Supreme Court Watch
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MARGARET WARNER: Police power and the fourth amendment’s protection against unreasonable searches are at the heart of two cases argued today before the court. We get more on today’s proceedings from NewsHour regular Jan Crawford Greenburg, legal affairs correspondent for the Chicago Tribune.
MARGARET WARNER: First of all, Jan, before we get into the two cases, what do they have in common in terms of what’s at stake?
JAN CRAWFORD GREENBURG: Well, both cases really raise issues about the breadth of police power and how far we are going to let police go in conducting searches or investigating crimes. And also, they raise issues about a person’s right to be left alone, to be free of unreasonable government interference. The defendants in both of these cases say that police went too far, that they committed illegal searches and violated their Fourth Amendment rights. As you know, the Fourth Amendment prohibits unreasonable government searches. But the police say, no, they needed to be able to conduct these searches to investigate and deter crime.
MARGARET WARNER: All right. Let’s take the first case where the 15-year-old Miami boy was frisked by police after they got an anonymous call saying there were three kids at a bus stop near a pawnshop. One of them… the one in the plaid shirt had an illegally concealed weapon. The police frisked him, and the kid in the plaid shirt had an illegally concealed gun. What were the arguments like in that case today?
JAN CRAWFORD GREENBURG: Well, the government lawyers for both sides, for the state and Justice Department argued today. They said the police had every right to frisk the boy for the gun. There was a strong interest in public safety and also to protect the officer as well. But lawyers for the boy said, no, courts have never allowed these kind of frisks, pat downs based on anonymous tips. We always require something more, and there’s a very good reason for that. The lawyer for the boy said, for example, you could have disgruntled employees or people in child custody suits calling in allegedly anonymous tips so that the police would go and bother the people.
MARGARET WARNER: As you may know, today there was another shooting case at a school. Did either side bring up that kind of, you know, kids are being asked for instance now to let the teachers know if they think a friend has a gun — was that brought in, that sort of current events part of it?
JAN CRAWFORD GREENBURG: Yes. That’s one of the things that made these arguments quite remarkable today. The Justices were very concerned about societal problems and several of the Justices specifically mentioned recent episodes of mass violence. Justice Sandra Day O’Connor referred specifically to the murders at Columbine High School — suggesting that police, if they get an anonymous tip, have some obligation in and responsibility to pursue it, particularly when a school or a public building, when people there, their lives potentially could be in danger.
MARGARET WARNER: Now, did any of the… I assume some of the justices made comments on the other side.
JAN CRAWFORD GREENBURG: Right. And there was the other concern, than was the one that I had mentioned, that the boy’s lawyer had focused on. Justice Kennedy, Justice Anthony Kennedy expressed concern about the validity, the reliability of anonymous tips, saying that they could be the basis for somebody going out for revenge or a vendetta. So that concern also was quite prevalent among the Justices.
MARGARET WARNER: Now, the other case involved a bus passenger named Stephen Bond, I think.
JAN CRAWFORD GREENBURG: Right.
MARGARET WARNER: He’s on a bus. Immigration authorities… An immigration officer gets on to check for illegal aliens, but at the same time starts poking the passengers bags looking for drugs. Feels a hard object in his bag. Says, may I look at it? He is given permission to open it, and he finds a brick of what? Methamphetamine? What were the arguments like in that?
JAN CRAWFORD GREENBURG: The government lawyer argued today the officer didn’t conduct a search at all. Mr. Bond should have known that when he threw that green duffel bag in the overhead bin that passengers were going to touch it. They were going to move it around to put their bag up there. And if a passenger can touch it, then surely an officer can touch it, as well. But the lawyer for Mr. Bond said, no, no, no. That’s very different. A passenger touching a bag to move it so that he could put his wag up there than an officer coming on and squeezing it and manipulating it to try to figure out what’s inside.
MARGARET WARNER: How did the Justices react?
JAN CRAWFORD GREENBURG: Well, Justice Scalia I think had the line of the day when he said, “this all could have been avoided by hard luggage.” He suggested that he was not that sympathetic to Mr. Bond. But some of the other Justices did seem more sympathetic. Justice Souter engaged in a lengthy discourse about the difference in looking and touching and that a person may know that they’ve exposed themselves to being observed, but that they might not think that they’re going to allow someone to touch them or their belongings. Some of the other Justices focused on where this case might take us. Justice John Paul Stevens said, “what if the bag was in the lap or under the seat or in the storage bin that the bus driver uses when he puts it outside the bus?” Justice Ginsburg said, “What about coat checks? Because we give our coat to a coat check person, could the police come in and feel the coats, as well?”
MARGARET WARNER: Does all this derive from the fact that previous cases have held that it’s one thing if you have something in your house or maybe on you person, then that’s considered a search if police want to search for it – but that if you’ve somehow put it in a public place, that then the presumption is different?
JAN CRAWFORD GREENBURG: That’s what the government lawyer tried to argue today. He said that Mr. Bond knowingly exposed his bag and so therefore, because he had knowingly exposed it, police could look at it. And that reasoning has been used to allow officers to conduct aerial surveillance, for example, and to go through your garbage that you put out on the curb. They have every right to do that because you’ve put it out there.
MARGARET WARNER: Why, went we all go to the airport, we fully expect our luggage to be sniffed by dogs or scanned by x-rays, which are totally intrusive. Why is that not an illegal search?
JAN CRAWFORD GREENBURG: Some of those searches are a little different. And you can’t just willy-nilly search people at airports. But courts have interpreted those searches to basically be what they call consent searches. If you’re going to board a plane, you’ve given your consent that you’re going to walk through that metal detector.
MARGARET WARNER: But when you’re going to board a bus, you haven’t given your consent?
JAN CRAWFORD GREENBURG: And Justice Stevens today suggested that you might have lesser expectations of privacy on an airplane than on a bus for some of the reasons that you suggested.
MARGARET WARNER: Now, how do these two cases fit into other Fourth Amendment cases that this court has looked at?
JAN CRAWFORD GREENBURG: Well, over the years, the Rehnquist court, led by Chief Justice William Rehnquist has been pretty sympathetic to police powers and giving police broader powers to do their job, and it comes on the heels of an earlier ruling this term in which the court in an opinion by the Chief Justice said that officers generally could stop and pat a person down if he ran upon seeing the officers. His flight in high crime area, for example, would be enough for the officer to pursue him. So they’ve generally been pretty sympathetic. Today’s arguments weren’t that clear which way they were going, because the competing concerns on both sides were pretty obvious to the Justices.
MARGARET WARNER: But what you’re saying is, at least given that one case earlier this year, there’s been a certain willingness on the court to expand the definition of what’s reasonable on the part of… for police?
JAN CRAWFORD GREENBURG: That’s right, that’s right.
MARGARET WARNER: All right, well, Jan, thanks very much.
JAN CRAWFORD GREENBURG: Thank you.