Fourth Amendment (Update)

• Author: Wayne R. Lafave
• Pages: 1097-1098

Page 1097

During the 1990s, the Supreme Court continued to confront the central issues of the Fourth Amendment's scope: what conduct is covered by the Amendment, what regulations apply to that conduct, and how those limitations are to be enforced.

Just as the Court had earlier taken a narrow view of what the word "searches" means in the Fourth Amendment, in recent years the Court has given the "seizures" term a limited construction, again confining within too narrow a compass those police activities subject to the Amendment's restrictions. Illustrative is Florida v. Bostick (1991), holding that the state court erred in finding a seizure occurred during a suspicionless bus sweep involving confrontation and interrogation of the passengers. The Court objected that the state decision inappropriately (1) used the Court's previous test of whether "a reasonable person would have believed that he was not free to leave," which the Justices deemed inapplicable to one who had no desire to leave the bus; and (2) treated the on-bus locale of the encounter as especially significant. But the Court's own analysis was flawed. When police undertake a bus sweep, they act with the obvious connivance of the common carrier to which bus travelers have entrusted their care, thereby creating a highly coercive situation unlike any contact that might occur between two private citizens, contrary to the more common forms of nonseizure police?citizen encounters.

This police dominance has a uniquely heavy impact on interstate bus travelers precisely because they do not, as a practical matter, have available the range of avoidance options that pedestrians might use. Abandoning one's journey by leaving the bus is not feasible, so that the passenger's only remaining privacy-protection option is obstinate refusal to respond to the officers' questions. But the dynamics of the situation make a nonconforming refusal to cooperate an unlikely choice, especially when it is considered that bus transportation is used largely by people with low incomes and little influence.

When the Court determines the "reasonableness" of conduct amounting to a search or seizure, typically it balances the individual's interests in privacy and security against society's interests. The latter interests are usually crime detection and sometimes crime prevention, but yet another is ensuring that police are not unduly endangered while carrying out their duties, as reflected in the...