S.D.W.Va.: Squeezing an express mail envelope not in his possession and feeling pills was not a “search” under Bond

Officers squeezing an express mail envelope not in recipient’s possession and feeling pills was not a “search” under Bond. United States v. Taylor, 2015 U.S. Dist. LEXIS 23978 (S.D.W.Va. February 27, 2015):

The Court has been unable to find any reported cases in which Bond has been applied in the context of the squeezing of a mail package, and the Court finds Bond to be distinguishable from this case. The defendant in Bond had his luggage within his reach, where he could at all times keep an eye on it and exercise control over it. Thus, notwithstanding the fact that his bag was soft-sided, and notwithstanding the fact that he would have expected some handling of his luggage by third parties, it was reasonable for the defendant in Bond to expect that his luggage would not be felt by third parties in an exploratory manner. The expectation of privacy from exploratory surface touching is much greater in an item that is within the owner’s immediate physical control than in an item that someone entrusts to an unknown number of third parties for delivery two states away.

Defendant Carl Taylor may have had a subjective expectation of privacy in the contents of a package of which he was the intended recipient and which was sealed and opaque. Although the Express Mail envelope was soft-sided, it contained a small cardboard box, suggesting that the sender may have sought to preserve as private the tactile properties of the pills inside. However, a cardboard box is not as sturdy as a plastic box, and one traveling through the mail can be expected to develop some “give” to it, if it did not already have it at the outset. The package was not opened, perforated, or breached, but merely compressed. An expectation that the flexible outer packaging of an item handed over to postal employees will not be squeezed, even deliberately, when handled by them is simply not “one that society is prepared to recognize as reasonable.” Bond, 529 U.S. at 338. Detective Hackney’s squeezing of the box did not exceed the kind of contact that Defendant Carl Taylor could have expected.

In addition, Detective Hackney squeezed Defendant Carl Taylor’s Express Mail envelope because it matched the profile for a package that may contain illegal narcotics. Thus, “unlike the agent in Bond, the officer[] in this case had a reasonable belief that [it] could contain contraband before ever touching it.” United States v. Flowal, 234 F.3d 932, 935 (6th Cir. 2000). Cf. also United States v. Allman, 336 F.3d 555, 556-57 (7th Cir. 2003) (Posner, J.) (“When we consider that all persons, with all their belongings, who travel by air are subject to search without a warrant … we have trouble making sense of a rule that would forbid such a search if a parcel is traveling by itself, also by air, as part of a mail shipment.”).