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.)

From http://www.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/data/us/501/429.

---------------End of Original Message----------------- 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 Have you seen http://www.public-action.com/SkyWriter/WacoMuseum ------------------------ "The Legislature interprets the Constitution as damage, and routes around it." For the benefit of Spambots everywhere: webmaster@localhost abuse@localhost postmaster@localhost