United States v. Jacobsen, No. 82-1167

• Court: United States Supreme Court
• Writing for the Court: STEVENS
• Citation: 104 S.Ct. 1652,80 L.Ed.2d 85,466 U.S. 109
• Parties: UNITED STATES, Petitioner v. Bradley Thomas JACOBSEN and Donna Marie Jacobsen
• Docket Number: No. 82-1167
• Decision Date: 02 April 1984

466 U.S. 109 104 S.Ct. 1652 80 L.Ed.2d 85 UNITED STATES, Petitioner

v.

Bradley Thomas JACOBSEN and Donna Marie Jacobsen.

No. 82-1167. Argued Dec. 7, 1983. Decided April 2, 1984. Syllabus

During their examination of a damaged package, consisting of a cardboard box wrapped in brown paper, the employees of a private freight carrier observed a white powdery substance in the innermost of a series of four plastic bags that had been concealed in a tube inside the package. The employees then notified the Drug Enforcement Administration (DEA), replaced the plastic bags in the tube, and put the tube back into the box. When a DEA agent arrived, he removed the tube from the box and the plastic bags from the tube, saw the white powder, opened the bags, removed a trace of the powder, subjected it to a field chemical test, and determined it was cocaine. Subsequently, a warrant was obtained to search the place to which the package was addressed, the warrant was executed, and correspondents were arrested. After respondents were indicted for 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, and they were tried and convicted. The Court of Appeals reversed, holding that the validity of the warrant depended on the validity of the warrantless test of the white powder, that the testing constituted a significant expansion of the earlier private search, and that a warrant was required.

Held: The Fourth Amendment did not require the DEA agent to obtain a warrant before testing the white powder. Pp. 113-126.

(a) The fact that employees of the private carrier independently opened the package and made an examination that might have been impermissible for a Government agent cannot render unreasonable otherwise reasonable official conduct. Whether those employees' invasions of respondents' package were accidental or deliberate or were reasonable or unreasonable, they, because of their private character, did not violate the Fourth Amendment. The additional invasions of respondents' privacy by the DEA agent must be tested by the degree to which they exceeded the scope of the private search. Pp. 113-118.

(b) The DEA agent's removal of the plastic bags from the tube and his visual inspection of their contents enabled him to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy and hence was not a "search" within the meaning of the Fourth Amendment. Although the agent's assertion of dominion and control over the package and its contents constituted a

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"seizure," the seizure was reasonable since it was apparent that the tube and plastic bags contained contraband and little else. In light of what the agent already knew about the contents of the package, it was as if the contents were in plain view. It is constitutionally reasonable for law enforcement officials to seize "effects" that cannot support a justifiable expectation of privacy without a warrant based on probable cause to believe they contain contraband. Pp. 118-122.

(c) The DEA agent's field test, although exceeding the scope of the private search, was not an unlawful "search" or "seizure" within the meaning of the Fourth Amendment. Governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest. United States v. Place, 462 U.S. ----, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The destruction of the white powder during the course of the field test was reasonable. The law enforcement interests justifying the procedure were substantial, whereas, because only a trace amount of material was involved and the property had already been lawfully detained, the warrantless "seizure" could have only a de minimis impact on any protected property interest. Under these circumstances, the safeguards of a warrant would only minimally advance Fourth Amendment interests. Pp. 122-125.

683 F.2d 296 (CA8 1982), reversed.

David A. Strauss, Washington, D.C., for petitioner.

Mark W. Peterson, Minneapolis, Minn., for respondents.

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Justice STEVENS delivered the opinion of the Court.

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; he 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

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white substance with a knife blade. A field test made on the spot identified the substance as cocaine.¹

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. 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. 683 F.2d 296 (CA8 1982).

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. ----, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982).³ For that reason, and because

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field tests play an important role in the enforcement of the narcotics laws, we granted certiorari, 460 U.S. ----, 103 S.Ct. 1271, 75 L.Ed.2d 493 (1983).

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.

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United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (1980) (BLACKMUN, J., dissenting).⁶

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 expectation 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

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cannot render otherwise reasonable official conduct unreasonable. The reasonableness of an official invasion of the citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.

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 extracting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were...