UNITED STATES v. JACOBSEN ET AL.
No. 82-1167
Supreme Court of the United States
Argued December 7, 1983—Decided April 2, 1984
466 U.S. 109
David A. Strauss argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and Joel M. Gershowitz.
Mark W. Peterson argued the cause and filed a brief for respondents.*
*Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Howard G. Berringer, David Crump, Daniel B. Hales, William B. Randall, and Evelle J. Younger filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.
John Kenneth Zwerling filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.
During their examination of a damaged package, the employees of a private freight carrier observed a white powdery substance, originally concealed within eight layers of wrappings. They summoned a federal agent, who removed a trace of the powder, subjected it to a chemical test and determined that it was cocaine. The question presented is whether the Fourth Amendment required the agent to obtain a warrant before he did so.
The relevant facts are not in dispute. Early in the morning of May 1, 1981, a supervisor at the Minneapolis-St. Paul Airport Federal Express office asked the office manager to look at a package that had been damaged and torn by a forklift. They then opened the package in order to examine its contents pursuant to a written company policy regarding insurance claims.
The container was an ordinary cardboard box wrapped in brown paper. Inside the box five or six pieces of crumpled newspaper covered a tube about 10 inches long; the tube was made of the silver tape used on basement ducts. The supervisor and office manager cut open the tube, and found a series of four zip-lock plastic bags, the outermost enclosing the other three and the innermost containing about six and a half ounces of white powder. When they observed the white powder in the innermost bag, they notified the Drug Enforcement Administration. Before the first DEA agent arrived, they replaced the plastic bags in the tube and put the tube and the newspapers back into the box.
When the first federal agent arrived, the box, still wrapped in brown paper, but with a hole punched in its side and the top open, was placed on a desk. The agent saw that one end of the tube had been slit open; hе removed the four plastic bags from the tube and saw the white powder. He then opened each of the four bags and removed a trace of the
In due course, other agents arrived, made a second field test, rewrapped the package, obtained a warrant to search the place to which it was addressed, executed the warrant, and arrested respondents. After they were indicted for the crime of possessing an illegal substance with intent to distribute, their motion to suppress the evidence on the ground that the warrant was the product of an illegal search and seizure was denied; they were tried and convicted, and appealed. The Court of Appeals reversed. 683 F. 2d 296 (CA8 1982). It held that the validity of the search warrant depended on the validity of the agents’ warrantless test of the white powder,2 that the testing constituted a significant expansion of the earlier private search, and that a warrant was required.
As the Court of Appeals recognized, its decision conflicted with a decision of another Court of Appeals on comparable facts, United States v. Barry, 673 F. 2d 912 (CA6), cert. denied, 459 U. S. 927 (1982).3 For that reason, and because
I
The first Clause of the Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” This text protects two types of expectations, one involving “searches,” the other “seizures.” A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.4 A “seizure” of property occurs when there is some meaningful interference with an individual‘s possessory interests in that property.5 This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” Walter v.
When the wrapped parcel involved in this case was delivered to the private freight carrier, it was unquestionably an “effect” within the meaning of the Fourth Amendment. Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectаtion of privacy; warrantless searches of such effects are presumptively unreasonable.7 Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.8 Such a warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered.9 Conversely, in this case the fact that agents of the private carrier independently opened the package and made an examination that might have been impermissible for a government agent
The initial invasions of respondents’ package were occasioned by private action. Those invasions revealed that the package contained only one significant item, a suspicious looking tape tube. Cutting the end of the tube and extrаcting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were accidental or deliberate,10 and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character.
The additional invasions of respondents’ privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search. That standard was adopted by a majority of the Court in Walter v. United States, supra. In Walter a private party had opened a misdirected carton, found rolls of motion picture films that appeared to be contraband, and turned the carton over to the Federal Bureau of Investigation. Later, without obtaining a warrant, FBI agents obtained a projector and viewed the films. While there was no single opinion of the Court, a majority did agree on the appropriate analysis of a governmental search which follows on the heels of a private one. Two Justices took the position:
“If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any offi-
cial use of a private party‘s invasion of another pеrson‘s privacy. Even though some circumstances—for example, if the results of the private search are in plain view when materials are turned over to the Government—may justify the Government‘s reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening, one could only draw inferences about what was on the films. The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search.” Id., at 657 (opinion of STEVENS, J., joined by Stewart, J.) (footnote omitted).11
Four additional Justices, while disagreeing with this characterization of the scope of the private search, were also of the view that the legality of the governmental search must be tested by the scope of the antecedent private search.
“Under these circumstances, since the L‘Eggs employees so fully ascertained the nature of the films before contacting the authorities, we find that the FBI‘s subsequent viewing of the movies on a projector did not ‘сhange the nature of the search’ and was not an additional search subject to the warrant requirement.” Id., at 663-664 (BLACKMUN, J., dissenting, joined by BURGER, C. J., and POWELL and REHNQUIST, JJ.) (footnote omitted) (quoting United States v. Sanders, 592
This standard follows from the analysis applicable when private parties reveal other kinds of private information to the authorities. It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information: “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed.” United States v. Miller, 425 U. S. 435, 443 (1976).13 The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. In such a case the authorities have not relied on what is in effect a pri-
In this case, the federal agents’ invasions of respondents’ privacy involved two steps: first, they removed the tube from the box, the plastic bags from the tube, and a trace of powder from the innermost bag; second, they made a chemical test of the powder. Although we ultimately conclude that both actions were reasonable for essentially the same reason, it is useful to discuss them separately.
II
When the first federal agent on the scene initially saw the package, he knew it contained nothing of significance except a tube containing plastic bags and, ultimately, white powder. It is not entirely clear that the powder was visible to him before he removed the tube from the box.15 Even if the white
District Court that it does not matter whether the loose pieces of newspaper covered the tube at the time the agent first saw the box.
Similarly, the removal of the plastic bags from the tube and the agent‘s visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the privatе search.17 It infringed no legitimate expectation of privacy and hence was not a “search” within the meaning of the Fourth Amendment.
While the agents’ assertion of dominion and control over the package and its contents did constitute a “seizure,”18 that
though respondents had entrusted possession of the items to Federal Express, the decision by governmental authorities to exert dominion and control over the package for their own purposes clearly constituted a “seizure,” though not necessarily an unreasonable one. See United States v. Van Leeuwen, 397 U. S. 249 (1970). Indeed, this is one thing on which the entire Court appeared to agree in Walter v. United States, 447 U. S. 649 (1980).
III
The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express employees and therefore exceeded the scope of the private search, was an unlawful “search” or “seizure” within the meaning of the Fourth Amendment.
The field test at issue could disclose only one fact previously unknown to the agent—whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a “search” subject to the Fourth Amendment—did it infringe an expectation of privacy that society is prepared to consider reasonable?
The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.22 Indeed, this distinction underlies the rule that
A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative—merely disclosing that the substance is something other than cocaine—such a result reveals nothing of special interest. Congress has decided—and there is no question about its power to do so—to treat the interest in “privately” possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably “private” fact, compromises no legitimate privacy interest.23
This conclusion is dictated by United States v. Place, 462 U. S. 696 (1983), in which the Court held that subjecting luggage to a “sniff test” by a trained narcotics detection dog was not a “search” within the meaning of the Fourth Amendment:
of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U. S. 128, 143-144, n. 12 (1978). See also United States v. Knotts, 460 U. S. 276 (1983) (use of a beeper to track car‘s movements infringed no reasonable expectation of privacy); Smith v. Maryland, 442 U. S. 735 (1979) (use of a pen register to record phone numbers dialed infringed no reasonable expectation of privacy).
“A ‘canine sniff’ by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer‘s rummaging through the сontents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited.” Id., at 707.24
Here, as in Place, the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment.
We have concluded, in Part II, supra, that the initial “seizure” of the package and its contents was reasonable. Nevertheless, as Place also holds, a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the the Fourth Amendment‘s prohibition on “unreasonable seizures.”25 Here, the field test did affect respondents’ possessory interests protected by the Amendment, since by destroying a quantity of the powder it con-
Applying this test, we conclude that the destruction of the powder during the course of the field test was reasonable. The law enforcement interests justifying the procedure were substantial; the suspicious nature of the material made it virtually certain that the substance tested was in fact contraband. Conversely, because only a trace amount of material was involved, the loss of which appears to have gone unnoticed by respondents, and since the property had already been lawfully detained, the “seizure” could, at most, have only a de minimis impact on any protected property interest. Cf. Cardwell v. Lewis, 417 U. S. 583, 591-592 (1974) (plurality opinion) (examination of automobile‘s tires and taking of paint scrapings was a de minimis invasion of constitutional interests).27 Under these circumstances, the safeguards of a warrant would only minimally advance Fourth Amendment interests. This warrantless “seizure” was reasonable.28
Reversed.
JUSTICE WHITE, concurring in pаrt and concurring in the judgment.
It is relatively easy for me to concur in the judgment in this case, since in my view the case should be judged on the basis of the Magistrate‘s finding that, when the first DEA agent arrived, the “tube was in plain view in the box and the bags with the white powder were visible from the end of the tube.” App. to Pet. for Cert. 18a. Although this finding was challenged before the District Court, that court found it unnecessary to pass on the issue. Id., at 12a-13a. As I understand its opinion, however, the Court of Appeals accepted the Magistrate‘s finding: the Federal Express manager “placed the bags back in the tube, leaving them visible from the tube‘s end, and placed the tube back in the box“; he later gave the box to the DEA agent, who “removed the tube from the open box, took the bags out of the tube, and extracted a sample of the powder.” 683 F. 2d 296, 297 (CA8 1982). At the very least, the Court of Appeals assumed that
“significant Fourth Amendment interest“). Of course, where more substantial invasions of constitutionally protected interests are involved, a warrantless search or seizure is unreasonable in the absence of exigent circumstances. See, e. g., Steagald v. United States, 451 U. S. 204 (1981); Payton v. New York, 445 U. S. 573 (1980); Dunaway v. New York, 442 U. S. 200 (1979); United States v. Chadwick, 433 U. S. 1 (1977). We do not suggest, however, that any seizure of a small amount of material is necessarily reasonable. An agent‘s arbitrary decision to take the “white powder” he finds in a neighbor‘s sugar bowl, or his medicine cabinet, and subject it to a field test for cocaine, might well work an unreasonable seizure.
Particularly since respondents argue here that whether or not the contraband was in plain view when the federal agent arrived is irrelevant and that the only issue is the validity of the field test, see, e. g., Brief for Respondents 25, n. 11; Tr. of Oral Arg. 28, I would proceed on the basis that the clear plastic bags were in plain view when the agent arrived and that the agent thus properly observed the suspected contraband. On that basis, I agree with the Court‘s conclusion in Part III that the Court of Appeals erred in holding that the type of chemical test conducted here violated the Fourth Amendment.
The Court, however, would not read the Court of Appeals’ opinion as having accepted the Magistrate‘s finding. It refuses to assume that the suspected contraband was visible when the first DEA agent arrived on the scene, conducts its own examination of the record, and devotes a major portion of its opinion to a discussion that would be unnecessary if the facts were as found by the Magistrate. The Cоurt holds that even if the bags were not visible when the agent arrived, his removal of the tube from the box and the plastic bags from the tube and his subsequent visual examination of the bags’ contents “infringed no legitimate expectation of privacy and hence was not a ‘search’ within the meaning of the Fourth Amendment” because these actions “enabled the agent to learn nothing that had not previously been learned during the private search.” Ante, at 120 (footnote omitted). I disagree with the Court‘s approach for several reasons.
First, as I have already said, respondents have abandoned any attack on the Magistrate‘s findings; they assert that it is irrelevant whether the suspected contraband was in plain view when the first DEA agent arrived and argue only that the plastic bags could not be opened and their contents tested
Second, if the Court feels that the Magistrate may have erred in concluding that the white powder was in plain view when the first agent arrived and believes that respondents have not abandoned their challenge to the agent‘s duplication of the prior private search, it nevertheless errs in responding to that challenge. The task of reviewing the Magistrate‘s findings belongs to the District Court and the Court of Appeals in the first instance. We should request that they perform that function, particularly since if the Magistrate‘s finding that the contraband was in plain view when the federal agent arrived were to be sustained, there would be no need to address the difficult constitutional question decided today. The better course, therefore, would be to remand the case after rejecting the Court of Appeals’ decision invalidating the field test as an illegal expansion of the private search.
Third, if this case must be judged on the basis that the plastic bags and their contents were concealed when the first agent arrived, I disagree with the Court‘s conclusion that the agent could, without a warrant, uncover or unwrap the tube
The governing principles with respect to the constitutional protection afforded closed containers and packages may be readily discerned from our cases. The Court has consistently rejected proposed distinctions between worthy and unworthy containers and packages, United States v. Ross, 456 U.S. 798, 815, 822-823 (1982); Robbins v. California, 453 U.S. 420, 425-426 (1981) (plurality opinion), and has made clear that “the
This well-established prohibition of warrantless searches has applied notwithstanding the manner in which the police obtained probable cause. The Court now for the first time sanctions warrantless searches of closed or covered containers or packages whenever probable cause exists as a result of a prior private search. It declares, in fact, that governmental inspections following on the heels of private searches are not searches at all as long as the police do no more than the private parties have already done. In reaching this conclusion, the Court excessively expands our prior decisions rec
As the Court observes, the
The private-search doctrine thus has much in common with the plain-view doctrine, which is “grounded on the proposition that once police are lawfully in a position to observe an item firsthand, its owner‘s privacy interest in that item is lost....” Illinois v. Andreas, 463 U.S. 765, 771 (1983) (emphasis added). It also shares many of the doctrinal underpinnings of cases establishing that “the
Undoubtedly, the fact that a private party has conducted a search “that might have been impermissible for a government agent cannot render otherwise reasonable official conduct unreasonable.” Ante, at 114-115. But the fact that a repository of personal property previously was searched by a private party has never been used to legitimize governmental conduct that otherwise would be subject to challenge under
Walter v. United States, on which the majority heavily relies in opining that “[t]he additional invasions of respondents’ privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search,” ante, at 115, does not require that conclusion. JUSTICE STEVENS’ opinion in Walter does contain language suggesting that the government is free to do all of what was done earlier by the private searchers. But this language was unnecessary to the decision, as JUSTICE STEVENS himself recognized in leaving open the questiоn whether “the Government would have been required to obtain a warrant had the private party been the first to view [the films],” 447 U.S., at 657, n. 9, and in emphasizing that “[e]ven though some circumstances—for example, if the results of the private search are in plain view when materials are turned over to the Government—may justify the Government‘s reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search.” Id., at 657 (emphasis added). Nor does JUSTICE BLACKMUN‘S dissent in Walter necessarily support today‘s holding, for it emphasized that the opened con
Today‘s decision also is not supported by the majority‘s reference to cases involving the transmission of previously private information to the police by a third party who has been made privy to that information. Ante, at 117-118. The police may, to be sure, use confidences revealed to them by a third party to establish probable cause or for other purposes, and the third party may testify about those confidences at trial without violating the
That, I believe, is the effect of the Court‘s opinion. If a private party breaks into a locked suitcase, a locked car, or even a locked house, observes incriminating information, returns the object of his search to its prior locked condition, and then reports his findings to the police, the majority apparently would allow the police to duplicate the prior search on the ground that the private search vitiated the owner‘s expectation of privacy. As JUSTICE STEVENS has previously observed, this conclusion cannot rest on the proposition that the owner no longer has a subjective expectation of privacy since a person‘s expectation of privacy cannot be altered by subsequent events of which he was unaware. Walter v. United States, supra, at 659, n. 12.
The majority now ignores an individual‘s subjective expectations and suggests that “[t]he reasonableness of an official invasion of a citizen‘s privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.” Ante, at 115. On that view, however, the reasonableness of a particular individual‘s remaining expectation of privacy should turn entirely on whether the private
The majority opinion is particularly troubling when one considers its logical implications. I would be hard-pressed to distinguish this case, which involves a private search, from (1) one in which the private party‘s knowledge, later communicated to the government, that a particular container concealed contraband and nothing else arose from his presence at the time the container was sealed; (2) one in which the private party learned that a container concealed contraband and nothing else when it was previously opened in his presence; or (3) one in which the private party knew to a certainty that a container conсealed contraband and nothing else as a result of conversations with its owner. In each of these cases, the approach adopted by the Court today would seem to suggest that the owner of the container has no legitimate expectation of privacy in its contents and that government agents opening that container without a warrant on the strength of information provided by the private party would not violate the
Because I cannot accept the majority‘s novel extension of the private-search doctrine and its implications for the entire concept of legitimate expectations of privacy, I concur only in Part III of its opinion and in the judgment.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
This case presents two questions: first whether law enforcement officers may conduct a warrantless search of the
I
I agree entirely with JUSTICE WHITE that the Court has expanded the reach of the private-search doctrine far beyond its logical bounds. Ante, at 127-133 (WHITE, J., concurring in judgment). It is difficult to understand how respondents can be said to have no expectation of privacy in a closed container simply because a private party has previously opened the container and viewed its contents. I also agree with JUSTICE WHITE, however, that if the private party presents the contents of a container to a law enforcement officer in such a manner that the contents are plainly visible, the officer‘s visual inspection of the contents does not constitute a “search” within the meaning of the
II
As noted, I am not persuaded that the DEA officer actually came upon respondents’ cocaine without violating the
I agree that, under the hypothesized circumstances, the field test in this case was not a search within the meaning of the
The Court asserts that its “conclusion is dictated by United States v. Place,” ante, at 123, in which the Court stated that a “canine sniff” of a piece of luggage did not constitute a search because it “is much less intrusive than a typical search,” and because it “discloses only the presence or absence of narcotics, a contraband item.” 462 U.S. 696, 707 (1983). Presumably, the premise of Place was that an individual could not have a reasonable expectation of privacy in the presence or absence of narcotics in his luggage. The validity of the canine sniff in that case, however, was neither briefed by the parties nor addressed by the courts below. Indeed, since the Court ultimately held that the defendant‘s luggage had been impermissibly seized, its discussion of the question was wholly unnecessary to its judgment. In short, as JUSTICE BLACKMUN pointed out at the time, “[t]he Court [was] certainly in no position to consider all the ramifications of this important issue.” Id., at 723-724.
“[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here—exposure of respondent‘s luggage, which was located in a public place, to a trained canine—did not constitute a ‘search’ within the meaning of the
Fourth Amendment .” Id., at 707.
As it turns out, neither the Court‘s knowledge nor its imagination regarding criminal investigative techniques proved very sophisticated, for within one year we have learned of another investigative procedure that shares with the dog sniff the same defining characteristics that led the Court to suggest that the dog sniff was not a search.
Before continuing along the course that the Court so hastily charted in Place, it is only prudent to take this opportunity—in my view, the first real opportunity—to consider the implications of the Court‘s new
Because the requirements of the
What is most startling about the Court‘s interpretation of the term “search,” both in this case and in Place, is its exclusive focus on the nature of the information or item sought and revealed through the use of a surveillance technique, rather than on the context in which the information or item is concealed. Combining this approach with the blanket assumption, implicit in Place and explicit in this case, that individuals in our society have no reasonable expectation of privacy in the fact that they have contraband in their possession, the Court adopts a general rule that a surveillance technique does not constitute a search if it reveals only whether or not an individual possesses contraband.
It is certainly true that a surveillance technique that identifies only the presence or absence of contraband is less intrusive than a technique that reveals the precise nature of an item regardless of whether it is contraband. But by seizing upon this distinction alone to conclude that the first type of technique, as a general matter, is not a search, the Court has foreclosed any consideration of the circumstances under which the technique is used, and may very well have paved
For example, under the Court‘s analysis in these cases, law enforcement officers could release a trained cocaine-sensitive dog—to paraphrase the California Court of Appeal, a “canine cocaine connoisseur“—to roam the streets at random, alerting the officers to people carrying cocaine. Cf. People v. Evans, 65 Cal. App. 3d 924, 932, 134 Cal. Rptr. 436, 440 (1977). Or, if a device were developed that, when aimed at a person, would detect instantaneously whether the person is carrying cocaine, there would be no
Although the Court accepts, as it must, the fundamental proposition that an investigative technique is a search within the meaning of the
Similarly, in Katz v. United States, we held that electronic eavesdropping constituted a search under the
In sum, until today this Court has always looked to the manner in which an individual has attempted to preserve the private nature of a particular fact before determining whether there is a reasonable expectation of privacy upon which the government may not intrude without substantial justification. And it has always upheld the general conclusion that searches constitute at least “those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of
Nonetheless, adopting the suggestion in Place, the Court has veered away from this sound and well-settled approach and has focused instead solely on the produсt of the would-be search. In so doing, the Court has ignored the fundamental principle that “[a] search prosecuted in violation of the Constitution is not made lawful by what it brings to light.” Byars v. United States, 273 U.S. 28, 29 (1927). The unfortunate product of this departure from precedent is an undifferentiated rule allowing law enforcement officers free rein in utilizing a potentially broad range of surveillance techniques that reveal only whether or not contraband is present in a particular location. The Court‘s new rule has rendered irrelevant the circumstances surrounding the use of the technique, the accuracy of the technique, and the privacy interest upon which it intrudes. Furthermore, the Court‘s rule leaves no room to consider whether the surveillance technique is employed randomly or selectively, a consideration that surely implicates
This is not to say that the limited nature of the intrusion has no bearing on the general
B
In sum, the question whether the employment of a particular surveillance technique constitutes a search depends on
In this case, the chemical field test was used to determine whether certain white powder was cocaine. Upon visual inspection of the powder in isolation, one could not identify it as cocaine. In the abstract, therefore, it is possible that an individual could keeр the powder in such a way as to preserve a reasonable expectation of privacy in its identity. For instance, it might be kept in a transparent pharmaceutical vial and disguised as legitimate medicine. Under those circumstances, the use of a chemical field test would constitute a search. However, in this case, as hypothesized above, see supra, at 134, the context in which the powder was found could not support a reasonable expectation of privacy. In particular, the substance was found in four plastic bags, which had been inside a tube wrapped with tape and sent to respondents via Federal Express. It was essentially inconceivable that a legal substance would be packaged in this manner for transport by a common carrier. Thus, viewing the powder as they did at the offices of Federal Express, the DEA agent could identify it with “virtual certainty“; it was essentially as though the chemical identity of the powder was