In bus search cases, the Court ruled that the proper inquiry "is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter." High Court Sides with Police on Bus Searches

The U.S. Supreme Court ruled this week that police may ask passengers aboard public buses to submit to searches without informing them of their legal rights to refuse the request.

In a case that has taken on increased significance for law enforcement in the wake of 9-11, the ruling allows police the same latitude to search suspects on a bus as they have to question individuals on a street corner or search them on an airplane.

The case stems from a 1999 drug bust on a Greyhound bus in Tallahassee, Florida. Three local police officers boarded the bus bound for Detroit, Michigan in search of illegal drugs or weapons. The officers were dressed in plain clothes. One officer stood at the front of the bus without blocking the aisle, another stood at the back of the bus. The third officer, starting at the back of the bus, began questioning passengers on travel plans and sought to match passengers with luggage overhead. During his questioning, the officer did not block the exit path of passengers.

The officer questioned two male passengers sitting together. Upon request to search their bag, he was told to "go ahead." The bag contained no contraband. The officer then noticed that the two men were wearing baggy clothing and asked if he could check their persons. The men agreed, and the officers found almost a kilo of cocaine strapped to their legs. According to court papers submitted by Solicitor General Theodore Olson, "The officers showed no weapons, spoke politely and quietly with the passengers and said nothing that might convey the message that cooperation was mandatory."

The U.S. Court of Appeals for the 11th Circuit ruled that the arresting officers had violated the defendants’ Fourth Amendment rights against unreasonable search and seizure by failing to inform them that they were not required to submit to the search.

In overturning that decision, Justice Anthony Kennedy, on behalf of the 6-3 majority in U.S. v. Drayton (No. 01-631), wrote: "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."

The issue of police searches on buses is not a new one for the Supreme Court. In 1991, in Florida v. Bostick, 501 U.S. 429 (1991), the Court ruled that the Fourth Amendment permits police officers to approach bus passengers at random to ask questions and to request their consent to searches, provided the officers do not induce cooperation by coercive means.

In bus search cases, the Court ruled that the proper inquiry "is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter." According to Justice O’Connor, who wrote for the 6-3 majority in that case, the question was whether, under the "totality of the circumstances," a reasonable person would feel free "to disregard the police and go about his business."

Following the Bostick case, the Eleventh Circuit adopted a per se rule that evidence obtained during such bus searches must be suppressed unless the officers have advised passengers of their right not to cooperate and to refuse to consent. The Supreme Court now rules that the Court of Appeals "erred in adopting this approach."

Justice David Souter, who sided with the majority in Bostick, made a surprising flip-flop in Drayton, writing for the dissent that the three officers had essentially "pinned-in" passengers on the bus, making it clear their cooperation was expected. Souter differentiated between airplane passengers, who because of terrorist concerns know they must submit to searches, and bus passengers. "The commonplace precautions of air travel have not, thus far, been justified for ground transportation," argued Souter.

In a world where innocent civilians are blown apart with sickening frequency on Israeli buses by suicide bombers, we can only pray Justice Souter’s reassurances hold true for us.

According to assistant federal public defender Gwendolyn Spivey, there’s another difference between air and bus travelers: typically bus riders are poorer and have less knowledge of their rights than other travelers. "They don’t know who their congressman is," said Spivey in oral arguments last April before the Court.

Rejecting the "ignorance" defense, Justice Anthony Kennedy said arguments that "the government has some obligation to teach everybody about their rights [is a] sweeping proposition and not required by the Constitution."

To download a copy of the decision, click here.

June 21, 2002
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