Florida v. Bostick/Dissent Marshall

Justice MARSHALL, with whom Justice BLACKMUN and Justice STEVENS join, dissenting.

Our Nation, we are told, is engaged in a "war on drugs." No one disputes that it is the job of law-enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law-enforcement technique is not proof of its constitutionality. The general warrant, for example, was certainly an effective means of law enforcement. Yet it was one of the primary aims of the Fourth Amendment to protect citizens from the tyranny of being singled out for search and seizure without particularized suspicion notwithstanding the effectiveness of this method. See Boyd v. United States, 116 U.S. 616, 625-630, 6 S.Ct. 524, 529-532, 29 L.Ed. 746 (1886); see also Harris v. United States, 331 U.S. 145, 171, 67 S.Ct. 1098, 1111, 91 L.Ed. 1399 (1947) (Frankfurter, J., dissenting). In my view, the law-enforcement technique with which we are confronted in this case-the suspicionless police sweep of buses in intrastate or interstate travel-bears all of the indicia of coercion and unjustified intrusion associated with the general warrant. Because I believe that the bus sweep at issue in this case violates the core values of the Fourth Amendment, I dissent.

* At issue in this case is a "new and increasingly common tactic in the war on drugs": the suspicionless police sweep of buses in interstate or intrastate travel. United States v. Lewis, 287 U.S.App.D.C. 306,, 921 F.2d 1294, 1295 (1990); see United States v. Flowers, 912 F.2d 707, 710 (CA4 1990) (describing technique in Charlotte, North Carolina);  United States v. Madison, --- F.2d ,  (CA 2 1991) (describing technique in Port Authority terminal in New York City); United States v. Chandler, 744 F.Supp. 333, 335 (DC 1990) ("[I]t has become routine to subject interstate travelers to warrantless searches and intimidating interviews while sitting aboard a bus stopped for a short layover in the Capital"); 554 So.2d 1153, 1156-1157 (Fla.1989) (describing Florida police policy of " 'working the buses' ");  see also ante, at 431. Typically under this technique, a group of state or federal officers will board a bus while it is stopped at an intermediate point on its route. Often displaying badges, weapons or other indicia of authority, the officers identify themselves and announce their purpose to intercept drug traffickers. They proceed to approach individual passengers, requesting them to show identification, produce their tickets, and explain the purpose of their travels. Never do the officers advise the passengers that they are free not to speak with the officers. An "interview" of this type ordinarily culminates in a request for consent to search the passenger's luggage. See generally United States v. Lewis, supra, 287 U.S.App.D.C., at, 921 F.2d, at 1296; United States v. Flowers, supra, at 708-709;  United States v. Madison, supra, at ;  554 So.2d, at 1154.

These sweeps are conducted in "dragnet" style. The police admittedly act without an "articulable suspicion" in deciding which buses to board and which passengers to approach for interviewing. By proceeding systematically in this fashion, the police are able to engage in a tremendously high volume of searches. See, e.g., Florida v. Kerwick, 512 So.2d 347, 348-349 (Fla.App.1987) (single officer employing sweep technique able to search over 3,000 bags in nine-month period). The percentage of successful drug interdictions is low. See United States v. Flowers, supra, at 710 (sweep of 100 buses resulted in seven arrests).

To put it mildly, these sweeps "are inconvenient, intrusive, and intimidating." United States v. Chandler, 744 F.Supp., at 335. They occur within cramped confines, with officers typically placing themselves in between the passenger selected for an interview and the exit of the bus. See, e.g., id., at 336. Because the bus is only temporarily stationed at a point short of its destination, the passengers are in no position to leave as a means of evading the officers' questioning. Undoubtedly, such a sweep holds up the progress of the bus. See United States v. Fields, 909 F.2d 470, 474 n. 2 (CA11 1990); cf. United States v. Rembert, 694 F.Supp. 163, 175 (WDNC 1988) (reporting testimony of officer that he makes " 'every effort in the world not to delay the bus' " but that the driver does not leave terminal until sweep is complete). Thus, this "new and increasingly common tactic," United States v. Lewis, supra, 287 U.S.App.D.C., at, 921 F.2d, at 1295, burdens the experience of traveling by bus with a degree of governmental interference to which, until now, our society has been proudly unaccustomed. See, ''e.g., State ex rel. Ekstrom v. Justice Court,'' 136 Ariz. 1, 6, 663 P.2d 992, 997 (1983) (Feldman, J., concurring) ("The thought that an American can be compelled to 'show his papers' before exercising his right to walk the streets, drive the highways or board the trains is repugnant to American institutions and ideals").

This aspect of the suspicionless sweep has not been lost on many of the lower courts called upon to review the constitutionality of this practice. Remarkably, the courts located at the heart of the "drug war" have been the most adamant in condemning this technique. As one Florida court put it:

" '[T]he evidence in this cause has evoked images of other     days, under other flags, when no man traveled his nation's      roads or railways without fear of unwarranted interruption,      by individuals who held temporary power in the Government.      The spectre of American citizens being asked, by      badge-wielding police, for identification, travel papers-in      short a raison d'etre-is foreign to any fair reading of the      Constitution, and its guarantee of human liberties.  This is      not Hitler's Berlin, nor Stalin's Moscow, nor is it white      supremacist South Africa.  Yet in Broward County, Florida,      these police officers approach every person on board buses      and trains ("that time permits") and check identification      [and] tickets, [and] ask to search luggage-all in the name of      "voluntary cooperation" with law enforcement. . . .' "  554      So.2d, at 1158, quoting State v. Kerwick, supra, at 348-349      (quoting trial court order).

The District Court for the District of Columbia spoke in equally pointed words:

"It seems rather incongruous at this point in the world's     history that we find totalitarian states becoming more like      our free society while we in this nation are taking on their      former trappings of suppressed liberties and freedoms."

.   .    .    ..

"The random indiscriminate stopping and questioning of     individuals on interstate busses seems to have gone too far.      If this Court approves such 'bus stops' and allows      prosecutions to be based on evidence seized as a result of      such 'stops,' then we will have stripped our citizens of basic Constitutional protections.  Such action      would be inconsistent with what this nation has stood for      during its 200 years of existence.  If passengers on a bus      passing through the Capital of this great nation cannot be      free from police interference where there is absolutely no      basis for the police officers to stop and question them, then      the police will be free to accost people on our streets      without any reason or cause.  In this 'anything goes' war on      drugs, random knocks on the doors of our citizens' homes      seeking 'consent' to search for drugs cannot be far away. This is not America." United States v. Lewis, 728 F.Supp.      784, 788-789, rev'd, 287 U.S.App.D.C. 306, 921 F.2d 1294      (1990).

See also United States v. Alexander, 755 F.Supp. 448, 453 (DC 1991); United States v. Madison, 744 F.Supp. 490, 495-497 (SDNY 1990), rev'd, --- F.2d (CA2 1991);  United States v. Chandler, supra, at 335-336;  United States v. Mark, 742 F.Supp. 17, 18-19 (DC 1990); United States v. Alston, 742 F.Supp. 13, 15 (DC 1990); United States v. Cothran, 729 F.Supp. 153, 156-158 (DC 1990), rev'd, 287 U.S.App.D.C. 306, 921 F.2d 1294 (1990); United States v. Felder, 732 F.Supp. 204, 209 (DC 1990).

The question for this Court, then, is whether the suspicionless, dragnet-style sweep of buses in intrastate and interstate travel is consistent with the Fourth Amendment. The majority suggests that this latest tactic in the drug war is perfectly compatible with the Constitution. I disagree.

I have no objection to the manner in which the majority frames the test for determining whether a suspicionless bus sweep amounts to a Fourth Amendment "seizure." I agree that the appropriate question is whether a passenger who is approached during such a sweep "would feel free to decline the officers' requests or otherwise terminate the encounter." Ante, possibly suggest an affirmative answer to this question.

The majority reverses what it characterizes as the Florida Supreme Court's "per se rule" against suspicionless encounters between the police and bus passengers, see ante, at 433, 435-440, suggesting only in dictum its "doubt" that a seizure occurred on the facts of this case, see ante, at 2388. However, the notion that the Florida Supreme Court decided this case on the basis of any "per se rule" independent of the facts of this case is wholly a product of the majority's imagination. As the majority acknowledges, the Florida Supreme Court "stated explicitly the factual premise for its decision." Ante, at 431. This factual premise contained all of the details of the encounter between respondent and the police. See 554 So.2d, at 1154; ante, at 431-432. The lower court's analysis of whether respondent was seized drew heavily on these facts, and the court repeatedly emphasized that its conclusion was based on "all the circumstances" of this case. 554 So.2d, at 1157 (emphasis added); see ibid. ("Here, the circumstances indicate that the officers effectively 'seized' [respondent]" (emphasis added)).

The majority's conclusion that the Florida Supreme Court, contrary to all appearances, ignored these facts is based solely on the failure of the lower court to expressly incorporate all of the facts into its reformulation of the certified question on which respondent took his appeal. See ante, at 433. The majority never explains the basis of its implausible assumption that the Florida Supreme Court intended its phrasing of the certified question to trump its opinion's careful treatment of the facts in this case. Certainly, when this Court issues an opinion, it does not intend lower courts and parties to treat as irrelevant the analysis of facts that the parties neglected to cram into the question presented in the petition for certiorari. But in any case, because the issue whether a seizure has occurred in any given factual setting is a question of law, see United States v. Mendenhall, 446 U.S. 544, 554-555, 100 S.Ct. 1870, 1877-1878, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); United States v. Maragh, 282 U.S.App.D.C. 256, 258-259, 894 F.2d 415, 417-418 (CADC), cert. denied, --- U.S., 111 S.Ct. 214, 112 L.Ed.2d 174 (1990), nothing prevents this Court from deciding on its own whether a seizure occurred based on all of the facts of this case as they appear in the opinion of the Florida Supreme Court.

These facts exhibit all of the elements of coercion associated with a typical bus sweep. Two officers boarded the Greyhound bus on which respondent was a passenger while the bus, en route from Miami to Atlanta, was on a brief stop to pick up passengers in Fort Lauderdale. The officers made a visible display of their badges and wore bright green "raid" jackets bearing the insignia of the Broward County Sheriff's Department; one held a gun in a recognizable weapons pouch. See 554 So.2d, at 1154, 1157. These facts alone constitute an intimidating "show of authority." See Michigan v. Chesternut, 486 U.S. 567, 575, 108 S.Ct. 1975, 1980, 100 L.Ed.2d 565 (1988) (display of weapon contributes to coercive environment); United States v. Mendenhall, supra, 446 U.S., at 554, 100 S.Ct., at 1877 (opinion of Stewart, J.) ("threatening presence of several officers" and "display of a weapon");  id., at 555, 100 S.Ct., at 1877 (uniformed attire). Once on board, the officers approached respondent, who was sitting in the back of the bus, identified themselves as narcotics officers and began to question him. See 554 So.2d, at 1154. One officer stood in front of respondent's seat, partially blocking the narrow aisle through which respondent would have been required to pass to reach the exit of the bus. See id., at 1157.

As far as is revealed by facts on which the Florida Supreme Court premised its decision, the officers did not advise respondent that he was free to break off this "interview." Inexplicably, the majority repeatedly stresses the trial court's implicit finding that the police officers advised respondent that he was free to refuse permission to search his travel bag. See ante, at 432, 437-438. This aspect of the exchange between respondent and the police is completely irrelevant to the issue before us. For as the State concedes, and as the majority purports to "accept," id., at 433-434, if respondent was unlawfully seized when the officers approached him and initiated questioning, the resulting search was likewise unlawful no matter how well advised respondent was of his right to refuse it. See Florida v. Royer, 460 U.S. 491, 501, 507-508, 103 S.Ct. 1319, 1326, 1329-1330, 75 L.Ed.2d 229 (1983) (plurality opinion); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Consequently, the issue is not whether a passenger in respondent's position would have felt free to deny consent to the search of his bag, but whether such a passenger-without being apprised of his rights-would have felt free to terminate the antecedent encounter with the police.

Unlike the majority, I have no doubt that the answer to this question is no. Apart from trying to accommodate the officers, respondent had only two options. First, he could have remained seated while obstinately refusing to respond to the officers' questioning. But in light of the intimidating show of authority that the officers made upon boarding the bus, respondent reasonably could have believed that such behavior would only arouse the officers' suspicions and intensify their interrogation. Indeed, officers who carry out bus sweeps like the one at issue here frequently admit that this is the effect of a passenger's refusal to cooperate. See, e.g., United States v. Cothran, 729 F.Supp., at 156; United States v. Felder, 732 F.Supp., at 205. The majority's observation that a mere refusal to answer questions, "without more," does not give rise to a reasonable basis for seizing a passenger, ante, at 437, is utterly beside the point, because a passenger unadvised of his rights and otherwise unversed in constitutional law has no reason to know that the police cannot hold his refusal to cooperate against him.

Second, respondent could have tried to escape the officers' presence by leaving the bus altogether. But because doing so would have required respondent to squeeze past the gun-wielding inquisitor who was blocking the aisle of the bus, this hardly seems like a course that respondent reasonably would have viewed as available to him. The majority lamely protests that nothing in the stipulated facts shows that the questioning officer "point[ed] [his] gu[n] at [respondent] or otherwise threatened him" with the weapon. Ante, at 437 (emphasis added). Our decisions recognize the obvious point, however, that the choice of the police to "display" their weapons during an encounter exerts significant coercive pressure on the confronted citizen. E.g., Michigan v. Chesternut, supra, 486 U.S., at 575, 108 S.Ct., at 1980; United States v. Mendenhall, supra, 446 U.S., at 554, 100 S.Ct., at 1877. We have never suggested that the police must go so far as to put a citizen in immediate apprehension of being shot before a court can take account of the intimidating effect of being questioned by an officer with weapon in hand.

Even if respondent had perceived that the officers would let him leave the bus, moreover, he could not reasonably have been expected to resort to this means of evading their intrusive questioning. For so far as respondent knew, the bus's departure from the terminal was imminent. Unlike a person approached by the police on the street, see Michigan v. Chesternut, supra, or at a bus or airport terminal after reaching his destination, see United States v. Mendenhall, supra, a passenger approached by the police at an intermediate point in a long bus journey cannot simply leave the scene and repair to a safe haven to avoid unwanted probing by law-enforcement officials. The vulnerability that an intrastate or interstate traveler experiences when confronted by the police outside of his "own familiar territory" surely aggravates the coercive quality of such an encounter. See Schneckloth v. Bustamonte, 412 U.S. 218, 247, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973).

The case on which the majority primarily relies, INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), is distinguishable in every relevant respect. In Delgado, this Court held that workers approached by law-enforcement officials inside of a factory were not "seized" for purposes of the Fourth Amendment. The Court was careful to point out, however, that the presence of the agents did not furnish the workers with a reasonable basis for believing that they were not free to leave the factory, as at least some of them did. See id., at 218-219, and n. 7, 104 S.Ct., at 1763-1764, and n. 7. Unlike passengers confronted by law-enforcement officials on a bus stopped temporarily at an intermediate point in its journey, workers approached by law-enforcement officials at their workplace need not abandon personal belongings and venture into unfamiliar environs in order to avoid unwanted questioning. Moreover, the workers who did not leave the building in Delgado remained free to move about the entire factory, see id., at 218, 104 S.Ct., at 1763, a considerably less confining environment than a bus. Finally, contrary to the officer who confronted respondent, the law-enforcement officials in Delgado did not conduct their interviews with guns in hand. See id., at 212, 104 S.Ct., at 1760.

Rather than requiring the police to justify the coercive tactics employed here, the majority blames respondent for his own sensation of constraint. The majority concedes that respondent "did not feel free to leave the bus" as a means of breaking off the interrogation by the Broward County officers. Ante, at 436. But this experience of confinement, the majority explains, "was the natural result of his decision to take the bus." Ibid. (emphasis added). Thus, in the majority's view, because respondent's "freedom of movement was restricted by a factor independent of police conduct-i.e., by his being a passenger on a bus," ante, at 2387, respondent was not seized for purposes of the Fourth Amendment.

This reasoning borders on sophism and trivializes the values that underlie the Fourth Amendment. Obviously, a person's "voluntary decision" to place himself in a room with only one exit does not authorize the police to force an encounter upon him by placing themselves in front of the exit. It is no more acceptable for the police to force an encounter on a person by exploiting his "voluntary decision" to expose himself to perfectly legitimate personal or social constraints. By consciously deciding to single out persons who have undertaken interstate or intrastate travel, officers who conduct suspicionless, dragnet-style sweeps put passengers to the choice of cooperating or of exiting their buses and possibly being stranded in unfamiliar locations. It is exactly because this "choice" is no "choice" at all that police engage this technique.

In my view, the Fourth Amendment clearly condemns the suspicionless, dragnet-style sweep of intrastate or interstate buses. Withdrawing this particular weapon from the government's drug-war arsenal would hardly leave the police without any means of combatting the use of buses as instrumentalities of the drug trade. The police would remain free, for example, to approach passengers whom they have a reasonable, articulable basis to suspect of criminal wrongdoing. Alternatively, they could continue to confront passengers without suspicion so long as they took simple steps, like advising the passengers confronted of their right to decline to be questioned, to dispel the aura of coercion and intimidation that pervades such encounters. There is no reason to expect that such requirements would render the Nation's buses law-enforcement-free zones.

The majority attempts to gloss over the violence that today's decision does to the Fourth Amendment with empty admonitions. "If th[e] [war on drugs] is to be fought," the majority intones, "those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime." Ante, at 439. The majority's actions, however, speak louder than its words.

I dissent.