Petitioner
State of Florida
Respondent
Terrance Bostick
Petitioner's Claim
Random police searches of the effects of consenting passengers are not perse unconstitutional.
Chief Lawyer for Petitioner
Joan Fowler, Assistant Attorney General of Florida
Chief Lawyer for Respondent
Donald B. Ayer
Justices for the Court
Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, David H. Souter, Byron R. White
Justices Dissenting
Harry A. Blackmun, Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
20 June 1991
Decision
Police sweeps of buses and their passengers are not necessarily unconstitutional.
Significance
The Bostick case was significant for what it authorized: police dragnets of buses and bus passengers and searches that are unsupported by suspicion.
Terrance Bostick was on a bus headed from Miami, Florida, to Atlanta, Georgia, when the bus stopped for a layover in Fort Lauderdale. Two police officerswearing casual clothes and jackets clearly marked "raid" boarded the bus andbegan to eye the passengers. The officers picked out Terrance Bostick, a black man, for questioning. Standing between Bostick and the door with their pistols and badges visible, the officers told Bostick that they were narcotics agents looking for illegal drugs. Upon searching Bostick's luggage, the officers found cocaine and arrested Bostick.
Bostick was charged with trafficking in cocaine. Before trial, Bostick movedthe court to exclude the cocaine evidence, arguing that the search was conducted in violation of his Fourth Amendment right to be free from unreasonable search and seizure. The trial court refused to suppress the evidence, and Bostick pleaded guilty but preserved his right to appeal the court's decision onthe suppression motion. The Florida District Court of Appeal affirmed the trial court's ruling, but it considered the question important enough to certifyto the Florida Supreme Court, which reversed the ruling. According to Florida's high court, "an impermissible seizure result[s] when police mount a drugsearch on buses during scheduled stops and question boarded passengers without articulable reason for doing so, thereby obtaining consent to search the passengers' luggage." The state of Florida petitioned for certiorari tothe U.S. Supreme Court, and the High Court agreed to hear the case.
In a 6-3 decision, the High Court held that the search in the case was not per se unreasonable. In an opinion written by Justice O'Connor, the majority initially noted two important facts about the case: first, although Bostick disputed the finding, the trial court found that the police officers gaveBostick the right to refuse consent and that the officers never threatened Bostick with their guns. The Court then explained that its reason for taking the case was to see if Florida's high court had created a rule that was inconsistent with the Supreme Court's Fourth Amendment jurisprudence.
The sole issue in Bostick's case was whether a police encounter on a bus, such as the one that Bostick experienced, constitutes a seizure by the police under the Fourth Amendment. If such a police encounter does not constitute a seizure, then the Fourth Amendment protections against unreasonable search andseizure do not apply. All parties in the case agreed that if the encounter was found to be a seizure, it was an illegal seizure, unsupported as it was byany reasonable suspicion that Bostick had done anything wrong. In such a ruling the cocaine evidence would have to be thrown out of court, effectively ending the state's prosecution of Bostick.
The state of Florida argued that the encounter did not constitute a seizure,and it compared the case to prior cases in which the Court had held that similar police questioning in an airport did not constitute a seizure. Bostick argued that his case was different because the encounter took place in the cramped confines of a bus. Bostick maintained that his exit route was cut off bythe armed officers, and he claimed that the intimidating nature of the confrontation created an atmosphere in which he was effectively seized by the police.
The Court rejected Bostick's arguments. The Court cited some of its earlier cases for the proposition that simple police questioning does not constitute aseizure. That rule is in place because the alternative--preventing police officers from even talking to people without first developing a reasonable suspicion that the person has committed or is about to commit a crime--would be an unnecessary burden on law enforcement. Quoting California v. Hodari D. (1991), the Court recited the test for determining whether a police encounter constitutes a seizure: if the person reasonably feels free "to disregardthe police and go about his business," the encounter is not a seizure.
In Bostick's case, however, the Florida Supreme Court's emphasis on whether Bostick was free to leave was error. Because Bostick was on a bus, he probablyhad no desire to leave, so "the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter." The majority acknowledged that Bostick's movements werein fact confined, but "this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue wascoercive."
The majority declared this case was similar to that of Immigration and Naturalization Service v. Delgado (1984). In that case, Immigration and Naturalization Service (INS) agents, looking for illegal aliens, visited factories at random and questioned employees without reasonable suspicion to believethat any of the employees were illegal aliens. The Supreme Court ruled that the practice was not unconstitutional because there was no seizure of employees by the INS agents. Despite the fact that the factory employees were not free to leave the factory, the Court believed that the agents' conduct gave employees "no reason to believe that they would be detained if they gave truthfulanswers . . . or if they simply refused to answer."
The majority, however, refused to determine whether the agents in Bostick's case had in fact seized Bostick. That was a factual determination that had notbeen decided by the Florida courts under the proper standard. The proper standard for determining whether Bostick was seized, the Court pronounced, was the totality of the circumstances. In other words, the courts would have to look at all the factors involved in the encounter from the standpoint of a reasonable person to determine whether Bostick was in fact seized. The majority made it a point, though, to specifically reject Bostick's claim that he must have been seized because no reasonable person would willingly give police officers an opportunity to look through a container that contains illegal drugs.This argument was futile because when judges and juries determine what a reasonable person would feel, they must made that determination from the perspective of an innocent person, not a guilty person. The question remaining for the Florida courts, said the majority, was whether Bostick actually consented to the search of his luggage.
Justice O'Connor spent the rest of the opinion defending the majority's decision against a scathing dissent by Justice Marshall. The dissent claimed thatthe opinion authorized police to intimidate passengers into "voluntary" cooperation. The opinion authorized no such thing, said O'Connor, noting that thequestion on remand to Florida's courts was whether Bostick in fact gave the officers consent to search his luggage. The dissent also claimed that the majority opinion decreased constitutional protection for persons on buses, but the opinion merely gave police the same rights that they have on the streets and in airports and trains. O'Connor observed that the dissent objected to theidea of random police questioning, but, she noted, the Court had endorsed theidea in several prior cases.
Striking a conciliatory tone, O'Connor closed the majority opinion by agreeing with the dissent that the Court does not have the power to "suspend constitutional guarantees" as the country fights a "war on drugs." The holding, however, suspended no constitutional guarantees. According to the majority, its holding was in line with precedent and merely corrected the Florida Supreme Court's conclusion that such police sweeps as the one conducted in Bostick's case were not per se unconstitutional.
Minority Opinion
Justices Blackmun and Stevens joined Justice Marshall in a blistering dissent. The police sweep conducted in Bostick's case "violate[d] the core values ofthe Fourth Amendment," wrote Justice Marshall. The sweep was conducted "in `Dragnet' style" without an articulable suspicion about a specific bus or passenger. In a footnote, Marshall observed that the decision to approach certainpassengers was not "completely random." In fact, Marshall noted, black persons were being targeted. To support this proposition, Marshall cited testimonyin United States v. Williams (1991). In that case, a detective testified that he decided to question three persons because they "were young and black." Thus, the decision "to single out particular passengers during a suspicionless sweep," Marshall opined, "is less likely to be inarticulable than unspeakable."
Marshall sided with the Florida Supreme Court, arguing for deference to its judgment as a court "located at the heart of the `drug war.'" He quoted Florida v. Kerwick (1987), another case involving a police sweep for drugs,at length. In that case, the court compared the police tactics to police tactics
Marshall also quoted a District of Columbia court, which stated in a similarcase, "[i]n this `anything goes' war on drugs, random knocks on the doors ofour citizens' homes seeking `consent' to search for drugs cannot be far away."
The majority had "inexplicably" stressed that the police informed Bostick that he was free to withhold his consent to the search of his luggage. This wasbeside the point, Marshall lectured: If Bostick was actually seized before the police searched his luggage, then the search, as the parties had conceded,was illegal. Thus, under Supreme Court precedent on the topic of such encounters, the real question in the case was whether a reasonable person in Bostick's position, unapprised of his constitutional rights, would have felt free toterminate the encounter with the police. "Unlike the majority," said Marshall, "I have no doubt that the answer to this question is no."
Marshall ridiculed the majority's analysis of Bostick's mode of transportation, calling it borderline "sophism" that "trivializes the values that underliethe Fourth Amendment." The option to leave a bus before a destination without stowed belongings is not an attractive one, and "[i]t is exactly because this `choice' is no `choice' at all that police engage this technique." Marshall noted that the majority had kind words for individual rights, but "[t]he actions . . . speak louder than its words."
Impact
The Supreme Court's ruling in Bostick, perhaps out of necessity, endorsed the historically vague application of the Fourth Amendment's search and seizure provision. The standard used to determine whether a search or seizureviolates an individual's constitutional rights is "objective" reasonableness.Objective reasonableness is a hypothetical guideline used to determine whether the "typical reasonable individual" would consent to a search or seizure given the situation in question. Some contend that such a standard opens the door to perjury by law enforcement officials. There is evidence to suggest that the temptation for law enforcement officials to provide false testimony that a suspect consented to a search or seizure is too great to resist. Bostick did little to discourage such eventualities. As with many cases that involve the application of the Fourth Amendment, the central issue that Bostick addressed pertains to a citizen's knowledge of their right to deny officers permission to search their belongings or detain them. Previously, theapplication of the Fourth Amendment operated under the assumption that an individual understood that he or she did not have to consent to a search. O'Connor's opinion shifted the burden of proving this understanding to the personbeing searched; it is incumbent upon the individual to prove that a law enforcement official made it clear that he or she did not have to consent to the search.
The Bostick ruling and subsequent Rehnquist rulings such as Ohio v.Robinette (1996) and Maryland v. Wilson (1997) tilted the application of the Fourth Amendment further in favor of law enforcement practices. In Ohio the Court ruled that the Fourth Amendment does not require police officers to inform defendants that they are "free to go" in order for a consent to search the individual to be considered voluntary. In Marylandthe Court held that it is not a violation of the Fourth Amendment for an officer to request that a passenger get out of a car that has been lawfully detained.
Related Cases
Random Bus and Train Searches
Legal writer Stuart Taylor, discussing random searches in Manhattan Lawyer, would no doubt have taken quite a different view. "It's after midnight," Taylor wrote, setting the scene for his discussion. "You are hurrying through the airport with a carry-on bag, impatient to get home . . . A man keeps pace with you, staying close . . . Another man hovers nearby. You walk faster.The first man closes in from the side. The other circles behind you. Your heart is pounding. `Excuse me.' He flashes a badge. `Can I talk to you?' . . .You know you've done nothing wrong. But suddenly you're a suspect. Your handsare shaking." Taylor went on to ask readers if they knew their rights in such a situation, and noted that many courts would not consider such an approachcoercive. But in Taylor's view, these random airport, train station, or busterminal searches are indeed coercive, precisely because no one wants to invoke their rights for fear of raising suspicions that they are carrying something illegal. "And so we have moved into a regime of random police fishing expeditions," he observed, "in which innocent citizens must submit to searches orbe branded as drug suspects for refusing."
Sources
Taylor, Stuart Jr. "Travelers Becoming POWs in Drug War." Manhattan Lawyer, May 1990.
State of Florida
Respondent
Terrance Bostick
Petitioner's Claim
Random police searches of the effects of consenting passengers are not perse unconstitutional.
Chief Lawyer for Petitioner
Joan Fowler, Assistant Attorney General of Florida
Chief Lawyer for Respondent
Donald B. Ayer
Justices for the Court
Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, David H. Souter, Byron R. White
Justices Dissenting
Harry A. Blackmun, Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
20 June 1991
Decision
Police sweeps of buses and their passengers are not necessarily unconstitutional.
Significance
The Bostick case was significant for what it authorized: police dragnets of buses and bus passengers and searches that are unsupported by suspicion.
Terrance Bostick was on a bus headed from Miami, Florida, to Atlanta, Georgia, when the bus stopped for a layover in Fort Lauderdale. Two police officerswearing casual clothes and jackets clearly marked "raid" boarded the bus andbegan to eye the passengers. The officers picked out Terrance Bostick, a black man, for questioning. Standing between Bostick and the door with their pistols and badges visible, the officers told Bostick that they were narcotics agents looking for illegal drugs. Upon searching Bostick's luggage, the officers found cocaine and arrested Bostick.
Bostick was charged with trafficking in cocaine. Before trial, Bostick movedthe court to exclude the cocaine evidence, arguing that the search was conducted in violation of his Fourth Amendment right to be free from unreasonable search and seizure. The trial court refused to suppress the evidence, and Bostick pleaded guilty but preserved his right to appeal the court's decision onthe suppression motion. The Florida District Court of Appeal affirmed the trial court's ruling, but it considered the question important enough to certifyto the Florida Supreme Court, which reversed the ruling. According to Florida's high court, "an impermissible seizure result[s] when police mount a drugsearch on buses during scheduled stops and question boarded passengers without articulable reason for doing so, thereby obtaining consent to search the passengers' luggage." The state of Florida petitioned for certiorari tothe U.S. Supreme Court, and the High Court agreed to hear the case.
In a 6-3 decision, the High Court held that the search in the case was not per se unreasonable. In an opinion written by Justice O'Connor, the majority initially noted two important facts about the case: first, although Bostick disputed the finding, the trial court found that the police officers gaveBostick the right to refuse consent and that the officers never threatened Bostick with their guns. The Court then explained that its reason for taking the case was to see if Florida's high court had created a rule that was inconsistent with the Supreme Court's Fourth Amendment jurisprudence.
The sole issue in Bostick's case was whether a police encounter on a bus, such as the one that Bostick experienced, constitutes a seizure by the police under the Fourth Amendment. If such a police encounter does not constitute a seizure, then the Fourth Amendment protections against unreasonable search andseizure do not apply. All parties in the case agreed that if the encounter was found to be a seizure, it was an illegal seizure, unsupported as it was byany reasonable suspicion that Bostick had done anything wrong. In such a ruling the cocaine evidence would have to be thrown out of court, effectively ending the state's prosecution of Bostick.
The state of Florida argued that the encounter did not constitute a seizure,and it compared the case to prior cases in which the Court had held that similar police questioning in an airport did not constitute a seizure. Bostick argued that his case was different because the encounter took place in the cramped confines of a bus. Bostick maintained that his exit route was cut off bythe armed officers, and he claimed that the intimidating nature of the confrontation created an atmosphere in which he was effectively seized by the police.
The Court rejected Bostick's arguments. The Court cited some of its earlier cases for the proposition that simple police questioning does not constitute aseizure. That rule is in place because the alternative--preventing police officers from even talking to people without first developing a reasonable suspicion that the person has committed or is about to commit a crime--would be an unnecessary burden on law enforcement. Quoting California v. Hodari D. (1991), the Court recited the test for determining whether a police encounter constitutes a seizure: if the person reasonably feels free "to disregardthe police and go about his business," the encounter is not a seizure.
In Bostick's case, however, the Florida Supreme Court's emphasis on whether Bostick was free to leave was error. Because Bostick was on a bus, he probablyhad no desire to leave, so "the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter." The majority acknowledged that Bostick's movements werein fact confined, but "this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue wascoercive."
The majority declared this case was similar to that of Immigration and Naturalization Service v. Delgado (1984). In that case, Immigration and Naturalization Service (INS) agents, looking for illegal aliens, visited factories at random and questioned employees without reasonable suspicion to believethat any of the employees were illegal aliens. The Supreme Court ruled that the practice was not unconstitutional because there was no seizure of employees by the INS agents. Despite the fact that the factory employees were not free to leave the factory, the Court believed that the agents' conduct gave employees "no reason to believe that they would be detained if they gave truthfulanswers . . . or if they simply refused to answer."
The majority, however, refused to determine whether the agents in Bostick's case had in fact seized Bostick. That was a factual determination that had notbeen decided by the Florida courts under the proper standard. The proper standard for determining whether Bostick was seized, the Court pronounced, was the totality of the circumstances. In other words, the courts would have to look at all the factors involved in the encounter from the standpoint of a reasonable person to determine whether Bostick was in fact seized. The majority made it a point, though, to specifically reject Bostick's claim that he must have been seized because no reasonable person would willingly give police officers an opportunity to look through a container that contains illegal drugs.This argument was futile because when judges and juries determine what a reasonable person would feel, they must made that determination from the perspective of an innocent person, not a guilty person. The question remaining for the Florida courts, said the majority, was whether Bostick actually consented to the search of his luggage.
Justice O'Connor spent the rest of the opinion defending the majority's decision against a scathing dissent by Justice Marshall. The dissent claimed thatthe opinion authorized police to intimidate passengers into "voluntary" cooperation. The opinion authorized no such thing, said O'Connor, noting that thequestion on remand to Florida's courts was whether Bostick in fact gave the officers consent to search his luggage. The dissent also claimed that the majority opinion decreased constitutional protection for persons on buses, but the opinion merely gave police the same rights that they have on the streets and in airports and trains. O'Connor observed that the dissent objected to theidea of random police questioning, but, she noted, the Court had endorsed theidea in several prior cases.
Striking a conciliatory tone, O'Connor closed the majority opinion by agreeing with the dissent that the Court does not have the power to "suspend constitutional guarantees" as the country fights a "war on drugs." The holding, however, suspended no constitutional guarantees. According to the majority, its holding was in line with precedent and merely corrected the Florida Supreme Court's conclusion that such police sweeps as the one conducted in Bostick's case were not per se unconstitutional.
Minority Opinion
Justices Blackmun and Stevens joined Justice Marshall in a blistering dissent. The police sweep conducted in Bostick's case "violate[d] the core values ofthe Fourth Amendment," wrote Justice Marshall. The sweep was conducted "in `Dragnet' style" without an articulable suspicion about a specific bus or passenger. In a footnote, Marshall observed that the decision to approach certainpassengers was not "completely random." In fact, Marshall noted, black persons were being targeted. To support this proposition, Marshall cited testimonyin United States v. Williams (1991). In that case, a detective testified that he decided to question three persons because they "were young and black." Thus, the decision "to single out particular passengers during a suspicionless sweep," Marshall opined, "is less likely to be inarticulable than unspeakable."
Marshall sided with the Florida Supreme Court, arguing for deference to its judgment as a court "located at the heart of the `drug war.'" He quoted Florida v. Kerwick (1987), another case involving a police sweep for drugs,at length. In that case, the court compared the police tactics to police tactics
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.
Marshall also quoted a District of Columbia court, which stated in a similarcase, "[i]n this `anything goes' war on drugs, random knocks on the doors ofour citizens' homes seeking `consent' to search for drugs cannot be far away."
The majority had "inexplicably" stressed that the police informed Bostick that he was free to withhold his consent to the search of his luggage. This wasbeside the point, Marshall lectured: If Bostick was actually seized before the police searched his luggage, then the search, as the parties had conceded,was illegal. Thus, under Supreme Court precedent on the topic of such encounters, the real question in the case was whether a reasonable person in Bostick's position, unapprised of his constitutional rights, would have felt free toterminate the encounter with the police. "Unlike the majority," said Marshall, "I have no doubt that the answer to this question is no."
Marshall ridiculed the majority's analysis of Bostick's mode of transportation, calling it borderline "sophism" that "trivializes the values that underliethe Fourth Amendment." The option to leave a bus before a destination without stowed belongings is not an attractive one, and "[i]t is exactly because this `choice' is no `choice' at all that police engage this technique." Marshall noted that the majority had kind words for individual rights, but "[t]he actions . . . speak louder than its words."
Impact
The Supreme Court's ruling in Bostick, perhaps out of necessity, endorsed the historically vague application of the Fourth Amendment's search and seizure provision. The standard used to determine whether a search or seizureviolates an individual's constitutional rights is "objective" reasonableness.Objective reasonableness is a hypothetical guideline used to determine whether the "typical reasonable individual" would consent to a search or seizure given the situation in question. Some contend that such a standard opens the door to perjury by law enforcement officials. There is evidence to suggest that the temptation for law enforcement officials to provide false testimony that a suspect consented to a search or seizure is too great to resist. Bostick did little to discourage such eventualities. As with many cases that involve the application of the Fourth Amendment, the central issue that Bostick addressed pertains to a citizen's knowledge of their right to deny officers permission to search their belongings or detain them. Previously, theapplication of the Fourth Amendment operated under the assumption that an individual understood that he or she did not have to consent to a search. O'Connor's opinion shifted the burden of proving this understanding to the personbeing searched; it is incumbent upon the individual to prove that a law enforcement official made it clear that he or she did not have to consent to the search.
The Bostick ruling and subsequent Rehnquist rulings such as Ohio v.Robinette (1996) and Maryland v. Wilson (1997) tilted the application of the Fourth Amendment further in favor of law enforcement practices. In Ohio the Court ruled that the Fourth Amendment does not require police officers to inform defendants that they are "free to go" in order for a consent to search the individual to be considered voluntary. In Marylandthe Court held that it is not a violation of the Fourth Amendment for an officer to request that a passenger get out of a car that has been lawfully detained.
Related Cases
- Immigration and Naturalization Service v. Delgado, 466 U.S. 210 (1984).
- Florida v. Kerwick, 512 So.2d 347 (Fla App. 1987).
- California v. Hodari D., 499 U.S. 621 (1991).
- United States v. Williams, 500 U.S. 901 (1991).
Random Bus and Train Searches
Legal writer Stuart Taylor, discussing random searches in Manhattan Lawyer, would no doubt have taken quite a different view. "It's after midnight," Taylor wrote, setting the scene for his discussion. "You are hurrying through the airport with a carry-on bag, impatient to get home . . . A man keeps pace with you, staying close . . . Another man hovers nearby. You walk faster.The first man closes in from the side. The other circles behind you. Your heart is pounding. `Excuse me.' He flashes a badge. `Can I talk to you?' . . .You know you've done nothing wrong. But suddenly you're a suspect. Your handsare shaking." Taylor went on to ask readers if they knew their rights in such a situation, and noted that many courts would not consider such an approachcoercive. But in Taylor's view, these random airport, train station, or busterminal searches are indeed coercive, precisely because no one wants to invoke their rights for fear of raising suspicions that they are carrying something illegal. "And so we have moved into a regime of random police fishing expeditions," he observed, "in which innocent citizens must submit to searches orbe branded as drug suspects for refusing."
Sources
Taylor, Stuart Jr. "Travelers Becoming POWs in Drug War." Manhattan Lawyer, May 1990.
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