Page 46 - May June 2020 TPA Journal
P. 46
canine drug search near the location they questions, ask for identification, and request
questioned him; and (4) the officers’ failure to consent to search luggage—provided they do not
advise him that he could refuse to answer their induce cooperation by coercive means.”) (citation
questions or comply with their requests. omitted).
The Government argues that Wise’s interaction The respondent in Bostick argued that questioning
with the police was a consensual encounter—not a that occurs “in the cramped confines of a bus” is
seizure that could implicate the Fourth “much more intimidating” because “police tower
Amendment. The Government contests Wise’s over a seated passenger and there is little room to
assertion that the factors mentioned above would move around.” Under those conditions, “a
make a reasonable person feel that he could not reasonable bus passenger would not have felt free
decline to speak with the police officers or to leave” while the police were on board and
otherwise end the encounter. The Government questioning the passenger “because there is
directs us to Florida v. Bostick, 501 U.S. 429 nowhere to go on a bus.” The respondent
(1991), and United States v. Drayton, 536 U.S. successfully persuaded the court below to adopt a
194 (2002). Both of these cases shed light on per se rule prohibiting police officers from
when questioning a bus passenger may constitute randomly boarding buses and questioning
an unconstitutional seizure. passengers as a means of performing drug
interdictions. The Supreme Court, however,
The Supreme Court in Bostick evaluated a disagreed that randomly questioning a bus
situation where uniformed police officers boarded passenger constitutes a per se unreasonable
a bus, questioned a defendant (absent suspicion), seizure. The proper inquiry for whether a bus
and then sought the defendant’s consent to search passenger has been seized by police is “whether a
his luggage. reasonable person would feel free to decline the
officers’ requests or otherwise terminate the
The Court began its analysis by clarifying that “a encounter.” The Court explained that “no seizure
seizure does not occur simply because a police occurs when police ask questions of an individual,
officer approaches an individual and asks a few ask to examine the individual’s identification, and
questions.” Instead, an encounter is “consensual” request consent to search his or her luggage—so
so long as the civilian would feel free to either long as the officers do not convey a message that
terminate the encounter or disregard the compliance with their requests is required.” As
questioning. The police do not need reasonable the Court noted, “the mere fact that [the
suspicion to approach someone for questioning. respondent] did not feel free to leave the bus does
And “[t]he encounter will not trigger Fourth not mean that the police seized him.” The Court
Amendment scrutiny unless it loses its consensual understood that the respondent’s movements were
nature.” confined because he was on a bus. But it
concluded that “this was the natural result of his
6 Wise also asserts that the police lacked decision to take the bus; it says nothing about
reasonable suspicion to question him during the whether or not the police conduct at issue was
bus encounter. However, the police did not need coercive.”
any suspicion to question him in the manner they
did. See Drayton, 536 U.S. at 201 (“Even when The Drayton Court evaluated whether police
law enforcement officers have no basis for officers who boarded a Greyhound and
suspecting a particular individual, they may pose questioned certain passengers had
42 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal
