In United States v. Jones, Justice Scalia wrote a majority opinion holding that when the police trespass onto property enumerated in the text of the Fourth Amendment with the purpose of obtaining information, they commit a search. In Bond v. United States, however, Justice Scalia dissented — more specifically, he joined Justice Breyer’s dissent — when the Court held that it is a Fourth Amendment search for the police to grab a suspect’s duffel bag and squeeze it with intent to see what it contains inside. According to Justices Breyer and Scalia, this was not a Fourth Amendment search.
Does anyone have ideas for how to reconcile Scalia’s votes in Bond and Jones? One answer is that in Jones, Justice Scalia is engaging in equilibrium-adjustment — he’s trying to maintain Fourth Amendment protection in light of technological change, so he favors broader Fourth Amendment protection to counter new powers by the Government. Equilibrium-adjustment isn’t necessary in Bond, which just involved the old-fashioned facts of grabbing a bag. But are there other ways to reconcile those two votes? Is manipulating a bag not a common law trespass? Does a bag not count as “effects”? Does Justice Scalia see Bond as only asking about the Katz test, not whether the conduct is a search generally?
UPDATE: Some commenters contend that Bond obviously only involved the Katz test, not the broader question of what was a Fourth Amendment search. But here’s the Question Presented in Bond:
Whether a search occurs when a law enforcement officer manipulates a bus passenger’s personal carry-on luggage to determine its contents.
It’s true that the briefing in Bond talks a lot about the Katz test; until Monday, no one was aware that the Katz test was only one among two or more tests for what counts as a search. But a lot of the briefing in Bond talks generally about whether a search occurred, not just about a reasonable expectation of privacy.
ShelbyC says:
From Breyer’s dissent in Bond:
January 25, 2012, 2:21 pmracer X says:
In Bond, no one argued the point about trespass or mere touching. It was litigated solely as a Katz expectation of privacy case. Maybe Scalia would reconsider Bond on that point?
More broadly, I think your equilibrium point is a fair one. But I suggest the better explanation for the Scalia majority (especially for the joiners, not for Scalia himself) is that it avoids the mess of mosaic theory, which invites endless case-by-case problems. That’s classic Scalia, and for Sotomayor, it gives a stronger protection against all GPS use.
If cops need to get warrants all the time, just to clear the installation hurdle, then no one ever needs to confront the slippery slope of “how many days are allowed before it’s a search?”
That resolution does leave open the non-installation problems, but the Court might not have to address those, either, if a statute comes along and covers the whole area.
January 25, 2012, 2:22 pm(Not That) Bill O'Reilly says:
I am neither a lawyer nor familiar with Breyer’s aforementioned dissent in Bond, but this strikes me as the natural distinction to draw.
January 25, 2012, 2:23 pmWake Up Little Susie says:
My guess without reading the case is that squeezing the bag was considered as, or akin to, a “minimally intrusive Terry frisk.”
As far as whether or not squeezing someone’s bag is trespassing, it depends now, as then, how hard you squeeze the bag and for how long and with what intention. I can imagine bag squeezings (under 1791 law and current law in every jurisdiction) that would be severe enough be a clear and unarguable trespass. I can imagine bag squeezings (under 1791 law and current law in all jurisdictions) that would be innocent enough to be a clear and unarguable non-trespass.
As far as that crazy line where a bag squeezing goes from non-trespass to trespass (or non-assault to assault), how well was that line developed in 1791 or now?
Seems like the best thing to do is to say that a warrant is presumptively required when the police action would be any sort of crime or tort (under 1791 law and/or current law) if a regcit did the same thing to the suspect. II mean, think of it this way: in how many cases would there be a “1791 answer” and a “2012 answer” that clearly contradicted each other? If and when such a conflict ever arose between 1791 law and current law, then you could have a rule for choosing between the two bodies of law. But, unless these bodies of law are in conflict, why not make it either / or. Seems like the best way to protect rights is to treat 1791 law and current law as competing floors on privacy. That way privacy expectations may increase over time, but they cannot decrease below 1791 levels (such as they were). When a privacy expectation becomes enshrined in modern trespass, assault and/or stalking law, then that is a real good indication of what modern and reasonable expectation of privacy are.
Think of what is going on in Illinois now with the law about it being illegal to record the police in public in order to protect the policemen’s privacy. That law looks likely to come down because it tries to protect a privacy interest that societdoes not really regard as “reasonable.” It is unclear whether the law will be overturned legislatively or judicially, but it really doesn’t matter. the point is that Illinois (and all the other states) are constantly “synthesizing” privacy concerns into their law on an ongoing basis. The best proxy for reasonableness (while not a perfect proxy) would be what that jurisdiction’ss law say at any given time, with the slight caveat that they cannot take privacy below 1791 levels.
If there is a better proposal out there, I have not yet heard it.
January 25, 2012, 2:57 pmPersonFromPorlock says:
If you want consistency from Scalia, buy him a two-headed coin.
January 25, 2012, 2:59 pmSteveL says:
I think they’re actually two sides of the same coin. The Breyer dissent highlights how travel has changed. That what once may have been a reasonable expectation of privacy is no longer the case. Bags brought on to commercial conveyances are routinely touched, moved, etc. Changes in expectation are such that nobody would construe the movement or touching of a bag in an overhead bin as a trespass to chattels (or “effects”).
It’s the equivalent to looking in the window of a car. Entirely expected, and not a search. In Jones we have a different intrusion. A physical device was attached to the car, which goes beyond mere touching. It is a long term intrusion on the personal effect.
January 25, 2012, 3:01 pmArthur Kirkland says:
An “if the baggage handler is permitted to do it in the normal course of providing requested assistance” standard could generate some interesting results among judges who act as matadors for the police.
For example, this one time, at the proctologist’s office . . .
January 25, 2012, 3:08 pmQuestion says:
Unrelated question: Suppose a police officer breaks into A’s house without a warrant or reasonable cause. While in the house, the officer sees through the window that A is murdering B. Under the majority opinion in Jones, wouldn’t the police officer be barred from tesitifying about the murder committed by A? That’s how it seems to me, but the result seems rather strange.
January 25, 2012, 3:14 pmThe Crafty Trilobite says:
That may well have been Scalia’s reasoning, but it’s not very strong. I myself am routinely touched, and even x-rayed, when boarding commercial conveyances. I am jostled about in the ordinary course of living. But “the wind may enter. But the King of England may not enter.” My limited waiver of privacy rights to TSA does not give random strangers the right to pat me down and x-ray me, nor does it give non-TSA police that right.
The same goes for my bag. Yes, I expect the bag to be moved around by airline personnel (or in 1789, by a stagecoach driver), and jostled by others, but it’s still my effects. I would be very startled to see a random stranger shaking and squeezing my luggage to guess what’s inside it, wouldn’t you?
January 25, 2012, 3:16 pmMr. Katz says:
My expectation of privacy is very different in the two cases, especially regarding a fellow private citizen as opposed to a cop.
If another passenger moves my bag in the overhead bin, I’m not going to fuss and confront him over his “trespass.” If I am heading back to my car in a parking lot and catch someone putting a tracker on it, that’s different.
January 25, 2012, 3:17 pmAnonimus says:
[Deleted by OK]
January 25, 2012, 3:25 pm18 USC 1030 says:
I think SteveL has it right. I think Kyllo actually gives a reasonable explanation of this: There Scalia held that an individual has a reasonable expectation of privacy that someone won’t use infrared cameras to look into their homes. He harped on the fact that the technology was not prevalent which indicates that if it were, there is a likelihood that he’d find that acceptable.
With the bag, everyone would find it “obvious” that if they are traveling in public with a bag that it might get touched or prodded. They wouldn’t expect you to attach something to it to track it–but they’d expect the possibility of it being touched.
Similarly, if you have your car parked, there is some “obvious” chance that it will be touched by someone. Maybe they lose their balance and grab ahold of it, maybe they are a child and just touch things, etc. However, there is no expectation that someone will attach something to it and track it.
Even if we look at Olmstead, if we extrapolate the Court’s holding, I think we can agree that if LEO had somehow pierced the home to attach the wiretap, a search would have occurred. However, a search wouldn’t have occurred if LEO had knocked on the door.
January 25, 2012, 3:35 pmbob says:
There is no such thing as a minimally instrusive frisk.
January 25, 2012, 3:42 pmChristopher Cooke says:
Maybe you can reconcile Bonds and Jones by arguing that, in the latter case, there is an implied consent by all passengers to have their bags touched and moved, and Scalia thinks that extends to squeezing, so there is no trespass, while in Jones, there is no implied consent to place anything on one’s car, for any purpose.
January 25, 2012, 3:48 pmUgh says:
Scalia’s not worried about police searching his bag but is very worried about police tracking his driving movements for a month?
January 25, 2012, 3:48 pmAnon says:
As to the bag squeezing as trespass, doesn’t the character and context of the handling matter? In the context of porters, baggage handlers, etc., any putative trespass to a bag may be excused by privilege based on implied consent or de minimis violation, etc. But I don’t see that those exceptions apply equally to police “squeezing” which is intended to and has the effect of exploring for information that can be used as probable cause for a more intrusive search. This is my understanding of Bond, and therefore I think that while it is based on Katz, it could also be justified under the trespass theory in Jones.
January 25, 2012, 3:49 pmanon reader says:
Re Bob’s comment on Susie’s:
True, but the stop-and-frisk resulted from the merger of two concepts, as I understand it. The Terry stop itself was allowed because it was considered minimally instrusive. Just a few questions and you’re on your way, unless something develops to justify more.
The frisk was added for the separate purpose of protecting officer safety. Given that you’re stopping this person, you need to pat him down so that he doesn’t pull out a weapon fter the second question. Sure, in practice the pat-down is a feeler for drugs and evidence, and isn’t just about safety, but the theory is that it’s only about safety. That’s why you can only pat for “big and bulky,” and not empty every little contained from the start.
January 25, 2012, 3:57 pmAJK says:
On the contrary: if some frisks are more intrusive than others (which seems to be obviously true), then there must necessarily be such a thing as a minimally intrusive firsk.
January 25, 2012, 3:59 pmDrGrishka says:
On a VERY quick skim of Breyer’s dissent in Bond, I would suggest 2 differences:
1) He seems to be talking more about the reasonableness and not whether there was a “search.” And the reasonableness was apparently established because bags get searched by customs officers all the time (and the fact that strangers also jostle bags all the time, which leads me to the next point)
2) Because strangers on public buses touch each other’s bags, such touching is not trespass. (Much like bumping into others on the street is not battery). There is implied consent for such touching by strangers. And therefore, what the Customs officer did was not trespass (unlike in Jones, where there is no implied consent for strangers to poke under your car).
January 25, 2012, 4:08 pmMasturbatin' Pete says:
Orin writes:
But that’s not really the holding, is it? I’ll quote the Opinion of the Court at p. 3:
(Emphasis added). So it’s not the trespass alone that makes the installation a search. It’s the trespass combined with the subsequent monitoring.
In Bond, there was undoubtedly a “physical intrusion” (Jones at 4) onto an effect, but the moment the squeeze was over, the physical inspection concluded. However, in Jones, Scalia states that “[t]he Government physically occupied private property for the purpose of obtaining information.” An “occupation” denotes more than a transitory physical presence. So although Scalia doesn’t come out and say it, it’s the ongoing, non-transitory nature of the physical intrusion that distinguishes Bond from Jones.
Of course, this runs into New York v. Class a bit (which was decided just before Scalia was appointed). There, as Scalia notes, “an officer’s momentary reaching into the interior of a vehicle did constitute a search.”
So to thread the needle, Scalia can say this: “Without resorting to Katz analysis… if an effect is touched on the surface for a transitory period, it’s not a search. If an effect is touched on the surface for longer, it’s a search. If the interior of an effect is touched for any duration, it’s a search.” I don’t particularly like it, but I think that’s the only way you can argue for consistency.
January 25, 2012, 4:10 pmDan says:
I guess I would see three possibilities:
1. The equilibrium-adjustment theory.
January 25, 2012, 4:14 pm2. The this isn’t a common law trespass possibility.
3. Scalia realized that his and Breyer’s view didn’t win the day in Bond and that the Bond majority opinion was the law to apply in Jones.
Masturbatin' Pete says:
Dan:
That can’t be it, because Bond was a reasonable-expectation case, and Scalia didn’t use reasonable-expectation to decide Jones.
January 25, 2012, 4:17 pmS says:
From a mathematical standpoint, this statement is false unless “no frisk” counts as a frisk. (Consider assigning a value between 0 and 1 to each frisk, 0 is no frisk, 1 is, let’s say, cavity search. What is the minimal, nonzero, value of a frisk?)
January 25, 2012, 4:25 pmAnonimus says:
[Deleted]
January 25, 2012, 4:29 pmDan the Man says:
Bond v. United States was in 2000. Kyllo v. United States was in 2001. So far as I can tell, Kyllo was the first time he started talking about his trespass view of the 4th amendment (perhaps he finally read Black’s dissent in Katz). I think that 2001 is when he changed his mind about the 4th amendment. Prior to Kyllo, he didn’t seem nearly as interested in 4th amendment protections eg see Florida v. Riley (1989) where he went along with the standard “reasonable expectation of privacy” doctrine without even a hint of questions about trespassing.
January 25, 2012, 4:43 pmWake Up Little Susie says:
There is no such thing as a minimally instrusive frisk.
Hence my tone quotes bookending the phrastic fragment.
January 25, 2012, 4:44 pmarch1 says:
All these fancy concepts.
Scalia was clearly just applying the “guess your present” ground rules familiar from his childhood: It’s not ok to search your parents’ closet for your presents, but if the wrapped presents are in plain sight under the tree, squeeze-and-guess is fair play.
For you skeptics here are the falsifiable predictions: 1) He’d also be OK with gently shaking the bag, 2) He wouldn’t be OK with opening the bag, 3) He wouldn’t be OK with poking a knitting needle into the bag:-)
January 25, 2012, 4:49 pmTatil says:
My guess? The attorney representing the government did not argue that cops can shake and squeeze bags of every justice, all day, everyday, without warrants if it so wishes.
January 25, 2012, 4:50 pmWake Up Little Susie says:
Scalia’s not worried about police searching his bag but is very worried about police tracking his driving movements for a month?
He is probably more worried about a non-policeman (say a tabloid journalist) tracking him. If the police are monitoring him, then he knows that he can always “tedkennedy” or “dickcheney” his way out of trouble with police. If a tabloid journalist catches him at the masonic lodge or Ginsberg’s apartment or wherever, then he is going to have a lot less recourse.
While this case doesn’t involve a tabloid journalist, I am sure that Justice Scalia appreciates that sometimes the best defense is a good offense.
A tabloid journalist is unlikely to squeeze Justice Scalia bag, or at least unlikely to write a story about that. So that probably doesn’t concern him as much.
January 25, 2012, 4:50 pmMasturbatin' Pete says:
Ah, but we aren’t in the land of pure mathematics. We occupy a universe where energy exists in quanta. There’s a positive, nonzero amount of energy that can be used to affect a search, and that’s the bottom limit before you get to no energy.
January 25, 2012, 4:54 pmBryan Gividen says:
I think that everyone has picked up on the primary distinction, and its implicit in the Scalia/Breyer decision that talks about it in terms of “reasonable expectations of privacy” instead of in terms of trespass. The expectation that others will touch your stuff is the implied consent necessary to get out of the trespass.
January 25, 2012, 4:55 pmLarvell Blanks says:
There is no such thing as a minimally instrusive frisk.
On the contrary: if some frisks are more intrusive than others (which seems to be obviously true), then there must necessarily be such a thing as a minimally intrusive firsk.
It’s like a written tongue-twister — “minimally intrusive frisk.” Quick, spell it fast three times.
January 25, 2012, 5:23 pmOrenWithAnE says:
I would be pretty shocked to see a suit against me for trespass for rearranging others’ luggage on a bus or airplane.
January 25, 2012, 5:26 pmWake Up Little Susie says:
“I would be pretty shocked to see a suit against me for trespass for rearranging others’ luggage on a bus or airplane.”
Okay, humor me. Next time you are on a plane re-arranging a stranger’s luggage, try to feel and manipulate the bag so that you can at least guess what is inside. Then announce your guesses to any other passengers in the vicinity and try to find out if they are correct by asking the bag’s owner. Then come back and let us know how that turned out for you.
January 25, 2012, 5:31 pmStephen Lathrop says:
I recognize this is a technical discussion, and I ought not butt in with my non-technical take. But Kerr asked about equilibrium, and there isn’t any equilibrium in sight.
When I venture out in public, I have zero expectation that anyone is going to search me with the intent of finding something to justify charging me with a crime. I am not the least bit peculiar in that. And I don’t expect anything I take with me to be searched that way either. Nothing I ever do with my person or possessions makes me expect any such occurrence. And what separates the many search-similar occurrences I do expect from the ones that seek to criminalize me is the intent—the intent of police, and only police, to prospect for evidence where none is in fact evident.
I have followed these threads long enough to understand I am not supposed to invoke that naive view of the expectation of privacy. What I can not comprehend is the circular reasoning that is supposed to take its place. That is the view that a reasonable expectation of privacy must be adjusted to encompass unexpected, unjustified, startling invasions, because they do occur, and because some in society think they ought to. And the fact that they do occur is supposed to make them my reasonable expectation, which is plain backward.
Reasoning constructed that way never trends toward equilibrium, but always toward extremes.
January 25, 2012, 5:34 pmPatrick Moran says:
Suppose a private detective is hired by a jealous husband to investigate the activities of the client’s wife. Can the private detective, without incurring any civil or criminal liability, attach a GPS tracking device to the client’s wife’s car and then track her travels on public streets via GPS?
If so, does it make sense to place limitations on the police, in the investigation of crime, when those same limitations are not placed on private citizens pursuing private interests?
January 25, 2012, 5:35 pmComp Sci Phd says:
As someone who parks my car in public all the time. I expect that things will be placed on it.
have no idea how scalia would resolve these things in a consistent manner.
January 25, 2012, 5:37 pmComp Sci Phd says:
Patrick, your case is different because one would have to assume that the jealous husband doesn’t have any rights to the car himself. Though I do agree in general with the statemnt you are trying to make, just have to make it more accurate.
January 25, 2012, 5:40 pmhf says:
Completely different theory: the Supreme Court has always had heavily disproportionate representation from the greater New York metropolitan area, where lifestyles differ considerably from the rest of the country. Among other things, much less per capita use of automobiles, and lots of people jostling about in relative anonymity on the subway. So:
1. Lots of 4th amendment “Automobile Exceptions”. The Supremes don’t realize that for people in Dallas they’ve made every workday mostly exception.
2. They expect that no one is keeping track of them on the subway, and thus are shocked at the idea of having their movements recorded. In the rest of the country we drive around with license plates and red light cameras.
3. People feelin’ up your bag (accidentally or on purpose) is something that happens on a crowded subway car. In flyover country, walking up to someone and molesting their backpack might get you shot,
January 25, 2012, 5:46 pmGreg Q says:
It’s amazing how hard people are trying to ignore the relevant facts.
In Jones, we have a car in America, and American cops putting something on that car w/o a warrant.
In Bond, we have a bag being examined as part of a border / customs stop.
When I take my bag through Customs, I expect people to look at it, to squeeze it, to open it, to examine it. When I park my car in a parking lot, I don’t expect anyone to put a tracking device on it.
It’s like in the pre-Jones ruling discussion, where people didn’t bother to mention that in the beeper tracking case, the original owners of the box with the beeper knew the beeper was there.
The details matter. When you leave the important details out, it pretty much destroys your argument.
January 25, 2012, 5:55 pmWake Up Little Susie says:
“As someone who parks my car in public all the time. I expect that things will be placed on it.”
and broken into occasionally, too. but that isn’t the issue.
January 25, 2012, 5:55 pmJohn says:
A simple way to reconcile Jones and the Bond dissent is that in Bond, Breyer/Scalia don’t engage in a trespass analysis at all. The word “trespass” does not even appear in the opinion. That could very well be due to the fact that Bond’s attorney’s only made a reasonable expectation of privacy argument and did not address the trespass issue — due no doubt in part to the fact that most lawyers believed that the trespass analysis had been wholly superceded by the Katz reasonable expectation test.
January 25, 2012, 6:02 pmAnonimus says:
[Deleted]
January 25, 2012, 6:05 pmjncc says:
Your starting assumption seems to be that Scalia is thoughtful and consistent.
January 25, 2012, 6:07 pmadjunct says:
How are these cases the same?
In Bond, a party put his luggage, a soft bag, in the overhead compartment of a bus. No one opened the bag. No one added anything to the bag. No one stuck anything to the bag. An agent squeezed it: that’s it.
Tresspass to chattels required “using or intermeddling” with the chattel (as the Restatement put it). No one in Bond used the bag. No one meddled with it, either. If a squeeze to a bag sufficed to create such a claim, virtually every passenger in an airport would have a claim against fellow travelers for this tort. Some change to the bag should be required. A hard squeeze seems like a tough argument. Everyone on plane gives “hard squeezes” to luggage to shove things around– are they are liable for trespass to chattels? This seems like an unreasonable result.
In Jones, by contrast,agent(s) attached a GPS device to the underside of a Jeep and left it there for 28 days. That’s meddling with a chattel because the car had been altered. It wasn’t the same as it was before. On similar grounds, trespass to chattel can be found when spyware companies secretly install spyware on a computer. It’s meddling in just the same way.Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219. Thus, if someone were to have opened the bag and put in a tracking device, and left it there, then it would be analogous. That’s not the Bond case.
This alone makes the two cases distinguishable.
Beyond this, there is a strong argument in Bond that the owner of the bag implicitly consented to random individuals squeezing, pushing and prodding his bag to shove it in the bus. Pretty much anyone who travels these days knows her bag is going to be shoved, poked and squeezed by many people just to get it in. Furthermore, the consent extends to pretty much anyone in the plane- we agree that carry-on luggage isn’t sacrosanct.
In Jones, there is no argument that the owner of the Jeep consented to anyone poking, prodding or touching the underside of his car. If someone were to see an individual approach the car and poke or prod the underside of a Jeep parked on a sidewalk, that occurrence would likely be cause for alarm and perhaps a call to the police. No consent of any type exists for this conduct. But no one would raise an eyebrow at a rough shove to carry on luggage by a random person on a bus or plane.
From a trespass point of view, these seem quite separate.
January 25, 2012, 6:25 pmAsher says:
Your link to equillibrium-adjustment doesn’t work.
January 25, 2012, 6:26 pmJarbidge says:
Using the ‘WTF’ standard from the other thread, yes. The private eye can’t (or at least, they aren’t commonly doing so today) really follow me around with a drone or by a license plate scanner at every intersection or whatever.
I don’t know what the future holds. Maybe in a generation (or decade) we’ll all expect that Google LicenseScan will make all our real time positions freely available – but today, having the police collect all that in a database and troll through it sans warrant does seem to creep a lot of people out. And maybe this case hints that creeping out the justices is sufficient to violate the 4th amendment.
January 25, 2012, 6:33 pmColin says:
my crim pro outline summary for Bond says “Dissent: BREYER: use a hard sided suitcase.” Bond could have used a hard sided suitcase; it would be really hard to commit a meaningful trespass on it. In other words, he could do something to defend against the trespass. I think Breyer missed or ignored the issue in Bond, but in Jones, nothing Jones can reasonably do can protect against the trespass.
I think Breyer also pointed out that if someone pushed Bond’s bag over to make room for their own bag, they would not have committed a trespass. So maybe it’s not even a trespass; compare this with Jones, where it would be.
January 25, 2012, 7:43 pmbozo says:
If some dumb cop would sqeeze Scalia’s genitals per his own rulings, would his honor claim invasion of privacy?
January 25, 2012, 8:58 pmErik says:
I think it’s the two Scalia’s. Scalia the originalist and Scalia the minimalist. His biggest complaint in Bond was the Court’s concern that the bag was “overly manipulated.” His fear was this will lead to “reasonable squeeze” jurisprudence. The dissent further argued that the need to make these distinctions is unnecessary because, by putting a bag in public, you assume the risk that others will touch it. In fact, you expect they will to some degree (the majority agreed here).
The difference is, while you expect this with bags on a bus, you don’t expect it with the underside of your car. In fact, most people would not tolerate it. That is why it is a trespass when the bag is not (at least, not without having to split a lot of hairs like the majority did).
Just my two cents for how they can be reconciled. Justice Scalia’s Fourth Amendment jurisprudence is often difficult to pin down. While he has this case and he has Kyllo, he also has his dissent in Bond and, I think, his majority opinion in Illinois v. Rodriguez, which really muddled third party consent.
January 25, 2012, 9:16 pmBryan says:
I suspect that Scalia would (or could) say the bag in Bond was not an “effect.”. The enumeration of “persons, houses, papers, and effects,” looks like it refers to things we keep private, and so long as they are “private” (i.e., we maintain control over them), there is a trespass when our control is interfered with. In Bond, however, the bag owner ceded control over the bag by putting it in an overhead bin: it was no longer a (kept-private) “effect.” This could explain Scalia’s recitation of why Jones’s Jeep was “his” even though it was in public. It’s basically a way of saying that Jones did not cede control of the Jeep by driving it around, so it was still a (private) 4th Amendment “effect” that could be trespassed upon.
January 25, 2012, 10:27 pmOrenWithAnE says:
Whatever the outcome, I can guarantee I won’t go down for trespass.
January 25, 2012, 10:57 pmOrder of the Coif says:
If you touch my stuff, it’s search. Everyone on the playground knows that.
Scalia is a “conservatuive ” police groupie, like Rhenquist, who really wants to make cop’s jobs easier. Unfortuinately, that was not the purpose of the Bill of Rights.
January 25, 2012, 11:14 pmWilliam Baude says:
I just came here to agree with the people who say they think the answer is implied consent. It seems to be an important point to the dissent that people who put their soft-sided luggage in a luggage bin understand that it will be grabbed and moved at times– and indeed, I would be surprised if one could sue for trespass in such circumstances.
January 26, 2012, 1:59 amErik says:
While other Justices certainly seemed to have a WTF test, at least based on Oral Arguments, Scalia did not. He made it very clear it wasn’t the “scary” clause. The Fourth Amendment provided protection in a very specific way, not generally against all intrusion. So, while others were concerned with the prolonged tracking of individuals and this possible application in the future, he was concerned with the physical trespass. Of course, there is an overlap. It’s much harder to be sympathetic to someone who got tricked into voluntarily taking a tracking device compared to one who had it installed on their car. But I do not think Scalia approached the case similarly to Justices Sotomayor, Kagan, Breyer, Alito, etc.
January 26, 2012, 7:07 amNYC Esq. says:
That’s certainly true now, when five of the nine Justices are from the New York metro area (Scalia, Ginsburg, Alito, Sotomayor, and Kagan. Roberts was born in New York but grew up in Indiana.) But definitely not “always.” When Bond was decided, only two Justices were from the greater New York area. Of the two–Ginsburg and Scalia–only Scalia voted for the less-protective result for searches of bags on buses.
January 26, 2012, 9:36 amAnderson says:
Clearly, the original understanding of the Fourth Amendment as it was back in 1792 had not been entirely grasped by 2000, but was finally clear by 2012.
January 26, 2012, 9:37 amWake Up Little Susie says:
Whatever the outcome, I can guarantee I won’t go down for trespass.
No, you’ll get kicked off the plane for trespass, and then when you sue to get your money back the court will let you know it no uncertain terms that you were indeed kicked off the plane for trespassing in the bag and that the airline and marshals were right to kickle you back into Terminal C.
Procedurally, someone is unlikely to sue you for doing what you are going to do for me. It is still a trespass, and they still could sue if they wanted.
Anyway, do it and report back. I am sure I am not the only one wondering how it will work out for you.
January 26, 2012, 10:33 amWake Up Little Susie says:
Scalia is a “conservatuive ” police groupie, like Rhenquist, who really wants to make cop’s jobs easier. Unfortuinately, that was not the purpose of the Bill of Rights.
More importantly, when the Bill Of Rights was passed, there were no police. So searches and seizures would have been a relatively diminished concern in 1790 compared to the level of vigilance against unreasonable searches and seizures we would have today.
I don’t do very much to avoid getting eaten by bears, even though it is personally important to me NOT to get eaten by bears. On the other hand, I do a lot to avoid/mitigate getting hit by cars (eg, crossing on the walk sig, stopping at stop signs and traffic lights, safety belt, insurance, etc., etc., etc.). You tend to worry about the harms that are considered likely at any given point in time, and unreasonable searches and seizures just weren’t that likely in 1790 because there wasn’t an army of men running around 24/7 looking for things to search and seize.
The fact that 4a never really responded to the rise of police in the U.S. (900,000 strong by now, probably a million if you toss in FBI and ATF) is the strongest disproof of the equilibrium theory that there is. This precipitous rise in searcers and seizers, without a corresponding rise in privacy protection, cannot be fairly characterized as any sort of “equilibrium.” “Equilibrium theory” is more a way of getting folks to ignore the manifest disequilibrium in 4a law that has been constantly occurring as police forces in the US were born and then grew and grew and grew and grew and grew and . . .
January 26, 2012, 10:44 amThursday round-up | says:
[...] Inquirer, and the Baltimore Sun all weigh in, while in the blogosphere Orin Kerr (at the Volokh Conspiracy), Jacob Sullum (of Reason), and Paul Larkin (at the Heritage Foundation’s Foundry Blog) also have [...]
January 26, 2012, 11:41 amHowie S says:
Justice Scalia never articulated what he looks at to determine something is a trespass in Jones. Perhaps squeezing a bag doesn’t meet that threshold.
January 26, 2012, 12:12 pmOrenWithAnE says:
On my playground, we didn’t all suffer from Aspergers and generally permitted (within reason) others to touch and even move our stuff. YMMV.
January 26, 2012, 10:12 pmMJW says:
I think it’s worth noting that in the opinion Jones, Scalia didn’t decide whether the search was unreasonable, and in the dissent in Bond, Breyer didn’t say feeling the bag wasn’t a search; in fact, he strongly suggests it was: “Of course, the agent’s purpose here-–searching for drugs-–differs dramatically from the intention of a driver or fellow passenger who squeezes a bag in the process of making more room for another parcel”; and, “At worst, this case will deter law enforcement officers searching for drugs near borders from using even the most non-intrusive touch to help investigate publicly exposed bags.” Scalia may therefore believe the actions in both cases were reasonable searches.
January 26, 2012, 11:10 pmMJW says:
In regard to my previous comment, I appreciate the fact that courts use the word “search” in two distinct ways, and often don’t clearly indicate when they’re using the normal, everyday definition, and when they using “search” to mean a search in the 14th Amendment sense. I think it’s unnecessarily confusing for the court to, for instance, determine if the search of an open field is “a ‘search’ in the constitutional sense” when it could instead determine if it’s an unreasonable search.
January 27, 2012, 12:52 amName Withheld says:
Orin:
Rationalization after the fact is never perfect, but I’ll give it a stab. I actually do not see the cases as contradictory at all.
Key to the analysis is the following paragraph:
Scalia’s reasoning is that the bag was manipulated no more than can be expected if it’s placed in an overhead luggage bin. That is, by placing the bag in the bin, the passenger consented to the natural consequences that would flow therefrom–that is, that the bag would be manipulated. Although Scalia (well, actually Breyer) couches this reasoning in terms of the man’s “reasonable expectation of privacy” it could easily have been expressed in terms of “consent to the potential trespass.” Now, after Jones, it likely would be.
January 27, 2012, 9:12 amJon Roland says:
In case you caught the Federalist Society Teleforum today on U.S. v. Jones, I was the first and last caller. To summarize my questions:
1. The Scalia majority would seem to have extended the outer boundary of property to include attached devices, in deciding it was a trespass.
2. Originally search and seizure was done by civilians as militia, not just by officials, so using a third party, even after the fact, would seem to make it a state actor subject to 4th Amendment protections.
January 27, 2012, 3:20 pmLibrary: A Round-up of Reading | Res Communis says:
[...] Scalia’s Votes in Bond and Jones – Volokh Conspiracy [...]
January 30, 2012, 12:59 pm