A zippered leather pouch is a piece of luggage but a brown paper bag is not, the U.S. Court of Appeals ruled yesterday.
And that difference, the court said means that police need a warrant to search a pouch, but need none to search a paper bag, to which it said, no "reasonable man" would entrust his "intimate personal possessions."
Paper bags are different from luggage, Judge Edward A. Tamm wrote in the 18-page opinion, involving a police search of a car of a suspected drug dealer. Bags, Tamm wrote, can fall open or break easily and provide no real protection from the curious or the dishonest.
Luggage, as a "personal sanctuary," the court said, is protected by the Constitution against a search without a warrant.
The flimsiness of a paper bag suggests that its owner does not expect its contents will be kept secret, Tamm added. And when police believe from the looks of a bag that it is not being used to store personal items, it is permissible to check out its contents without a warrant. Tamm was joined in his opinion by U.S. District Court Judge Harold H. Greene, who sat on the appeals court by special designation.
Senior Judge David L. Bazelon, in a stinging dissent that matched Tamm's in length, accused the majority of "acute ethnocentric myopia" in speculation about what people think of paper bags.
". . .Surely, the . . . warrant requirement cannot turn on whether a person carries his belongings in a frayed cloth suitcase or a new American carries his belongings in a frayed cloth suitcase or a new American Tourister," Bazelon wrote.
"The simple fact is that in some of our subcultures paper bags are often used to carry intimate personal belongings. And the sight of some of our less fortunte citizens carrying their belongings in brown paper bags is too familiar to permit such class biases to diminish the protection of privacy,' Bazelon wrote.
Bazelon said the majority had made the level of constitutional protection against warrantless searches depend on a citizen's "ability to purchase a fancy repository for his belongings."
The majority, responding to some of Bazelon's criticism in a lengthy footnote said that because a paper bag is not a piece of luggage the court was compelled to decide whether the person who held the bag in this case had expected that its contents would be private. The answer the majority said was no.
The upshot of 36-pages of discussion of bags and pouches was to reverse a 1979 drug conviction against Albert (Bandit) Ross Jr. The police when they looked into the trunk of Ross' car found the paper bag that contained 30 glassine envelopes of heroin and a zippered red leather pouch that contained $3,200.
The appeals court approved the search of the paper bag without a warrant saying that Ross had no reasonable expectation of privacy there and thus no constitutional protection. The pouch, however, is a form of luggage and a warrant was required the appeals court said.
Therefore the court ruled Ross must have a new trail and the money from the pouch cannot be admitted as evidence. The majority commented in a footnote that the government had said the money was essential to its case.
Bazelon agreed that the pouch search was unconstitutional but he said he would have held that the paper bag search was also unconstitutional.