The limits of the frisk.

This spring, the Supreme Court decided two cases relating in different ways to frisks: whether squeezing ("frisking"?) a suitcase constituted a search (Bond v. United States(1)) and whether frisking is permissible based on an anonymous tip that a certain individual is carrying a gun (Florida v. J.L.(2)). Combined, these two cases impose significant limitations on police power to arbitrarily frisk civilians.

In Bond, a border patrol officer, checking a bus for illegal immigrants, squeezed soft-sided luggage in the overhead compartment as he moved through the bus. He felt a brick-like object in the petitioner's suitcase, which he then opened and discovered a "brick" of methamphetamine.

Although the Fifth Circuit had upheld the squeezing as not a search, the Supreme Court, in a 7-2 opinion by Chief Justice William Rehnquist, concluded that such a "tactile" examination of the suitcase was a search and, not being justified by any level of suspicion, was illegal. It was the search's tactile nature that distinguished it from other police activity, such as airplane (California v. Ciraolo(3)) and helicopter flyovers (Florida v. Riley(4)), that the Court had not deemed Fourth Amendment "searches." Instead, the Court likened this to a frisk of a person's clothing, which has been recognized as a Fourth Amendment search since Terry v. Ohio(5) in 1968, and which must be based on individualized suspicion.

In Bond, the Court applied its standard two-part test to determine if this police activity was a search. First, did the subject "exhibit an actual expectation of privacy," and, second, was this expectation one that "`society is prepared to recognize as reasonable?'"(6) Here, the Court concluded that while "a bus passenger clearly expects that his bag may be handled, ... he does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner."(7) Thus, he did expect privacy from exploratory feels, and that expectation was reasonable.

Justice Stephen Breyer, dissenting, joined by Justice Antonin Scalia, said that since one understood that members of the public could feel one's bag in an exploratory manner, or otherwise become aware of its contents, one's expectation of privacy as to the outwardly observable characteristics of the bag did not make the squeeze a Fourth Amendment event.

Breyer quoted Ciraolo: "[I]t is not objectively reasonable to expect privacy if `any member of the public ... could have' used his senses to detect `everything that th[e] officers observed.'"(8)

Breyer is correct that this decision is inconsistent with the quoted passage of Ciraolo. But that was a disturbingly openended part of the Court's previous Fourth Amendment jurisprudence. Just because members of the public could intrude on my private space does not defeat my reasonable expectation that they would not. For example, just because the people who live in an apartment complex could walk up to my ground-floor apartment and peer into the window does not mean that it is not a search if the police do it.(9)

I may expect casual examination of my property, and recognize the possibility of detailed inspection by an unusually curious member of the public, without giving up my reasonable expectation of privacy vis-a-vis the police. So, while we recognize that people could squeeze our luggage in an investigatory fashion, we don't expect them to, and, therefore, this squeezing is a search.

The dissent pointed out that one likewise has a reasonable expectation that members of the public will not sniff one's luggage, yet the Court deemed dog sniffs "not a search" in United States v. Place.(10) Although the majority could distinguish Place as involving no touching, the better distinction would be that while one has an actual expectation that his or her luggage will not be sniffed, the nature of the sniff is sufficiently unintrusive that the Court considers the expectation unreasonable--which is another way of saying that the benefits of the police activity outweigh the limited costs to individual privacy.

There is no single factor that is determinative; we simply have to compare the costs and benefits in each case. Thus, even when the police do something that would be illegal or very difficult for a member of the public to do--trespassing on a fenced and posted field--the Court has held that police trespass is not a "search."(11) In the Court's view, the benefits of allowing the police to search in this way outweigh the impact on individual privacy.

Contrariwise, the use of "highly sophisticated surveillance equipment" may be a "search" even though there is no physical trespass and even though a member of the public could have overheard the conversation by pressing his ear to the suspect's window or by owning an expensive and unusual electronic device.(12)

The Court wrongly excludes another element that may figure in the question of whether something is a "search"--the motive of the police.(13) The Court cites Whren v. United States, which held that, when police stopped a car for a traffic violation, it was irrelevant whether their true motive was traffic safety or to search for drugs.(14) But where the issue is "Was there a search at all?" the motive of the police may matter. If a DEA agent on vacation moves a bag in the plane-luggage compartment to make room for his own and, when the bag emits a puff of marijuana-scented air, arrests the bag owner, there was no "search." He was simply acting as a private individual. But if, while moving the bag, he squeezes it to see if it contains a "brick" of methamphetamine or emits the scent of marijuana, his "investigatory motive" makes this a search, as in Bond.

Oddly, neither side cited Minnesota v. Dickerson.(15) There, the Court held that "squeezing ... and otherwise manipulating"(16) a hard object felt during a Terry frisk of a suspect, and discovering that it was a lump of crack, exceeded the bounds of a permissible frisk and was instead a "search" that must be justified by probable cause. The result in Bond would seem to follow.

Bond is also consistent with Arizona v. Hicks.(17) In Hicks, police, having heard a gunshot, legitimately entered an apartment and saw expensive stereo equipment out of keeping with the "squalid" surroundings. The Court, per Scalia, held that, while visual inspection of the equipment was permissible under the "plain view" doctrine, when the police lifted the equipment to get the serial number, it was a "search" requiring probable cause. In both cases, the Court concluded that, while the intrusion was minimal, it exceeded the bounds of reasonableness.

This raises an important question about how the police should behave after Bond. The Court likens the luggage squeeze to a frisk of a suspect who the police have reasonable suspicion to believe is armed and dangerous. Could such manipulating of a suitcase or other container similarly be justified if the police had reasonable (individualized) suspicion, but not probable cause, to believe that it contained contraband? Such a result would seem correct since the intrusion is less invasive than opening the bag and examining the contents, just as the frisk of an individual is less invasive than a full body search.

Such a result is, however, inconsistent with current law. In Dickerson, manipulation was held to exceed the bounds of a frisk and to be a full-blown search. But Dickerson involved the frisk of the body for weapons, not a less intrusive feeling of containers out of the suspect's possession. Hicks is more problematic. There, the Court conceded that the police had reasonable suspicion to believe the equipment was stolen, but required probable cause to manipulate it. In fact, under current law, police must not only have probable cause, they must have a search warrant in order to search luggage and other containers carried by a suspect.(18)

I have predicted that the Court will soon abandon this last remnant of the outdoor warrant requirement.(19) The additional step of permitting "container frisks"--i.e., manipulating but not opening--on reasonable suspicion, contrary to the holding of Hicks, would also seem reasonable.

Florida v. J.L.

In Florida v. J.L., the Court considered just what constitutes "reasonable suspicion" to justify a frisk. An anonymous caller reported that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun."(20) The police went to the bus stop, spotted a suspect who met the description, and frisked him, finding a gun.

A unanimous Court struck down this frisk, per Justice Ruth Bader Ginsburg. The Court conceded the tip was "reliable" in the sense that it accurately stated the location and description of the suspect. "Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity."(21) This was true even though it is illegal in Florida for anyone under 21 to carry a gun. The tip simply provided an insufficient basis for a Terry stop even though it did allege criminal behavior.

Such a "bare-boned" tip would also be insufficient to justify a stop and frisk of a narcotics suspect.(22) The Court noted that many courts of appeal have deemed an "automatic" frisk justifiable in drug cases on the ground that someone carrying drugs is likely to be armed.(23) As I recently argued in these pages,(24) the Court should abandon the distinction between stops and frisks--if a stop is justified, so is a frisk. But, here, neither stop nor frisk was appropriate.

So what is a good tip after J.L.? The Court pointed to Adams v. Williams(25) involving a similar tip but from a known informant, and Alabama v. White,(26) where the anonymous tip accurately predicted in some detail future, albeit unsuspicious, behavior of the suspect, as examples of good tips. Also, the Court left the door open to a sort of "public safety" exception to the reasonable suspicion standard if, for example, the tip specified that the suspect was carrying a bomb rather than a gun.(27)

Finally, Justice Anthony Kennedy, concurring, noted that, if the policeman had reason to believe that the suspect was carrying a gun based on his own observations, or even the statement of a face-to-face informant, rather than an anonymous phone call, the result might have been different. Indeed, Kennedy's observation that there was "no notation or other documentation of the call"(28) suggests that the Court may have doubted that this call ever existed and suspected that it was simply made up by the police to justify the frisk after the gun was found. J.L., by holding that anonymous tips, without more, are not sufficient for reasonable suspicion, should have the salutary effect of discouraging these sorts of police shenanigans.

Notes

(1.) 120 S. Ct. 1462 (2000).

(2.) 120 S. Ct. 1375 (2000).

(3.) 476 U.S. 207 (1986).

(4.) 488 U.S. 445 (1989).

(5.) 392 U.S. 1 (1968).

(6.) 120 S. Ct. 1462, 1465, quoting Smith v. Maryland, 442 U.S. 735, 740 (1979).

(7.) Id.

(8.) Id. at 1467, quoting Ciraolo, 476 U.S. 207, 213-14 (emphasis in original).

(9.) In Minnesota v. Carter, the Minnesota Supreme Court held that such a viewing was a "search." 569 N.W.2d 169,178 (Minn. 1997). The U.S. Supreme Court, finding that the defendant lacked standing, did not decide that issue. 119 S. Ct. 469, 474 (1998).

(10.) 120 S. Ct. 1462,1466, citing United States v. Place, 462 U.S. 696 (1983).

(11.) Oliver v. United States, 466 U.S. 170 (1984).

(12.) Dow Chemical Co. v. United States, 476 U.S. 227, 238 (1986): "[S]urveillance of private property by using highly sophisticated surveillance equipment not generally available to the public.... might be constitutionally proscribed absent a warrant." See also Katz v. United States, 389 U.S. 347 (1967).

(13.) 120 S. Ct. 1462, 1465 n.2.

(14.) 517 U.S. 806, 813 (1996).

(15.) 508 U.S. 366 (1993).

(16.) Id. at 378.

(17.) 480 U.S. 1149 (1987).

(18.) United States v. Chadwick, 433 U.S. 1 (1993). See Craig Bradley, The Court's "Two Model" Approach to the Fourth Amendment: Carpe Diem! 84 J. CRIM. L. & CRIMINOLOGY 429 (1993).

(19.) See Craig M. Bradley, Whittling Away the Search Warrant Requirement, TRIAL, June 1999, at 85.

(20.) 120 S. Ct. 1375, 1377.

(21.) Id. at 1379.

(22.) Id. at 1380.

(23.) Id.

(24.) Craig M. Bradley, The Wicked May Flee, But the Police May Stop Them, TRIAL, Apr. 2000, at 84, 86.

(25.) 407 U.S. 143 (1972).

(26.) 496 U.S. 325 (1990).

(27.) 120 S. Ct. 1375,1380.

(28.) Id. at 1381.

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington.