The need for bright-line warnings during consensual bus searches.

• Author: Reich, Marissa J.

United States v. Drayton, 536 U.S. 194 (2002)

1. INTRODUCTION

   In United States v. Drayton, the Supreme Court reviewed the methods that the Tallahassee Police Department used during a routine consensual search of passengers aboard a Greyhound bus) Bus searches have become a method routinely used by police departments to seek out drugs and weapons, as part of their War on Crime. (2) However, these searches have increasingly been challenged as unconstitutional violations of the Fourth Amendment's prohibition against unreasonable searches and seizures. (3) During the search at issue in Drayton, bundles of cocaine were found on the bodies of two bus passengers, Christopher Drayton and Clifton Brown, Jr. (4) This discovery led to the arrests of the two men, and both were charged with possession and conspiracy to distribute. (5) The case reached the Supreme Court on the issue of whether consensual bus searches are constitutional under the Fourth Amendment when police officers do not notify passengers that they have the right to refuse to comply with the officers' requests. (6) Both Respondents claimed that without such notice, the factors existing at the time of the search made the environment unduly coercive, and that their consent was involuntary. (7) The Eleventh Circuit Court of Appeals reversed the conviction of the two Respondents, holding that the evidence was uncovered during an unconstitutional search and seizure and therefore must be suppressed. (8)

   In an opinion written by Justice Kennedy, the Court held that there is no per se requirement that an officer notify bus passengers of their right to refuse to cooperate with the officer's demands. (9) Instead, a situation's coerciveness must be examined by applying a totality-of-circumstances test, where the absence of a warning is just one factor for consideration. (10) Justice Kennedy analyzed the specific bus search at issue using this standard, and found that the officers did not act in a coercive manner; therefore, they did not unconstitutionally seize the Respondents. (11) The Court then addressed whether the suspicionless search was involuntary, and found that because the Respondents had not been seized, there was nothing to indicate that they were forced to consent to the search. (12) The Court therefore reversed and remanded the case. (13) Justice Souter, in a dissent joined by Justices Stevens and Ginsburg, claimed that the circumstances surrounding the encounter did amount to an illegal seizure. (14) The dissent found that the officers' actions were sufficiently coercive to convince the passengers that they were required to comply with the officers' demands; any consent the Respondents gave to the officers' search requests were therefore invalid. (15)

   This Note argues that the totality-of-circumstances test which the Court uses to evaluate consensual bus searches is improper. These searches are similar to custodial interrogations, and just as individuals in those situations are afforded the protections of the bright-line Miranda warning, the Court should adopt a bright-line rule to apply to bus searches. A mandatory warning should be given to bus passengers before officers begin their search, notifying them of their constitutional right to refuse to cooperate with the officers. Such a rule would lead to more consistent court rulings, by removing the subjectivity that undermines the success of the totality-of-circumstances test. A warning would also take into account important factors which have been ignored by courts that have assessed the circumstances surrounding consensual bus searches. The impact that the warning would have on the officers' ability to detect drugs and weapons would be minimal in comparison to the empowerment that citizens would gain by being aware of, and having the ability to exercise, their constitutional rights.

2. PROCEDURAL HISTORY

   1. CONSTITUTIONAL SEARCHES UNDER THE FOURTH AMENDMENT

      The first clause of the United States Constitution's Fourth Amendment guards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (16) Since the creation of the Bill of Rights, courts have consistently stressed this right as a priority, stating that "[n]o right is held more sacred ... than the right of every individual to the possession and control of his own person, free from all restraint or interference of others...." (17) However, this amendment does not extend so far as to allow people to completely isolate themselves, but only "prevent[s] arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." (18)

      Despite the amendment's importance, its vague, unelaborated wording has led many courts to curse its "vice of ambiguity." (19) Without more direction, courts have had to define the Amendment's scope, and determine the situations in which it should apply. (20) A three-tiered system has emerged from the case law which distinguishes between different types of police intrusions and determines the constitutionality of each based on irs specific circumstances. (21)

      The most traditional type of intrusion requires both probable cause and a court-issued warrant before officers may confront a person or commence a search. (22) This system was the original idea of 'reasonable' envisioned by the drafters of the Fourth Amendment, and these prerequisites have had continued importance. (23) Still, according to the Supreme Court, in most cases "searches conducted ... without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment...." (24) Despite this per se standard, two main exceptions have been carved out which allow officers to proceed with a search without probable cause and a warrant. (25) The first deviation from the general standard has been termed 'reasonable suspicion,' and was established by the Supreme Court in Terry v. Ohio. (26) There, the Court distinguished limited seizures and searches from a "full-blown search for evidence of crime." (27) This lesser intrusion, called a "frisk," is a quick, limited search of a person's outer clothing, which may only be done when an officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous.... (28) The establishment of this second type of legitimate police intrusion was significant; for the first time, the Court was expanding "the range of encounters between the police and the citizen" that was held to be acceptable under the Fourth Amendment. (29)

      The second exception, consensual searches, further extended acceptable interactions between police and citizens by completely doing away with the need for any sort of suspicion at all. (30) This exception is based on the theory that "not all personal intercourse between policemen and citizens involves 'seizures' of persons." (31) A police officer has the right to approach any citizen and question that person. (32) If the person who is approached chooses to respond to the officer's questions and comply with the officer's requests, any search which then occurs does not require probable cause and a warrant. (33) There is only one requirement needed for such a search to be constitutional: the person approached must be "free to disregard the police presence and go about his business" without being detained or punished for doing so. (34)

   2. DETERMINING VOLUNTARINESS IN CONSENT-BASED SEARCHES

      Evidence uncovered during an unconstitutional search is generally suppressed and cannot be used at trial. (35) Therefore, in consensual searches, police officers must be certain to have valid permission from the citizens they question, and must be able to prove consent in the courtroom. (36) However, proving that a third person actually gave consent is difficult. (37) People who are arrested as a result of a consensual search will often later claim that they did not give permission. Also, many defendants who did give consent claim that such consent was given involuntarily because they were being questioned in a coercive environment where they were unable to avoid the police's questions. (38)

      The Court has chosen to determine when searches were truly consensual, and when the consent was the result of an illegal seizure, by using a "voluntariness" standard. (39) This standard was first clearly defined by the Supreme Court in Schneckloth v. Bustamonte. (40) In Schneckloth, a defendant was charged with "possessing a check with intent to defraud" after he was pulled over by a police officer because of burnt-out lights. (41) The defendant allowed the officers to search his car, but at trial claimed that his consent had been coerced. (42)

      The Court determined that, based on "the totality of all the surrounding circumstances," the defendant's consent was voluntary. (43) This totality-of-circumstances standard considers whether a person's consent was "coerced, by explicit or implicit means, by implied threat or covert force." (44) The Government is not however required to prove that the defendant knew he had the right to refuse to allow the police to search his car. (45)

      Justices Douglas, Brennan and Marshall each dissented separately in Schneckloth; all three challenged the Court's finding that it is unnecessary for citizens to know their Fourth Amendment rights. (46) Marshall, in sentiments echoed by the other two dissenters, argued that a person's "consent cannot be considered a meaningful choice unless he knew that he could in fact exclude the police." (47) By finding consent in the face of such an omission of knowledge, the Court allows police to have "the continued ability ... to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional...