ON POLICE SEARCHES, COURT'S VIEW UNREAL

Let us imagine Supreme Court Justice Anthony Kennedy in a Greyhound bus.
Too much? Then how about Chief Justice William Rehnquist in a Greyhound
bus? Does the mind boggle? The mind reels.

At least a few minds were left to boggle and reel last month when the high
court handed down its 6-3 opinion in U.S. vs. Drayton. This was a Fourth
Amendment case. Kennedy's opinion added little to the case law, but it
served beautifully to illustrate the gulf that separates the marbled halls
of One First St. from the linoleum world outside.

Kennedy began by explaining that the Fourth Amendment "permits police
officers to approach bus passengers at random to ask questions and to
request their consent to searches." Then he added an afterthought"provided
a reasonable person would understand that he or she is free to refuse."

Who are these reasonable persons? Who are these brave and educated people
who understand their Fourth Amendment right to refuse? Why, sir, they are
professors of constitutional law. Or defense lawyers. No one else is likely
to refuse a request from three armed cops. These were the facts:

In February 1999, Christopher Drayton and Clifton Brown Jr. were passengers
aboard a Greyhound bus traveling from Fort Lauderdale, Fla., to Detroit.
The bus stopped in Tallahassee for cleaning and refueling. Everybody got
off. When the passengers reboarded, the driver collected their tickets and
disappeared into the terminal, whereupon Tallahassee Officers Lang, Hoover
and Blackburn came aboard.

Officer Hoover knelt on the driver's seat and faced the rear of the bus.
Officer Blackburn went to the back of the bus and stayed there. Officer
Lang began moving up the narrow aisle, questioning passengers one by one.
Drayton and Brown were now in this position: They had one cop in front of
them, one cop behind, and one cop in their face.

Lang asked if he could check their bag. Brown said, "Go ahead." The bag
contained no contraband. Then Lang noted that the suspects were wearing
bulky clothing. Would Brown consent to a search? He said, "Sure." The
officer patted him down, chest and thigh. He detected "hard objects similar
to drug packages detected on other occasions." A clue! Lang arrested and
handcuffed Brown. Then he accorded Drayton similar courtesies. The officers
confiscated 778 grams of cocaine.

Federal authorities charged the men with possession with intent to
distribute. The U.S. Court of Appeals for the 11th Circuit granted the
defendants' motion to suppress. The government appealed. The Supreme Court
reversed and sent the case back for trial.

Said Kennedy: "The officers gave the passengers no reason to believe that
they were required to answer their questions." The cops did not brandish
their weapons or make intimidating movements. Indeed, they left the aisle
free so that respondents could exit. "Nothing would suggest to a reasonable
person that he or she was barred from leaving the bus or otherwise
terminating the encounter."

Ho, ho, ho, and call the Tooth Fairy to the stand! Not one person in
100,000 is going to say "no" to three armed cops. Justice David Souter,
sensibly dissenting, said Kennedy's opinion had "an air of unreality." He
found it hard to imagine that Brown and Drayton had any free choice in the
matter. The officers had created "an atmosphere of obligatory
participation." In asking the passengers for their "cooperation," the
officers left an unmistakable inference of "cooperation or else." No
reasonable passenger would have felt free to leave especially since the bus
driver still had the tickets.

Kennedy's opinion was a bummer. A large body of case law, running from
Terry vs. Ohio in 1968 to Florida vs. Bostick in 1991, teaches that
officers may detain an individual only if they have a reasonable,
articulable suspicion that criminal activity is occurring or is about to
occur. The fact that Drayton and Brown were wearing bulky clothing in
February, even in Florida, seems to me far short of probable cause to
search an unoffending citizen. And the notion that the defendants
"voluntarily" submitted to search is a notion fashioned of peach fuzz and
horsefeathershorse something, anyhow. The evidence should have been thrown out.