COURT SAYS PASSENGERS MUST BE TOLD THEY CAN REFUSE SEARCH, STAY ON BUS

SAN FRANCISCO (AP) -- Police who board a bus and ask passengers if they will
consent to a drug search must make it clear that a passenger can stay on the
bus after refusing a search, a federal appeals court ruled Monday.

The 9th U.S. Circuit Court of Appeals overturned a cocaine conviction and
20-year prison sentence in a Sacramento case, saying passengers were led to
believe they could avoid a search only by leaving the bus.

The 2-1 ruling is binding on federal courts in nine Western states. It is
one of several attempts by federal judges around the country to interpret
the Supreme Court's 1991 ruling that allowed police to board buses, trains
or planes, without a warrant or evidence of a crime, and ask passengers to
consent to a search.

The high court said such searches are constitutional unless officers convey
a message that compliance is required. The appeals court said officers
crossed the line in the Sacramento case.

The defendant, Carl Eugene Stephens of Compton, was carrying a heavy and
bulging gym bag in a Greyhound station during a stopover in Sacramento on a
trip from Los Angeles to Seattle in September 1997, the court said.

Members of a police task force, which regularly inspected buses at the
station for drugs and guns, boarded Stephens' bus as it was about to leave.
An officer at the front took the bus microphone, said they were conducting a
routine inspection, and told passengers they were free to leave but the
officers would like to talk to them.

Stephens, the first passenger questioned, repeatedly denied that he had any
carry-on baggage, the court said. Police took his gym bag off the bus, got a
positive response from a drug-sniffing dog, then opened the bag and found
cocaine.

A jury convicted Stephen of possession with intent to distribute cocaine
after U.S. District Judge William Shubb upheld the search. But the appeals
court said the search was involuntary and the drugs could not be used as
evidence.

Police failed to tell passengers that "they were free to remain on the bus
and terminate the encounter by declining to answer questions," said the
opinion by Judge Harry Pregerson.

Instead, he said, they were given two choices: stay on the bus and be
searched, or get off and risk being stopped anyway for leaving under
suspicious circumstances. He noted that the Supreme Court recently allowed
police to detain someone who fled from them in a high-crime area.

The situation was made more coercive by the cramped quarters, police use of
the microphone and the presence of officers inside and outside the bus,
Pregerson said. He was joined by U.S. District Judge David Carter of Santa
Ana, temporarily assigned to the appeals court.

Dissenting Judge Joseph Sneed said the police tactics would not have been
coercive to an innocent passenger, who could have allowed or refused a
search without suffering anything more than inconvenience.

"The inconvenience of the innocent does not turn the encounter into an
unlawful seizure," Sneed said. "It was the drugs that (Stephens) undertook
to transport, not the conduct of the police, that led him to deny his
ownership of the bag."

Defense lawyer Kevin Clymo called the police operation "an imposition on the
exercise of all of our rights to freely travel."

"There were 60 people on that bus," he said. "In the face of three officers
with raid jackets on ... who is going to resist that kind of intimidation?

Assistant U.S. Attorney Samantha Spangler did not return a telephone call.

The case is U.S. vs. Stephens, 98-10374.