WASHINGTON -- For police expecting the Supreme Court to let them expand their powers to fight drugs and street crime, yesterday was not a promising day.
Ordinarily, the conservative-dominated court is quite sympathetic to police authority and seldom acts to curb it. So, lawyers speaking for police or federal agents usually approach the court with optimism. There was less reason for that yesterday.
In back-to-back hearings, lawyers representing a federal border patrol agent and a Miami policewoman encountered skepticism -- and some ridicule -- for advocating a pair of proposals that would significantly enlarge officers' investigative authority.
The first was a suggestion that officers be allowed to go down the aisles of buses or trains and manipulate or feel the passengers' luggage in overhead racks, to see if the bags contain drugs.
The second was a proposal to allow police to frisk someone based solely on an anonymous tip that someone on the street has a gun.
As the hearing progressed in each case, the justices appeared to develop a growing uneasiness about the threats to privacy from each of those ideas.
Some of the justices voiced concern about how the courts should deal with anonymous tips suggesting that someone at a school or other public building has a gun or a bomb. Mentioning the shootings at Columbine High School in Colorado, the justices appeared to be searching for reasons to allow tips to be followed up swiftly in those situations.
Border Patrol luggage search
In the luggage dispute, Jeffrey A. Lamken, a Justice Department lawyer, suggested that because anyone who puts a bag in an overheard bin on a bus runs the risk that others will handle it, they should have no privacy claim against a police officer who checks it.
Justice Sandra Day O'Connor shot back:
"Yes, but do the other passengers squeeze and manipulate the bags in a way to disclose their contents? I don't think so."
Justice Anthony M. Kennedy suggested that fellow passengers typically move someone's luggage around only to make room for their own, and that perhaps police should not be allowed to go beyond such minimal touching.
A border patrol agent's squeezing and manipulating of a passenger's soft canvas bag in the rack of a bus stopped at a border checkpoint in Texas turned up more than a pound of methamphetamine. The passenger, Steven Dewayne Bond, was convicted of drug trafficking and sentenced to 57 months in prison.
His attorney, M. Carolyn Fuentes, argued that travelers put their belongings in luggage to protect their privacy, in the same way that they put personal items in their pockets. Police officers, Fuentes said, should not be allowed to search either, unless they have proof that something illegal will be found.
After encountering tough questioning at the outset from Justice Antonin Scalia, Fuentes appeared to gain the court's sympathy as she went along, and the justices then engaged in harder questioning of Lamken.
In the second case, Michael J. Neimand, an assistant attorney general in Florida, ran into aggressive questioning by O'Connor from the beginning.
O'Connor bluntly told Neimand that he could not win new frisking powers for police, based solely on tips about someone having a gun, "unless we somehow extend" past rulings that have limited the use of unsubstantiated tips.
Scalia warned that if police can frisk based on nothing but a tip about a gun, there would be nothing to stop them from making full-blown searches with no more than anonymous tips. Scalia ridiculed the notion.
Scalia also suggested that police might call each other with phony tips to help justify frisking someone on the street when officers had no reason to suspect that a crime was about to happen.
In the Florida case, the state supreme court barred prosecutors from using as evidence a gun that a policewoman found on a 15-year-old she had frisked on a street corner. She had approached the youth based on an anonymous tip that one of three black youths on a corner, wearing a plaid shirt, had a gun.
What about tips at schools?
A public defender for the youth, Harvey J. Sepler, had a fairly easy time before the court, but did run into some difficulty. That came when several justices began exploring how to deal with tips about guns or bombs at schools. O'Connor told Sepler that everyone has become "very nervous about danger to students."
Sepler replied that police should be allowed to follow up immediately on such tips, but only when it was clear there was "an actual or immediate threat."
Rulings on the two cases are expected by early summer.