From: amp@pobox.com
Date: Tue, 2 Sep 1997 15:58:37 +0800
To: cypherpunks@cyberpass.net
Subject: Re: You really do want to volunteer, don't you?
In-Reply-To: <v03102809b0314ac20d7e@[207.167.93.63]>
Message-ID: <Chameleon.873181717.amp@rcnu3077>
MIME-Version: 1.0
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> Item: "You may volunteer to let the nice officers boarding this bus search
> your bags without any kind of search warrant or probable cause. Most of you
> will readily volunteer, as you "have nothing to hide." However, failure to
> volunteer will then mark you as a probable hider of something, and the
> police officers will then have "probable cause" to search your bags. Have a
> nice day."
> 
> This was an actual case, heard by the Supreme Court several years back. Bus
> passengers were given the opportunity to volunteer, as noted. Failure to
> volunteer was construed as probable cause that contraband was present.
> 
> (No, I don't know the name of the case. My recollection is that it took
> place in Florida or one of the Carolinas. Nor do I recollect how the
> Supremes decided the case....I can hope they ruled it a clear violation of
> the Fourth. But I don't remember. Regardless of the outcome, for now, it
> shows the Orwellian concept of "mandatory voluntary" at work.)

---------------End of Original Message-----------------
>From 
http://www.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/data/us/501/429.
html



FLORIDA v. BOSTICK 
CERTIORARI TO THE SUPREME COURT OF FLORIDA 

No. 89-1717

Argued February 26, 1991 
Decided June 20, 1991

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.
433-437.

(a) A consensual encounter does not trigger Fourth Amendment
scrutiny. See Terry v. Ohio, 392 U.S. 1, 19, n. 16. 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, ask to examine identification, INS v. Delgdo, 466 U.S.
210, 216, and request consent to search luggage, Florida v.  Royer,
460 U.S. 491, 501, 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. Pp.
434-435.

(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, rather than on the
principle that those words were intended to capture. This inquiry is
not an accurate measure of an 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 [501 U.S. 429, 430] 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. Pp. 435-437.

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 an
innocent person. Pp. 437-440.

------------------------
Name: amp
E-mail: amp@pobox.com
Date: 09/02/97
Time: 02:24:20
Visit me at http://www.pobox.com/~amp

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