COURT RULING LIMITS BUS STATION SEARCHES

Albany -- In Overturning Drug Conviction, Appeals Panel Rules Police
Cannot Target Passengers Because Of Where Bus Originated

In a decision that will limit the way sheriff's investigators can make
drug arrests at the Albany bus terminal, New York's highest court ruled
Thursday that police cannot stop and question bus passengers simply
because they are traveling from New York City.

In overturning the indictment and drug conviction of Rawle McIntosh of
Nassau County, the Court of Appeals found that three investigators from
the Albany County Sheriff's Department lacked sufficient reason to climb
on a bus parked at the downtown Albany bus station at 3:30 a.m. on Jan.
23, 1997, and request that all 15 passengers show them their tickets and
identification.

"We have never held that a police encounter was justified by anything so
general as knowledge that an entire city is a known source of drugs,"
Judge Victoria Graffeo wrote for a unanimous Court of Appeals.

McIntosh, who was then 25, was arrested after investigators searched his
bag and jacket and found cocaine. One of the investigators later
testified that the reason for boarding the bus and addressing the
passengers was that the bus originated in New York City, a frequent
source of narcotics sold upstate.

The court found that the investigators had no proper justification, such
as a tip that drugs were being carried on that bus or an observation of
suspicious behavior, for boarding the bus.

In a concurring opinion, Court of Appeals Judge George Bundy Smith
argued that the sheriff's investigators also violated state and federal
constitutional restrictions against unreasonable search and seizure with
their action.

"Here, the sole reason for boarding the bus, confronting passengers and
conducting this random suspicionless search was that the bus was coming
from New York City, a locale where drugs exist and eight million people
live," Smith wrote.

The court ruled that the evidence against McIntosh seized on the bus
should have been suppressed before his trial. McIntosh pleaded guilty to
a drug possession charge as his trial was about to begin and was
sentenced to 8 years to life in prison as a repeat felon.

Sheriff James Campbell and the head of his Narcotics Unit downplayed the
likely impact of the court's decision Thursday, saying that most arrests
made at the bus station do result from tips and suspicious activity that
the court said can be reasonable grounds for search and questioning.

"It's not going to cramp our style too much," Campbell said. "In most
cases, there are other signals that we look for."

The Sheriff's Department logged 21 arrests at the bus station last year
and more than 30 in 1999.

But civil libertarians and Assistant Albany County Public Defender James
Long, who represented McIntosh after his arrest, said the decision sends
an important message about how law enforcement can carry out its future
activities at the bus station.

"It reminded me of what we heard happened in occupied Germany and France
during the war," Long said of the bus stop that resulted in McIntosh's
arrest. "I think the lasting effect of this decision is that if you're
poor and a minority and using public transportation, you're free from
somebody asking you to produce your papers."

"It's refreshing to see that what some people consider the 'drug war
exception' to the Bill of Rights is no longer absolute," said Louise
Roback, director of the Capital Region chapter of the New York Civil
Liberties Union.

Alice Green, executive director of the Center for Law & Justice and a
longtime critic of bus station drug enforcement, described such bus
interceptions as a covert type of racial profiling, the illegal
targeting of minorities by law enforcement.

"They (police) come armed with a particular stereotype of who comes from
New York City on buses," Green said. "It's almost a code word for blacks
or Hispanics."

District Attorney Paul Clyne disputed the contention that there was any
racial profiling at work. The fact that all riders on the bus were
questioned and asked to produce identification shows that none were
singled out based on race, he said.

"The level of intrusion was minimal, and they didn't target anyone on
the bus individually. Everyone on the bus was treated equally," said
Clyne.

Inspector John Burke, who heads narcotics enforcement for the
department, said his unit has seldom used the bus-boarding approach in
recent months because it mainly was used on the bus that McIntosh was
traveling on, which no longer makes such stop-overs in Albany.

The bus arrived in Albany around 3:30 a.m. on its way to other upstate
cities, including Syracuse and Buffalo. Burke said investigators boarded
that bus more regularly because they had little or no opportunity to
observe behavior of passengers as they got on and off.

Burke and Clyne argued that the procedure was not intrusive and was
effective in intercepting drugs and weapons on their way upstate.

"People have the right to refuse us," Burke said. "They didn't have to
answer our questions."

Frequently on such stops, passengers immediately caught the attention of
police as investigators boarded the bus by throwing drug parcels on the
floor or engaging in other suspicious behavior that sparked a legally
proper search, Burke said.

The Albany Police Department seldom makes drug arrests at the bus
station, leaving much of the enforcement effort there to Burke's unit.

"When we receive tips or other information that drugs are coming into
the city on a bus, we'll react to that information," said Detective
James Miller, a spokesman for the department. "But for the most part,
the Sheriff's Department has served as the lead agency on drug
enforcement at the bus station."

McIntosh was represented on his appeal by then-Assistant Public Defender
Shannon Geraty, now an assistant district attorney. Long was attempting
to make arrangements for his release from prison on Thursday.