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Justices tackle bus-search rules

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WASHINGTON — Although the Supreme Court has decided many cases growing out of encounters between police officers and bus passengers, the constitutional ground rules for these tense interactions remain unclear.

On Friday, the justices agreed to try again to define the boundary between a search to which a bus passenger has freely consented — and that is therefore permissible despite the absence of a warrant or probable cause — and one that is inherently coercive and therefore an unconstitutional seizure.

The new case, one of eight the court accepted on Friday for argument in April, is an appeal by the federal government from a ruling by the federal appeals court in Atlanta in October 2000. That court overturned the narcotics convictions of two men, passengers on an interstate bus, who agreed to a pat-down search by police officers who boarded the bus when it stopped at a Greyhound station in Tallahassee.

Three officers boarded the bus, with two walking to the back while the third knelt in the driver's seat facing the passengers. The two officers then walked up the aisle, questioning passengers about their destinations and announcing that they were conducting "bus interdiction" in an effort to find drugs and weapons.

The two men, Christopher Drayton and Clifton Brown Jr., who were seatmates, permitted the officers to search their overhead luggage, which contained nothing illegal.

The officers, who noticed that the men were wearing heavy, baggy clothing on a hot day, then asked permission to conduct a pat-down search. They received permission and detected objects on the men's thighs that resembled packages of drugs. Both men were arrested and taken off the bus. A further search revealed packages of cocaine taped inside multiple pairs of boxer shorts.

In overturning the convictions, the 11th U.S. Circuit Court of Appeals held that despite the nominal consent, "these defendants' consent was not sufficiently free of coercion to serve as a valid basis for a search." The court said the passengers were not informed that they were free to leave and, given the presence of the third officer at the front of the bus, a "reasonable person" would not have felt free to do so.

In its appeal, United States v. Drayton, No. 01-631, the government said the decision amounted to a requirement that police officers seeking to question passengers on a bus "must give Miranda-like warning first" and "effectively converts almost all police-citizen interactions on a bus into seizures" in the absence of specific advice that passengers are free to refuse to cooperate.

The issue was important, the government said, because "interviews such as those that occurred in this case are a significant law enforcement tool to prevent crime."

In an apparent reference to the aftermath of the terrorist attacks of Sept. 11, the government's brief said that "in the current environment," interactions between the police and the traveling public "may also become an important part of preventing other forms of criminal activity."

In an effort to dissuade the court from accepting the appeal, lawyers for the two men said it was evident that there was no real consent because a pat-down in public of one's mid-section and thighs was "an indignity to which no one traveling on public transportation — who was free to do otherwise — would likely consent."

There were other significant criminal cases on the list of new appeals the justices granted on Friday on their return from a four-week year-end recess. In one case, the question was whether before pleading guilty a criminal defendant has a constitutional right to obtain any exculpatory information in the government's possession.

This case, United States v. Ruiz, No. 01-595, is an appeal by the government from a ruling by the federal appeals court in San Francisco that the disclosure of such information was essential to make sure that a plea of guilty was fully informed and voluntary.

A person who pleads guilty rather than face trial can waive many rights, such as the right to appeal, the 9th U.S. Circuit Court of Appeals said, but the right to receive the government's evidence is so important that it cannot be waived through a plea agreement.

In its Supreme Court appeal, the government is arguing that this decision will "effectuate a radical change in guilty plea practice in the federal system." Under a practice known as a "fast-track agreement," a defendant pleads guilty in return for a lower sentence than the federal sentencing guidelines would otherwise provide; the agreement specifies that the government has turned over "any information establishing the factual innocence of the defendant."

In this case, a woman who pleaded guilty to importing marijuana sought the lower sentence but refused to waive her right to receive information that would impeach the credibility of the government's witnesses. Consequently, the government did not agree to the lower sentence and the federal district court in San Diego refused to grant it. On appeal, the 9th Circuit said the defendant, Angela Ruiz, was entitled to the information and could not be required to waive her right to it.