While the month of June saw the United States Supreme Court handing down several decisions limiting application of the death penalty, the Court also upheld a time-honored law enforcement practice as proper under the Fourth Amendment. The case is United States v. Drayton, 2002 WL 1305729 (June 17, 2002). The Drayton decision was not all that surprising or earth shattering, because it followed predictable precedent, but it nevertheless is worth discussing in that it confirms the legitimacy of earlier decisions which had been criticized in some quarters.
Some time ago, the Supreme Court had held, in Florida v. Bostick, 501 U.S. 429 (1991), that police officers were permitted to go an a bus as it was waiting to leave the bus station, and approach passengers at random to ask questions and request their consent to engage in a search of either their luggage or their persons. The limitation that was placed on obtaining such consent was that no compulsion could be involved. Thus, the Bostick Court said it would approve of the investigative routine provided a reasonable passenger would feel free to decline the request and refuse to cooperate. In approving the police tactic, the Court was favorably impressed by the fact that even though the officer was armed, he had not unholstered his gun or acted in a threatening way. Also, the officer had actually told Bostick that he could refuse consent to a search.
It was this latest factor that caused a federal appeals court to require, in the Drayton court below (231 F.3d 787 [11th Cir. 2000]), that police must advise passengers of their right not to cooperate and to refuse consent to a search. If such advice was not offered, any evidence obtained during a search for which there was not at least “reasonable and articulable suspicion of wrongdoing” would be illegal and cause the proceeds of the search to be suppressed. The rule requiring police to advise bus travelers of their right to refuse consent was what brought the issue before the high court in Drayton.
FACTS OF DRAYTON
During a scheduled stop of a Greyhound bus en route from Ft. Lauderdale, Florida, to Detroit, Michigan, passengers were required to disembark for the refueling and cleaning that was to occur in Tallahassee, Florida. Among them were Christopher Drayton and Clifton Brown, Jr. When the passengers were ready to reboard, the driver checked their tickets, and after the passengers were on board the driver left the bus to complete some paperwork inside the terminal. When he left the bus he allowed three plain-clothes officers of the Tallahassee Police Department, wearing visible badges identifying them as law enforcement personnel, to board the bus. They were there to conduct a “routine” drug and weapons interdiction operation.
The routine was one that had been carefully worked out. An officer would enter, kneel on the driver’s seat so as not to block the aisle or the exit, at the same time as he was able to observe all passengers and “ensure the safety of the other two officers.” The other two then would go to the rear of the bus, slowly working their way forward and speaking to each passenger. The officers would ask each person what his destination was, and to point out which luggage in the overhead racks belonged to him. The officer would typically stand next to or slightly behind each passenger to whom he was talking, so that aisle would not be obstructed if the passenger were to chose to leave.
STANDARD PROCEDURE FOLLOWED
This standard procedure was followed on this fateful (for Drayton and Brown) day by Officers Lang and Blackburn. Lang said that most people always cooperated, but that if someone declined to cooperate, or chose to leave the bus, he would have been permitted to do so without argument. On some occasions, Lang would inform passengers of their right to refuse to cooperate. But, in the words of the Court, “on the day in question, however, he did not.” As Lang reached Brown and Drayton, who were seated side by side with Drayton in the aisle seat., Lang showed his badge and said:
“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?”
Both Drayton and Brown pointed to a single green bag in the overhead rack and when Lang asked if they minded if he checked it, Brown said, “Go ahead.” When Blackburn was handed the bag for checking by Land, he found no contraband.
Lang did notice, however, that despite the warm weather, both Drayton and Brown were dressed in heavy jackets and baggy pants. Knowing that drug traffickers use that type of clothing to conceal contraband, Lang asked Brown if he had any drugs or weapons in his possession and asked if he would permit the officer to check his person. Again Brown was cooperative but when Lang patted him down and detected hard objects “similar to drug packages detected on other occasions” along Brown’s thighs, Lang placed Brown under arrest and asked Blackburn to remove him from the bus.
Lang then turned his attention to Drayton and asked the same question he had asked Brown. Drayton responded simply by lifting his hands up and Lang performed the same patdown routine he had inflicted upon Brown . . . with the same result. Drayton was removed from the bus and placed under arrest as well. Both Brown and Drayton were found to be in possession of quantities of cocaine.
MOTION TO SUPPRESS FAILS . . . AT FIRST!
After being charged with various “conspiracy to distribute” charges, both defendants moved to suppress the evidence. They argued that their consent to the patdown was invalid. The district court judge found their consent to have been freely given and not coerced. Perhaps very significant in the ultimate outcome of the case were these facts which the Supreme Court singled out for comment: “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 . . .”
On appeal to the Court of Appeals for the Eleventh Circuit, the District Court’s ruling was reversed and remanded with instructions that the court grant the motion to suppress that Drayton and Brown had made. In so doing, the reviewing court had relied on other cases holding that bus passengers will simply not feel free to disregard the police officers’ requests to search unless they have been told they can withhold consent and refuse to permit the search. It is on that issue that the Supreme Court agreed to review the case. Our highest court ended up siding with the trial judge and disagreeing with the appeals court.
In addressing the issues, the Court began by reviewing the Bostick case which, on similar facts, had upheld a police request of a bus passenger for consent to search his luggage, as a result of which cocaine was discovered. The Florida Supreme Court had suppressed the evidence and 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.” The Supreme Court of the United States had disagreed with a rule that imposed a per se requirement that persons be told they can refuse consent, and stated that a proper inquiry into the constitutional rights of a defendant must be based on the totality of the circumstances that exist in an individual case. Looking at what had happened in Bostick, and weighing whether a person in Bostick’s position would have felt coerced into cooperating, the Court stressed that while the officers were armed, they had not unholstered their guns or used them in a threatening way. More important for the current case, the Bostick Court had pointed to the fact the officer had told the suspect that he could refuse to consent.
So that became the issue here! In at least one earlier case, an appeals courts had said, “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, we do not feel a reasonable person would have felt able to decline the agents’ request.” Was the appeals court correct in requiring that people be told they may refuse to give consent? The Supreme Court said the court erred and declared: “. . . We conclude that the police did not seize [Drayton and Brown] 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 [Drayton and Brown], 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. * * * There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing or 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 search and seizure.”
Is this a convincing argument? What of the fact that Officer Hoover was positioned at the front of the bus? The Court did not feel that fact tipped the scales in favor of the defendants. The officer kneeling on the driver’s seat had done nothing to intimidate passengers. He had said nothing to suggest that people would be stopped if they sought to leave. In fact, he left the aisle free by resting on the driver’s seat.
Drayton had an additional argument to raise! He said that even if Brown’s cooperation with the officers might be said to have been with proper consent, after Brown was arrested, no reasonable person would have felt free to terminate the confrontation with the officers. The Court did not accept this argument, either, and said: “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.”
NO REQUIREMENT TO WARN
The conclusion to be drawn from this discussion? The Supreme rejects in very 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.” To be sure, when people have been told they can withhold consent, there will be no debate about whether the acquiescence was voluntary. But that is not an absolute requirement under the Fourth Amendment. In that sense, searches and seizures are very different from interrogations and questioning under the Fifth Amendment. The Miranda decision requires that people be warned of their right to remain silent and to the assistance of a lawyer before custodial questioning can occur. But that same warning requirement does not attach to Fourth Amendment rights.
What is interesting is that the Court also intimated, though it did not have to decide that issue, that after the arrest of Brown, perhaps there were grounds for a Terry stop of Drayton. After all, they were traveling together; they were dressed alike – heavy baggy clothes unsuitable for warm Florida weather and all; they both claimed to have the one piece green carry-on luggage in the overhead rack.
A DISSENTING PERSPECTIVE
The decision, while not unanimous – Fourth Amendment cases rarely are – is pretty solid since it was supported by six Justices. The dissent did raise some issues that may come up again in later cases. Justice Souter, writing for Justices Stevens and Ginsburg, drew a sharp distinction between air travel and bus travel. The dissent does not represent the law, of course. But it is well for law enforcement to be aware of arguments against one’s position. To be aware of them may help in avoiding circumstances which may cause a court to change the outcome and to distinguish the rule in a case from slightly different circumstances. In comparing air travel to bus travel, Justice Souter said: “Any one 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 enhance their own safety and the safety of those around them. Nor are the other factual assessments underlying the Court’s conclusion in favor of the Government more convincing.”
The dissent then went on to describe its view of what happens when police appear on the bus to conduct this routine “interdiction” procedure. “One [officer] stationed himself in the driver’s seat by the door at the front, facing back to observe the passengers. The two other went to the rear, from which they worked their way forward, with one of them speaking to passengers, the other backing him up. They necessarily addressed the passengers at very close range; the aisle was only fifteen inches wide, and each seat only eighteen. The quarters were cramped further by the overhead rack, nineteen inches above the top of the passenger seats. The passenger by the window could not have stood straight up, and the face of the nearest officer was only a foot or eighteen inches from the face of the nearest passenger being addressed. During the exchanges, the officers looked down, and the passengers had to look up if they were to face the police. * * * Then, for reasons unexplained [to the passengers], 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.”
These, and many other aspects of the encounter, led the dissenters to conclude that no reasonable person could believe the police wasn’t going to do whatever they wanted to do “or else.” Justice Souter concluded by asking, rhetorically, whether under these circumstances a passenger could reasonably have felt free to end his encounter with the three officers by saying “no” and ignoring them thereafter? To him, no voluntary consent could be said to exist.
