Pubdate: Sat, 05 Jan 2002
Source: New York Times (NY)
Section: National
Copyright: 2002 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Linda Greenhouse

SUPREME COURT JUSTICES TO ADDRESS LIMITS OF BUS SEARCHES

WASHINGTON -- Although the Supreme Court has decided many cases growing out 
of encounters between police officers and bus passengers, the 
constitutional ground rules for these tense interactions remain unclear. 
Today the justices agreed to try again to define the boundary between a 
search to which a bus passenger has freely consented -- and that is 
therefore permissible despite the absence of a warrant or probable cause -- 
and one that is inherently coercive and therefore an unconstitutional seizure.

The new case, one of eight the court accepted today for argument in April, 
is an appeal by the federal government from a ruling by the federal appeals 
court in Atlanta in October 2000. That court overturned the narcotics 
convictions of two men, passengers on an interstate bus, who agreed to a 
pat-down search by police officers who boarded the bus when it stopped at a 
Greyhound station in Tallahassee, Fla.

Three officers boarded the bus, with two walking to the back while the 
third knelt in the driver's seat facing the passengers. The two officers 
then walked up the aisle, questioning passengers about their destinations 
and announcing that they were conducting "bus interdiction" in an effort to 
find drugs and weapons. The two men, Christopher Drayton and Clifton Brown 
Jr., who were seatmates, permitted the officers to search their overhead 
luggage, which contained nothing illegal.

The officers, who noticed that the men were wearing heavy, baggy clothing 
on a hot day, then asked permission to conduct a pat-down search. They 
received permission, and detected objects on the men's thighs that 
resembled packages of drugs. Both men were arrested and taken off the bus. 
A further search revealed packages of cocaine taped inside multiple pairs 
of boxer shorts.

In overturning the convictions, the United States Court of Appeals for the 
11th Circuit held that despite the nominal consent, "these defendants' 
consent was not sufficiently free of coercion to serve as a valid basis for 
a search." The court said the passengers were not informed that they were 
free to leave and, given the presence of the third officer at the front of 
the bus, a "reasonable person" would not have felt free to do so.

In its appeal, United States v. Drayton, No. 01-631, the government said 
the decision amounted to a requirement that police officers seeking to 
question passengers on a bus "must give Miranda-like warning first" and 
"effectively converts almost all police-citizen interactions on a bus into 
seizures" in the absence of specific advice that passengers are free to 
refuse to cooperate.

The issue was important, the government said, because "interviews such as 
those that occurred in this case are a significant law enforcement tool to 
prevent crime."

In an apparent reference to the aftermath of the terrorist attacks of Sept. 
11, the government's brief said that "in the current environment," 
interactions between the police and the traveling public "may also become 
an important part of preventing other forms of criminal activity."

In an effort to dissuade the court from accepting the appeal, lawyers for 
the two men said it was evident that there was no real consent because a 
pat-down in public of one's midsection and thighs was "an indignity to 
which no one traveling on public transportation -- who was free to do 
otherwise -- would likely consent."

There were other significant criminal cases on the list of new appeals the 
justices granted today on their return from a four-week recess. In one 
case, the question was whether before pleading guilty a criminal defendant 
has a constitutional right to obtain any exculpatory information in the 
government's possession.

This case, United States v. Ruiz, No. 01-595, is an appeal by the 
government from a ruling by the federal appeals court in San Francisco that 
the disclosure of such information was essential to make sure that a plea 
of guilty was fully informed and voluntary.

A person who pleads guilty rather than face trial can waive many rights, 
like the right to appeal, the United States Court of Appeals for the Ninth 
Circuit said, but the right to receive the government's evidence is so 
important that it cannot be waived through a plea agreement.

In its Supreme Court appeal, the government is arguing that this decision 
will "effectuate a radical change in guilty plea practice in the federal 
system." Under a practice known as a "fast-track agreement," a defendant 
pleads guilty in return for a lower sentence than the federal sentencing 
guidelines would otherwise provide; the agreement specifies that the 
government has turned over "any information establishing the factual 
innocence of the defendant."

In this case, a woman who pleaded guilty to importing marijuana sought the 
lower sentence but refused to waive her right to receive information that 
would impeach the credibility of the government's witnesses. Consequently, 
the government did not agree to the lower sentence and the federal district 
court in San Diego refused to grant it. On appeal, the Ninth Circuit said 
the defendant, Angela Ruiz, was entitled to the information and could not 
be required to waive her right to it.
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