Moving and touching stowed or checked luggage: Fourth Amendment considerations

Officers must consider a number of Fourth Amendment issues when moving and touching luggage stowed or checked with a common carrier. The Fourth Amendment requires that all searches and seizures be reasonable. Before addressing the reasonableness of police action, however, a court must first decide if a search or seizure even occurred. For example, suppose officers working in a transportation interdiction unit obtain the permission of a bus driver to board the bus during a regularly scheduled layover. After all of the passengers have left the bus, the officers walk down the aisle and begin both moving and feeling the exterior of the bags in the overhead bins. One of the officers suspects that two of the bags each contain a brick of controlled substances. The other officer then pushes and feels the exterior of the bags and reaches the same conclusion.

This article addresses two questions presented by this example. First, did the movement of the bags in the overhead bin by the officers constitute a Fourth Amendment seizure? Second, did the feeling of the exterior of the bags by the officers constitute a Fourth Amendment search? The answers to these questions are important to law enforcement officers because police action that does not constitute either a search or seizure is constitutional if the police lack even a reasonable suspicion of criminal activity.

MEANINGFUL INTERFERENCE WITH POSSESSORY INTERESTS

The U.S. Supreme Court has stated that "[a] 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property."(1) Therefore, in the earlier bus scenario, the question becomes whether the officers' movement of the bags in the overhead rack constitutes a meaningful interference with the passenger's possessory interests in the bag.

Courts addressing this question in similar cases have found that such movement does not constitute a meaningful interference with someone's possessory interest in property and therefore does not constitute a seizure under the Fourth Amendment. For example, in United States v. Gant,(2) after all of the passengers had exited, officers boarded the bus and moved all of the bags from the overhead racks to the seats below. The officers then brought a dog on the bus to sniff the bags for contraband. The dog alerted to two bags. The officers returned the bags to the overhead racks.

After the passengers returned to the bus, the officers asked who owned the two bags on which the dog had alerted. A passenger claimed one of the bags, but disclaimed ownership of the other. No other passenger claimed the second bag. The officers took the unclaimed bag off of the bus, opened it as abandoned property, and found cocaine inside. The officers reboarded the bus and obtained consent from the passenger to open the other bag. Inside that bag an officer found a box of laundry detergent that contained cocaine.

The defendant in Gant argued that the officers' movement of the bags from the overhead rack to the bus seats violated the Fourth Amendment prohibition against unreasonable seizures. In rejecting this argument, the U.S. Court of Appeals for the Sixth Circuit stated that:

. . .there was no meaningful interference with defendant's possessory interest in his bag. The bag was moved only a short distance (from an open overhead compartment to the seat below), for a short time (just long enough for the dog to walk up and down the aisle), and the movement occurred at a time when defendant had left the bag unattended, so his access to it was never impaired. Finally, had the dog not indicated that the bag contained drugs, defendant would have been able to travel uninterrupted to the next stop with his bag. Because there was no meaningful interference with defendant's possessory interest in his bag, there was no seizure.(3)

Similarly, in United States v. Lovell,(4) officers observed an individual arrive at the airport with two large, softsided bags. The individual proceeded to check the bags at the curb while glancing rapidly about, chewing incessantly on a toothpick, and writing erratically on baggage claim checks. After observing this behavior, the officers went to the baggage area and removed the individual's bags from the conveyor belt. The officers felt what appeared to be a solid mass when touching the sides of the bags. The officers compressed the sides of the bags and smelled the odors of talcum powder and marijuana. After a trained narcotics dog also had alerted to the bags, the officers obtained a search warrant. The officers found 68 pounds of marijuana inside the bags. In addressing the question of whether the officers' removal of the bags from the conveyor belt constituted a seizure, the court distinguished the moving of the bags from the belt from a situation where a bag is taken directly from a person. The U.S. Court of Appeals for the Fifth Circuit stated that:

There is no suggestion that if the agents had not smelled marijuana, Lovell's travel would have been interfered with or his expectations with respect to his luggage frustrated. The agents' brief removal and compression of Lovell's bags cannot be analogized to a seizure of Lovell himself. The momentary delay occasioned by the bags' removal from the conveyor belt was insufficient to constitute a meaningful interference with Lovell's possessory interest in his bags. As a result, the agents' actions did not constitute a seizure.(5)

In both Gant and Lovell, the movement of the bags by the officers did not meaningfully interfere with either person's possessory interest in the bags. Therefore, in both cases the courts ruled that the bags were not seized.(6) The officers did not take the bags from the physical possession of either person, and the officers' movement of the bags did not impede their travel.

INTERFERENCE WITH A REASONABLE EXPECTATION OF PRIVACY

A search occurs when the government infringes upon an individual's "expectation of privacy that society is prepared to consider reasonable."(7) The following cases illustrate that in deciding whether a police action constitutes a search, courts focus on the degree of touching or manipulation to determine whether an officer's feeling of the exterior of a bag amounts to an interference with a person's reasonable expectation of privacy. In other words, courts assess the extent to which travelers assume the risk that their bag placed with a common carrier might be felt or manipulated by another person.

Light Touching of a Bag Ruled Not a Search

In United States v. Lovell,(8) the court(9) stated that: "[i]n analyzing whether the agents' sniff of Lovell's bags constituted a search, we must determine whether the agents' actions offended reasonable expectations of privacy."(10) In addressing the question of whether the officers' pressing of the sides of the bag constituted a search,(11) the court quoted from the Fifth Circuit's decision in United States v. Viera,(12) noting that a light press of the hands along the sides of a suitcase did not constitute a search, and further stating that:

While we could hypothesize a "prepping" process so violent, extreme, and unreasonable in its execution as to cross the bounds of constitutional propriety, we are not confronted by such a process here. The agents' actions in this case fall squarely within the ambit of our holding in Viera and, therefore, did not constitute a search.(13)

In United States v. Guzman,(14) the U.S. Court of Appeals for the Sixth Circuit affirmed the conviction of a defendant for possession with intent to distribute cocaine. In Guzman, two detectives were at the bus depot with their dogs. One of the detectives checked the baggage compartments under a bus with a dog while the other detective approached persons exiting the bus with carry-on luggage and asked for consent to submit their bags to a dog sniff. One of the dogs exhibited an interest in a carry-on bag the owner had consented to be sniffed.

After all of the passengers exited the bus, the detectives boarded the bus with the dogs. One of the dogs alerted to a bag on the bus. The detectives then left the bus with the intention of reboarding it later to determine the ownership of the bag on which the dog had alerted. After the passengers reboarded the bus, the detectives boarded the bus and informed the passengers that they were attempting to ascertain the ownership of certain bags. One of the detectives reached the defendant's bag in the overhead rack,(15) stopped, touched the bag, and asked who owned it. The detective felt several hard bricks in the bag and immediately concluded that they were drugs.

The defendant claimed the bag. The detective then put the bag on the seat next to the defendant. The defendant indicated that the detective would need a "piece of paper" to look inside the bag. This led the detective to believe that the defendant did not want the bag opened without a search warrant, at which point the detective asked the defendant to leave the bus. The defendant then consented to a dog sniff of the bag and both dogs alerted for the presence of drugs. The detectives obtained a warrant to search the bag and found six wrapped bundles of cocaine inside. The Guzman court held that the officers' "initial touch of the exterior of defendant's bag was not an unreasonable search in violation of the Fourth Amendment."(16)

Manipulation of Bag Exterior Ruled Not a Search

In 1997, the U.S. Court of Appeals for the Seventh Circuit decided United States v. McDonald.(17) In McDonald, officers obtained permission from the bus driver to board and inspect the bus during a short layover after all of the passengers had disembarked. While onboard the bus, the officers walked down the aisle "pushing and feeling the exterior of the bags in the overhead racks and sniffing the air surrounding the bags."(18) One of the officers suspected that each of two soft-sided bags contained "a 'brick' of controlled substance."(19) One of the other officers pushed and felt the exterior of the bags and reached the same conclusion. The officers left the bus, leaving the bags in the overhead rack. After all of the nine remaining passengers got back on the bus, the officers reboarded and proceeded to ask the three passengers seated near the two bags whether they owned the bags. All three passengers denied ownership. The officers held up the bags and asked if anyone on the bus owned them. No one claimed the bags. One of the officers then took the bags to the front of the bus, told the driver that the bags appeared to be abandoned, and obtained permission from the driver to open the bags.

The officer found women's clothing, toiletries, and 11 kilograms of cocaine in the bags. At the same time, a passenger at the rear of the bus informed another officer that he had observed a particular person carry the two bags onto the bus. This officer gave that information to the officer looking in the bags, who noticed that there was only one passenger with a physical stature consistent with the clothes in the bag. The officers went back to that passenger and asked if she would mind stepping off of the bus to answer a few questions. The passenger agreed to leave the bus. The officers eventually arrested the individual after she repeatedly denied owning the bag?

The McDonald court specifically addressed the question of whether a person who leaves a bag in an overhead bin on a bus has a reasonable expectation of privacy that it will not be touched or felt by others and stated that "the reasonable expectation of privacy inherent in the contents of luggage is not compromised by a police officer's physical touching of the exterior of luggage left exposed in the overhead rack of a bus."(21)

Manipulation of Bag Exterior Ruled a Search

In the 1998 decision United States v. Nicholson,(22) the U.S. Court of Appeals for the Tenth Circuit focused on the exact method officers used when touching the bag in order to decide whether such action constitutes a search.

In Nicholson, the court reviewed the actions of officers involved in a drug investigation initiated after a bus interdiction trait began to inspect luggage in both the luggage compartment under the bus and in the overhead racks on the bus. The officer inspecting the luggage in the compartment under the bus observed a padlocked fabric-sided bag. The officer "'initially' felt the sides of the bag with his palms perpendicular to the ground and flat, and detected 'several large bundles' inside it."(23) The officer then smelled the bag and detected an odor of marijuana. Meanwhile, the officers working on the bus began removing bags from the overhead bins. One of the officers testified that "during the course of removing the bags from the overhead racks...they are manipulated and smelled."(24) The officer manipulated the defendant's bag, "felt hard, 'tightly-wrapped bundles' inside,"(25) and then put it back into the rack.

After the passengers reboarded the bus, the officers checked all of the passenger's tickets and asked them to identify their baggage. The defendant claimed to have no luggage.(26) The officers held both the unclaimed bag from the overhead bin and the padlocked bag from the luggage compartment in front of all of the passengers on the bus and asked if anyone owned the bags. No one claimed the bags. The officers took the bags off the bus and opened them. The officers found 5 kilograms of cocaine in the bag from the overhead bin and extra-large clothing which appeared to fit the defendant. The officers also found 10 kilograms of marijuana in the bag from the luggage compartment. The officers then reboarded the bus and asked the defendant to step off. The defendant got off of the bus and subsequently consented to a patdown search. During the patdown search, the officers found a baggage claim check in the defendant's pocket for the bag containing the 10 kilograms of marijuana and placed the defendant under arrest.

The Nicholson court acknowledged that "[t]he circuits uniformly agree that an officers' touching of a bag's exterior does not necessarily constitute a search."(27) Noting that the Guzman court's ruling that a passenger on a commercial bus does not have an expectation of privacy in the exterior of luggage placed in an overhead compartment, the Nicholson court stated that: "Other circuits have been more cautious in their language, suggesting...that the degree of intrusion is the determining factor in whether an officer's contact with the exterior of luggage constitutes a search under the Fourth Amendment."(28) Regarding the carry-on bag, the Nicholson court also stated that "[t]he degree of intrusion is the determining factor as to whether an officer's contact with the exterior of luggage constitutes a search under the Fourth Amendment....By manipulating the [d]efenant's bag in a manner that [d]efendant did not reasonably expect from other passengers, [the officer] conducted a search within the meaning of the Fourth Amendment."(29) And, with respect to the bag underneath the bus, the court noted that the officer "acknowledged that he was inspecting the contents of the suitcase.... [W]e conclude that [the officer's] initial manner of handling [d]efendant's suitcase in the cargo hold also constituted a search within the meaning of the Fourth Amendment."(30)

Kicking and Lifting of a Bag Ruled Not a Search

Prior to the decision in Nicholson, the Tenth Circuit concluded in the 1996 decision United States v. Gault,(31) that no search occurred when an agent walking down the aisle of a passenger train car kicked and lifted a bag on the floor that protruded out from the seats. The heaviness of the bag was consistent with the agent's experience with bags containing drugs. Upon kneeling down and sniffing the outside of the bag the agent detected an odor of ether, which is used in the making of PCP. The agent subsequently approached the individual who sat down in the seat in front of the bag. The individual refused to consent to a search of the bag by the agent. However, after obtaining the individual's consent to smell the bag, and after smelling the bag again, the agent indicated that the bag would be detained. The agent detained the bag, obtained a search warrant and, upon searching the bag, found that it contained six whiskey bottles filled with PCP.(32) The Gault court held that the actions of the agent did not constitute a search. The court found that the defendant had no objectively reasonable expectation that the unattended bag would not be lifted or kicked as it protruded out into the aisle. The Nicholson court later distinguished the situation in that case from Gault, noting that "the officer's manner of handling the bag [in Gault] was the sort that a traveler leaving the bag in such a position reasonably might expect."(33)

CONCLUSION

Analysis of these cases can provide officers guidance when moving and touching luggage stowed or checked on common carriers. First, the movement of a bag in the overhead bin is not a meaningful interference with a person's possessory interest in the bag and therefore does not constitute a seizure. Second, the following conclusions can be drawn regarding whether the feeling of the exterior of the bags by officers constitutes a search. The lifting of a bag will not be considered a search.(34) Lightly compressing or "poofing" the sides of a bag for either the officer or a drug dog to smell the bag most likely will not be considered a search.(35) Actively manipulating the outside of a bag with the entire hand to feel what is in the bag may or may not be considered a search. Of the three courts to consider the issue to date, one federal court of appeals has found such action to be a search,(36) while another federal court of appeals and a state court have reached the opposite conclusion.(37) Finally, touching a bag in a violent, extreme, and unreasonable manner, such as throwing and breaking or crushing a bag, constitutes a violation of the Fourth Amendment.(38) Because courts are divided over the degree of manipulation of a stowed or checked bag that is permitted, officers should consult with their department legal advisors before engaging in a warrantless manipulation of such luggage.

Endnotes

1 United States v. Jacobson, 466 U.S. 109, 113 (1984).

2 112 F.3d 239 (6th Cir. 1997).

3 Id. at 242.

4 849 F.2d 910 (5th Cir. 1988).

5 Id. at 916 (citations omitted).

6 See also United States v. Hall, 978 F.2d 616, 619-20 (10th Cir. 1992); United States v. Harvey. 961 F.2d 1361, 1364 (8th Cir.), cert. denied, 506 U.S. 883 (1992); State v. Peters, 941 P.2d 228, 230-31 (Ariz. 1997).

7 United States v. Jacobsen, 466 U.S. 109, 113 (1984).

8 849 F.2d 910 (5th Cir. 1988).

9 On July 1, 1988, the Fifth Circuit decided a number of cases involving prosecutions resulting from transportation interdiction arrests. United States v. Garcia, 849 F.2d 917 (5th Cir. 1988) (squeeze and sniff of bags by agents was not a search or seizure); United States v. Roman, 849 F.2d 920 (5th Cir. 1988) (agents' compression and sniff of bags did not violate the Fourth Amendment; defendant abandoned the bags); United States v. Cagle, 849 F.2d 924 (5th Cir. 1988) (agents' compression and sniff of bag was not a seizure, however, prolonged detention of bag until dog alerted to it violated the Fourth Amendment); United States v. Karman, 849 F.2d 928 (5th Cir. 1988) (squeeze and sniff of bags by agents was not a search or seizure); United States v. Hahn, 849 F.2d 932 (5th Cir. 1988) (squeeze and sniff of bags by agents was not a search or seizure); United States v. Jaquez, 849 F.2d 935 (5th Cir. 1988) (squeeze and sniff of bags by agents was not a search or seizure); United States v. Sawyer, 849 F.2d 938 (5th Cir. 1988) (squeeze and sniff of bags by agents was not a search or seizure); United States v. Gutierrez, 849 F.2d 940 (5th Cir. 1988) (squeeze and sniff of bags by agents was not a search or seizure).

10 United States v. Lovell, 849 F.2d 910, 912 (5th Cir. 1988).

11 See also State v. Peters, 941 P.2d 228, 232 (Ariz. 1997) ("An agent's squeeze and subsequent sniff of a checked bag is not a search . . . . Neither sniff nor squeeze was an unreasonable search."); People v. Santana, 73 Cal. Rptr. 2d 886, 889 (Cal. App. Dep't Super. Ct. 1998) ("Appellant's Fourth Amendment rights were not violated when the officer 'pooled' his luggage."); Sprowls v. State, 433 So.2d 1271, 1272 (Fla. Dist. Ct. App. 1983) ("The only point with which we are concerned here is whether the ventilation or 'prepping' of the defendant's luggage constituted an unreasonable search and seizure....We adopt the reasoning of United States v. Viera [citation omitted] in recognizing that this type of investigative procedure is such a de minimis intrusion as not to constitute a search and seizure within the respective constitutional provisions."); Scott v. State, 927 P.2d 1066, 1068 (Okla. Crim. App. 1996) ("Appellant argues that manipulation of the bag without probable cause, preceding the [drug dog] sniffing the selected bags, was an illegal search and seizure. We disagree."). Cf Hernandez v. United States, 353 F.Zd 624 (9th Cir. 1965), cert. denied, 384 U.S. 1008 (1966) (The Hernandez court found that the squeezing of the defendant's luggage and smelling of escaping air constituted a search. The Santana court has noted that "[l]ater Ninth Circuit cases suggest if faced again with the issue of the propriety of squeezing checked bags, at least some justices of that court might not follow Hernandez."); State v. Randall, 569 P.2d 1313 (Ariz. Ct. App. 1977) (disapproved of by State v. Peters, 941 P.Zd 228 (Ariz. 1997)).

12 644 F.Zd 509, 510-11 (5th Cir.), cert. denied, 454 U.S. 867 (1981).

13 United States v. Lovell, 849 F.2d 910, 913 (5th Cir. 1988) (The Lovell court quoted the following from the Viera decision: "[s]ome investigative procedures designed to obtain incriminating evidence from the person are such minor intrusions upon privacy and integrity that they are not generally considered searches or seizures subject to the safeguards of the fourth amendment.").

14 75 F.3d 1090 (6th Cir.), cert. denied, 117 S. Ct. 266 (1996).

15 This was the bag in which the other detective's dog had shown an interest in but had not alerted.

16 Id. at 1095.

17 100 F.3d 1320 (7th Cir.), cert. denied, 117 S. Ct. 2423 (1997).

18 Id. at 1322. The trial judge described the officer's actions as: "manipulating the sides of the bags with her fingers..." United States v. McDonald, 855 F. Supp. 267, 268 (S.D. Ind. 1994).

19 Id.

20 Id. at 1323.

21 Id. at 1325.

22 144 F.3d 632 (10th Cir. 1998).

23 Id. at 634.

24 Id. at 635.

25 Id.

26 The officers who located the bag in the luggage compartment under the bus noted that the tag on the bag indicated that it had been checked through to Toledo, Ohio. The officers asked the bus driver if they could inspect the passengers' tickets. Inspection of the tickets indicated that the defendant was the only passenger on the bus with a ticket to Toledo. Id.

27 Id. at 637.

28 Id. In United States v. Most, 876 F.2d 191, 193 (D.C. Cir. 1989), the District of Columbia Circuit held that a police officer's feeling of a grocery bag being held for a customer by a store clerk constituted a search. The officer picked up the bag and felt the bottom of it using a "crush technique." The officer felt hard individually wrapped packages in the bag and concluded that they were rocks of crack cocaine. The officer opened the bag and found crack inside.

29 Id. at 639.

30 Id. at 640.

31 92 F.3d 990 (10th Cir.), cert. denied, 117 S. Ct. 321 (1996).

32 Id. at 991.

33 United States v. Nicholson, 144 F.3d 632, 637 (10th Cir. 1998).

34 See, e.g., United States v. Gault, 92 F.3d 990 (10th Cir.), cert. denied, 117 S. Ct. 321 (1996).

35 The Nicholson court distinguished the Lovell and Viera cases from the officer's squeezing of the bag located under the bus in Nicholson. The Nicholson court stated that the officer was inspecting the bag, not gently pressing the sides and prepping it for purposes of a sniff. While the Nicholson court did not explicitly state that the Tenth Circuit would not consider the activity in Lovell or Viera to be a search, the court did state that: "[i]n those cases, unlike here, the officers' initial handling of the bags revealed nothing of independent evidentiary value and thus was considered minimally intrusive." United States v. Nicholson, 144 F.3d 632, 640 (10th Cir, 1998). But see Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965), cert. denied, 384 U.S. 1008 (1966).

36 See United States v. Nicholson, 144 F.3d 632 (10th Cir. 1998). In United States v. Washington, 146 F.3d 536 (8th Cir. 1998), an officer working on a bus noticed "a black bag that still had manufacturer's tags on it, physically manipulated it, lifted it, and felt along its bottom." Id. at 537. While the Washington court did not address the issue of the manipulation of the bag in the opinion, the court stated that: "[w]e certainly entertain grave doubts about the constitutional propriety of the officer's initial manipulation of Mr. Washington's bag." Id.

37 See, e.g., United States v. McDonald, 100 F.3d 1320 (7th Cir.), cert. denied, 117 S. Ct. 2423 (1997); State v. Peters, 941 P.2d 228 (Ariz. 1997) (The officers "squeezed, smelled, and felt the bags and the hard objects within," and the court held that "[n]either sniff nor squeeze was an unreasonable search.").

38 United States v. Lovell, 849 F.2d 910 (5th Cir. 1988).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

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