i just thought you would like to know about your rights especially if
you are a raver and do E.
go to MSN Home <http://go.msn.com/AN/0/> Slate
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supreme court dispatches
Is That Evidence in Your Pants?
Do you have the right to decline a police search on a bus?
By Dahlia Lithwick
Posted Tuesday, April 16, 2002, at 3:42 PM PT
Today's case is about virtual rights. That is, it pits your theoretical,
inchoate, rooted-in-air right to be free of warrantless police searches
against the police's right to bear arms 12 inches away from your face.
It asks the questions: Do you know your Fourth Amendment rights? Are you
brave enough to assert them? And are you confident enough to assume that
if you were to assert them as you gaze down the barrel of a gun, there
would be no consequences to you?
What, specifically, am I talking about? Ladies and gentlemen, if a
police officer boards the bus/train/plane/subway car upon which you are
riding, and without having any suspicion of wrongdoing on your part asks
to search your bags or your person, you have the absolute right to tell
them no. Once more, and you should teach this to your babies (or have
your nannies do so): The Fourth Amendment protects you from causeless,
suspicionless searches by the government. You can just say no. I agree
with Justice Kennedy on this one point, which he makes four or five
times this morning: This democracy will be a much healthier one when
Americans know their rights and assert them loudly and forcefully toward
the police. I can't bring myself to agree with Kennedy's policy
prescription, however, which seems to be that we should incarcerate
anyone who doesn't know or assert their rights, until we are left with a
citizenry consisting of those 400 citizens who are well-informed. So
please cut and paste this paragraph into an e-mail and send it to 10
people, along with the threat that something terrible will happen to
them if they don't forward it to 10 more. This isn't one of those
woo-woo something-special-will-happen-to-you chain letters. ...
Something really terrible will happen to you if you don't spread the
word. Just ask Christopher Drayton and Layton Brown.
U.S. v. Drayton
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=11th&navby=case&
no=9913814MAN&exact=1> is a case about two scuzzy (but nevertheless
alleged) drug dealers busted on a Greyhound bus traveling from Fort
Lauderdale, Fla., to Indianapolis. You'll need to put aside your
hostility toward drug dealers if you want to think clearly about the
issues in this case, just as you've put aside your hostility toward the
myriad noble drug dealers who have exchanged convictions for the panoply
of Fourth Amendment rights we so cherish today. Just use this old law
student's trick and hold your nose and assume for constitutional
analysis purposes that Drayton and Brown aren't felons but are the sort
of bumbling, cuddly drug dealers (like Cheech and Chong) who somehow
deserve to be freed on what is, of course, a legal technicality.
So the Greyhound bus is stopped in Tallahassee, Tenn., and the
passengers are milling around outside for reasons that are unspecified
in the appellate court opinion but may well have to do with the
passengers' bladders. After the passengers have re-boarded the bus, the
driver gives consent to three plain-clothes policemen to board as well.
The officers show their badges (but not their guns), and two of the
three begin questioning passengers, starting from the back of the bus,
about their luggage while the third kneels on the driver's seat and
watches the proceedings fondly. When the cops get to Cheech and Chong,
Officer Lang, leaning in over their shoulders, shows his badge, explains
he's looking for drugs, and asks, "Do you have any bags on the bus?" The
gentlemen point to their bag on the overhead rack, and Lang (ever
polite) asks, "Do you mind if I check it?" Brown agrees. No drugs there.
Officer Lang is suspicious of the boys because they are being "overly
cooperative" (drug dealers take note) and are wearing heavy jackets and
baggy pants despite the warm day. So Officer Lang asks Brown if he can
pat him down, (à la Antioch College) Brown opens his jacket, and Lang
squeezes and fondles until he finds what the court of appeals' opinion
refers to, winningly, as "hard objects which were inconsistent with
human anatomy. ..." Brown is hauled off the bus in cuffs, and Officer
Lang politely turns to Drayton and asks, "Mind if I check you?" Drayton
lifts his hands 8 inches off his legs, Lang finds more hard objects, and
Drayton is hauled off the bus, too.
The dudes are busted for cocaine possession and conspiracy to
distribute, and at trial, their attorneys move to suppress the evidence.
The trial court judge lets it in, finding that Brown and Drayton's
consent was voluntary and uncoerced for Fourth Amendment purposes. The
11th Circuit Court of Appeals reversed, finding that the circumstances
surrounding the bus search were coercive. And that's the whole case:
Would a reasonable person in this situation allow the cops to search
him?
The only important precedent today is the court's holding in the 1991
case of Florida v. Bostick
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vo
l=501&page=429> , a case with remarkably similar facts in which the high
court steadfastly refused to establish any hard-and-fast rule for when
bus searches are coercive, but instead asked for a case-by-case inquiry
into "whether a reasonable person would feel free to decline the
officers' requests or otherwise terminate the encounter." Recall that
consensual encounters never trigger Fourth Amendment scrutiny after
Terry v. Ohio
<http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=392&invol
=1> . And that police may generally ask individuals questions, even when
they have no basis for suspecting him of a crime, after Florida v.
Rodriguez
<http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=469&invol
=1> ; and they can ask to examine identification, after INS v. Delgado
<http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=466&invol
=210> , and they can stop folks in airports and other public places, but
they can't lead individuals to believe that compliance is mandatory. So
then what do you believe? In a stopped bus, with a cop in the driver's
seat next to the door and another cop 12 to 18 inches from your face,
would you believe that you had to consent to a search?
Well, let's see what the various justices think about that, based on the
numerous occasions that they travel via Greyhound: Justices Ginsburg and
Souter are clearly of the opinion that this environment is coercive.
Souter is bothered, for instance, by "the fact of an officer kneeling in
the driver's seat" with the driver gone from the bus, suggesting to
Souter that "nobody is going anywhere until the officers are satisfied."
Larry Thompson, arguing for the government, takes the position that it
wasn't coercive because the cops weren't making threats or brandishing
their guns. Because that really is scary. Then Justice Scalia reminds
Thompson to tell Souter that the men were in street clothes, and it
wasn't even clear that they were police officers.
Justice Kennedy notes that even if a cop shows only a badge, "I'd know
he has a gun. He'd be fired if he didn't have a gun." But then he makes
that argument about how a stronger democracy requires that citizens know
and assert their rights (although he also observes that Miranda flips
this assumption on its head by requiring that citizens be advised of
their rights). Ginsburg is bothered because there are no precedents that
permit a body pat-down, which is pretty intrusive (and arguably not
something one would ever agree to, unless the officer in question was
exceedingly foxy). And Souter points out that having already agreed to
the baggage search, the defendants couldn't have refused a pat-down
without appearing guilty. Then Scalia reminds Thompson to tell Souter
that the only reason to decline a pat-down is because the defendants
have something to hide.
Justice Breyer wonders what would be wrong with creating a Miranda-like
rule in which cops on buses had to warn passengers that they need not
answer or agree to be searched.
Gwendolyn Spivey represents Drayton, and Breyer immediately asks her for
an example of how cops could communicate to passengers that they were
free to leave, absent an announcement to that effect. Spivey says that
if they acted more like "flight attendants," standing in the aisles and
using "voluntary language" (and maybe passing out small packets of Chex
Mix), it might be less coercive. At which point Scalia correctly points
out that most of the cops' questions looked pretty voluntary. Ginsburg
feels that Drayton's act of merely "lifting his hands" did not signal
consent. Scalia feels it does. Drayton calls it a "mere acquiescence to
a show of authority."
Kennedy (again): "An American citizen has to protect his rights once in
a while; is that a bad thing?" Spivey says that the burden should not be
on citizens. "The burden should be on the government to show that every
encounter is voluntary and uncoerced." She also nods here to the
"demographic realities" of the sorts of people who ride buses. They are
not necessarily the sorts of people who know their rights, stand up for
them, or trust the police to clap them warmly on the back and leave them
be, should the search be refused. And Kennedy retorts (with one of his
gratuitously snotty slap-downs): "You want people to ride on buses with
guns and weapons?"
Scalia points out that the defendants were wearing "heavy, baggy clothes
in warm weather in Tallahassee." (He says this to a room full of woolen
suits in 80-degree heat.) When Spivey tries to argue that people wear
heavy jackets for lots of reasons, Scalia cuts her off: "In Tallahassee?
In summer?" Spivey points out that this happened in February.
Toward the very end of the argument, Justice Stevens observes that if
the cops were required to warn passengers that they had the right to
refuse searches, no one would ever agree to be searched. And we've
already pointed out that if all Americans asserted their rights, cops
would never be able to search buses. And that is, of course, the crux of
the case. The police need to preserve the myth that such searches are
"consensual," although they never are, and citizens may never know or
trust their rights enough to assert them in the face of a blatant show
of police authority.
The very nature of what police must do to control crime flies in the
face of the assumption that we should all just stand up to them more
often. Theoretical rights, real gun. You be the justice. The court
decided today
<http://a257.g.akamaitech.net/7/257/2422/16apr20021045/www.supremecourtu
s.gov/opinions/01pdf/00-795.pdf> that virtual kiddie porn is not
harmful enough to sweep aside all the speech protections afforded by the
First Amendment. One might hope they'd also decide that your virtual
right to be subject only to voluntary police searches is similarly
worthy of concrete constitutional protection. One might hope in vain,
though. Expect a decision in Drayton by June.
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Also in today's Slate <http://slate.msn.com//> :
assessment <http://slate.msn.com/?id=2064385> : Abdullah Azzam: The
godfather of jihad.
the book club <http://slate.msn.com/?id=2064312&entry=2064382> : Michael
Frayn's Spies has too many "look-how-smart-I-am" moments.
explainer <http://slate.msn.com/?id=2064402> : What did Al Gore mean by
a "side-wind"?
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