WASHINGTON -- Giving constitutional approval to a new police tactic in the war on drugs, the Supreme Court ruled 6-3 yesterday that officers may board buses, trains or planes at a terminal and look for drugs even if they have no reason to think that any are on board.
The decision came in a so-called "bus sweep" case, but the majority made clear that the decision would apply as well if the transport involved were a train or a commercial plane loaded with passengers and about to depart.
A routine sweep of a bus, by officers looking for drugs or other illegal items, will not violate the Constitution as long as the officers ask permission to look into passengers' bags or pockets and give the passengers some reason to believe that they can refuse to consent. The officers should not threaten anyone into cooperating, the court said.
The officers, the decision written by Justice Sandra Day O'Connor stressed, do not need to have a warrant for such a sweep, and they do not even need to have a suspicion that anyone or any bag on board is carrying drugs or other contraband.
Moreover, according to the ruling, the police do not have to tell any passenger that they are free to leave the bus, train or plane if they do not want to undergo questioning or a search.
Justice Thurgood Marshall, writing for the dissenters, said that "suspicionless, dragnet-style sweeps put passengers to the choice of cooperating or of exiting their buses and possibly being stranded in unfamiliar locations."
He added: "It is exactly because this 'choice' is no 'choice' at all that police engage this technique."
Routine sweeps of buses and trains at terminals have become a widely used investigative technique for narcotics officers, the court was told in the test case from Florida. In such a sweep, officers board the transport after passengers get on, say they are looking for drugs, ask people to show their IDs and tickets, and ask to look in their bags.
The Florida Supreme Court ruled that such a tactic was unconstitutional. Since passengers cannot leave a bus for fear that it will depart without them, they are not free to avoid the inquiring officers, and thus they have been "seized" for constitutional purposes, the state court had ruled.
The officers, it said, could approach passengers only if they have some suspicion they will find something illegal.
The Supreme Court overturned that yesterday, saying that public transport is like any other public place, and that police thus are free to enter it to seek cooperation from people they find there.
"As long as the police do not convey a message that compliance with their requests is required," the majority said, there is no violation of the Fourth Amendment ban on unreasonable police searches or seizures.
Joining with Justice O'Connor in the majority in the case of
Terrance Bostick was lying down in the rear seat of a bus three years ago in Fort Lauderdale, Fla., bound for Atlanta, when two police officers wearing raid jackets got on the bus, saw him and came back to talk.
They were Broward County sheriff's deputies, carrying out their department's "working the buses" policy -- an anti-drug tactic of making frequent "sweeps" of buses that stopped over in the county. One officer blocked the aisle while another leaned over and questioned Bostick about his identity and his destination, after telling him they were looking for drugs.
Bostick answered, and the officers then asked him if they could look into the two bags next to him. He insists that he did not consent; they say he did, and a state judge said he did. In a second bag, they found cocaine. Bostick later pleaded guilty but pursued an appeal to challenge the use of the cocaine as evidence, contending it was obtained unconstitutionally.
?3 His plea failed in the Supreme Court yesterday.