On Law

Jewish World Review June 18, 2002 / 8 Tamuz, 5762

Police given free rein on buses

By Michael Kirkland

http://www.NewsAndOpinion.com | (UPI) The Supreme Court ruled 6-3 Monday that police need not tell bus passengers of their right to refuse to cooperate or consent to a voluntary search.

The court majority rejected the argument that for most people, particularly minorities, such searches are conducted in an intimidating atmosphere.

The Fourth Amendment bans "unreasonable" searches and seizures.

However, the "Fourth Amendment permits police officers to approach bus passengers at random to ask questions and to request their consent to searches," Justice Anthony Kennedy wrote in Monday's majority opinion, "provided a reasonable person would understand that he or she is free to refuse."

The facts in the case that brought the decision are relatively simple.

Christopher Drayton and Clayton Brown were seated on a bus stopped at a Greyhound station in downtown Tallahassee, Fla., in February 1999.

Three plainclothes officers of the Tallahassee Police Department asked the bus driver for permission to board the bus, which was given.

One officer knelt in the driver's seat -- not blocking the exit door -- while two others made their way back to where Drayton and Brown were sitting. One officer showed the two black men his badge and asked if they had any luggage aboard the bus.

When they pointed to a bag in the overhead rack, the officer asked permission to search it, and the two men agreed, according to court records. However, when a search of the bag produced no contraband, the officer noticed that the two men were dressed in baggy pants and heavy coats despite the warm weather.

The officer asked Brown for permission to pat him down for weapons. Brown responded by getting up to make the search easier. The officer found hard packets underneath Brown's baggy pants in both thigh areas, and Brown was arrested and handcuffed.

The officer then asked Drayton if he minded a pat down, and Drayton responded by lifting his hands from his thighs. The officer found similar packets in Drayton's pants and he too was arrested.

The hard packets turned out to be a considerable amount of cocaine.

At trial, both men tried to suppress the drug evidence, claiming it was the product of an illegal search.

When a federal judge refused, Drayton was convicted on drug charges and sentenced to 10 years in prison. Brown entered a "conditional" guilty plea -- conditioned on the evidence not being suppressed on appeal -- and was sentenced to more than seven years in prison.

However, a federal appeals court panel reversed the judge, saying the warrantless search was not consensual because it took place in a "coercive environment."

The government then asked the Supreme Court for review. After hearing argument last April, the Supreme Court reversed the appeals court and sent the case back down for a new hearing.

Justice David Souter wrote the dissent for the minority.

"In this case ... Brown and Drayton were seemingly pinned-in by the officers and the customary course of events was stopped flat," Souter said. "The bus was going nowhere, and with one officer in the driver's seat, it was reasonable to suppose no passenger would tend to his own business until the officers were ready to let him."

Souter acknowledged that airline passengers give up considerable freedom for safety's sake, and both the air passengers and their luggage are constitutionally searched.

But that set of conditions does not extend to ground transportation, Souter said, and Kennedy's explanation that bus passengers also are gladly searched for the sake of safety had an air of "unreality."

Monday's decision sends the case back down for a new hearing and ruling based on the majority opinion.

(No. 01-631, U.S. vs. Drayton and Brown)

Michael Kirkland is UPI's Legal Affairs Correspondent. Comment by clicking here.


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