UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-50074
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
STEVEN DEWAYNE BOND,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
February 8, 1999
Before KING, Chief Judge, DUHÉ, and DeMOSS, Circuit Judges
DUHÉ, Circuit Judge:
Drugs were found in Appellant’s luggage at a border
checkpoint. He appeals the denial of his Motion to Suppress. We
affirm.
BACKGROUND
Stephen DeWayne Bond (“Bond”) was a passenger on a Greyhound
bus that was stopped at the permanent Border Patrol checkpoint at
Sierra Blanca, Texas. Border Patrol Agent Cesar Cantu (“Agent
Cantu”) diverted the bus into the secondary checkpoint traffic lane
to conduct an immigration inspection.
Agent Cantu checked the immigration status of the passengers
as he worked his way toward the back of the bus. After he reached
the back of the bus and was satisfied that the passengers were
lawfully in the United States, Agent Cantu walked back toward the
front of the bus. As he did so, he began feeling and squeezing
passengers’ luggage in the overhead compartments.
As Agent Cantu inspected the luggage in the compartment above
Bond’s seat, he squeezed a green bag and noticed that the bag
contained a “brick-like” object. Bond admitted that the bag was
his and consented to its search. While searching the bag, Agent
Cantu discovered a “brick” of methamphetamine. After Bond was
advised of his Miranda rights, Bond admitted that he was
transporting the methamphetamine to Little Rock, Arkansas.
Bond was indicted for conspiracy to possess and possession
with intent to distribute methamphetamine. Contending that Agent
Cantu conducted an illegal search, Bond unsuccessfully moved to
suppress the methamphetamine and for reconsideration. Bond waived
a jury trial and the district court found Bond guilty on both
counts of the indictment and sentenced him to 57 months
imprisonment. Bond appeals the denial of his motion to suppress.
DISCUSSION
In reviewing a district court’s denial of a defendant’s motion
to suppress, we review factual findings for clear error and
conclusions of law de novo. See United States v. Carillo-Morales,
27 F.3d 1054, 1060-61 (5th Cir. 1994). We review the evidence in
the light most favorable to the prevailing party. United States v.
Ishmael, 48 F.3d 850, 853 (5th Cir. 1995).
Bond consented to the search of the inside of his bag,
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therefore, we consider only whether Agent Cantu violated Bond’s
Fourth Amendment rights prior to Bond’s consent to the search. For
the following reasons, we conclude that Agent Cantu did not.
I. Whether Squeezing Bond’s Luggage Constituted a Search f o r
Fourth Amendment Purposes?
“Government action amounts to a search when it infringes an
expectation of privacy that society is prepared to accept as
reasonable.” U.S. v. McDonald, 100 F.3d 1320, 1324 (7th Cir.
1996), cert. denied, 117 S.Ct. 2423 (1997) (citing United States v.
Jacobsen, 104 S.Ct. 1652, 1656 (1984). However, “[w]hat a person
knowingly exposes to the public . . . is not a subject of Fourth
Amendment protection.” Katz v. United States, 88 S.Ct. 507, 511
(1967).
Bond insists that Agent Cantu’s manipulation of his bag
constituted a search for Fourth Amendment purposes. We disagree.
Bond stored his bag in the overhead luggage bin of a Greyhound
bus.1 The bin was a common area of the bus, and it was foreseeable
that his bag would be squeezed, moved, and manipulated by others.
On common carriers, passengers often handle and manipulate other
passengers’ luggage while stowing or retrieving their own luggage.
By placing his bag in the overhead bin, Bond knowingly exposed it
to the public and, therefore, did not have a reasonable expectation
1
The record is unclear as to whether the overhead luggage bin
was of the open or closed type. Both types of bins are accessible
to the general public. Therefore, we conclude that the distinction
between open and closed luggage bins is irrelevant for Fourth
Amendment purposes.
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that his bag would not be handled or manipulated by others.2 See
McDonald, 100 F.3d at 1327 (holding that officer’s manipulation of
bags on the overhead rack of a Greyhound bus was not a search
because the defendant “did not have a legitimate expectation that
her luggage left in such a place would not be handled by others.”);
U.S. v. Guzman, 75 F.3d 1090, 1095 (6th Cir. 1996) (holding that
the defendant did not have a reasonable expectation of privacy in
the exterior of a bag that he placed on the luggage rack of a
Greyhound bus); United States v. Harvey, 961 F.2d 1361, 1364 (8th
Cir. 1992) (stating that “[p]assengers have no objective,
reasonable expectation that their baggage will never be moved once
placed in an overhead compartment.”); see also United States v.
Lovell, 849 F.2d 910, 915 (5th Cir. 1988) (holding that
manipulation of the defendant’s baggage on an airport baggage
carousel was not a search because the defendant did not have a
reasonable expectation that the baggage would not be moved or
handled); but see United States v. Nicholson, 144 F.3d 632, 639
(10th Cir. 1998) (holding that the manipulation of luggage stored
in an overhead luggage bin was a search within the meaning of the
Fourth Amendment).
Conceding that other passengers had access to his bag, Bond
contends that Agent Cantu’s actions constituted a search because
Agent Cantu manipulated his bag in a different way than other
2
We have upheld similar searches in two unpublished opinions,.
See United States v. Cook, No. 92-8508 (5th Cir. Apr. 19, 1993);
United States v. Wilson, No. 92-8312 (5th Cir. Feb. 22, 1993); see
5th Cir. R. 47.5.3.
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passengers would. See U.S. v. Nicholson, 144 F.3d 632, 639 (10th
Cir. 1998) (reasoning that manipulation of the defendant’s bag
constituted a search because detectives squeezed the bag in a way
that revealed more about the bag’s contents than manipulation by
other passengers may have). We reject this argument. The fact
that Agent Cantu’s manipulation of Bond’s bag was calculated to
detect contraband is irrelevant for Fourth Amendment purposes. In
California v. Ciraolo, 106 S.Ct. 1809, 1813-14 (1986), the Supreme
Court held that a defendant who grew marijuana plants in his
backyard knowingly exposed those plants to aerial observation. The
Court observed that the fact that “the observation from [the]
aircraft was directed at identifying the plants and the officers
were trained to recognize marijuana [was] irrelevant.” Id. at
1813. Accordingly, we hold that Agent Cantu’s manipulation of
Bond’s bag was not a search within the meaning of the Fourth
Amendment.
II. Whether the Luggage Inspection at the Checkpoint Exceeded the
Limits Imposed by United States v. Martinez-Fuerte?
Bond insists that the continued detention of the bus and its
passengers after the immigration inspection was completed exceeded
the strict limits for such inspections set forth by the Supreme
Court in United State v. Martinez-Fuerte, 96 S.Ct. 3074 (1976). He
argues that detentions may last only long enough to ask questions
and check citizenship status. See United States v. Jackson, 825
F.2d 853, 862 (5th Cir. 1987)). Noting that the Martinez-Fuerte
Court forbade further detention without consent or probable cause,
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Bond maintains that Agent Cantu’s luggage inspection occurred after
he concluded that all passengers on the bus were lawfully in the
United States and was, therefore, impermissible. See Martinez-
Fuerte, 96 S.Ct. at 3087.
We reject Bond’s reading of Martinez-Fuerte. In the case at
bar, the bus had no rear exit and Agent Cantu inspected the luggage
compartment during his return to the front of the bus. There is no
evidence that Agent Cantu’s inspection of the overhead luggage
compartment delayed the bus’ departure more than an additional one
or two minutes.3 We do not read Martinez-Fuerte to mean that once
Agent Cantu reached the back of the bus, he was required to jump
out a window or sprint back to the front of the bus and jump out
the door. Therefore, we conclude that the trivial delay caused by
Agent Cantu’s inspection did not violate the strict limits of a
border checkpoint stop. See United States v. Muniz-Melchor, 894
F.2d 1430, 1432, 1436-37 (5th Cir. 1990) (tapping on the side of a
truck’s propane tank at a checkpoint was permissible even though
the driver had already produced valid documentation).
Although Bond concedes that Martinez-Fuerte allows a visual
inspection of areas that can be seen without a search, he contends
that Agent Cantu’s inspection was impermissible because it went
beyond a visual inspection of the bus. See Martinez-Fuerte, 96
S.Ct. at 3083 (stating that, in a border checkpoint stop,
“[n]either the vehicle nor its occupants are searched, and visual
3
In fact, the entire stop lasted only between five and ten
minutes.
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inspection of the vehicle is limited to what can be seen without a
search.”). We disagree. We have repeatedly permitted checkpoint
inspections that were not visual but did not constitute searches.
See, e.g., United States v. Hernandez, 976 F.2d 929, 930 (5th Cir.
1992) (permitting dog sniff at checkpoint); Muniz-Melchor, 894 F.2d
at 1435-37 (holding that tapping on the side of a truck’s propane
tank at a checkpoint was permissible). Because Agent Cantu’s
inspection was not a search, the fact that it was tactile rather
than visual did not make it impermissible.
CONCLUSION
We affirm the denial of Bond’s motion to suppress.
AFFIRMED.
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