The Supreme Court
Getting Searched on a Bus
Christopher Drayton and Clifton Brown were traveling on a Greyhound bus, which was stopped and boarded in Tallahassee, Florida as part of a routine drug and weapons search effort. Three officers entered the bus. One officer stationed himself at the front, another went to the back and the third questioned the passengers. Officers explained they were looking for drugs and weapons. The passengers were never informed that they had the right not to cooperate.
When the officer asked Drayton and Brown whether they were carrying drugs or weapons, they answered no. The officer asked permission to search their bags and their person. The officer testified that he was suspicious of the pair because they were wearing heavy jackets and baggy pants even though the weather was warm, which in his experience indicated possible drug traffickers because they often wore baggy clothing to conceal weapons or narcotics. During a pat-down search the officer found cocaine taped to their legs. Drayton and Brown were charged with federal drug crimes.
If you are a passenger on a bus and the bus is stopped as part of a routine check, you do have the right not to cooperate with the police if they ask to search you or your bags. You must know about that right because police are not required to tell you.
At trial, their attorneys asked that the searches be declared invalid because their consent to the search was coercive and therefore not voluntary. The district court disagreed and denied the motion. The 11th Circuit Court reversed the lower court, holding that bus passengers do not feel free to disregard officers' requests to search unless they get some indication that consent may be refused.
The U.S. government then appealed the case to the Supreme Court to get a definitive ruling on whether police conducting random searches must advise bus passengers they have the right not to cooperate. The Supreme Court ruled 6 to 3 that the Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and refuse consent to be searched.
Justice Kennedy wrote the opinion for the Court and was joined by Chief Justice Rehnquist and Justices Breyer, O'Connor, Scalia, and Thomas. Justice Souter dissented and was joined by Justices Ginsburg and Stevens. In writing the opinion for the Court, Justice Kennedy said:
In writing his dissent, Justice Souter questioned whether this was a suspicionless search and therefore protected under the Fourth Amendment:
Just the Facts
The Bostick test was established in 1991 in the landmark case Florida v. Bostick, which determined that police questioning bus passengers was not a per se seizure. The issue of seizure is to be resolved instead based on the individual circumstances. A reasonable passenger must feel “free to decline the officers' requests or otherwise terminate the encounter” to pass the Bostick test.
As you can see, searches and seizures to collect evidence must be done by carefully following rules or the evidence cannot be used at trial. It is as important for you to understand the rules as the police. You need to know when you must cooperate and when you can refuse to cooperate with police to protect your own Fourth Amendment rights. In the next section, we will look at rules regarding arrests.