501 U.S. 429 (1991).
One-Sentence Takeaway: It is not a violation of the Fourth Amendment for law enforcement officers to request and receive permission to search a bus passenger’s property, even without cause to detain, so long as the officers do not convey to the passenger that his or her compliance with the request is required.
Summary: The case arose out of the Broward County Sheriff’s Department’s practice of boarding buses at scheduled stops and asking passengers for permission to search their luggage for narcotics. For the specific search at issue, the officers boarded a bus bound from Miami to Atlanta that had made a stop in Fort Lauderdale. Two officers approached Bostick who was a passenger on the bus and, without any suspicious of wrongdoing, asked Bostick for permission to search his luggage. Bostick gave the officers’ the permission and the officers found cocaine in Bostick’s luggage.
Bostick challenged the constitutionality of the search and moved to suppress all evidence pertaining to the cocaine. The trial court denied Bostick’s motion. The Florida Supreme Court, however, determined that the search had violated the Fourth Amendment and adopted a per se rule that all police-citizen encounters occurring in the “cramped confines” of a bus are seizures, and that any passenger’s consent to a search in that context is automatically involuntary.
The United States Supreme Curt reversed and rejected the Florida Supreme Court’s per se rule. The Court observed that federal, state, and local law enforcement authorities often assign police officers to “airports, train stations, and bus depots” to watch for suspicious activity. “Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them *** questions” in order to confirm or dispel their suspicions; sometimes, they also ask for consent to perform searches.
The Court explained that, “[o]ur cases make it clear” that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” Id. at 434. “[W]e have held repeatedly,” the Court emphasized, that “mere police questioning does not constitute a seizure.” Ibid. That “unbroken line of decisions,” the Court further held, “applies equally to encounters on a bus.” Id. at 439-440.
Like most other Fourth Amendment determinations, the Court explained, the determination of whether a bus passenger has been “seized” must be made in view of “all the circumstances surrounding the encounter.” Id. at 439. Because the totality-of-the-circumstances test must be context-sensitive, the Court rejected the Florida Supreme Court’s focus on whether a reasonable bus passenger would have felt “free to leave” the bus. The Court observed:
When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.
Id. at 435-436. That is true, the Court explained, because any confinement felt by the bus passenger may be “the natural result of his decision to take the bus” and not a product of police activity. Indeed, in Bostick itself, the Court observed that the bus’s imminent departure might have prevented the defendant from feeling “free to leave the bus even if the police had not been present.” Ibid.
For that reason, the decision in Bostick explains that courts examining police-citizen encounters on a bus should not ask whether a reasonable person would have felt “free to leave.” Instead, courts must inquire whether the police conveyed the message that it is not permissible to “decline the officer’s request or otherwise terminate the encounter.” Id. at 436. The location of the encounter is a permissible but not dispositive consideration in that determination. Id. at 435. Even on a bus, the Court emphasized, “no seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage—so long as the officers do not convey a message that compliance with their requests is required.” Id. at 437.
Bostick thus makes it clear that the seizure principles applicable in other contexts apply when determining whether the police have effected a seizure on a bus. Courts must consider “all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 439; see also id. at 437 (“the crucial test” is whether, “taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ”). Those circumstances include whether the officers displayed any weapons; whether they conveyed any type of threat; whether they used authoritative language or a tone of voice showing that compliance is required; whether they physically touched the citizen; whether they advised the citizen of his right to refuse cooperation; the location of the encounter; whether there was a threatening number of officers; and the officers’ proximity to the citizen, as well as the timing of their arrival. See id. at 432, 437.