Can police manipulate the outside of soft-sided luggage in an overhead rack on a common carrier to search for drugs?

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Can police manipulate the outside of soft-sided luggage in an overhead rack on a common carrier to search for drugs?

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A. It depends on what jurisdiction you are in. In the 10th Circuit (which includes Kansas), the answer is no. In United States v. Nicholson, ___ F.3d ___ (10th Cir. No. 97-6114, filed May 5, 1998) the court held that a suspicionless police sweep of a bus in interstate travel consisting of detectives removal of luggage from overhead rack (and luggage hold) and manipulation of the bag (prior to sniffing odor of drugs) constitutes an unreasonable search and seizure. The court noted that a manipulation of the bag to circulate air in preparation for a sniff may have made the case turn out different. In the 7th Circuit, the answer is yes. There is no reasonable expectation of privacy that the exterior of luggage will not be felt, handled or otherwise manipulated when placed in an overhead rack accessible to other passengers and where others stowed their luggage. United States v. McDonald, 100 F.3d 1320 (7th Cir. 1996) cert. denied 138 L.Ed.2d 186.

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