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 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, Fla., 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, 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. And that police may generally ask individuals questions, even when they have no basis for suspecting him of a crime, after Florida v. Rodriguez; and they can ask to examine identification, after INS v. Delgado, 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 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.