POLICE UNDER A MICROSCOPE IN 2 SUPREME COURT CASES ON SEARCHES

WASHINGTON, Feb. 29 - Two lively Supreme Court arguments on police
practices found the government on the defensive today, as the justices
suggested that the police might have violated the Constitution by frisking
a Miami teenager on the basis of an anonymous tip that he was carrying a
gun and by squeezing a bus passenger's soft-sided luggage to see if it
contained drugs.

The court appeared surprisingly unimpressed by the government's arguments,
in one case that guns are so inherently dangerous that the police are
justified in acting on the basis of a bare-bones tip that might otherwise
be insufficient, and in the other case that passengers relinquish any
expectation of privacy in their luggage once they toss it into an overhead
bin where it can be pushed and shoved by others seeking room for their own
bags.

The two cases were unconnected except that both require the court to
interpret the Fourth Amendment's prohibition against unreasonable searches.
Despite hundreds of Fourth Amendment decisions over the years, this area of
the law continues to pose novel questions, and the justices retain a keen
interest in it. Within the last week, the Supreme Court has accepted two
additional search cases for argument next fall. The scrutiny comes during a
larger debate over police practices focused on the acquittal of four New
York City officers in the shooting of Amadou Diallo.

The luggage case today was an appeal by a man who was convicted of carrying
more than a pound of methamphetamine, which a federal agent discovered by
squeezing and manipulating luggage stowed in overhead bins on a Greyhound
bus stopped at an immigration checkpoint in Texas. Two lower federal courts
rejected the argument of the man, Steven D. Bond, that the agent's actions
amounted to an unconstitutional search.

The government is arguing in Bond v. United States, No. 98-9349, that there
was no search within the meaning of the Fourth Amendment, because Mr. Bond
had no "reasonable expectation of privacy" in luggage he had placed where
anyone could touch it. "The principle that governs this case is 'knowing
exposure,' " Jeffrey A. Lamken, an assistant solicitor general, told the
justices. He said the central question was whether "this was something any
member of the traveling public could have felt while handling, pushing,
grabbing the bag."

The justices at first appeared inclined to agree that this was the way to
view the case, but then grew more skeptical.

While Justice Stephen G. Breyer agreed that he himself often moved other
people's bags around in overhead airplane bins "to push mine in," several
of his colleagues said that there was a difference between pushing and
feeling, and that a passenger who expected a bag to be shoved aside did not
necessarily expect it to be deliberately poked and probed.

"At least in my experience, people don't take it out and feel it," Justice
Ruth Bader Ginsburg said. And Justice Anthony M. Kennedy observed: "It does
seem to me that another passenger does not have the right to start
squeezing my luggage to see what's in it."

Mr. Lamken invoked a line of Supreme Court precedents under which the
police may peer through open windows or look down from surveillance planes
at open fields. Justice David H. Souter objected. "You assume that touching
and looking, for Fourth Amendment purposes, are identical, and I don't see
that identity at all," he said, adding: "People can stare at you on the
street, but if they start patting down your pockets, you'll think a
different value is involved."

However, Justice Antonin Scalia insisted that it was unreasonable to assume
any privacy in luggage stowed in a public place. Just because it was
"nasty" and "impolite" to squeeze someone's luggage did not mean people
should assume it would not happen, he told M. Carolyn Fuentes, as assistant
federal public defender from San Antonio who was representing Mr. Bond.

Ms. Fuentes told the justices that a decision that did not treat the
agent's action as a search would "isolate an entire range of police
behavior from Fourth Amendment constraints."

The second case today, on whether an anonymous tip was sufficient to
justify the police in frisking a 15-year-old who was standing, in apparent
innocence, on a Miami streetcorner, asked the court to decide, for the
first time, whether the greater the danger suggested by an anonymous
allegation, the less objective evidence the police need before acting on it.

In this case, Florida v. J.L., No. 98-1993, the anonymous caller said that
three men were standing at a particular bus stop and that the one in the
plaid shirt was carrying a concealed gun. A police officer, arriving six
minutes later, saw the butt of a gun sticking out of the pocket of the
teenager in a plaid shirt as the officer began to frisk him. Florida law
permits carrying a concealed weapon, but only for those at least 21 years old.

The boy, identified only by his initials, was charged in juvenile court,
which suppressed the evidence on the grounds that the tip did not provide
the police officer with an adequate basis for the pat-down search. The
Florida Supreme Court agreed, ruling in 1998 that a tip of unknown
reliability that describes only innocent behavior is not sufficiently
reliable to provide the necessary reasonable suspicion. "We decline the
state's invitation to create a firearm or weapons exception to the
limitations on searches and seizures," the state court said.

Michael J. Neimand, an assistant state attorney general arguing Florida's
appeal, conceded that if the tip had reported that someone was hiding a
marijuana cigarette instead of a gun, the police could not have intervened.
But because the allegation involved a gun, he said, concerns for the
officer's safety justified the frisk.

Justice Sandra Day O'Connor objected that this argument was circular; the
officer's safety was potentially at risk only because the police responded
to the tip by going to the scene, she said.

"What's he supposed to do?" Mr. Neimand replied.

"One would have thought nothing," Justice O'Connor said, unless the court
was willing to extend precedents concerning anonymous tips.

The Clinton administration entered the case in support of Florida. Irving
L. Gornstein, an assistant solicitor general, told the justices that "a
reasonable and prudent person" would act on the basis of fewer verifiable
details when a tip suggested great public danger.

But Justice Kennedy appeared to reflect the court's reluctance to adopt a
new rule in this area when he told Mr. Gornstein: "We fear tips because of
pranks and people who have vendettas. The assumption is they're generally
unreliable."