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Authors ›› Stevens
The unusual action the Court takes today illustrates how far the Court may depart from its principal mission when it becomes transfixed by the specter of a drug courier escaping the punishment that is his due.
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...[I]t is well settled that 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.
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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.
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Obviously, however, a 'legitimate' expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as 'legitimate.' His presence, in the words of Jones [v. United States, 362 U.S. 257, 267 (1960)], is 'wrongful'; his expectation [of privacy] is not 'one that society is prepared to recognize as "reasonable."' Katz v. United States, 389 U.S., at 361 (Harlan, J., concurring).
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...[B]y attaching a monitoring device to respondents' property, the agents usurped a part of a citizen's property -- in this case a part of respondents' exclusionary rights in their tangible personal property. By attaching the beeper and using the container to conceal it, the Government in the most fundamental sense was asserting "dominion and control" over the property -- the power to use the property for its own purposes. And "dominion and control" is a "seizure" in the most basic sense of the term.
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