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.