NCJ Number
175869
Journal
FBI Law Enforcement Bulletin Volume: 67 Issue: 12 Dated: December 1998 Pages: 18-24
Date Published
1998
Length
7 pages
Annotation
Officers must consider a number of Fourth Amendment issues when moving and touching luggage stowed or checked with a common carrier.
Abstract
This article examines whether a law enforcement officer's movement of passenger bags in the overhead bin of a bus constitutes a Fourth Amendment seizure. It also considers whether an officer's feeling of the exterior of the bags in such a scenario constitutes a Fourth Amendment search. A review of relevant court cases concludes that 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. Further, the lifting of a bag will not be considered a search by the courts. Also, 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. 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 that have addressed the issue to date, one Federal court of appeals has found such action to be a search (United States v. Nicholson; 10th Cir. 1998), and another Federal court of appeals and a State court have reached the opposite conclusion (United States v. McDonald, 7th Cir; State v. Peters, Ariz., 1997). Finally, touching a bag in a violent, extreme, and unreasonable manner, such as throwing and breaking or crushing a bag, is a violation of the Fourth Amendment. Because courts are divided over the degree of manipulation of a stowed or checked bag that is permitted, officers should consult with their department's legal advisors before engaging in a warrantless manipulation of such luggage. 38 footnotes