POLICE MAY SEARCH BUS RIDERS, MINUS THE SPEECH

WASHINGTON, June 17 - The Supreme Court ruled today that in conducting
random searches for drugs or weapons on buses, the police need not advise
passengers that they are free to refuse permission to be searched.

The 6-to-3 decision reinstated the convictions of two men who allowed a
police officer to pat them down while their Greyhound bus was on a stopover
in Tallahassee, Fla. Both men had packets of cocaine taped to their thighs.

A federal appeals court held that the search was unconstitutional because
in the cramped and "coercive" atmosphere of the bus, with two officers
positioned front and back and a third looming over the seated passengers,
the men would not have felt able to withhold their consent unless
instructed that they were free to do so.

But under the "totality of the circumstances," the men were not seized and
their consent was the product of their free will, Justice Anthony M.
Kennedy wrote for the majority. While it made relatively little new law -
the court had dealt in similar fashion with a bus search 11 years ago - the
decision had the effect of validating a popular law enforcement technique
as well as demonstrating the justices' sharply differing personal responses
to the nature of this type of police-citizen encounter.

The three officers boarded the long-distance bus at Tallahassee, one taking
the driver's seat and the two others moving to the back. While one remained
at the rear, the other moved forward, talking to passengers and asking
permission to search their carry-on luggage. Two seatmates, Christopher
Drayton and Clifton Brown Jr., gave permission to search the bag they
shared, which contained no contraband.

Then the officer asked Mr. Brown, "Do you mind if I check your person?"
Receiving the answer, "Sure," the officer patted down Mr. Brown's heavy
jacket, waist area and thighs, where he detected objects similar to
packages used by drug smugglers. He handcuffed and arrested Mr. Brown and
obtained Mr. Drayton's permission for a personal search, with similar results.

In the majority's view today, there was nothing intimidating about the
scene. "There was no application of force," Justice Kennedy said, "no
intimidating movement, no overwhelming show of force, no brandishing of
weapons, no blocking of exits, no threat, no command, not even an
authoritative tone of voice." Such an encounter on the street would "beyond
question" have been constitutional, he said, and the fact that it took
place on a bus "does not on its own transform standard police questioning
of citizens into an illegal seizure."

In fact, Justice Kennedy said, the incident was reassuring, inviting
cooperation between passengers and the police. Bus passengers commonly
cooperate, he said, "not because of coercion but because the passengers
know that their participation enhances their own safety and the safety of
those around them." He added, "It reinforces the rule of law for the
citizen to advise the police of his or her wishes and for the police to act
in reliance on that understanding."

In the dissenting opinion, Justice David H. Souter objected that there was
"an air of unreality" to the majority's description of what he himself
called "an atmosphere of obligatory participation."

"When the attention of several officers is brought to bear on one civilian,
the imbalance of immediate power is unmistakable," Justice Souter said. "We
all understand this," he continued, adding, "As common as this
understanding is, however, there is little sign of it in the court's opinion."

Responding to Justice Kennedy's emphasis on the officer's quiet tone,
Justice Souter said, "A police officer who is certain to get his way has no
need to shout."

The majority opinion, United States v. Drayton, No. 01-631, was joined by
Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor,
Antonin Scalia, Clarence Thomas and Stephen G. Breyer. Justices John Paul
Stevens and Ruth Bader Ginsburg signed Justice Souter's dissenting opinion.

The Supreme Court first dealt with bus searches in a 1991 decision, Florida
v. Bostick, which held that the test for the validity of such a search was
whether, on a case-by-case basis, "a reasonable person would feel free to
decline the officers' requests or otherwise terminate the encounter." In
that case, however, the officer had advised the passenger that he could
refuse consent.

The United States Court of Appeals for the 11th Circuit, which is based in
Atlanta and includes Florida, interpreted the Bostick decision as requiring
such advice. Based on that understanding, the appeals court ordered the
evidence against Mr. Drayton and Mr. Brown suppressed, and the Justice
Department appealed to the Supreme Court.

The five decisions the court issued today left 14 cases remaining to be
decided before the term ends, presumably later this month. The court has
scheduled more decisions for Thursday.

These were among the other decisions today:

Punitive Damages

All nine justices agreed that individuals may not recover punitive damages
in suits brought under two federal laws that prohibit discrimination on the
basis of disability. The decision, Barnes v. Gorman, No. 01-682, overturned
a ruling by the United States Court of Appeals for the Eighth Circuit, in
St. Louis.

The two laws are Title II of the Americans With Disabilities Act, which
prohibits discrimination in any public program, activity or service, and
Section 504 of the Rehabilitation Act, which prohibits discrimination in
programs, including private-sector programs, that receive federal money. In
neither statute did Congress refer to the availability of punitive damages.

Rather, Congress said the laws should be interpreted by reference to
remedies available under an earlier antidiscrimination statute, Title VI of
the Civil Rights Act of 1964. That law does not permit punitive damages,
Justice Scalia wrote for a six-justice majority today. Justices Stevens,
Ginsburg and Breyer agreed with the result but not the reasoning. The
plaintiff was a paraplegic man who was injured when the police in Kansas
City, Mo., arrested him and drove him in a van that was not equipped to
carry people with disabilities.

Tax on Tips

The court ruled 6 to 3 in favor of the Internal Revenue Service in a
dispute over how to calculate the Social Security tax a restaurant owes on
the income its employees earn through tips.

There is no dispute that tips count as income or that they are often
underreported by waiters. The question today in United States v. Fior
D'Italia, No. 01-463, was what the I.R.S. can do when it suspects
underreporting by the restaurant itself, in this case an Italian restaurant
in San Francisco that was assessed an additional $23,000 for 1991 and 1992.

The I.R.S. arrives at an estimate by extrapolating from the tips on the
restaurant's credit card receipts. The United States Court of Appeals for
the Ninth Circuit, in San Francisco, found this "aggregate estimation"
method to be unauthorized, instead requiring the agency to make a
waiter-by-waiter calculation. But the agency's method was valid, Justice
Breyer wrote for the court. Justices Souter, Scalia and Thomas dissented.

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