- The Washington Times - Tuesday, April 18, 2000

Justices overturn conviction in narcotics-search case

Railroads cannot be sued in grade-crossing accidents if federal funds paid for the safety equipment, the Supreme Court ruled yesterday.

In another case, the court upset police groups by ruling a U.S. Border Patrol agent who squeezed luggage in a bus's overhead rack to determine if drugs might be inside violated the constitutional ban on unreasonable searches.

By a 7-2 vote in the rail-crossing case, the court threw out a $430,765 judgment for Dedra Shanklin, who sued Norfolk Southern Railway Co. under Tennessee law for the 1993 death of her husband, Eddie, in an early morning crash at the Oakwood Church Road crossing in Gibson County.

The crossing had reflectorized X-shaped signs, bought with federal highway money, and was ranked as compliant with federal standards despite the absence of such "active" measures as automatic lights or gates. The number of public grade crossings is estimated at between 170,000 and 235,000.

The jury decided Mr. Shanklin was 70 percent responsible for his death because his truck radio drowned out the train whistle.

"Once the [Federal Highway Administration] approved the project and the signs were installed using federal funds, the federal standard for adequacy displaced Tennessee statutory and common law addressing the same subject," Justice Sandra Day O'Connor wrote for the majority.

"What states cannot do once they have installed federally funded devices at a particular crossing is hold the railroad responsible for the adequacy of those devices," she said.

Supporting that view were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, David H. Souter, Clarence Thomas and Stephen G. Breyer.

"That outcome defies common sense and sound policy," Justices Ruth Bader Ginsburg and John Paul Stevens responded in a dissent that said railroads "achieved a double windfall" from yesterday's decision. Railroads get the government to pay for safety devices and that shields the railroads from lawsuits, even if the investment is the minimum envisioned by Congress.

"Where you have less than full gates and lights, it's pretty common to have a claim that the railroad didn't install adequate devices," said Daniel Saphire, an attorney for the American Association of Railroads, who predicted the decision "will hopefully once and for all eliminate those kinds of claims."

The federal government says fatalities declined in rail-crossing accidents to 399 last year from about 1,500 in 1972, the year before it began financing safety equipment.

The drug-search technique declared unconstitutional yesterday is a common one, performed thousands of times a year. The ruling overturned Steven D. Bond's conviction and 57-month prison sentence.

The National Association of Police Organizations predicted it will hinder drug-control efforts, "especially those near the U.S.-Mexico border."

NAPO Executive Director Robert T. Scully said passengers on common carrier buses, trains and planes have no reasonable expectation of privacy for soft-sided luggage in an overhead rack.

"We are disappointed by the court's decision," said Mr. Scully, whose membership includes 4,000 law enforcement agencies with 220,000 officers.

Border Patrol Agent Cesar Cantu found a brick of methamphetamine in a duffel bag during a routine border-checkpoint inspection of a Greyhound bus at Sierra Blanca, Texas.

The agent said he got Mr. Bond's permission to open the bag and found the methamphetamine brick wrapped in duct tape and rolled in a pair of pants.

In explaining the court's 7-2 judgment, Chief Justice Rehnquist said Mr. Bond had a "reasonable expectation" his bag might be seen, but not touched.

"Physically invasive inspection is simply more intrusive than purely visual inspection," the chief justice wrote.

The dissenters, Justices Breyer and Scalia, said times have changed and passengers who don't use a container with hard sides should expect their belongings will be handled, at least by bus employees and fellow passengers.

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