- The Washington Times - Tuesday, June 18, 2002

A police posse seeking to search passengers and their luggage on buses or other public transportation need not warn suspects that they have a right to refuse a search and leave, the Supreme Court ruled yesterday.
Although one pro-police group voiced qualms about the 6-3 decision that nullified an appeals court's ground rules requiring police to warn suspects before searching for drugs and weapons, the Justice Department predicted that it will buttress anti-terrorism efforts.
"Police officers act in full accord with the law when they ask citizens for consent," said the decision written by Justice Anthony M. Kennedy, joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer and Sandra Day O'Connor, who did not repeat her prior warnings against extending police search powers.
"It is beyond question that had this encounter occurred on the street, it would be constitutional. The fact that an encounter takes place on a bus does not on its own transform standard police questioning of citizens into an illegal seizure," the high court said.
The majority heavily stressed the fact that the three detectives did not make a "show of force" by brandishing guns, blocking the exit or otherwise being coercive when they boarded a Greyhound bus and asked whether they could search Christopher Drayton and Clifton Brown Jr.
"It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding," the court said in ruling voluntary the search of two cocaine traffickers by three officers after a layover Feb. 4, 1999, at the bus station in Tallahassee, Fla.
Justices David H. Souter, John Paul Stevens and Ruth Bader Ginsburg issued a dissent saying volunteering for a search was not at issue because the initial seizure of the men was unconstitutional, a stance that resonated in an unusual quarter at the pro-police Criminal Justice Legal Foundation.
The CJLF often files friend-of-the court briefs in such cases and generally issues statements of support even when it is not a party, but CJLF legal director Kent Scheidegger pointedly avoided comment on the merits of yesterday's decision.
"There are some things that, even though they may be constitutional, I don't think I want to support, and I think they're pushing the limits there," said Mr. Scheidegger, who said Fourth Amendment cases often include descriptions of people consenting to things they would be wiser to avoid.
Donna Shea, legal director of the National Organization for the Reform of Marijuana Laws, said police will apply the decision to justify aggressive questioning because it "gives bus passengers a lesser expectation of privacy."
"I think that's unconstitutional," she said.
In the case, both men had packets of cocaine a total of 1.7 pounds taped to their thighs under baggy pants. Drayton was sentenced to 10 years, and Brown received seven years and four months.
"A police officer who is certain to get his way has no need to shout," said the dissenters, who scoffed at the idea that it would be reasonable to refuse a search.
"It is very hard to imagine that either Brown or Drayton would have believed that he stood to lose nothing if he refused to cooperate with the police, or that he had any free choice to ignore the police altogether," they said.
The majority responded that discussion about consenting to a police request to search has "a weight and dignity of its own [that] dispels inferences of coercion" and said precautions that have become commonplace at airports have not yet been justified for buses and trains.
"Consensual interactions between police officers and citizens on means of public transportation are an important part of the national effort to combat the flow of illegal narcotics and weapons," U.S. Solicitor General Theodore Olson said when he asked the court to reinstate the convictions.
He said a contrary decision could have undermined security across the nation's transportation system.
Yesterday's ruling reversed a July 24, 2000, decision by the 11th U.S. Circuit Court of Appeals in Atlanta, which said the absence of suspicious behavior meant no search was justified. The appeals court said the 25 to 30 passengers on the Detroit-bound bus were intimidated when the police took charge, because the suspects didn't feel free to leave or to refuse the search in such confined spaces.
That decision set out new search ground rules requiring police to inform suspects that they need not cooperate, then relied on those ground rules to overturn the men's cocaine-trafficking convictions.
Among many other actions yesterday, the justices:
Unanimously reversed an appeals court ruling that allowed a paraplegic prisoner to win $1.2 million in punitive damages from Kansas City, Mo., under the Americans With Disabilities Act. Jeffrey Gorman was injured in 1992 in a police patrol wagon unequipped to transport wheelchair patients and was awarded $1 million by the jury for actual damages plus $1.2 million more in punitive damages. Because federal money may not be used to pay punitive damages, the court said, individuals suing governments for not accommodating the disabled may not seek punitive awards.
Issued an unsigned opinion overturning an order that mass murderer George Banks be resentenced for his conviction in 13 deaths during a 1982 shooting rampage in Wilkes-Barre, Pa. The court said lower courts must reconsider whether a 1988 decision on jury instructions must be applied retroactively.
Refused to consider letting satellite companies decide which local stations to air, leaving in place a decision that all local stations be included under the same "must-carry" rules imposed on cable systems in a 5-4 decision in 1997.
Declined to hear an appeal challenging federal authority to enforce gambling laws on the Internet. Jay Cohen, former president of Antigua-based World Sports Exchange, had appealed a 21-month prison sentence for violating the U.S. Wire Wager Act.

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