CAN YOU SAY NO TO POLICE?

Supreme Court Case Will Shape Procedures In Warrantless Searches

WASHINGTON -- It began as a routine drug bust outside a Florida Greyhound
station. But a case bound for the U.S. Supreme Court this week could end up
determining how far police can go, post-Sept. 11, in searching skittish
passengers aboard the nation's buses, trains and planes.

At issue in the case, which will be argued Tuesday, is how police should
approach travelers to question or search them, and whether officers are
obligated to tell people they have a constitutional right to refuse to
cooperate.

The Bush administration argues that what's at stake in the court's
decision, expected by July, is whether police will be deprived of an
essential crime-fighting tool -- consensual search -- just when they need
it most to protect public transportation from terrorist attacks.

Consensual searches, conducted without a warrant and without a specific
reason to suspect an individual, have been used for years to stem the flow
of illegal drugs and weapons in private vehicles as well as aboard public
buses and trains. But courts around the country disagree on when a search
is truly voluntary and when it is coerced, and therefore illegal.

Solicitor General Theodore Olson, whose wife, Barbara, died aboard the
hijacked American Airlines plane that terrorists crashed into the Pentagon
on Sept. 11, does not mention terrorism in his briefs to the court. But he
alludes to it, writing that "in the current environment, (consensual
searches) may also become an important part of preventing other forms of
criminal activity that involve travel on the nation's system of public
transportation."

"This is not the time to handcuff police," said Richard Samp, a lawyer with
the Washington Legal Foundation who filed a friend-of-the-court brief
supporting Olson's position. "This is a very valid, effective law
enforcement technique, to approach people, ask to search and expect that
some people who cooperate may end up incriminating themselves. It happens
all the time."

But lawyers for two bus passengers whose drug convictions were thrown out
because of a coerced search say the government is a sore loser and is
unfairly playing the terrorist card.

"The Constitution did not change on Sept. 11," they wrote in court papers.

The case began one hot afternoon in February 1999 when three police
officers boarded a Greyhound bus getting ready to pull out of a
Tallahassee, Fla., station after a brief stop. While one officer knelt in
the driver's seat, facing the passengers, the others worked their way from
the back of the bus to the front, showing people their badges and asking
permission to search their bags.

Christopher Drayton and Clifton Brown Jr., seated together near the back of
the bus, agreed to allow the officers to search a green bag in the overhead
rack. They found nothing suspicious.

But the officers deemed Drayton and Brown too cooperative, and they noticed
that both men were wearing heavy jackets and baggy pants despite the
Florida heat. The officers asked if they could do a pat-down search of
their bodies.

Drayton and Brown consented, and were busted when it was discovered they
had bags containing more than 750 grams of powdered cocaine -- about
$15,000 worth -- taped to their boxer shorts.

Drayton was convicted and sentenced to 10 years in prison for conspiring to
distribute cocaine and possessing cocaine with intent to distribute. Brown
pleaded guilty to the same charges and was sentenced to a little over seven
years.

On appeal, lawyers for the men argued that the bus search violated Fourth
Amendment protections against illegal search and seizure because passengers
were not advised of their right to refuse the search and because under the
circumstances, they would not have understood that they could refuse or
leave the bus.

The Atlanta-based U.S. 11th Circuit Court of Appeals agreed, voting
unanimously to overturn the convictions, saying the search was coerced and
the cocaine evidence was illegally obtained.

The last time the Supreme Court decided a similar bus search case was in
1991. In that case, also from Florida, the justices ruled that bus searches
are not automatically unconstitutional. But they said courts should
consider "the totality of the circumstances" to determine whether a
reasonable passenger would have felt able to exercise his constitutional
right to decline the search.

The trouble is, courts disagree on what a "reasonable person" would think
of such searches. And since Sept. 11, passengers are becoming more
accustomed to increasingly invasive searches by security personnel at
airports. The "reasonable person's" reaction to search requests by police
may be shifting rapidly, confusing people further about whether they do or
do not have a right to refuse.

Some legal scholars say police should advise people of their rights before
asking permission to search them, just as they give a Miranda warning to
suspects once they are under arrest, reminding them of their rights to
remain silent and to speak to an attorney.

"But it's a huge leap to say that a Miranda type of warning should be
required for everybody on a bus," Samp said. "If you give the warning, many
people who might otherwise incriminate themselves or provide useful
information to the police may not cooperate. You have a right not to
cooperate, but if you have nothing to hide, why not cooperate with police?"

Sandra Guerra Thompson, a professor at the University of Houston Law
Center, said it shouldn't be particularly burdensome for police officers to
remind people of their rights. She and other Fourth Amendment experts point
out that police quickly adapted to giving Miranda warnings, and even with
the warnings, criminals continue to confess.

Legally, Thompson said, people still have every right to refuse to answer a
police officer's questions or to consent to a search without a warrant. And
police are prohibited from taking a person's decision to invoke his
constitutional rights as suspect behavior warranting a forced search or arrest.

On the other hand, Thompson said, just as citizens have no patriotic or
moral duty to cooperate with warrantless police searches, they also have no
duty to invoke their constitutional rights in every situation.

"What one chooses to do as a good citizen is a different question,"
Thompson said. "People may feel, in these times, that they need to open
themselves up a bit and allow minor invasions of privacy. In times of war,
in times of terrorist threat, it may not be reasonable to expect as much
privacy."

But Neil McCabe, a professor at South Texas College of Law in Houston, said
citizens should be mindful of their rights, whether or not they decide to
exercise them. And he warned that Americans should be careful about letting
police go too far in playing the terrorism card.

"Right now, the government is trying to label anything it can terrorism,"
he said. "It's so bogus it's almost laughable, except that it is a serious
threat to individual rights.

"If you want to be helpful and you don't mind them getting into your
things, and looking at your underwear and your reading material, go for it.
Let them search," he said. "But if you do mind, you need to be a grown-up
and say, 'No.' 'Can I search your bag?' 'No.' 'Can I search your jacket ?'
'No.' Or, if you want to be more polite, 'I prefer not to be searched.' "