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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.

Living Laws

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:

  • “… we conclude that the police did not seize respondents when they boarded the bus and began questioning passengers. The officers gave the passengers no reason to believe that they were required to answer the officers' questions. When Officer Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter … It is beyond question that had this encounter occurred on the street, it would be constitutional. The fact that an encounter takes place on a bus does not on its own transform standard police questioning of citizens into an illegal seizure … Indeed, because many fellow passengers are present to witness officers' conduct, a reasonable person may feel even more secure in his or her decision not to cooperate with police on a bus than in other circumstances …
  • “In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.”

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.

  • “The issue we took to review is whether the police's examination of the bus passengers, including respondents, amounted to a suspicionless seizure under the Fourth Amendment. If it did, any consent to search was plainly invalid as a product of the illegal seizure … It is very hard to imagine that either Brown or Drayton would have believed that he stood to lose nothing if he refused to cooperate with the police, or that he had any free choice to ignore the police altogether. No reasonable passenger could have believed that, only an uncomprehending one. It is neither here nor there that the interdiction was conducted by three officers, not one, as a safety precaution … The fact was that there were three, and when Brown and Drayton were called upon to respond, each one was presumably conscious of an officer in front watching, one at his side questioning him, and one behind for cover, in case he became unruly, perhaps, or 'cooperation' was not forthcoming. The situation is much like the one in the alley, with civilians in close quarters, unable to move effectively, being told their cooperation is expected. While I am not prepared to say that no bus interrogation and search can pass the Bostick test without a warning that passengers are free to say no, the facts here surely required more from the officers than a quiet tone of voice. A police officer who is certain to get his way has no need to shout.”

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.

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Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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