News
Criminal
Jun. 18, 2002
Police Needn't Inform of Right To Deny Search
WASHINGTON - Expanding law enforcement's ability to fight terrorism as well as more mundane crime, the Supreme Court on Monday ruled that police officers confronting passengers on public transportation do not have to tell them they have the right to refuse to answer questions or to consent to a search.
While the 6-3 decision involved police officers searching for drugs on a Greyhound bus, lawyers in the case agreed that it would apply equally to warrantless searches of passengers on airplanes, trains and ships and that the decision likely was influenced by the Sept. 11 terrorist attacks.
Writing for the court, Justice Anthony M. Kennedy said that the three officers who boarded the bus did not act in such an intimidating manner that passengers would have believed they had to cooperate and were not free to leave the bus. United States v. Drayton, 2002 DJDAR 6707 (U.S. June 17, 2002).
In addition, "the Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search," Kennedy said.
He indicated that, in any case, most citizens in such situations are aware of their Fourth Amendment right not to answer an officer's questions or consent to be searched.
"In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own," Kennedy said.
"[Police officers] act in full accord with the law when they ask citizens for consent, [and 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," he added. "When this exchange takes place, it dispels inferences of coercion."
Justice David H. Souter dissented, joined by Justices John Paul Stevens and Ruth Bader Ginsburg.
Souter noted, "[A]nyone who travels by air today submits to searches of the person and luggage as a condition of boarding the aircraft."
"[It is] universally accepted that such intrusions are necessary to hedge against risks that, nowadays, even small children understand," he wrote.
But such precautions have not been employed, or justified, for passengers on trains or buses, Souter added.
He mentioned "an air of unreality about the [majority's] explanation that bus passengers consent to searches of their luggage to enhance their own safety and the safety of those around them."
What's more, Souter said, the facts of this case show the two passengers searched by police "were seemingly pinned-in by the officers ... and it was reasonable to suppose no passenger would tend to his own business until the officers were ready to let him."
The case began on Feb. 4, 1999, when Christopher Drayton, 26, and Clifton Brown Jr., 29, boarded a Greyhound bus in Fort Lauderdale, Fla., for a trip to Detroit.
When the bus made a scheduled stop in Tallahassee, three plainclothes officers of the Tallahassee Police Department, all showing their badges, boarded the bus to search for illegal weapons and drugs. While one officer knelt in the driver's seat facing the back of the vehicle, the other two went to the back and began questioning passengers.
From behind, one of the officers approached Drayton and Brown, who were sitting together. He asked whether he could examine their luggage, then pat them down. They said yes. During the body search, the officer discovered that the men had taped to their thighs plastic bundles of powder cocaine that totaled nearly 800 grams.
After both men were convicted in federal court on felony drug charges, they appealed to the Atlanta-based 11th U.S. Circuit Court of Appeals. They contended that the police search and seizure violated their Fourth Amendment rights.
A circuit panel agreed, holding that the search - conducted without a warrant or individualized suspicion - was not consensual because the men were not told they could refuse to cooperate and were free to leave the bus.
The justices apparently decided to review that decision because the lower courts were split on the issue. Their decision Monday in effect overrules the San Francisco-based 9th Circuit's bus-search decision in United States v. Stephens, 206 F.3d 914 (2000), but affirms the Denver-based 10th Circuit's decision in United States v. Broomfield, 201 F.3d 1270 (2000).
The case gained added significance when briefs filed by the U.S. solicitor general's office and several groups supporting the government mentioned that the issue of searching passengers on the nation's public transportation system had become more important "in the current environment" following the Sept. 11 attacks.
During his oral argument to the court on April 16, U.S. Deputy Attorney General Larry D. Thompson twice made similar comments.
The events of Sept. 11 "clearly are in the background of this decision," said Ian Heath Gershengorn of the Washington, D.C., office of Chicago's Jenner & Block who has written about the case for the American Bar Association.
"The justices clearly won't do anything that would interfere with airline [and other transportation] safety," Gershengorn added.
"The ruling certainly is not a surprise, because the majority took [the 11th Circuit's] ruling as requiring a statement by police that you are free not to cooperate, and they are not ready to go there," Gershengorn said.
"[The majority and dissenters] were going on a very different basis on how people deal with the police," he added. "The majority felt that most people know they don't have to consent, but the dissenters believe people may not know this."
Leon Friedman of New York City, who filed an amicus brief for Drayton and Brown on behalf of the National Association of Criminal Defense Lawyers, said the decision is "very disturbing because it is another indication the Supreme Court is willing to cut back on Fourth Amendment rights."
"This is a serious erosion of privacy, especially in the face of 9/11, where there have been giant steps in cutting back our rights in the areas of wiretaps and searches," Friedman added.
"[In this case,] the dissenters hit it right on the head," Friedman said. "There is a difference between an airplane, where you have an intrusive search and then are on your own, and a narrow bus, where you can't just walk out."
"You and I may know we have the right not to cooperate, but not everyone does," he added.
But Richard A. Samp of the Washington Legal Foundation, who filed an amicus brief supporting the government, said he was very pleased with the decision.
"Voluntary questioning is a very effective police tool," Samp said.
"People blurt out things that they wouldn't say on reflection and that sometimes are incriminating, and police should be able to use such statements to fight crime," added Samp, who cited the threat of terrorism in his brief.
"Obviously, terrorists can strike anywhere," he said. "But any tool that enhances the safety of public transportation is an effective step toward preventing terrorism."
Monday's decision basically was "just one more refinement of what the court has said before," he added.
But it was important because the court "showed it is unwilling to extend the [Fifth Amendment] Miranda warning to the Fourth Amendment."
In an unrelated decision Monday, the justices, voting 5-4, ordered the 9th Circuit to reassess whether a Central California man may pursue federal habeas challenges to his murder conviction or is barred from doing so because he took too long to appeal his case in the state courts. Carey v. Saffold, 2002 DJDAR 6683 (U.S. June 17, 2002).
Writing for the majority, Justice Stephen G. Breyer said that the one-year deadline for filing a federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 is tolled until the state courts reach a final decision on an inmate's appeals, but only if the inmate meets the state's timeliness rules.
Breyer rejected the circuit's holding that inmate Tony Saffold could pursue his habeas petition even though the California Supreme Court had rejected it, citing Saffold for "a lack of diligence" in waiting 41/2 months to file his petition for review. Breyer ordered the circuit to re-evaluate whether the delay was reasonable and to look at any other factors weighing on a decision to toll the federal filing deadline.
Kennedy dissented, joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.
Kennedy said the decision "will disrupt the sound operation of the federal limitations period in at least 36 states" and will complicate "the disposition of the thousands of petitions filed each year in the federal district courts in California."
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David Pike
Daily Journal Staff Writer
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