News
Criminal
Jul. 22, 2002
Bus Search Case Puts Defendants in Catch-22 Situation
Focus Column - By Alex Ricciardulli - The police board a bus when passengers are eight hours into a trip away from home. The bus is stopped, the driver exits, and three police officers enter, methodically asking the passengers their travel destinations and whether the police can search their luggage. Would a reasonable person riding on the bus feel free to leave in this situation?
Focus Column
By Alex Ricciardulli
The police board a bus when passengers are eight hours into a trip away from home. The bus is stopped, the driver exits, and three police officers enter, methodically asking the passengers their travel destinations and whether the police can search their luggage. Would a reasonable person riding on the bus feel free to leave in this situation?
The U.S. Supreme Court in United States v. Drayton, 2002 DJDAR 6707 (U.S. June 18, 2002), by a 6-3 vote, said "yes." Drayton held that the consent of two passengers to search their persons was lawfully obtained in these circumstances and that drugs found as a result of the searches could be used against them in their ensuing criminal cases.
Justice David H. Souter stated in his dissent that there was "an air of unreality" regarding the majority's perspective that a person would feel free to leave in this situation. This is especially true when one considers that the bus passengers' choice was to remain on board for questioning or face a 461-mile walk home.
The defendants were on a Greyhound bus traveling from Ft. Lauderdale to Detroit in February 1999. The bus stopped to refuel at Tallahassee, Fla. The passengers disembarked to allow the bus to be cleaned, and the driver allowed them to re-board after checking their tickets. The driver then left the bus and permitted three members of the Tallahassee Police Department to board. The officers were in plain clothes but carried holstered firearms and visible badges.
Two officers proceeded to the rear of the bus, while one knelt on the driver's seat and faced the back of the bus. One of the officers that went to the rear remained there facing forward, while the other one worked his way toward the front of the bus, questioning individual passengers as he went. The officer would ask passengers about their travel plans and tried to match passengers to luggage located in overhead racks. The officer did not inform anyone that they had the right to refuse to cooperate.
Defendants Christopher Drayton and Clifton Brown were sitting next to each other, with Drayton on the aisle seat. The officer leaned over Drayton's shoulder, showed him his badge and spoke to him from 12 to 18 inches away. The officer told Drayton that he was an investigator with the Police Department "conducting bus interdiction, attempting to deter drugs and illegal weapons being transported on the bus." The officer then asked Drayton if he had any bags and if the officer could search the bags. Both Brown and Drayton pointed to a single bag and allowed the police to search the bag. It contained no contraband.
Noticing that both defendants were wearing heavy jackets and baggy pants despite the hot weather, the police suspected that the defendants were carrying drugs on their persons. (It obviously did not occur to the police that their attire was entirely appropriate considering their city of destination: Detroit in February.) The officer asked Brown if he could search him. After Brown agreed, the officer found packages of drugs duct-taped to Brown's legs. Brown was arrested and handcuffed.
The officer then turned to Drayton and asked, "Mind if I check you?" Drayton lifted his hands up, and a search revealed similar drug packages in the areas of his legs. Drayton, too, was arrested. Brown had 483 grams of cocaine, and Drayton had 295.
The defendants were charged with federal drug offenses, and the U.S. District Court denied their motion to suppress the evidence. The U.S. Supreme Court, in an opinion written by Justice Anthony M. Kennedy, agreed.
The court stated that the Fourth Amendment does not prohibit an officer from merely approaching a person on the street and asking him questions if the person is willing to listen: "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."
Drayton also found that it was equally well established that, ordinarily, the police do not need to "inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search," citing Schneckloth v. Bustamante, 412 U.S. 218 (1973). Drayton observed that "it is beyond question that had [the defendants'] encounter occurred on the street, it would be constitutional."
The question presented was whether its occurrence on a bus elevated the encounter to a detention. Drayton ruled that it did not. Drayton found that "the police did not seize [the defendants] 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 [one officer] approached [the defendants], he did not brandish a weapon or make any intimidating movements. He left the aisle free so that [the defendants] 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."
Souter, joined by Justices John Paul Stevens and Ruth Bader Ginsburg, dissented. The dissent took issue with the majority's very first assertion that had the police encounter happened on a street, rather than on a bus, it would have been constitutional. Souter agreed that when a single police officer goes up to a pedestrian and asks him a question, no detention occurs and that even if there were two officers involved, the conclusion would probably be the same.
"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," Souter wrote. This is a more realistic comparison of a street encounter akin to Drayton and likely would constitute a detention.
Souter observed that "when the attention of several officers is brought to bear on one civilian the imbalance of immediate power is unmistakable." He stated, "We all understand this, as well as we understand that a display of power rising to [this] threatening level may overbear a normal person 's ability to act freely, even in the absence of explicit commands or the formalities of detention." Souter lamented, "As common as this understanding is, however, there is little sign of it in the Court 's opinion."
The dissent found that Drayton and Brown were detained when the police officer asked them questions and that because there was no reasonable suspicion to detain them, their consent to be searched was the tainted fruit of the illegal detention. The dissent concluded that when the police basically took over the entire bus and started telling passengers that they were "conducting bus interdiction" and that they "would like ... cooperation," a reasonable person would have felt compelled to comply.
"The reasonable inference was that the 'interdiction' was not a consensual exercise, but one the police would carry out whatever the circumstances; that they would prefer 'cooperation' but would not let the lack of it stand in their way," Souter wrote. "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."
The dissent concluded, "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."
The dissent appears more grounded in reality than the majority. Underlying the majority opinion is a myth that if people decide to invoke their right to not cooperate, the police will simply let them go on their way. As California Court of Appeal Justice Thomas Crosby once concluded, "the Supreme Court's assumption that the police will honor an individual's wish to depart is naive." People v. Bouser, 26 Cal.App.4th 1280 (1994) (Crosby, J., dissenting).
The situation is exacerbated when one considers the case from the Supreme Court that held that flight from the police can be considered in determining whether there is reasonable suspicion to believe that a person is engaged in criminal behavior. Under Illinois v. Wardlow, 528 U.S. 119 (2000), a person's decision to avoid contact with the police can constitute a suspicious circumstance that would make a detention constitutional.
The defendants in Drayton were not detained because they were free to leave; therefore, even though there was no reasonable suspicion of criminality, the police search was lawful. On the other hand, if they had exercised their right to leave by fleeing from the bus, under Wardlow, this would have given the police reasonable suspicion that they were engaged in criminal behavior, allowing them to be detained and making their search lawful.
Again, quoting Crosby, "Yossarian [the hero of Joseph Heller's "Catch-22"] would not be surprised."
Alex Ricciardulli is a deputy public defender assigned to the appellate branch of the Los Angeles County public defender's office and an adjunct professor at Loyola Law School.
By Alex Ricciardulli
The police board a bus when passengers are eight hours into a trip away from home. The bus is stopped, the driver exits, and three police officers enter, methodically asking the passengers their travel destinations and whether the police can search their luggage. Would a reasonable person riding on the bus feel free to leave in this situation?
The U.S. Supreme Court in United States v. Drayton, 2002 DJDAR 6707 (U.S. June 18, 2002), by a 6-3 vote, said "yes." Drayton held that the consent of two passengers to search their persons was lawfully obtained in these circumstances and that drugs found as a result of the searches could be used against them in their ensuing criminal cases.
Justice David H. Souter stated in his dissent that there was "an air of unreality" regarding the majority's perspective that a person would feel free to leave in this situation. This is especially true when one considers that the bus passengers' choice was to remain on board for questioning or face a 461-mile walk home.
The defendants were on a Greyhound bus traveling from Ft. Lauderdale to Detroit in February 1999. The bus stopped to refuel at Tallahassee, Fla. The passengers disembarked to allow the bus to be cleaned, and the driver allowed them to re-board after checking their tickets. The driver then left the bus and permitted three members of the Tallahassee Police Department to board. The officers were in plain clothes but carried holstered firearms and visible badges.
Two officers proceeded to the rear of the bus, while one knelt on the driver's seat and faced the back of the bus. One of the officers that went to the rear remained there facing forward, while the other one worked his way toward the front of the bus, questioning individual passengers as he went. The officer would ask passengers about their travel plans and tried to match passengers to luggage located in overhead racks. The officer did not inform anyone that they had the right to refuse to cooperate.
Defendants Christopher Drayton and Clifton Brown were sitting next to each other, with Drayton on the aisle seat. The officer leaned over Drayton's shoulder, showed him his badge and spoke to him from 12 to 18 inches away. The officer told Drayton that he was an investigator with the Police Department "conducting bus interdiction, attempting to deter drugs and illegal weapons being transported on the bus." The officer then asked Drayton if he had any bags and if the officer could search the bags. Both Brown and Drayton pointed to a single bag and allowed the police to search the bag. It contained no contraband.
Noticing that both defendants were wearing heavy jackets and baggy pants despite the hot weather, the police suspected that the defendants were carrying drugs on their persons. (It obviously did not occur to the police that their attire was entirely appropriate considering their city of destination: Detroit in February.) The officer asked Brown if he could search him. After Brown agreed, the officer found packages of drugs duct-taped to Brown's legs. Brown was arrested and handcuffed.
The officer then turned to Drayton and asked, "Mind if I check you?" Drayton lifted his hands up, and a search revealed similar drug packages in the areas of his legs. Drayton, too, was arrested. Brown had 483 grams of cocaine, and Drayton had 295.
The defendants were charged with federal drug offenses, and the U.S. District Court denied their motion to suppress the evidence. The U.S. Supreme Court, in an opinion written by Justice Anthony M. Kennedy, agreed.
The court stated that the Fourth Amendment does not prohibit an officer from merely approaching a person on the street and asking him questions if the person is willing to listen: "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."
Drayton also found that it was equally well established that, ordinarily, the police do not need to "inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search," citing Schneckloth v. Bustamante, 412 U.S. 218 (1973). Drayton observed that "it is beyond question that had [the defendants'] encounter occurred on the street, it would be constitutional."
The question presented was whether its occurrence on a bus elevated the encounter to a detention. Drayton ruled that it did not. Drayton found that "the police did not seize [the defendants] 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 [one officer] approached [the defendants], he did not brandish a weapon or make any intimidating movements. He left the aisle free so that [the defendants] 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."
Souter, joined by Justices John Paul Stevens and Ruth Bader Ginsburg, dissented. The dissent took issue with the majority's very first assertion that had the police encounter happened on a street, rather than on a bus, it would have been constitutional. Souter agreed that when a single police officer goes up to a pedestrian and asks him a question, no detention occurs and that even if there were two officers involved, the conclusion would probably be the same.
"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," Souter wrote. This is a more realistic comparison of a street encounter akin to Drayton and likely would constitute a detention.
Souter observed that "when the attention of several officers is brought to bear on one civilian the imbalance of immediate power is unmistakable." He stated, "We all understand this, as well as we understand that a display of power rising to [this] threatening level may overbear a normal person 's ability to act freely, even in the absence of explicit commands or the formalities of detention." Souter lamented, "As common as this understanding is, however, there is little sign of it in the Court 's opinion."
The dissent found that Drayton and Brown were detained when the police officer asked them questions and that because there was no reasonable suspicion to detain them, their consent to be searched was the tainted fruit of the illegal detention. The dissent concluded that when the police basically took over the entire bus and started telling passengers that they were "conducting bus interdiction" and that they "would like ... cooperation," a reasonable person would have felt compelled to comply.
"The reasonable inference was that the 'interdiction' was not a consensual exercise, but one the police would carry out whatever the circumstances; that they would prefer 'cooperation' but would not let the lack of it stand in their way," Souter wrote. "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."
The dissent concluded, "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."
The dissent appears more grounded in reality than the majority. Underlying the majority opinion is a myth that if people decide to invoke their right to not cooperate, the police will simply let them go on their way. As California Court of Appeal Justice Thomas Crosby once concluded, "the Supreme Court's assumption that the police will honor an individual's wish to depart is naive." People v. Bouser, 26 Cal.App.4th 1280 (1994) (Crosby, J., dissenting).
The situation is exacerbated when one considers the case from the Supreme Court that held that flight from the police can be considered in determining whether there is reasonable suspicion to believe that a person is engaged in criminal behavior. Under Illinois v. Wardlow, 528 U.S. 119 (2000), a person's decision to avoid contact with the police can constitute a suspicious circumstance that would make a detention constitutional.
The defendants in Drayton were not detained because they were free to leave; therefore, even though there was no reasonable suspicion of criminality, the police search was lawful. On the other hand, if they had exercised their right to leave by fleeing from the bus, under Wardlow, this would have given the police reasonable suspicion that they were engaged in criminal behavior, allowing them to be detained and making their search lawful.
Again, quoting Crosby, "Yossarian [the hero of Joseph Heller's "Catch-22"] would not be surprised."
Alex Ricciardulli is a deputy public defender assigned to the appellate branch of the Los Angeles County public defender's office and an adjunct professor at Loyola Law School.
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