United States v. Drayton, 536 U.S. 194 (2002), was a case in which the United States Supreme Court clarified the applicability of Fourth Amendment protections to searches and seizures that occur on buses, as well as the function of consent during searches by law enforcement.Matthew Phillips, Effective Warnings Before Consent Searches: Practical, Necessary, and Desirable, 45 1185, 1190–91 (2008). During a scheduled stop in Tallahassee, Florida, police officers boarded a Greyhound bus as part of a drug interdiction effort and interviewed passengers.. After talking to two of the passengers and asking if they could "check [their] person", officers discovered the two passengers had taped several packages of cocaine to their legs.Drayton, 536 U.S. at 199. At trial, the passengers argued that officers violated their Fourth Amendment rights against unreasonable searches and seizures because the police engaged in coercive behavior and never informed them that their participation in the drug interdiction efforts was voluntary.
Writing for a majority of the Court, Justice Anthony Kennedy held officers need not personally advise passengers of their right to refuse consent to a search on a bus.Drayton, 536 U.S. at 206–07. Furthermore, Justice Kennedy ruled that the search was not unreasonable because passengers were free to leave the bus and the individuals who were searched provided voluntary consent.Drayton, 536 U.S. at 204–07. Although some commentators have praised the Court's ruling for encouraging citizens "to stand up for their rights", others have criticized it for failing to reflect the realities of "real-life confrontations occurring on the street" between citizens and law enforcement.
Background
Fourth Amendment guidelines for arrests and temporary detentions The Fourth Amendment of the United States Constitution applies to both arrests and temporary detentions of criminal suspects, both of which have been defined by the Supreme Court of the United States as "seizures" of a person.United States v. Mendenhall, ("[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave"). Before conducting an arrest, an officer must demonstrate probable cause that a suspect has engaged in criminal activity.Brinegar v. United States, ("Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.'"). However, police officers may also conduct temporary detentions when officers have reasonable, articulable suspicion that "criminal activity may be afoot".Terry v. Ohio, (defining standards for investigatory stops); see also United States v. Sokolow, . These temporary detentions are also known as Terry stops, which take their name from the Supreme Court's ruling in Terry v. Ohio.See Berkemer v. McCarty, . The level of suspicion that is required to conduct a temporary detention is lower than is necessary for probable cause and is “considerably less than proof of wrongdoing by a preponderance of the evidence”; however officers cannot rely upon a mere "hunch".Terry, 392 U.S. at 27; Sokolow, 490 U.S. at 7 (1989).
The Fourth Amendment Consent to Search Doctrine
Although the Fourth Amendment generally prohibits unreasonable searches and seizures,U.S. Const. amend. IV. the Supreme Court of the United States has clarified that searches and seizures are not unreasonable when citizens consent to them.Christopher M. Peterson, Irrevocable Implied Consent: The "Roach Motel" in Consent Search Jurisprudence, 51 773, 775 (2014) ("Consent searches are a category of searches that the Supreme Court deemed to be reasonable under the Fourth Amendment."). Scholars have traced the origins of the Consent to Search Doctrine as far back as the 1920s,Christopher M. Peterson, Irrevocable Implied Consent: The "Roach Motel" in Consent Search Jurisprudence, 51 773, 776 (2014) (citing Amos v. United States, ). but it was not until the 1970s that the Court clarified that searches are reasonable if, under a "totality of the circumstances", the search is "voluntary".Schneckloth v. Bustamonte, ("It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."); see also 4 § 8.1 (5th ed. 2012). Courts generally look to whether officers believed, at the time of the search, the individual being searched provided voluntary consent.See, e.g., Florida v. Jimeno, (holding that courts should examine whether a reasonable officer would have believed a suspect consented). Officers may also rely on the consent of someone who reasonably appears to have authority to consent to a police search, even if that person actually has no such authority.Illinois v. Rodriguez, . However, if officers obtain consent after engaging in an unconstitutional seizure, the consent is considered "tainted" and evidence obtained from such a search cannot be admitted during a subsequent criminal prosecution.Florida v. Royer, (plurality opinion).
In Schneckloth v. Bustamonte, the United States Supreme Court established a framework for determining whether a suspect's consent is voluntary.Bustamonte, 412 U.S. at 229-34. The Court noted that historically, when "determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation".Bustamonte, 412 U.S. at 226. Consequently, the Court held that voluntariness should be determined "from the totality of all the circumstances".Bustamonte, 412 U.S. at 227 (noting that this approach incorporates a framework established by "the courts of California"). The Court also clarified that judges should examine the "possibly vulnerable subjective state of the person who consents" to determine whether a suspect was coerced into consenting, and "account must be taken of subtly coercive police questions".Bustamonte, 412 U.S. at 229. However, the Court also held that suspects may still give valid consent even if they do not know that they can refuse to consent to the search.Bustamonte, 412 U.S. at 234 ("neither this Court's prior cases nor the traditional definition of 'voluntariness' requires proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search").
Fourth Amendment searches and seizures on buses The United States Supreme Court first clarified the applicability of the Fourth Amendment to searches and seizures on buses in the 1991 case Florida v. Bostick, where the Court held that police officers may approach bus passengers on a random basis and ask questions and request their consent to searches, "provided a reasonable person would understand that he or she is free to refuse".Florida v. Bostick, . The Court rejected the argument that police questioning on board a bus constitutes a per se seizure under the Fourth Amendment, and instead held that courts should use a "totality of the circumstances" test to determine whether a passenger would have felt "free to decline the officers' requests or otherwise terminate the encounter", or whether a passenger was free "to ignore the police presence and go about his business".Bostick, 501 U.S. at 436–37 (quoting Michigan v. Chestnut, . Additionally, the Court ruled that even if law enforcement officers have no basis for suspecting individuals are engaged in criminal activity, officers may still approach passengers, ask them questions, request identification, and request consent to search luggage, so long as officers do not coerce passengers to cooperate with their efforts.Bostick, 501 U.S. at 434–35.
Arrest and trial of Christopher Drayton and Clifton Brown, Jr.
On February 4, 1999, Christopher Drayton and Clifton Brown, Jr. were traveling on a Greyhound bus bound for Detroit, Michigan.Drayton, 536 U.S. at 197. When the bus made a planned stop in Tallahassee, Florida, passengers were told to get off the bus so it could be cleaned and refueled. After the passengers re-boarded, the driver allowed Officers Blackburn, Hoover, and Lang of the Tallahassee Police Department to enter the bus "as part of a routine drug and weapons interdiction effort". Although the officers displayed visible badges, they carried concealed weapons and were not in uniform. Upon entering the bus, Officer Hoover knelt on the driver's seat, Officer Blackburn stood at the back of the bus, and Officer Lang walked along the aisle of the bus to talk to passengers.Drayton, 536 U.S. at 197–98. He asked passengers which luggage was theirs and where they were going.Drayton, 536 U.S. at 198. None of the officers blocked the aisle or otherwise obstructed the exit, and passengers were free to leave while the officers conducted their investigation. However, the officers did not inform passengers of their right to refuse to cooperate with the investigation.
Drayton and Brown sat next to each other on the bus, Drayton by the aisle and Brown by the window. When Officer Lang arrived at their row, he identified himself as a police investigator and showed his badge. In a voice "just loud enough" to hear, he said he was a police officer "conducting bus interdiction [sic], attempting to deter drugs and illegal weapons being transported on the bus". When Lang asked Drayton and Brown if they had any luggage on the bus, they both pointed to the same green bag on the overhead luggage rack.Drayton, 536 U.S. at 198–99. Lang asked, "[d]o you mind if I check it?", and Brown replied, "[g]o ahead". The officers inspected the bag and discovered no contraband inside.
Officer Lang observed that Drayton and Brown were wearing "heavy jackets and baggy pants", despite warm weather that day. Lang suspected Brown and Drayton might have been using their baggy clothing to conceal weapons or drugs, so he asked Brown, "[d]o you mind if I check your person?" Brown responded, "[s]ure", leaned up in his seat, removed a cellular phone from his pocket, and opened his jacket. Lang patted down the outside of his clothing and felt small packages "similar to drug packages detected on other occasions". Officer Lang then arrested Brown, handcuffed him, and Officer Hoover walked him off the bus. Lang then asked Drayton, "[m]ind if I check you?", to which Drayton responded "by lifting his hands about eight inches from his legs". Lang detected similar objects during a pat down of Drayton's legs, placed him under arrest, and escorted him off the bus. A further search determined that Brown had duct-taped three bundles containing 483 grams of cocaine between several layers of boxer shorts, and Drayton had duct-taped two bundles between several layers of boxer shorts containing 295 grams of cocaine.
Trial in the United States District Court for the Northern District of Florida