Just Say No

In drug searches on the bus, is "consent" copspeak for "coercion"?

Years ago I wrote a story about a crackdown on marijuana growers in which state and federal agents knocked on the doors of people who had purchased indoor gardening equipment. Since they didn't have enough evidence for search warrants, they had to ask for permission to look around.

To my amazement, the operation resulted in hundreds of arrests for marijuana cultivation. I found it hard to understand why someone with a closet or a basement full of contraband would consent to a search when he could avoid arrest simply by saying no.

Eventually I realized that the pot growers who let the cops in must have believed they had no other choice. They probably assumed they'd already been caught and that failing to cooperate would only make matters worse.

Even people with perfectly legal horticultural hobbies worried about the consequences of resisting men with badges and guns. "I had the impression that if I made them get a warrant," an orchid grower told me, "they would tear the house apart."

If people in their own homes can be intimidated into allowing searches by displays of authority, imagine how travelers must feel when confronted by armed government agents within the close confines of a bus. That's the question posed by a case the U.S. Supreme Court recently agreed to hear.

In a random drug sweep on February 4, 1999, three police officers boarded a Greyhound bus that had stopped in Tallahassee on the way from Ft. Lauderdale to Detroit. Two officers went to the back of the bus and slowly walked forward, asking passengers about their itineraries and luggage. A third kneeled in the driver's seat, facing the passengers.

Approaching Christopher Drayton and Clifton Brown Jr., who were sitting next to each other a few rows from the rear, one officer held up his badge and quietly identified himself as an investigator with the Tallahassee Police Department. "We're conducting bus interdiction, attempting to deter drugs and illegal weapons being transported on the bus," he explained. "Do you have any bags on the bus?"

Drayton and Brown both pointed to a green bag in the luggage rack. "Do you mind if I check it?" the officer asked. "Go ahead," Brown replied.

The police found no contraband in the bag, but the officer later said he was suspicious because both men were wearing baggy pants and heavy jackets despite the warm weather. He also said they seemed "overly cooperative."

The officer asked if he could pat Brown down, and Brown agreed. Discovering "hard objects which were inconsistent with human anatomy" on Brown's thighs, the police arrested him, put him in handcuffs, and took him off the bus. Then the officer turned to Drayton and asked, "Mind if I check you?"

It's hard enough to believe that Brown knew he was perfectly free to send the police on their way but nevertheless consented to a pat-down search, despite the fact that he had 483 grams of cocaine in his underwear. It's simply inconceivable that Drayton, who was carrying 295 grams, could see his buddy hauled off in handcuffs and still make the same mistake. No one capable of dressing himself–not to mention incorporating bags of cocaine into his outfit–is that stupid. But according to the police, that's what happened.

A far more plausible explanation is that Brown and Drayton felt compelled to cooperate under the circumstances. Most people probably would, unless they were told they had a right to say no. The U.S. Court of Appeals for the 11th Circuit therefore concluded that the Tallahassee police had violated the Fourth Amendment's guarantee against "unreasonable searches and seizures."

According to the Supreme Court, the key issue in cases involving warrantless "consent" searches is "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter….'Consent' that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse."

The officer who patted down Brown and Drayton said he had searched about 800 buses in the previous year. In what must have amounted to thousands of encounters with innocent citizens, only half a dozen passengers had declined to cooperate. It seems unlikely that they were the only ones who preferred not to have police officers rummage through their bags or feel their thighs.