A bus ride tests limits of police searches

A Greyhound bus traveling from Fort Lauderdale to Detroit makes a scheduled stop in Tallahassee, Fla. When passengers reboard, they are not alone.

Two police officers dressed in civilian clothes move through the bus, asking riders about their travel plans and luggage. They say they're looking for drugs and illegal weapons. A third officer remains at the front, watching.

Near the back of the bus, the officers encounter two men wearing heavy jackets on a warm day. The police ask for permission to search their luggage and then ask to pat them down for weapons.

One says, "Sure." The other raises his hands a few inches to facilitate a frisk. That's when the officers discover packages taped to their thighs with more than a pound and a half of cocaine.

Does this operation amount to an unreasonable search in violation of the Fourth Amendment, or is it an acceptable tactic for police in the war on drugs?

That's the question the US Supreme Court will consider this morning, when the justices take up a case exploring how far police may go in inducing bus riders to consent to searches.

The case is also important because it arises amid an expanding war on terrorism, with the nation debating how best to balance the need for security against traditional civil-liberties protections.

"The worst thing the terrorists could do to us would be that ... their actions would deprive us of our fundamental freedoms," says Jeffrey Green, a Washington, D.C., lawyer and member of the defense team representing the bus riders. "One among [those freedoms] is the right to say no to a police officer who approaches us without a warrant and without reasonable suspicion."

At the center of the case is the question of to what extent police must make it clear to a bus passenger that he has a constitutional right to refuse a police request to search his luggage or to search him.

The Fourth Amendment requires that police first obtain a warrant or have reasonable suspicion that a crime is under way before they invade a person's privacy by searching him or his luggage. But neither a warrant nor reasonable suspicion is required when a person voluntarily permits a search.

The critical question in the case of Christopher Drayton and Clifton Brown Jr., the two men found smuggling cocaine on the bus, is whether their grant of permission to police was truly voluntary – or whether they were intimidated by a show of force.

After their arrests, both men were indicted by a federal grand jury for possession with intent to distribute cocaine.

But the indictment was thrown out by a three-judge panel of the 11th US Circuit Court of Appeals in Atlanta. It ruled that the police operation failed to adequately communicate to passengers that they were free to decline any search request.

"The only issue before this court is ... whether the consent given by each defendant for the search was 'uncoerced and legally voluntary' under the Fourth Amendment," Judge Ed Carnes wrote for the appeals-court panel. "We are compelled ... to hold that these defendants' consent was not sufficiently free of coercion to serve as a basis for a search."

The US Supreme Court last addressed the police-bus-search issue in a 1991 case, Florida v. Bostick. In that case, the court ruled 6 to 3 that courts examining possible Fourth Amendment violations must take into account all the circumstances surrounding the encounters between police and individuals in making determinations about whether a reasonable passenger would feel free to refuse a police officer's request for cooperation.

Some legal analysts say the 11th Circuit's decision misapplied this "totality of the circumstances" standard by giving too much weight to a single precedent, rather than considering all facts unique to the Drayton case.

US Solicitor General Theodore Olson, in his brief to the court, says the ruling, if upheld, would require police to verbally warn passengers that they are not required to submit to a search. He says the Florida bus search was a "polite interaction" between police and bus riders, and that no warnings were necessary.

Lawyers for Mr. Drayton and Mr. Brown counter that the search was not consensual,in that their clients were intimidated into complying with the police requests. "The officers chose and exploited a coercive environment in which they knew they were most likely to get the consent they sought," write Gwendolyn Spivey and Steven Seliger in their brief to the court. "If officers truly want to conduct 'voluntary' searches, of passengers seated in the cramped confines of a bus, they should ask for volunteers. Looking at the issue in this light makes clear that no reasonable person would volunteer, or make a free choice, to have his groin area searched by a stranger, police officer or not."

A decision in the case, US v. Drayton, is expected by late June.