We became a new nation after Sept. 11. Legislatures and courts continue to reassess police powers and individual rights. Sometimes, the best answer to a threat to our values is to reaffirm the idea of liberty and to bolster the freedoms that define American life. Making "consent" searches fairer would be a good place to start.
On Tuesday, the Supreme Court will hear arguments in a criminal case involving drug runners, but potential terrorists will lurk in the background.
The deceptively simple issue in the case is whether police must tell citizens in confined settings such as a public bus that they have the right to refuse to consent to a search of their persons and belongings.
In United States vs. Drayton, three police officers boarded a bus at a Greyhound station in Tallahassee, Fla. One officer knelt on the empty driver's seat, looking toward the rear. The other two officers walked to the back of the bus and worked their way forward, asking passengers where they were traveling and matching travelers to luggage.
The officers identified themselves in low voices and asked two men for permission to search their one bag. The men agreed. After the officers found nothing in the bag, they asked the men if they could conduct a pat-down search. The men agreed again. The officers discovered packets of cocaine on the men's thighs.
The U.S. 11th Circuit Court of Appeals reversed the men's convictions on drug charges, finding that the passengers' consent "was not sufficiently free of coercion to serve as a valid basis for a search."
The Supreme Court does not write on a clean slate. Thirty years ago, in Schneckloth vs. Bustamonte, the high court held that the federal Constitution does not require police to inform citizens of their right to refuse to consent when a police officer asks for permission to search. Consent, the court said, can happen without knowledge of the available options.
While not a staple of popular TV dramas, consent searches dominate the real world of police work. Once a person consents to a search, all the usual 4th Amendment protections go out the window, including the requirement that police have probable cause for searches, or the lesser requirement of reasonable suspicion for short investigative stops.
Federal law recognizes that a person, in theory, could refuse to answer or walk away. But in fact most citizens do not believe they have any choice.
The officers in the Drayton case testified that in 800 searches over the previous year, only five to seven passengers declined luggage searches.
The outcome of Drayton would have been easy to predict before Sept. 11; it has become even easier now. The court is likely to reverse the 11th Circuit and reaffirm its view that the U.S. Constitution does not require that citizens know they can refuse to consent to a search.
Although this outcome is predictable, it is wrong. True consent should reflect true choice. To consent, a citizen must know she can refuse to consent.
The high court could instead give common-sense meaning to consent searches. A brief warning--one far simpler than the already simple "Miranda warnings" required before interrogations--would not interfere with police work. The court could limit the warning requirement to settings such as buses or traffic stops, where a person is least likely to believe that there is any option other than kowtowing to authority.
For many years, the FBI has required its agents to explain that a citizen may refuse to consent. So have some state courts and legislatures and local police departments, sometimes requiring consent to be in writing.
Some situations since Sept. 11 will require that police be granted new authority to search.
Some unreasonable searches before the terrorist attacks now will be deemed reasonable. But in settings like this where the law is built on a dishonest premise, the shock to the foundations of our legal systems should instead encourage greater liberty.
In Drayton, the Supreme Court has the opportunity to fix a major flaw in current 4th Amendment doctrine.
Since it is unlikely to do so, state courts, state legislatures and local police departments have the responsibility to reshape consent searches and other police-citizen interactions into a fairer framework.