JUSTICES HEAR ARGUMENTS ON SEARCHES OF BUS RIDERS

WASHINGTON, April 16 -- A Supreme Court argument today considered the
constitutional dimensions of an increasingly common law enforcement
technique: police searches of long-distance bus passengers and their
luggage in an effort to find drugs and weapons.

Because such searches take place without a warrant and usually without any
reason to suspect a particular passenger of wrongdoing, the police must
obtain the passengers' consent, as they apparently did before patting down
two passengers on a bus at the Greyhound Terminal in Tallahassee, Fla., in
February 1999.

The two men, wearing heavy, baggy clothing, were found to have packages of
cocaine concealed beneath their undershorts. The question in the case is
whether their acquiescence to the search amounted to consent under
circumstances that a federal appeals court found, in overturning their
convictions, to be inherently coercive.

The United States Court of Appeals for the 11th Circuit, in Atlanta,
pointed to such factors as the presence of one of the three officers in the
bus driver's seat, where he kneeled and kept the passengers in view as two
other officers went from seat to seat requesting permission to search bags
on the overhead rack. Those two officers displayed their badges and loomed
over the seated passengers. A reasonable person would not have felt free to
refuse or to leave the bus, the appeals court said.

The federal government appealed to the Supreme Court on the ground that the
appeals court had set too high a standard for the police, in effect
requiring something close to Miranda warnings to advise passengers
explicitly that they did not have to cooperate.

Arguing for the government today, Deputy Attorney General Larry D. Thompson
said that "buses in today's environment are vulnerable" and that the police
needed flexibility to operate in "very difficult, unstructured, rapidly
evolving situations."

Mr. Thompson said the appeals court had ignored the Supreme Court's
insistence on the "totality of the circumstances" in earlier cases in which
police tactics were challenged under the Fourth Amendment's prohibition of
unreasonable search and seizure.

Making his first argument in a role usually reserved for lawyers in the
office of the solicitor general, Mr. Thompson maintained a low-key manner
but appeared to annoy several justices by holding doggedly to his position
that "there is really nothing remarkable about the facts of this case" and
that any detail of the incident that a justice mentioned was "irrelevant."

"Wouldn't you agree that it's important to reconstruct the atmosphere?"
Justice David H. Souter asked after Mr. Thompson had dismissed the
relevance of the officer's position at the front of the bus. Justice Souter
said the officer's presence in the driver's seat was "one graphic reminder"
that "this bus isn't going anywhere until the police are satisfied."

"It's a relevant fact," he added. "What it all adds up to is another matter."

Whatever skepticism the court showed toward the government's position was
more than matched by the justices' questioning of Gwendolyn Spivey, an
assistant federal public defender from Tallahassee who was representing the
two men, Christopher Drayton and Clifton Brown Jr.

"The burden is on the government in every case to prove that an encounter
is consensual," Ms. Spivey said in urging the court to affirm the appeals
court's finding of coercion. Under the court's "totality of the
circumstances" test, "any factor can tip the balance," she said.

The defense lawyer said there was "something wrong" with legal rules under
which criminal suspects in custody are advised of their legal rights, while
innocent passengers on a bus receive no such advice.

Justice Anthony M. Kennedy said that since it was clear that people in the
bus passengers' position do not have to cooperate, the underlying issue in
the case, United States v. Drayton, No. 01-631, was the obligation of
citizens to "know their rights and assert them."

While "in an ideal world, people would know civics," Ms. Spivey said, the
assumption "ignores the demographics" of bus travel.

There was a slightly antic quality to parts of the argument. Justice
Antonin Scalia announced that if he were a passenger, he would be happy to
be searched, but that in any event, the passengers' heavy, baggy clothing
gave the police probable cause to search them.

There are "innocent reasons" for wearing baggy clothes, Ms. Spivey said.

"In Tallahassee? In the summertime?" Justice Scalia demanded.

His question incorporated a factual error that gave Ms. Spivey an opening,
rare where Justice Scalia is concerned, for an effective come-back.

"It was Feb. 4, 1999," she said.