircuit decisions which upheld handling described as "a light pressof the hands along the outside of a suitcase," Viera, 644 F.2d at 510,and the feeling of the sides of the bags followed by compressing to forceair out, Lovell, 849 F.2d at 915. At the same time, however, it suppressedevidence seized from a checked bag because the agent felt "its sideswith his hands perpendicular to the ground and flat." Nicholson, 144F.3d at 640. See also United States v. Gault, 92 F.3d at 992 (no searchwhere officer both "kick[ed] and lift[ed]" bag to determine "itsweight"). The differences among those forms of handling are far fromobvious. Indeed, sometimes the Tenth Circuit has relied on distinctionsthat surely do not make a difference. Thus, it attempted to reconcile itsdecision in Nicholson with the Seventh Circuit's decision in McDonald bynoting that, in McDonald, "the court thrice repeated that the officerdid not remove defendant's bag from the overhead rack during his initialcontact with it." 144 F.3d at 638. Yet in Nicholson itself, the courtsuppressed evidence from a checked bag that was touched without being removedfrom the cargo hold. See 144 F.3d at 640.