OCTOBER TERM, 2001
Syllabus
UNITED STATES
v. DRAYTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 01-631. Argued April 16, 2002-Decided June 17,2002
The driver of the bus on which respondents were traveling
allowed three police officers to board the bus as part of a routine
drug and weapons interdiction effort. One officer knelt on the
driver's seat, facing the rear of the bus, while another officer
stayed in the rear, facing forward. Officer Lang worked his way
from back to front, speaking with individual passengers as he went.
To avoid blocking the aisle, Lang stood next to or just behind each
passenger with whom he spoke. He testified that passengers who
declined to cooperate or who chose to exit the bus at any time
would have been allowed to do so without argument; that most people
are willing to cooperate; that passengers often leave the bus for a
cigarette or a snack while officers are on board; and that,
although he sometimes informs passengers of their right to refuse
to cooperate, he did not do so on the day in question. As Lang
approached respondents, who were seated together, he held up his
badge long enough for them to identify him as an officer. Speaking
just loud enough for them to hear, he declared that the police were
looking for drugs and weapons and asked if respondents had any
bags. When both of them pointed to a bag overhead, Lang asked if
they minded if he checked it. Respondent Brown agreed, and a search
of the bag revealed no contraband. Lang then asked Brown whether he
minded if Lang checked his person. Brown agreed, and a patdown
revealed hard objects similar to drug packages in both thigh areas.
Brown was arrested. Lang then asked respondent Drayton, "Mind if I
check you?" When Drayton agreed, a patdown revealed objects similar
to those found on Brown, and Drayton was arrested. A further search
revealed that respondents had taped cocaine between their shorts.
Charged with federal drug crimes, respondents moved to suppress the
cocaine on the ground that their consent to the patdown searches
was invalid. In denying the motions, the District Court determined
that the police conduct was not coercive and respondents' consent
to the search was voluntary. The Eleventh Circuit reversed and
remanded based on its prior holdings that bus passengers do not
feel free to disregard officers' requests to search absent some
positive indication that consent may be refused.
Held: The Fourth Amendment does not require police
officers to advise bus passengers of their right not to cooperate
and to refuse consent to searches. Pp. 200-208.
195
(a) Among its rulings in
Florida v.
Bostick,
501 U. S. 429,
this Court held that the Fourth Amendment permits officers to
approach bus passengers at random to ask questions and request
their consent to searches, provided a reasonable person would feel
free to decline the requests or otherwise terminate the encounter,
id., at 436. The Court identified as "particularly worth
noting" the factors that the officer, although obviously armed, did
not unholster his gun or use it in a threatening way, and that he
advised respondent passenger that he could refuse consent to a
search. Relying on this last factor, the Eleventh Circuit
erroneously adopted what is in effect a
per se rule that
evidence obtained during suspicionless drug interdictions on buses
must be suppressed unless the officers have advised passengers of
their right not to cooperate and to refuse consent to a search. Pp.
200-203.
(b) Applying
Bostick's framework to this case
demonstrates that the police did not seize respondents. The
officers gave the passengers no reason to believe that they were
required to answer questions. When 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, or would
indicate a command to answer his questions. There were ample
grounds to conclude that their encounter was cooperative and not
coercive or confrontational. There was no overwhelming show or
application of force, no intimidating movement, no brandishing of
weapons, no blocking of exits, no threat, and no command, not even
an authoritative tone of voice. Had this encounter occurred on the
street, it doubtless would be constitutional. The fact that an
encounter takes place on a bus does not on its own transform
standard police questioning into an illegal seizure. See
Bostick, supra, at 439-440. Indeed, because many fellow
passengers are present to witness officers' conduct, a reasonable
person may feel even more secure in deciding not to cooperate on a
bus than in other circumstances. Lang's display of his badge is not
dispositive. See,
e. g., Florida v.
Rodriguez,
469 U. S. 1, 5-6.
And, because it is well known that most officers are armed, the
presence of a holstered firearm is unlikely to be coercive absent
active brandishing of the weapon. Officer Hoover's position at the
front of the bus also does not tip the scale to respondents, since
he did nothing to intimidate passengers and said or did nothing to
suggest that people could not exit. See
INS v.
Delgado, 466
U. S. 210, 219. Finally, Lang's testimony that only a few
passengers refuse to cooperate does not suggest that a reasonable
person would not feel free to terminate the encounter. See
id., at 216. Drayton argues unsuccessfully that no
reasonable person in his position would feel free to terminate the
encounter
196
Syllabus
after Brown was arrested. The arrest of one person does not mean
that everyone around him has been seized. Even after arresting
Brown, Lang provided Drayton with no indication that he was
required to answer Lang's questions. Pp. 203-206.
(c) Respondents were not subjected to an unreasonable
search.
Where, as here, the question of voluntariness pervades both the
search and seizure inquiries, the respective analyses turn on very
similar facts. For the foregoing reasons, respondents' consent to
the search of their luggage and their persons was voluntary. When
respondents told Lang they had a bag, he asked to check it. And
when he asked to search their persons, he inquired first if they
objected, thus indicating to a reasonable person that he or she was
free to refuse. Moreover, officers need not always inform citizens
of their right to refuse when seeking permission to conduct a
warrantless consent search. See,
e. g.,
Schneckloth v.
Bustamonte, 412 U. S. 218, 227. While
knowledge of the right to refuse is taken into account, the
Government need not establish such knowledge as the
sine qua
non of an effective consent.
Ibid. Nor does a
presumption of invalidity attach if a citizen consented without
explicit notification that he or she was free to refuse to
cooperate. Instead, the totality of the circumstances controls,
without giving extra weight to whether this type of warning was
given. See,
e. g., Ohio v.
Robinette, 519 U. S. 33, 39-40.
Although Lang did not give such a warning, the totality of the
circumstances indicates that respondents' consent was voluntary,
and the searches were reasonable. Pp. 206-208.
231 F.3d
787, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, THOMAS, and BREYER, JJ.,
joined. SOUTER, J., filed a dissenting opinion, in which STEVENS
and GINSBURG, JJ., joined,
post, p. 208.
Larry D. Thompson argued the cause for the United States. On the
briefs were Solicitor General Olson, Assistant Attorney General
Chertoff, Deputy Solicitor General Dreeben, Jeffrey A. Lamken, and
Kathleen A. Felton.
Gwendolyn Spivey, by appointment of the Court, 535 U. S.
903, argued the cause for respondents. With her on the brief were
Randolph P. Murrell, Steven L. Seliger, by ap-
197
pointment of the Court, 535 U. S. 903, Jeffrey T. Green, and
Jacqueline G. Cooper.*
JUSTICE KENNEDY delivered the opinion of the Court. The Fourth
Amendment permits police officers to approach bus passengers at
random to ask questions and to request their consent to searches,
provided a reasonable person would understand that he or she is
free to refuse.
Florida v.
Bostick, 501 U. S. 429 (1991).
This case requires us to determine whether officers must advise bus
passengers during these encounters of their right not to
cooperate.
I
On February 4, 1999, respondents Christopher Drayton and Clifton
Brown, Jr., were traveling on a Greyhound bus en route from Ft.
Lauderdale, Florida, to Detroit, Michigan. The bus made a scheduled
stop in Tallahassee, Florida. The passengers were required to
disembark so the bus could be refueled and cleaned. As the
passengers reboarded, the driver checked their tickets and then
left to complete paperwork inside the terminal. As he left, the
driver allowed three members of the Tallahassee Police Department
to board the bus as part of a routine drug and weapons interdiction
effort. The officers were dressed in plain clothes and carried
concealed weapons and visible badges.
Once onboard Officer Hoover knelt on the driver's seat and faced
the rear of the bus. He could observe the passengers
* Daniel J. Popeo and
Richard A.
Samp filed a brief for the Washington Legal Foundation et al.
as
amici curiae urging reversal.
Leon Friedman and
Joshua L. Dratel filed a brief
for the National Association of Criminal Defense Lawyers as
amicus curiae urging affirmance.
James P. Manak, Wayne W Schmidt, Richard Weintraub, Bernard
J.
Farber, and
Carl Milazzo filed a brief for
Americans For Effective Law Enforcement, Inc., et al. as
amici
curiae.
198
and ensure the safety of the two other officers without blocking
the aisle or otherwise obstructing the bus exit. Officers Lang and
Blackburn went to the rear of the bus. Blackburn remained stationed
there, facing forward. Lang worked his way toward the front of the
bus, speaking with individual passengers as he went. He asked the
passengers about their travel plans and sought to match passengers
with luggage in the overhead racks. To avoid blocking the aisle,
Lang stood next to or just behind each passenger with whom he
spoke.
According to Lang's testimony, passengers who declined to
cooperate with him or who chose to exit the bus at any time would
have been allowed to do so without argument. In Lang's experience,
however, most people are willing to cooperate. Some passengers go
so far as to commend the police for their efforts to ensure the
safety of their travel. Lang could recall five to six instances in
the previous year in which passengers had declined to have their
luggage searched. It also was common for passengers to leave the
bus for a cigarette or a snack while the officers were on board.
Lang sometimes informed passengers of their right to refuse to
cooperate. On the day in question, however, he did not.
Respondents were seated next to each other on the bus.
Drayton was in the aisle seat, Brown in the seat next to the
window. Lang approached respondents from the rear and leaned over
Drayton's shoulder. He held up his badge long enough for
respondents to identify him as a police officer. With his face
12-to-18 inches away from Drayton's, Lang spoke in a voice just
loud enough for respondents to hear:
"I'm Investigator Lang with the Tallahassee Police Department.
We're conducting bus interdiction [sic], attempting to deter
drugs and illegal weapons being transported on the bus. Do you have
any bags on the bus?" App. 55.
199
Both respondents pointed to a single green bag in the overhead
luggage rack. Lang asked, "Do you mind if I check it?," and Brown
responded, "Go ahead."
Id., at 56. Lang handed the bag to
Officer Blackburn to check. The bag contained no contraband.
Officer Lang noticed that both respondents were wearing heavy
jackets and baggy pants despite the warm weather. In Lang's
experience drug traffickers often use baggy clothing to conceal
weapons or narcotics. The officer thus asked Brown if he had any
weapons or drugs in his possession. And he asked Brown: "Do you
mind if I check your person?" Brown answered, "Sure," and
cooperated by leaning up in his seat, pulling a cell phone out of
his pocket, and opening up his jacket.
Id., at 61. Lang
reached across Drayton and patted down Brown's jacket and pockets,
including his waist area, sides, and upper thighs. In both thigh
areas, Lang detected hard objects similar to drug packages detected
on other occasions. Lang arrested and handcuffed Brown. Officer
Hoover escorted Brown from the bus.
Lang then asked Drayton, "Mind if I check you?"
Id., at
65. Drayton responded by lifting his hands about eight inches from
his legs. Lang conducted a patdown of Drayton's thighs and detected
hard objects similar to those found on Brown. He arrested Drayton
and escorted him from the bus. A further search revealed that
respondents had ducttaped plastic bundles of powder cocaine between
several pairs of their boxer shorts. Brown possessed three bundles
containing 483 grams of cocaine. Drayton possessed two bundles
containing 295 grams of cocaine.
Respondents were charged with conspiring to distribute cocaine,
in violation of 21 U. S. C. §§ 841(a)(1) and 846, and with
possessing cocaine with intent to distribute it, in violation of §
841(a)(1). They moved to suppress the cocaine, arguing that the
consent to the patdown search was invalid. Following a hearing at
which only Officer Lang testified, the
200
United States District Court for the Northern District of
Florida denied their motions to suppress. The District Court
determined that the police conduct was not coercive and
respondents' consent to the search was voluntary. The District
Court pointed to the fact that the officers were dressed in plain
clothes, did not brandish their badges in an authoritative manner,
did not make a general announcement to the entire bus, and did not
address anyone in a menacing tone of voice. It noted that the
officers did not block the aisle or the exit, and stated that it
was "obvious that [respondents] can get up and leave, as can the
people ahead of them." App. 132. The District Court concluded:
"[E]verything that took place between Officer Lang and Mr. Drayton
and Mr. Brown suggests that it was cooperative. There was nothing
coercive, there was nothing confrontational about it."
Ibid.
The Court of Appeals for the Eleventh Circuit reversed and
remanded with instructions to grant respondents' motions to
suppress.
231 F.3d
787 (2000). The court held that this disposition was compelled
by its previous decisions in
United States v.
Washington, 151 F.3d
1354 (1998), and
United States v.
Guapi,
144 F.3d
1393 (1998). Those cases had held that bus passengers do not
feel free to disregard police officers' requests to search absent
"some positive indication that consent could have been refused."
Washington, supra, at 1357.
We granted certiorari. 534 U. S. 1074 (2002). The respondents,
we conclude, were not seized and their consent to the search was
voluntary; and we reverse.
II
Law enforcement officers do not violate the Fourth Amendment's
prohibition of unreasonable seizures merely by approaching
individuals on the street or in other public places and putting
questions to them if they are willing to listen. See,
e. g.,
Florida v.
Royer, 460 U. S. 491, 497
(1983)
201
(plurality opinion); see
id., at 523, n. 3 (REHNQUIST,
J., dissenting);
Florida v.
Rodriguez, 469 U. S. 1, 5-6 (1984)
(per curiam) (holding that such interactions in airports are
"the sort of consensual encounter[s] that implicat[e] no Fourth
Amendment interest"). Even when law enforcement officers have no
basis for suspecting a particular individual, they may pose
questions, ask for identification, and request consent to search
luggage-provided they do not induce cooperation by coercive means.
See
Florida v.
Bostick, 501 U. S., at 434-435
(citations omitted). If a reasonable person would feel free to
terminate the encounter, then he or she has not been seized.
The Court has addressed on a previous occasion the specific
question of drug interdiction efforts on buses. In
Bostick,
two police officers requested a bus passenger's consent to a search
of his luggage. The passenger agreed, and the resulting search
revealed cocaine in his suitcase. The Florida Supreme Court
suppressed the cocaine. In doing so it adopted a
per se rule
that due to the cramped confines onboard a bus the act of
questioning would deprive a person of his or her freedom of
movement and so constitute a seizure under the Fourth
Amendment.
This Court reversed.
Bostick first made it clear that for
the most part
per se rules are inappropriate in the Fourth
Amendment context. The proper inquiry necessitates a consideration
of "all the circumstances surrounding the encounter."
Id.,
at 439. The Court noted next that the traditional rule, which
states that a seizure does not occur so long as a reasonable person
would feel free "to disregard the police and go about his
business,"
California v.
Hodari D., 499 U. S. 621, 628
(1991), is not an accurate measure of the coercive effect of a bus
encounter. A passenger may not want to get off a bus if there is a
risk it will depart before the opportunity to reboard.
Bostick, 501 U. S., at 434-436. A bus rider's movements are
confined in this sense, but this is the natural result of choosing
to take the bus; it says noth-
202
ing about whether the police conduct is coercive.
Id., at
436. The proper inquiry "is whether a reasonable person would feel
free to decline the officers' requests or otherwise terminate the
encounter."
Ibid. Finally, the Court rejected Bostick's
argument that he must have been seized because no reasonable person
would consent to a search of luggage containing drugs. The
reasonable person test, the Court explained, is objective and
"presupposes an
innocent person."
Id., at
437-438.
In light of the limited record,
Bostick refrained from
deciding whether a seizure occurred.
Id., at 437. The Court,
however, identified two factors "particularly worth noting" on
remand.
Id., at 432. First, although it was obvious that an
officer was armed, he did not remove the gun from its pouch or use
it in a threatening way. Second, the officer advised the passenger
that he could refuse consent to the search.
Ibid.
Relying upon this latter factor, the Eleventh Circuit has
adopted what is in effect a
per se rule that evidence
obtained during suspicionless drug interdiction efforts aboard
buses must be suppressed unless the officers have advised
passengers of their right not to cooperate and to refuse consent to
a search. In
United States v.
Guapi, supra, the Court
of Appeals described "[t]he most glaring difference" between the
encounters in
Guapi and in
Bostick as "the complete
lack of any notification to the passengers that they were in fact
free to decline the search request .... Providing [this] simple
notification ... is perhaps the most efficient and effective method
to ensure compliance with the Constitution." 144 F. 3d, at 1395.
The Court of Appeals then listed other factors that contributed to
the coerciveness of the encounter: (1) the officer conducted the
interdiction before the passengers disembarked from the bus at a
scheduled stop; (2) the officer explained his presence in the form
of a general announcement to the entire bus; (3) the officer wore a
police uniform; and (4) the officer questioned passengers as he
203
moved from the front to the rear of the bus, thus obstructing
the path to the exit.
Id., at 1396.
After its decision in
Guapi the Court of Appeals decided
United States v.
Washington and the instant case. The
court suppressed evidence obtained during similar drug interdiction
efforts despite the following facts: (1) the officers in both cases
conducted the interdiction after the passengers had reboarded the
bus; (2) the officer in the present case did not make a general
announcement to the entire bus but instead spoke with individual
passengers; (3) the officers in both cases were not in uniform; and
(4) the officers in both cases questioned passengers as they moved
from the rear to the front of the bus and were careful not to
obstruct passengers' means of egress from the bus.
Although the Court of Appeals has disavowed a
per se
requirement, the lack of an explicit warning to passengers is the
only element common to all its cases. See
Washington, 151 F.
3d, at 1357 ("It seems obvious to us that if police officers
genuinely want to ensure that their encounters with bus passengers
remain absolutely voluntary, they can simply say so. Without such
notice in this case, we do not feel a reasonable person would have
felt able to decline the agents' requests"); 231 F. 3d, at 790
(noting that "[t]his case is controlled by"
Guapi and
Washington, and dismissing any factual differences between
the three cases as irrelevant). Under these cases, it appears that
the Court of Appeals would suppress any evidence obtained during
suspicionless drug interdiction efforts aboard buses in the absence
of a warning that passengers may refuse to cooperate. The Court of
Appeals erred in adopting this approach.
Applying the
Bostick framework to the facts of this
particular case, 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
204
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.
There were ample grounds for the District Court to conclude that
"everything that took place between Officer Lang and [respondents]
suggests that it was cooperative" and that there "was nothing
coercive [or] confrontational" about the encounter. App. 132. There
was no application of force, no intimidating movement, no
overwhelming show of force, no brandishing of weapons, no blocking
of exits, no threat, no command, not even an authoritative tone of
voice. 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. See
Bostick, 501 U. S., at 439-440. 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.
Respondents make much of the fact that Officer Lang displayed
his badge. In
Florida v.
Rodriguez, 469 U. S., at
5-6, however, the Court rejected the claim that the defendant was
seized when an officer approached him in an airport, showed him his
badge, and asked him to answer some questions. Likewise, in
INS v.
Delgado, 466 U. S. 210, 212-213
(1984), the Court held that Immigration and Naturalization Service
(INS) agents' wearing badges and questioning workers in a factory
did not constitute a seizure. And while neither Lang nor his
colleagues were in uniform or visibly armed, those factors should
have little weight in the analysis. Officers are often required to
wear uniforms and in many circumstances this is cause for
assurance, not discomfort.
205
Much the same can be said for wearing sidearms. That most law
enforcement officers are armed is a fact well known to the public.
The presence of a holstered firearm thus is unlikely to contribute
to the coerciveness of the encounter absent active brandishing of
the weapon.
Officer Hoover's position at the front of the bus also does not
tip the scale in respondents' favor. Hoover did nothing to
intimidate passengers, and he said nothing to suggest that people
could not exit and indeed he left the aisle clear. In
Delgado, the Court determined there was no seizure even
though several uniformed INS officers were stationed near the exits
of the factory.
Id., at 219. The Court noted: "The presence
of agents by the exits posed no reasonable threat of detention to
these workers, ... the mere possibility that they would be
questioned if they sought to leave the buildings should not have
resulted in any reasonable apprehension by any of them that they
would be seized or detained in any meaningful way."
Ibid.
Finally, the fact that in Officer Lang's experience only a few
passengers have refused to cooperate does not suggest that a
reasonable person would not feel free to terminate the bus
encounter. In Lang's experience it was common for passengers to
leave the bus for a cigarette or a snack while the officers were
questioning passengers. App. 70, 81. And of more importance, bus
passengers answer officers' questions and otherwise cooperate not
because of coercion but because the passengers know that their
participation enhances their own safety and the safety of those
around them. "While most citizens will respond to a police request,
the fact that people do so, and do so without being told they are
free not to respond, hardly eliminates the consensual nature of the
response."
Delgado, supra, at 216.
Drayton contends that even if Brown's cooperation with the
officers was consensual, Drayton was seized because no reasonable
person would feel free to terminate the encounter with the officers
after Brown had been arrested. The Court
206
of Appeals did not address this claim; and in any event the
argument fails. The arrest of one person does not mean that
everyone around him has been seized by police. If anything, Brown's
arrest should have put Drayton on notice of the consequences of
continuing the encounter by answering the officers' questions. Even
after arresting Brown, Lang addressed Drayton in a polite manner
and provided him with no indication that he was required to answer
Lang's questions.
We turn now from the question whether respondents were seized to
whether they were subjected to an unreasonable search, i.
e., whether their consent to the suspicionless search was
involuntary. In circumstances such as these, where the question of
voluntariness pervades both the search and seizure inquiries, the
respective analyses turn on very similar facts. And, as the facts
above suggest, respondents' consent to the search of their luggage
and their persons was voluntary. Nothing Officer Lang said
indicated a command to consent to the search. Rather, when
respondents informed Lang that they had a bag on the bus, he asked
for their permission to check it. And when Lang requested to search
Brown and Drayton's persons, he asked first if they objected, thus
indicating to a reasonable person that he or she was free to
refuse. Even after arresting Brown, Lang provided Drayton with no
indication that he was required to consent to a search. To the
contrary, Lang asked for Drayton's permission to search him ("Mind
if I check you?"), and Drayton agreed.
The Court has rejected in specific terms the suggestion that
police officers must always inform citizens of their right to
refuse when seeking permission to conduct a warrantless consent
search. See,
e. g., Ohio v.
Robinette, 519 U. S. 33, 39-40
(1996);
Schneckloth v.
Bustamonte, 412 U. S. 218, 227
(1973). "While knowledge of the right to refuse consent is one
factor to be taken into account, the government need not establish
such knowledge as the
sine qua non of an effective
207
consent."
Ibid. Nor do this Court's decisions suggest
that even though there are no
per se rules, a presumption of
invalidity attaches if a citizen consented without explicit
notification that he or she was free to refuse to cooperate.
Instead, the Court has repeated that the totality of the
circumstances must control, without giving extra weight to the
absence of this type of warning. See,
e. g., Schneckloth, supra;
Robinette, supra, at 39-40. Although Officer Lang did not
inform respondents of their right to refuse the search, he did
request permission to search, and the totality of the circumstances
indicates that their consent was voluntary, so the searches were
reasonable.
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.
We need not ask the alternative question whether, after the
arrest of Brown, there were grounds for a
Terry stop and
frisk of Drayton,
Terry v.
Ohio, 392 U. S. 1 (1968), though
this may have been the case. It was evident that Drayton and Brown
were traveling together-Officer Lang observed the pair reboarding
the bus together; they were each dressed in heavy, baggy clothes
that were ill-suited for the day's warm temperatures; they were
seated together on the bus; and they each claimed responsibility
for the single piece of green carry-on luggage. Once Lang had
identified Brown as carrying what he believed to be narcotics, he
may have had reasonable suspicion to conduct a
Terry stop
and frisk on Drayton as well. That question, however, has not been
presented to us. The fact the officers may have had reasonable
suspicion does not prevent them from relying on a citizen's consent
to the search. It would be a paradox, and one most puzzling to law
enforcement officials and courts alike, were
208
we to say, after holding that Brown's consent was voluntary,
that Drayton's consent was ineffectual simply because the police at
that point had more compelling grounds to detain him. After taking
Brown into custody, the officers were entitled to continue to
proceed on the basis of consent and to ask for Drayton's
cooperation.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, dissenting.
Anyone who travels by air today submits to searches of the
person and luggage as a condition of boarding the aircraft. It is
universally accepted that such intrusions are necessary to hedge
against risks that, nowadays, even small children understand. The
commonplace precautions of air travel have not, thus far, been
justified for ground transportation, however, and no such
conditions have been placed on passengers getting on trains or
buses. There is therefore an air of unreality about the Court's
explanation that bus passengers consent to searches of their
luggage to "enhanc[e] their own safety and the safety of those
around them."
Ante, at 205. Nor are the other factual
assessments underlying the Court's conclusion in favor of the
Government more convincing.
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. 1 If it did, any
consent to search was plainly
1 The Court proceeds to resolve the voluntariness issue on the
heels of its seizure enquiry, but the voluntariness of respondents'
consent was not within the question the Court accepted for review.
Accord, Reply Brief for United States 20, n. 7 (stating that the
consent issue "is not presented by this case; the question here is
whether there was an illegal seizure
209
invalid as a product of the illegal seizure. See
Florida
v.
Royer, 460
U. S. 491, 507-508 (1983) (plurality opinion) ("[T]he consent
was tainted by the illegality and ... ineffective to justify the
search");
id., at 509 (Powell, J., concurring);
id.,
at 509 (Brennan, J., concurring in result).
Florida v.
Bostick, 501 U. S. 429 (1991),
established the framework for determining whether the bus
passengers were seized in the constitutional sense. In that case,
we rejected the position that police questioning of bus passengers
was a
per se seizure, and held instead that the issue of
seizure was to be resolved under an objective test considering all
circumstances: whether a reasonable passenger would have felt "free
to decline the officers' requests or otherwise terminate the
encounter,"
id., at 436. We thus applied to a bus passenger
the more general criterion, whether the person questioned was free
"to ignore the police presence and go about his business,"
id., at 437 (quoting
Michigan v.
Chesternut,
486 U. S. 567,
569 (1988)).
Before applying the standard in this case, it may be worth
getting some perspective from different sets of facts. A perfect
example of police conduct that supports no colorable claim of
seizure is the act of an officer who simply goes up to a pedestrian
on the street and asks him a question. See
Royer, 460 U. S.,
at 497; see
id., at 523, n. 3 (REHNQUIST, J., dissenting). A
pair of officers questioning a pedestrian,
in the first place"). While it is true that the Eleventh Circuit
purported to address the question "whether the consent given by
each defendant for the search was 'uncoerced and legally
voluntary,'"
231 F.3d
787, 788 (2000), elsewhere the court made it clear that it was
applying the test in
Florida v.
Bostick, 501 U. S. 429 (1991),
which is relevant to the issue of seizure, 231 F. 3d, at 791, n. 6.
There is thus no occasion here to reach any issue of consent
untainted by seizure. If there were, the consent would have to
satisfy the voluntariness test of
Schneckloth v.
Bustamonte, 412 U. S. 218 (1973),
which focuses on "the nature of a person's subjective
understanding,"
id., at 230, and requires consideration of
"the characteristics of the accused [in addition to] the details of
the interrogation,"
id., at 226.
210
without more, would presumably support the same conclusion. Now
consider three officers, one of whom stands behind the pedestrian,
another at his side toward the open sidewalk, with the third
addressing questions to the pedestrian a foot or two from his face.
Finally, consider the same scene in a narrow alley. On such
barebones facts, one may not be able to say a seizure occurred,
even in the last case, but one can say without qualification that
the atmosphere of the encounters differed significantly from the
first to the last examples. In the final instance there is every
reason to believe that the pedestrian would have understood, to his
considerable discomfort, what Justice Stewart described as the
"threatening presence of several officers,"
United States v.
Mendenhall, 446 U. S. 544, 554 (1980)
(opinion of Stewart, J.). The police not only carry legitimate
authority but also exercise power free from immediate check, and
when the attention of several officers is brought to bear on one
civilian the imbalance of immediate power is unmistakable. We all
understand this, as well as we understand that a display of power
rising to Justice Stewart's "threatening" level may overbear a
normal person's ability to act freely, even in the absence of
explicit commands or the formalities of detention. As common as
this understanding is, however, there is little sign of it in the
Court's opinion. My own understanding of the relevant facts and
their significance follows.
When the bus in question made its scheduled stop in Tallahassee,
the passengers were required to disembark while the vehicle was
cleaned and refueled. App. 104. When the passengers returned, they
gave their tickets to the driver, who kept them and then left
himself, after giving three police officers permission to board the
bus in his absence.
Id., at 77-78. Although they were not in
uniform, the officers displayed badges and identified themselves as
police. One stationed himself in the driver's seat by the door at
the front, facing back to observe the passengers. The two others
went to the rear, from which they worked their way for-
211
ward, with one of them speaking to passengers, the other backing
him up.
Id., at 47-48. They necessarily addressed the
passengers at very close range; the aisle was only 15 inches wide,
and each seat only 18.2 The quarters were cramped further by the
overhead rack, 19 inches above the top of the passenger seats. The
passenger by the window could not have stood up straight,
id., at 55, and the face of the nearest officer was only a
foot or 18 inches from the face of the nearest passenger being
addressed,
id., at 57. During the exchanges, the officers
looked down, and the passengers had to look up if they were to face
the police. The officer asking the questions spoke quietly. He
prefaced his requests for permission to search luggage and do a
body patdown by identifying himself by name as a police
investigator "conducting bus interdiction" and saying, "'We would
like for your cooperation. Do you have any luggage on the bus?'"
Id., at 82.
Thus, for reasons unexplained, the driver with the tickets
entitling the passengers to travel had yielded his custody of the
bus and its seated travelers to three police officers, whose
authority apparently superseded the driver's own. The officers took
control of the entire passenger compartment, one stationed at the
door keeping surveillance of all the occupants, the others working
forward from the back. With one officer right behind him and the
other one forward, a third officer accosted each passenger at
quarters extremely close and so cramped that as many as half the
passengers could not even have stood to face the speaker. None was
asked whether he was willing to converse with the police or to take
part in the enquiry. Instead the officer said the police were
"conducting bus interdiction," in the course of which they "would
like ... cooperation."
Ibid. The reasonable inference was
that the "interdiction" was not a consensual exercise, but one the
police would carry out what-
2 The figures are from a Lodging filed by respondents (available
in Clerk of Court's case file). The Government does not dispute
their accuracy.
212
ever the circumstances; that they would prefer "cooperation" but
would not let the lack of it stand in their way. There was no
contrary indication that day, since no passenger had refused the
cooperation requested, and there was no reason for any passenger to
believe that the driver would return and the trip resume until the
police were satisfied. The scene was set and an atmosphere of
obligatory participation was established by this introduction.
Later requests to search prefaced with "Do you mind ... " would
naturally have been understood in the terms with which the
encounter began.
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. See
id., at 47. 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.
It is true of course that the police testified that a bus
passenger sometimes says no, App. 81, but that evidence does
nothing to cast the facts here in a different light. We have no way
of knowing the circumstances in which a passenger elsewhere refused
a request; maybe that has happened only
213
when the police have told passengers they had a right to refuse
(as the officers sometimes advised them),
id., at 81-82. Nor
is it fairly possible to see the facts of this case differently by
recalling
INS v.
Delgado, 466 U. S. 210 (1984), as
precedent. In that case, a majority of this Court found no seizure
when a factory force was questioned by immigration officers, with
an officer posted at every door leading from the workplace.
Id., at 219. Whether that opinion was well reasoned or not,
the facts as the Court viewed them differed from the case here.
Delgado considered an order granting summary judgment in
favor of respondents, with the consequence that the Court was
required to construe the record and all issues of fact favorably to
the Immigration and Naturalization Service. See
id., at 214;
id., at 221 (STEVENS, J., concurring). The Court therefore
emphasized that even after "th[e] surveys were initiated, the
employees were about their ordinary business, operating machinery
and performing other job assignments."
Id., at 218. In this
case, however, Brown and Drayton were seemingly pinned-in by the
officers and the customary course of events was stopped flat. The
bus was going nowhere, and with one officer in the driver's seat,
it was reasonable to suppose no passenger would tend to his own
business until the officers were ready to let him.
In any event, I am less concerned to parse this case against
Delgado than to apply
Bostick's totality of
circumstances test, and to ask whether a passenger would reasonably
have felt free to end his encounter with the three officers by
saying no and ignoring them thereafter. In my view the answer is
clear. The Court's contrary conclusion tells me that the majority
cannot see what Justice Stewart saw, and I respectfully
dissent.
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