Invoking the Terror War for Drug War Measures

The Bush Administration is attempting to repeal a ruling which maintains the right not to consent to a suspicionless drug search on public transportation. Is it anti-terrorist or unconstitutional?
At the urging of the Bush administration, the Supreme Court will review a federal appeals court ruling holding that police officers who seek to search or question passengers on public transportation, such as interstate buses and trains, must first inform citizens of their constitutional rights, particularly the right not to consent to an unwarranted search.

The case, US v. Drayton, grew out of the increasingly common drug war police practice of boarding buses and trains and attempting to intimidate passengers into waiving their right to travel free of suspicionless searches. In the present case, three Tallahassee, Florida, police officers boarded a bus bound from Ft. Lauderdale to Detroit. One officer sat in the driver's seat, kneeling and facing passengers, while the other two officers questioned passengers, saying they were looking for drugs and weapons, according to documents filed with the court. Christopher Drayton and traveling companion Clifton Brown consented to a search of their luggage. Police found no contraband in the luggage. Police then asked to pat down the two men. The two consented, and police subsequently discovered packages of cocaine beneath their clothing.

Both men were charged, convicted, and sentenced on drug charges, but appealed their convictions to the 11th US Circuit Court of Appeals. That court threw out the convictions, ruling that the cocaine should not have been admitted as evidence because police failed to inform Drayton and Brown of their rights or tell them they were not required to cooperate. The incident violated the Constitution's ban on unreasonable searches and seizures, the court held, because the men did not feel free to leave.

In asking the Supreme Court to intervene, Solicitor General Theodore Olson invoked the specter of terrorism. "Programs that rely on consensual interactions between police officers and citizens on means of public transportation are an important part of the national effort to combat the flow of illegal narcotics and weapons," he wrote. "In the current environment, they may also become an important part of preventing other forms of criminal activity that involve travel on the nation's system of public transportation."

(Olson, the attorney who led the Bush campaign team's post-election recount battle in Florida and was rewarded with the Solicitor General post, was married to conservative columnist Barbara Olson, who was killed on September 11 when the plane on which she was passenger crashed into the Pentagon.)

In his appeal to the court, Olson also wrote that the 11th Circuit's decision endangered a common law enforcement tactic. Additionally, Olson claimed that the 11th Circuit's ruling left law enforcement officers "without clear guidance on the boundaries of lawful bus, train and airplane interdiction practices."

In their brief to the court, lawyers for Drayton and Brown urged the Supreme Court to stay out of the case. The 11th Circuit's ruling, "which merely required compliance with the Constitution and precedent of this court, was a sound application of well-established law," they wrote. "Nothing in our recent national tragedies changed that."

The Supreme Court's previous rulings on the issue have been a mixed bag. In one case, the court ruled that police may not squeeze sealed luggage to search for contraband, but in another case, it ruled that police questioning aboard buses is not necessarily more coercive merely because passengers have little room to move about.

That the Supreme Court agreed to take the case is a signal that it may be inclined to reverse the 11th Circuit, said veteran criminal defense attorney Michael Cutler. "The number of cases competing to get on the court's docket is so enormous that they rarely take cases they simply mean to rubberstamp," he told DRCNet. "This court has shown some sensitivity to fundamental questions of guilt and innocence or in giving juries a chance to rule on factors that could lengthen sentences," said Cutler, a senior staff attorney with the Boston area Center for Public Representation, Inc., a nonprofit law office, "but the court is not interested in punishing police conduct if it means guilty parties go free."

The government appeal to fear of terrorism could influence the court, said Cutler. "The court went a long distance in the 1980s toward creating a drug exception to Fourth Amendment protections," he said. "It remains to be seen whether there will now be a terrorist exception to the laws that protect public privacy." An adverse ruling could be ominous, he added. "If the court says giving up these rights in as mundane a setting as ordinary intercity bus travel is constitutional, then there is no reason this terrorist exception to the Fourth Amendment could not be extended to an urban bus, a cab, or even a private car."

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