Judicial Notebook

The Fourth Amendment to the Constitution of the United States gives Americans the right to be free from unreasonable search and seizure of their persons, houses, papers and effects. These days, police-citizen encounters are occurring more frequently on public transportation as police increase the use of voluntary searches to prevent crime and protect travelers. Several court cases have begun to examine what conditions are necessary for the court to consider a person's consent to a police search to be voluntary.

Police-citizen encounters may involve a request by an officer to search either a person or a person's property. Public buses are one facility where search requests have been made. In two cases, the 11th Circuit decided that when a police officer boards a bus and makes a general announcement about the intent to search, that implies that passenger cooperation with the search is mandatory (United States v. Washington, 151 F. 3d 1354, 1998; United States v. Guapi, 144 F.3d 1393, 1998). Yet in Florida v. Bostwick, 501 U.S. 429 (1991), the 11th Circuit ruled that interviews in the "cramped confines" of a bus do not automatically qualify as a seizure and that approaching an individual does not immediately exclude the findings of the search from evidence. And in United States v. Broomfield, 201 F.3d 1270 (2000), the 10th Circuit ruled that one-on-one police-citizen encounters were not inherently coercive.

A new case

Because of the conflicting lower court decisions about the conditions required for voluntary consent to search, the Supreme Court has recently agreed to review United States v. Drayton and Brown, 231 F.3d 787 (2000). In this case, three officers, after obtaining the driver's permission, boarded a Greyhound bus when it made a scheduled stop in Tallahassee, Fla. Two of the officers proceeded to the back of the bus. The third officer kneeled in the driver's seat and faced the back of the bus, observing the passengers and ensuring the safety of his fellow officers. Working forward from the back of the bus, the two officers asked passengers about their travel plans and matched luggage to each passenger. The officers claim they did not block the aisles and stood behind the passengers during conversation.

Drayton and Brown were seated a few rows from the back of the bus. One officer approached Drayton and, leaning over his right shoulder, showed proper identification and announced he was conducting a search to deter the transportation of drugs and illegal weapons on public transportation. The officer was approximately 12 to 18 inches from Drayton and spoke only loud enough for Drayton to hear. The officer asked for consent to search Drayton's bag and Drayton complied. The officer then proceeded in a similar fashion with Brown. After searching their property, the officer asked to search both Drayton and Brown, suspicious of what they might be hiding in their unusually heavy clothing. During the pat-down the officers uncovered several packets of cocaine. Drayton and Brown were charged with conspiracy to possess cocaine and intent to distribute. At trial, the defense moved to suppress the cocaine from evidence, arguing that it had been obtained through an unreasonable search and seizure. The court denied the motion to suppress and convicted both defendants on both counts.

Drayton and Brown appealed their convictions, arguing that the cocaine evidence was improperly admitted at trial. The appellate court ruled in their favor, arguing that the officers' individual announcement of their intentions was perceived as just as coercive as the general announcement made in Washington (1998) and that the presence of the officer in the driver's seat might have caused reasonable people to feel that they were unable to leave the bus and that compliance with the search was required.

Psychological implications

What constitutes a reasonable seizure rests on the consideration of what a reasonable person in the same situation would conclude about whether the search request was voluntary or not. Research suggests that the majority of people who consent to a search believe that police would have continued with the search despite a refusal to consent and that noncompliance would lead to punishment (Lichtenberg, 2000). Informing citizens of their right to leave does not decrease rates of compliance. Moreover, observers overestimate the extent to which people will feel able to refuse a search request from police (Kagehiro, 1988).

More research is needed to address whether other features of this search, such as the distance between the police and the citizen when the search request was made and the placement of the police officer near the only exit from the bus, might have influenced voluntary consent.