Florida v. Bostick

Justices Blackmun and Stevens joined Justice Marshall in a blistering dissent. The police sweep conducted in Bostick's case "violate[d] the core values of the 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 certain passengers was not "completely random." In fact, Marshall noted, black persons were being targeted. To support this proposition, Marshall cited testimony in 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 similar case, "[i]n this `anything goes' war on drugs, random knocks on the doors of our 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 was beside 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 to terminate 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 underlie the 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."