The Counsellor's Corner

When I think of the squeeze play, I think of a runner on third base in a baseball game, hoping to advance to home plate. In the middle of April, the U. S. Supreme Court had something very different in mind when it ruled 7 to 2 that police officers could not squeeze the carry-on luggage of passengers on buses in their search for drugs. This decision comes on the heels of the decision I wrote about approximately a month ago which held that police officers cannot stop and frisk someone based only on an anonymous tip. This recent decision surprised many, as did the earlier one, as it again comes from a conservative Supreme Court and the 7 to 2 vote indicates a clear majority.

The opinion was written by normally conservative Chief Justice William Rehnquist who indicated that the above-mentioned passengers have an “expectation of privacy” that their carry-on luggage will not be manipulated in any way.

This case stemmed from the arrest and conviction of Steven Bond, who had been traveling by bus from California to Arkansas. This took place in mid-1997, at which time Mr. Bond was a passenger on a Greyhound bus which was stopped at the permanent U.S. Border Patrol checkpoint in Texas, which is about 90 miles east of El Paso. While stopped at the checkpoint, a Border Patrol agent came on the bus to check the immigration status of the passengers. The agent walked to the rear of the bus and then back down the aisle toward the front. As he walked toward the front he squeezed overhead luggage bags as he walked by. One of the bags belonged to Mr. Bond, and the agent testified he felt a “brick-like” object that he thought may have been narcotics. (I imagine it could have been a brick, however that is not what the agent suspected.) Sure enough, the bag contained methamphetamine which led to Mr. Bond being arrested and convicted. National Association of Police Organizations’ counsel, Stephen McSpadden, indicated he was unhappy with the decision as he said this will affect the ability of law enforcement officers to effectively enforce the nation’s drug laws. How will this affect law enforcement? The “squeeze technique” is commonly used by law enforcement, and it is a tool that will no longer be available.

Do these two recent decisions indicate a change, a more liberal shift by the Court? Most observers don’t think so; rather they think that the Court is going to continue draw a line when they believe that officers have gone too far. Justice Rehnquist stated that he believes bus passengers have “an expectation of privacy” that their luggage will not be examined.

This specific decision dealt with a Greyhound bus and the question now being asked, is will future decisions include airplanes? I am not so sure that they will. When an airplane case reaches the Court, I am far from certain that the Court’s ruling will be the same. I believe that one’s expectation of privacy on a bus is different from one’s expectation of privacy on an airplane. If I get on a Greyhound bus, I do not put my carry-on bags through an X-ray machine. When I fly elsewhere in California or to another state or country, I do put my bags through an X-ray machine. My expectation of privacy is clearly lessened at the airport as I know I’m going to be asked those ridiculous questions by airport security (Have you left your bag unattended? Has anyone else packed your bag for you?). That begins the airport process. The next step is to put my bags through the airport security device and while my bag is going through, I am emptying my pockets and putting everything made of metal in a little bowl so that I can walk through the machine which checks me. Again, this is different than at the bus situation.

While I support the court’s decision in the bus case, I would want the court to rule differently if and when an airport case is put before it. In cases such as this, the Court does a balancing test, and balances one’s expectation of privacy versus public safety and the enforcement of public laws. A number of years ago, sky-jacking was vogue with respect to airplane flights. You never read much about bus-jacking. I want to know when I am on an airplane that there are no guns, bombs, or other weapons. I believe that the scales of justice lean toward safety in the airplane situation while the protection of privacy rights come front and center in the bus scenario.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.