Search warrants

In the other major criminal procedure case of the Term, United States v. Drayton (2002), the Court opened further the areas in which police could institute searches without warrants. In February 1999, a Detroit-bound Greyhound bus with about 25-30 people on board stopped for a scheduled rest and refueling in Tallahassee, Florida. Three police officers in plain clothes, but displaying their badges, entered the bus with the driver's permission. While one kept watch from the front, the other two worked their way from the back, telling passengers they were looking for drugs and weapons, and asking if they could search their luggage. When one of the officers reached the seat where Christopher Drayton and Clifton Brown, Jr., were sitting, he noticed they were wearing heavy coats and baggy pants, which the officer believed indicated they might be concealing drugs. With his face only a foot away from Brown, he asked if he could search him, and on patting him down discovered bags of cocaine strapped to his inner thighs. A search of Drayton also turned up hidden drugs. They were both arrested on federal drug-trafficking charges, and at their trial claimed that the evidence should not be allowed since it had been seized without a proper warrant. Although convicted, the Court of Appeals for the Eleventh Circuit agreed with Drayton and Brown, noting that an officer stationed at the only exit would make a reasonable person "feel less free to leave" or to refuse a search.

The Supreme Court reversed, and confirmed the conviction. The police, having been given permission to enter the bus, did not have to tell the passengers that they had the right to refuse to cooperate, nor did they violate the Fourth Amendment during a random check for drugs and weapons on a bus. According to Justice Kennedy, the officers had the right to ask to search, and so long as they did not threaten force, show weapons, or in any way intimidate the passengers, then the passengers could have refused to cooperate. "It is beyond question that had this encounter occurred on the street, it would be constitutional. The fact that an encounter takes place on a bus does not on its own transform standard police questioning of citizens into an illegal seizure."

Although the majority opinion made no reference to the events of September 11, 2001, the administration had argued that police needed broader authority in public areas and transit to ferret out potential terrorists. The dissenters agreed that while new security measures were appropriate, the majority had inappropriately equated security on ground transportation with that necessary for air travel. Justice Souter also pointed to what he termed "an air of unreality" in the majority opinion, in that it assumed that an ordinary person, with one policeman only a foot away and another blocking the only bus exit, could reasonably be expected to say no.


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