I know that most of the posters here are sophisticated and aware of this and that a large proportion aren't even U.S. folks, but am passing this along anyway from MSN.Slate.com news.
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 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.
For the rest of the article, go to http://slate.msn.com//?id=2064407
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