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Authors ›› Brennan
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.
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[Since the Court has made it explicit in this opinion 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.
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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 Fourth Amendment bar, under the Court's approach, to the police setting up such a device on a street corner and scanning all passersby. In fact, the Court's analysis is so unbounded that if a device were developed that could detect, from the outside of a building, the presence of cocaine inside, there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present. In short, under the interpretation of the Fourth Amendment [...] first applied in this case, these surveillance techniques would not constitute searches and therefore could be freely pursued whenever and wherever law enforcement officers desire. Hence, at some point in the future, if the Court stands by the theory it has adopted today, search warrants, probable cause, and even "reasonable suspicion" may very well become notions of the past.
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In determining whether a reasonable expectation of privacy has been violated, we have always looked to the context in which an item is concealed, not to the identity of the concealed item. Thus in cases involving searches for physical items, the Court has framed its analysis first in terms of the expectation of privacy that normally attends the location of the item and ultimately in terms of the legitimacy of that expectation. [...] 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.
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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 keep 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, 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 plainly visible. See Texas v. Brown, 460 U.S., at 751 (STEVENS, J., concurring in judgment). Under these circumstances, therefore, respondents had no reasonable expectation of privacy in the identity of the powder, and the use of the chemical field test did not constitute a "search" violative of the Fourth Amendment.
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