501 U.S. 429 (1991), 89-1717, Florida v. Bostick

Docket Nº:No. 89-1717.
Citation:501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389, 59 U.S.L.W. 4708
Party Name:FLORIDA, Petitioner, v. Terrance BOSTICK.
Case Date:June 20, 1991
Court:United States Supreme Court
 
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501 U.S. 429 (1991)

111 S.Ct. 2382, 115 L.Ed.2d 389, 59 U.S.L.W. 4708

FLORIDA, Petitioner,

v.

Terrance BOSTICK.

No. 89-1717.

United States Supreme Court.

June 20, 1991

Argued Feb. 26, 1991.

Question was certified by the District Court of Appeal, 510 So.2d 321, on appeal from the Circuit Court, Broward County, Russell E. Seay, Jr., J., as to whether police, without articulable suspicion, could board bus and ask at random for and receive consent to search passenger's luggage when they advised passenger that he had right to refuse consent to search. After rephrasing question, the Florida Supreme Court, 554 So.2d 1153, answered question in negative. On petition for writ of certiorari, the Supreme Court, Justice O'Connor, held that random bus searches conducted pursuant to passenger's consent are not per se unconstitutional.

Reversed and remanded.

Justice Marshall dissented and filed opinion, in which Justices Blackmun and Stevens joined.

[111 S.Ct. 2383] Syllabus[*]

SYLLABUS

As part of a drug interdiction effort, Broward County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. Two officers boarded respondent Bostick's bus and, without articulable suspicion, questioned him and requested his consent to search his luggage for drugs, advising him of his right to refuse. He gave his permission, and the officers, after finding cocaine, arrested Bostick on drug trafficking charges. His motion to suppress the cocaine on the ground that it had been seized in violation of the Fourth Amendment was denied by the trial court. The Florida Court of Appeal affirmed, but certified a question to the State Supreme Court. That court, reasoning that a reasonable passenger would not have felt free to leave the bus to avoid questioning by the police, adopted a per se rule that the sheriff's practice of "working the buses" is unconstitutional.

Held:

1. The Florida Supreme Court erred in adopting a per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all of the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers' requests or otherwise terminate the encounter. Pp. 2385-2388.

(a) A consensual encounter does not trigger Fourth Amendment scrutiny. See Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 310-311, 83 L.Ed.2d 165, ask to examine identification, INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762-1763, 80 L.Ed.2d 247, and request consent to search luggage, Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229, provided they do not convey a message that compliance with their requests is required. Thus, there is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the bus terminal, it would not be a seizure. P. 2386.

(b) That this encounter took place on a bus is but one relevant factor in determining whether or not it was of a coercive nature. The state court erred in focusing on the "free to leave" language of Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, rather than on the principle that those words were intended to capture. This inquiry is not an accurate measure of an [111 S.Ct. 2384] encounter's coercive effect when a person is seated on a bus about to depart, has no desire to leave, and would not feel free to leave

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even if there were no police present. The more appropriate inquiry is whether a reasonable passenger would feel free to decline the officers' request or otherwise terminate the encounter. Thus, this case is analytically indistinguishable from INS v. Delgado, supra. There, no seizure occurred when INS agents visited factories at random, stationing some agents at exits while others questioned workers, because, even though workers were not free to leave without being questioned, the agents' conduct gave them no reason to believe that they would be detained if they answered truthfully or refused to answer. Such a refusal, alone, does not furnish the minimal level of objective justification needed for detention or seizure. Id., at 216-217, 104 S.Ct. at 1762-1763. Pp. 2386-2388.

2. This case is remanded for the Florida courts to evaluate the seizure question under the correct legal standard. The trial court made no express findings of fact, and the State Supreme Court rested its decision on a single fact--that the encounter took place on a bus--rather than on the totality of the circumstances. Rejected, however, is Bostick's argument that he must have been seized because no reasonable person would freely consent to a search of luggage containing drugs, since the "reasonable person" test presumes aninnocent person. Pp. 2388-2389.

554 So.2d 1153 (Fla.1989), reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 2389.

COUNSEL

Joan Fowler, Assistant Attorney General of Florida, argued the cause for petitioner. With her on the brief was Robert A. Butterworth, Attorney General.

Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Mueller, Deputy Solicitor General Bryson, Christopher J. Wright, and Kathleen A. Felton.

Donald B. Ayer argued the cause for respondent. With him on the brief was Robert H. Klonoff.*

*Mary Irene Coombs, Steven R. Shapiro, John A. Powell, James K. Green, Jeffrey S. Weiner, and Robert G. Amsel filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak filed a brief for Americans for Effective Law Enforcement as amicus curiae.

Joan Fowler, West Palm Beach, for the petitioner.

Solicitor General Kenneth W. Starr, Washington, D.C., for the United States as amicus curiae, in support of the petitioner by special leave of Court.

Donald B. Ayer, Washington, D.C., for the respondent.

OPINION

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Justice O'CONNOR delivered the opinion of the Court.

We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus.

I

Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage.

In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision:

" 'Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers, admittedly without articulable suspicion, picked [111 S.Ct. 2385] out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant's identification and both were immediately returned to him as unremarkable. However, the two police officers persisted and explained their presence as narcotics agents on the

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lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.' " 554 So.2d 1153, 1154-1155 (1989), quoting 510 So.2d 321, 322 (Fla.App.1987) (Letts, J., dissenting in part).

Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State's favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol--the equivalent of carrying a gun in a holster--but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent's characterization of the officers as "gun-wielding inquisitor[s]," post, at 2393, is...

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