Florida v. Bostick – Oral Argument – February 26, 1991

Media for Florida v. Bostick

Audio Transcription for Opinion Announcement – June 20, 1991 in Florida v. Bostick

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William H. Rehnquist:

We will hear argument now in No. 89-1717, Florida v. Terrance Bostick.

Ms. Fowler.

Joan Fowler:

Mr. Chief Justice, and may it please the Court:

Terrance Bostick was reclining on the rear-most seat in a Greyhound bus when he was approached by Officer Nutt.

Office Nutt spoke to Mr. Bostick in a conversational tone.

He asked Mr. Bostick where he was traveling to.

Mr. Bostick replied that he was going to Atlanta.

Mr. Nutt asked Mr. Bostick for his identification and for his bus ticket.

Those were reviewed by the officer and quickly returned to Mr. Bostick.

Mr. Bostick was then asked if he would be willing to cooperate with the police by allowing a search of his bag.

Mr. Bostick agreed to the consent, excuse me, consented to a search of the red bag upon which he was reclining.

As it turned out, that bag did not belong to him.

It did not reveal any contraband.

There was a blue suit bag in the overhead rack above Mr. Bostick.

When Mr. Bostick was asked whether or not it was his bag he said that it was.

He was asked again whether or not he would consent to the search, and he consented to the search of that bag which revealed over 400 grams of cocaine.

Mr. Bostick was subsequently arrested.

It is the position of–

Byron R. White:

Did they explain what their mission was?

Joan Fowler:

–It is unclear from this record as to whether or not they went through what is usually gone through, which is saying that we have a drug problem in South Florida.

It is very serious.

We are asking the cooperation of citizens.

It is not clear from the hearing on the motion to suppress in this case if that was said to Mr. Bostick.

Byron R. White:

And is it also unclear whether they told the person that he need not consent?

Joan Fowler:

Officer Nutt told Mr. Bostick at the time that he requested the consent for the search of the blue bag that he had the right to refuse.

Byron R. White:

Is that clear or is that disputed?

Joan Fowler:

I don’t believe that is in dispute, Your Honor.

Byron R. White:

So we may judge this case on the basis that he was told that he had the right to refuse?

Joan Fowler:

Right to refuse the search.

He was not told that he had a right not to talk with the officers.

Byron R. White:

Yes, all right.

Joan Fowler:

But the encounter between Mr.–

Byron R. White:

But he could have… you think it is clear enough that we judge the case on the basis that he was told that he could refuse the search?

Joan Fowler:

–Yes, absolutely.

These officers were wearing plain clothes covered with a windbreaker which had a sheriff’s department insignia on the shoulders.

It also said sheriff’s department across the back.

Other than that, they were wearing normal clothing as any other citizen would do.

Officer Rubino had his firearm in the waistband of his pants.

It was not readily visible.

Officer Nutt had his gun in a pouch which was held in his hand.

We do not know exactly where that pouch was at any given time during this encounter.

Mr. Bostick, since he was in the rear-most seat of the bus, Officer Nutt and Officer Rubino were in the seats in front of his, sort of half in and half out of the aisle.

There was still sufficient room for Mr. Bostick to have gotten up and left the bus, had he so chosen.

But the State would urge that that is not the test, that–

Harry A. Blackmun:

And then the bus would go off?

Joan Fowler:

–That is correct.

That is possible that that would happen.

But I believe that a more correct test under these circumstances is whether or not Mr. Bostick was free to terminate the encounter, whether or not he could have merely told the officers that he was not interested in talking to them.

If he had done so, that would have been the end of the matter and the officers would have gone on, either to other passengers or gotten off the bus if they did not get any cooperation from any other passengers.

David H. Souter:

Does that beg the question?

Because you say he could have ended the encounter.

He could have ended the conversation to the extent that it was a two-way conversation, but the question is whether there is a detention.

And the police officer would still be there and unless he wanted to get off the bus and be left behind, he would still be there.

So isn’t the question not whether an encounter could be, in the sense of the conversation could be ended, but whether there was a detention and whether that could be ended?

Joan Fowler:

Justice Souter, I think the answer to that question is that, it is whether or not there was a restraint of Mr. Bostick’s liberties, so as to rise to the level of a seizure.

David H. Souter:

And that isn’t, the answer to that question is not synonymous with the answer to the question whether the conversation, the verbal interaction between them could have been ended, is it?

Joan Fowler:

If the verbal conversation had ended, the officers would have moved on.

If they had not moved on then… if Mr. Bostick had said, Officer Nutt, I do not want to talk to you, I want to go to sleep, and then Officer Nutt had gone further, then that probably would have given rise to a seizure.

But if he had said, no, and the officers had moved on, that is what we assume would have occurred.

David H. Souter:

Well, yes, if.

David H. Souter:

I mean, that is the assumption that we have to make for your argument to work.

Isn’t it?

Joan Fowler:

Yes.

David H. Souter:

And we don’t have anything to go on but assumption, do we?

Joan Fowler:

We have, I believe, the officer’s testimony which is that he would have moved on.

Antonin Scalia:

Why do you say it would have been a seizure if the officer continued to question him?

I mean, let’s assume I am walking down the street and an officer comes up to me and just walks alongside and he starts asking me questions.

And I say, officer, you know, I would really rather not talk to you.

He just keeps walking along side and keeps asking the questions, and I don’t answer.

I have been seized?

Joan Fowler:

At some point that may have given rise to a seizure.

It depends upon the totality of the circumstances.

Antonin Scalia:

I mean, I can see how maybe, you know, he would be guilty of harassment or something, but how it is a seizure?

Joan Fowler:

I am not–

Antonin Scalia:

He just talks to me when I don’t want to be talked to.

A lot of people do that to me sometimes, I never think–

[Laughter]

I never think I have been seized.

I really don’t.

Joan Fowler:

–No.

It depends upon the nature of the encounter and the totality of the circumstances.

If you have turned around to an officer and said, you know, leave me alone.

Absolutely, I do not want to talk to you.

Antonin Scalia:

And he says, I don’t want to leave you alone.

He just keeps walking along side.

But he is not stopping me.

He just keeps talking in my ear.

Joan Fowler:

If you are free to go about your business, you haven’t been seized.

And in this case, Mr. Bostick–

Antonin Scalia:

I mean, I have been annoyed, but I haven’t been seized.

Joan Fowler:

–Right.

And in this case, Mr. Bostick’s business was staying on his bus and going to his final destination.

So the question here is whether or not the officers prevented him from doing exactly that.

And all he had to do was literally say no to the officers, and if he had said no, then that would have been the end of the encounter.

John Paul Stevens:

How do we know that?

How does he know what would have happened at the next bus stop?

Joan Fowler:

We don’t know for certain what would happen.

But we can only assume.

John Paul Stevens:

Would the fact that he said no in FtLauderdale give probable, reasonable suspicion to an officer in Palm Beach to say, I would like to ask you the same questions–

Joan Fowler:

I don’t believe so, Your Honor.

I think that it is an isolated incident.

What occurred–

John Paul Stevens:

–There is no communication between different branches of the different police departments?

Joan Fowler:

–There is nothing in this record, and there is nothing to my knowledge.

John Paul Stevens:

I thought one of the opinions referred to something like that.

Joan Fowler:

There is some language in one of the D.C. opinions that says that the officer had said that.

But the opinion also goes on to say that they treat that as irrelevant: what the subjective thoughts of the officer were.

They do not use that as part of their holding.

And in this case, we need to decide what a reasonable person in Mr. Bostick’s circumstances would have thought when two people in plain clothes came, actually one person came up to talk to him, the other officer was further up in the bus.

Anthony M. Kennedy:

Have we ever said in our cases that the exercise of your rights is grounds for additional suspicion on the part of officers?

Joan Fowler:

No, we have not.

Pardon me, no, you have not.

This Court has not so held.

And we are not saying that here today.

What we are saying is that–

Anthony M. Kennedy:

Well, you are not.

Because you responded to Justice Stevens, that this would not be grounds for giving added suspicion to either these police or to police in another jurisdiction.

So I think that is consistent with your answer.

Joan Fowler:

–Yes, sir.

John Paul Stevens:

Would it be consistent with your position for the police to call ahead to the next city where the bus comes in, and suggest to them that without basing any reasonable suspicion, that they just reinterrogate the same person?

John Paul Stevens:

Would there be anything wrong with that?

Joan Fowler:

I am not sure that they would have a basis for doing that.

John Paul Stevens:

Well, the fact that he… unlike so many thousands of people who are willing to let their bags be searched, unlike so many, he just wouldn’t let them search his bag.

I gather from the history of this, that most people are willing to allow their bags to be searched.

Joan Fowler:

Right.

What we have learned is that most people feel a moral compulsion to cooperate with police officers, especially when they are informed about the problems that we have with drugs.

I just–

John Paul Stevens:

Problems they are not aware of until the officer has confronted them on the bus, I suppose.

Joan Fowler:

–Or they may well be aware of them because it is all over the media.

It is all over, you know, people have… they know of people in the community that have problems.

I mean, it is common knowledge that drugs are a very serious problem in this country.

So I don’t think that most people, when they are approached by officers, that that is the first time that they have heard about a drug problem, but that might give rise to why they are more likely to cooperate.

I really can’t give you a yes or no answer as to whether or not calling ahead would be proper.

Antonin Scalia:

Why would it then… are you urging a “no harm in asking” rule?

I mean, do you need probable cause or anything just to come up and say, do you mind if I search your bag?

Joan Fowler:

No.

You don’t need probable cause.

Antonin Scalia:

So why would there be–

Joan Fowler:

That is merely a citizen encounter.

Antonin Scalia:

–Why would there be any question about calling ahead?

If you say that there is no violation of the law involved in simply asking somebody.

Joan Fowler:

Right.

I just have a concern that if you do this, you know, 25 times, that might be a problem.

And that that question is not–

Antonin Scalia:

Well, that could be police harassment, but it has nothing to do with whether it is a violation of the Fourth Amendment, I would assume.

Joan Fowler:

–Okay.

That is correct.

Antonin Scalia:

I mean, consistently, with the rest of your case.

Joan Fowler:

Correct.

Thank you, Your Honor.

Joan Fowler:

What we need to look here, is to whether or not the actions of the officers, the totality of their actions were reasonable and whether or not they caused a restraint of liberty of Mr. Bostick.

Florida asserts that there was no restraint of his liberty.

There was no show of force.

There was no display of a weapon.

There was no display of authority.

In any–

Anthony M. Kennedy:

Was there any showing that the bus departure was delayed?

Joan Fowler:

–In the bus driver’s deposition he stated that they left 20 minutes late.

However, it is unclear as to whether that was a direct result of Mr. Bostick’s arrest.

Anthony M. Kennedy:

Suppose the police did delay the bus 20 minutes in order to conduct this sort of investigation, would that have any bearing on the case or would it change the case?

Joan Fowler:

I don’t think it would.

I think that that would be between the bus company and the police officers, as long as–

Anthony M. Kennedy:

Well, suppose the police delay the bus for an hour and a half, that has nothing to do with whether there is a seizure?

Joan Fowler:

–I think you have to look to what they are doing with each individual person on the bus.

Anthony M. Kennedy:

Well, suppose they are conducting this investigation that was conducted here, but it took them an hour and a half?

And they ask the bus to please cooperate, the driver to please cooperate by waiting until they got there and they took their time to get there.

They delay it for an hour and a half for this investigation.

Joan Fowler:

Are you saying this investigation with Mr. Bostick alone or with everyone on the bus?

Anthony M. Kennedy:

Well, it is the same facts as you have here.

Joan Fowler:

I think that that is a factor that should be considered, but it does not necessarily give rise to a seizure.

What we are saying here, and where we are saying the Supreme Court of Florida has erred is in not considering the totality of the circumstances.

William H. Rehnquist:

Supposing, Ms. Fowler, that the bus has an accident on the highway between FtLauderdale and Palm Beach and the sheriff comes and says, I want to investigate the accident.

Please hold up the bus for an hour while we… I want to interview the driver.

I want to take some photographs.

Do you think the people on the bus are seized because of that?

Joan Fowler:

No, because that is regular police business.

I don’t think there is any problem at all with that.

And I am not saying that they were seized under the other scenario.

I am saying it is a factor to be considered.

And if there is an accident, clearly the police are within their rights to do whatever investigation is required.

Thurgood Marshall:

Ms. Fowler, backing up a little, why did they go straight to the back of the bus?

Joan Fowler:

What we have learned from the officers is that they try to approach as many people on the bus as they can within the time allotted to them.

And so it is easier–

Thurgood Marshall:

Well, why didn’t they start in the front?

Joan Fowler:

–Their practice is to start in the back because then when they get to the front they can exit the vehicle.

Thurgood Marshall:

They had some reason, didn’t they?

Joan Fowler:

Pardon me?

Thurgood Marshall:

Wouldn’t it appear that they had a reason, to start at the back instead of the front?

Joan Fowler:

I think that the reason, the only reason that I have been given is that it is just their standard practice because they do exit the vehicle when they get to the front of the bus.

Otherwise, they would go to the front, to the back and then have to leave again.

Also, there is evidence, not in this record, but in other cases, that drug dealers prefer to be in the back of the bus because they have more… they are more concealed.

And that is something that–

Thurgood Marshall:

How do you know what the drug dealers do?

Joan Fowler:

–That is something that police officers have told me.

But that is not clear in this record.

Thurgood Marshall:

And it is always interesting to me that all of the drug pushers, when you ask to search them, they say, oh, come on.

If looks like usual people don’t do that.

Why is it that the guys who plead guilty… why do dope pushers plead guilty?

Joan Fowler:

Because they are guilty.

If you are asking why they plead guilty after they have been, after there is probable cause for arrest–

Thurgood Marshall:

No, no.

I mean, when I have got dope on me, and I say search me, am I not pleading guilty?

Joan Fowler:

–You are cooperating with the police officers.

Thurgood Marshall:

That is right.

Why?

Can you give me a reason why?

Joan Fowler:

I think a reasonable person would do it–

Thurgood Marshall:

They are just good people.

Joan Fowler:

–Because they are trying to be cooperative.

Thurgood Marshall:

They are just good people?

Joan Fowler:

Yes.

John Paul Stevens:

It is the reasonable dope dealer we are talking about.

[Laughter]

Joan Fowler:

But the test that we need to be looking at is that of a reasonable citizen.

What would a reasonable citizen–

John Paul Stevens:

But as Justice Marshall points out, the cases always are people who are not reasonable citizens.

May I just ask on the standard practice.

Is it standard practice to search as many bags as possible during the stop at the–

Joan Fowler:

–It is standard practice to approach as many people and request consent for the search of the bags as possible.

John Paul Stevens:

–I see.

How many did they search?

Joan Fowler:

On this bag, excuse me, on this bus they never got past Mr. Bostick.

Because once they arrested him it was time for the bus to move on.

I think, Justice Marshall, in response to your question, I am sure there are a lot of drug dealers who do say no, and we just never see those cases.

So it is not as if every drug dealer is saying, is agreeing to this for some reason.

If there are no further questions–

Antonin Scalia:

They may not be a very bright bunch of people perhaps.

Joan Fowler:

–Yes, that is probably very true.

Antonin Scalia:

Which is a good thing, I suppose.

Joan Fowler:

Yes, I would like to save the rest of my time for rebuttal.

William H. Rehnquist:

Very well, MsFowler.

General Starr, we will hear now from you.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court:

The drug interdiction procedure that is at issue here is a natural outgrowth of airline interdiction programs, airport interdiction programs, that this Court has had before it in several cases: in Mendenhall, in Florida against Royer, and in Florida against Rodriguez.

As law enforcement efforts at airports have borne fruit, not surprisingly, drugs have been transported, in the experience of law enforcement officials in other ways, including by trains and by bus.

This tool, which was employed in Broward County is a tool that is employed increasingly across the country.

It is used here in the District of Columbia and in other jurisdictions.

It is carried out in a reasonable and professional and non-intimidating way.

John Paul Stevens:

General Starr, would you comment, in view of that argument, on the statement in the brief amicus for the Americans for Effective Law Enforcement, Professor Envow’s group, which has uniformly supported the Government in all of these cases.

It says,

John Paul Stevens:

“Amicus, with more than 16 years experience in police training and education, view the confrontation and search procedure used here as highly unusual, if not unique. “

Do you think he is wrong?

Kenneth W. Starr:

It is only unusual in the sense that it is relatively new.

Broward County began implementing this in the early 1980’s.

This jurisdiction began implementing it 3 years ago.

All Federal courts of appeals that have now been confronted with the legality of this have unanimously sustained it.

No dissents whatever.

The Fourth Circuit’s opinion in Flowers, in particular, speaking the Fourth Circuit speaking through Judge Wilkinson made, I think, a pivotal point.

This program is not only valuable in assuring the interdiction of drugs; but it is also valuable in terms of depriving individuals of dangerous weapons.

That is one aspect of this program.

And the results in Broward County are quite consistent with those in the District of Columbia and elsewhere.

Not only are drugs seized, but weapons are seized as well; 45 dangerous weapons were seized by Broward County in the space of a year and a half.

In terms of the procedures that are employed, no, I don’t think that they are intimidating, and I think that for this reason.

All these police officers engaged in this program are trained.

They have read this Court’s cases.

They know that they cannot be confrontational.

They know they cannot demand cooperation.

They know, however, under this Court’s cases, they can go to a citizen and ask for that citizen’s cooperation.

Thurgood Marshall:

General Starr?

Kenneth W. Starr:

Yes.

Thurgood Marshall:

If there had been a shooting match on that bus, there would have been a whole lot of people killed, wouldn’t there?

Kenneth W. Starr:

There certainly might have been.

Thurgood Marshall:

And who would have been responsible for it?

Kenneth W. Starr:

Those who began the firing, I would think.

Justice Marshall, let me give you this assurance: not only is this record barren of any indication of such a problem, it is our experience that there is no such problem.

There have been no such incidents to our knowledge of shoot-outs on buses.

Individuals cooperate.

And why do they cooperate?

This Court, by the way, has in Schneckloth and in Mendenhall and in Delgado, said, it is irrelevant whether you have been told whether you are free to cooperate or not.

The point is, this is a free society.

Kenneth W. Starr:

You have the right to say no.

This Court has had cases before it in which individuals have asserted that right.

They have said no.

Brown against Texas, the police offices come to the individual and he says, I am not going to cooperate.

At that point, the police officers in this program are trained to back off.

Whether they must, in response to Justice Scalia’s question, is a different matter in terms of Fourth Amendment analysis, because the critical Fourth Amendment inquiry is whether, as General Fowler put it, under the totality of the circumstances, there has been a show of force, a display of force or a show of authority so as to restrain the individual.

I have no problem at all with the concept that Justice Souter suggested of detention.

The police officers station themselves in this kind of encounter so that there is no detention.

The person is physically free to get up and absent himself, not necessarily to–

Sandra Day O’Connor:

Well, General Starr, is the cramped setting of a bus that is about to leave a factor to be considered in the totality of the circumstances?

Kenneth W. Starr:

–Yes, it is, Justice O’Connor.

But because of the cramped setting, law enforcement officers are trained not to block the individual’s right of access to the aisle or wherever the individual wants to go.

The individual need not leave the bus.

The individual can simply say no, and remain precisely where he is or he can simply move to another seat.

He can vote with his feet, but he does not have to take the extraordinary action–

Byron R. White:

Whether the consent it tainted, it isn’t a question of whether he can leave, is it?

Or isn’t it whether or not he–

Kenneth W. Starr:

–I agree, Justice White, if I may.

I don’t think that question is presented in this case.

Because as I read this record, Florida has not preserved that point.

Has not preserved the point of whether there is in fact a diminution of the taint so that this is not fruit of the poisonous tree.

Byron R. White:

–whether his will was overborne by this show of authority when he consented?

Kenneth W. Starr:

I think in the ordinary case, that would be presented.

The way this case has come narrowly to the Court is whether the very act of approaching a citizen on a bus and asking for the individual’s identification, bus ticket and the like, constitutes a seizure.

Because Florida, I think is–

Byron R. White:

Rather that whether that constitutes such a threat that his consent should be held invalid.

I thought the whole thing was that the consent was invalid?

Kenneth W. Starr:

–By virtue of what the Florida Supreme Court has determined, erroneously in our judgment, to have been an illegal seizure, we believe there was not a Fourth Amendment event here, by virtue of the cooperation of this individual–

Byron R. White:

The consent was invalid because it was a product of an illegal seizure, is that correct?

Kenneth W. Starr:

–That was the theory of the Florida Supreme Court.

Kenneth W. Starr:

And what Florida has presented to this Court in the question presented is the proposition that there was no seizure here, and we think that that is exactly right, as three court of appeals have now unanimously concluded.

Antonin Scalia:

General Starr, if I understand your argument, you think it is irrelevant to this case that Officer… not irrelevant, but unnecessary at least to the case, that Officer Rubino advised Mr. Bostick that you have the right to refuse?

As far as you are concerned, he didn’t have to say that?

Kenneth W. Starr:

Absolutely right.

This Court has said so in Schneckloth v. Bustamonte.

It said it in Mendenhall and it said it in Delgado.

I think that is settled law.

I thank the Court.

William H. Rehnquist:

Thank you, General Starr.

Mr. Ayer, we will hear now from you.

Donald B. Ayer:

Thank you, Mr. Chief Justice, and may it please the Court:

At the outset, I would like to note that there is nothing in the record of this case that indicates anything about the training of the officers or the procedures that they were instructed to follow.

There is material in later cases, indeed cases out of Broward County indicating in later years, not in 1985, when this case occurred, but in later years following this case and others, that they did in fact adopt certain procedures which included standing behind the seat rather than in front of it; not displaying weapons; and a number of other safeguards which indeed are not present here.

So I think it is important, number one, to decide this case on the facts of this case.

And I would like very briefly to review those facts, because I must say my view of them does not in every particular, accord with what the Court has just heard.

Briefly, on the morning of August 27th, these two officers boarded this Greyhound bus, at roughly 8:00 or so in the morning.

As they got on, the driver got off and went inside, closing the door of the bus behind him.

The officers had no suspicion of anyone of the bus that morning.

Nonetheless, they both wore raid jackets that had the words sheriff’s office, not only across the back, but across the front of the jacket.

We haven’t heard anything yet today about the gun, not so much as one word.

But there was a gun indisputably in the record.

Indeed, on page five of Florida’s brief, they concede that the gun in Officer Nutt’s hand, in a pouch was recognizable as a gun.

And that, I think, is a very critical point.

That a gun–

Antonin Scalia:

Why is that critical?

Most police officers I see are bearing sidearms.

I don’t know why you think that that is so extraordinary.

Donald B. Ayer:

–Justice Scalia, it is one thing, I think, to have a gun concealed.

It is another to choose to display it in a way that brings to mind to the person you are talking to that you are indeed armed, and you are prepared to deal with force if necessary.

Antonin Scalia:

The gun was in a pouch, as I understand it.

Donald B. Ayer:

It was in a pouch, and the testimony is ambiguous, as to whether or not at some point during the encounter, Officer Nutt put his hand into the zippered pouch and put it on the gun.

Antonin Scalia:

But how else would he have carried the gun?

I mean, he wasn’t in uniform, so he didn’t have a holster on his side.

You usually don’t see them when they are wearing these jackets with a Sam Brown belt on it.

Donald B. Ayer:

You can wear a shoulder holster.

There are a number of ways to do it.

Officer Rubino had his gun concealed, that is to say, not out where it could be seen.

So the fact that this gun was there, and Bostick’s testimony was that the hand was at times inside the zipper on the gun.

The testimony of Officer Nutt was not contrary.

It was that sometimes he does put his hand on the gun inside the zipper, and he doesn’t remember whether on this particular day he did or not.

In any event, as I said–

William H. Rehnquist:

Would it be objectionable, Mr. Ayer, if on a uniformed police with a gun in his shoulder holster or side holster did the same thing?

Donald B. Ayer:

–Mr. Chief Justice, the point is not, that I am trying to make is not that it is, per se, objectionable.

None of these items are, per se, objectionable.

We are dealing with what a reasonable person concludes from all the circumstances.

And what I am trying to do is present the full picture of the circumstances so as to make my argument–

William H. Rehnquist:

You think a reasonable person might have concluded that if he didn’t consent, the officer would shoot him.

Is that what you are trying to say?

Donald B. Ayer:

–No.

I don’t think that that is a likely conclusion.

But–

William H. Rehnquist:

Well, what is a likely conclusion then?

Donald B. Ayer:

–Well, I think you have to look at all of the circumstances, and then I think if I can have a moment, I will try to explain how I think they fit together.

In any event, the officers did go to the back of the bus.

As was indicated, Mr. Bostick was reclining on the last seat on the bus.

Whether he was asleep or not is disputed and there are, of course, no fact-findings here, so we don’t know what the court found.

But, he was clearly lying down, attempting to get some rest, and was roused, either by being touched on the foot, which was his testimony, Mr. Bostick’s testimony; or by simply being talked to, which was the officer’s testimony.

That occurred at a time when Officer Nutt was standing, I think by the undisputed testimony, half in and half out of the aisle in front of Mr. Bostick.

That is to say, half in and half out of an aisle which is about 15 inches wide according to fact-finding in U.S. v. Chandler here in the District of Columbia that is relating to a Greyhound bus.

Officer Rubino, it is not quite clear where he was, but he was apparently in the row also directly in front of Mr. Bostick.

Donald B. Ayer:

So the two of them were confronting Mr. Bostick very directly.

And then you had the conversations that took place.

The officers identifying themselves.

It is not clear what more they said than that.

They asked where Mr. Bostick where he was traveling to.

He said Atlanta.

They asked to see his ticket and his identification.

He presented them.

They were in order and the names matched so they were given back.

And immediately thereafter, apparently, Mr. Bostick was asked if he would consent to a search of the red bag which didn’t belong to him, and then subsequently would consent to a search of the blue bag which did.

Byron R. White:

But he was told that he need not consent?

Donald B. Ayer:

Well, again, it depends upon this Court’s fact-finding on this record.

And Officer Nutt does say at page 20 of the Joint Appendix, on cross-examination, he does not say it on his direct testimony; but on cross-examination, he says that he told him he had a right to refuse consent.

On the other hand, there are several other accounts of the conversation by the officers, and the officers indicate in those conversations nothing about that particular–

Byron R. White:

Wasn’t there any finding at all?

Donald B. Ayer:

–There is no fact-finding, Justice White, whatsoever, by the trial court except the ruling on the motion.

William H. Rehnquist:

Well, in Judge Lett’s dissenting opinion in the district court of appeals, he says that there is conflict in the evidence about whether the defendant consented to the search of the second bag, and whether he was informed of his right to refuse consent.

However, any conflict must be resolved in favor of the State, it being a question of fact, decided by the trial judge.

Donald B. Ayer:

I think certainly on the issue of consent, that is true because that fact, even though there were no fact-findings, that fact was necessarily decided by the trial judge.

You would not have any basis for this search absent consent.

Thereby, by denying the suppression motion, it is necessarily implicit that there was consent.

Now whether or not the other statement, the warning or whatever, that you have a right not to consent was made, I think doesn’t follow necessarily–

William H. Rehnquist:

Well, wouldn’t it be fair to say that the Florida Supreme Court assumed for the sake of argument that he was advised of his right to refuse consent?

Donald B. Ayer:

–They did not make anything of the contrary.

The only point I would make is that they did change the question presented.

The question as it was presented by the intermediate Florida court included the premise that he had in fact been advised.

If you look at page–

William H. Rehnquist:

B1–

Donald B. Ayer:

–Page B1 of the… I am sorry.

Yes, page B1 of the Joint Appendix and B2, the question as presented there says at the end, has the right, and they advise the passenger that he has the right to refuse consent to search.

Donald B. Ayer:

The Florida Supreme Court, for unstated reasons, changed the question presented over on A1 of the Appendix to the Petition for Certiorari, to omit that premise.

So it is not at all clear to me that the Florida Supreme Court assumed that that consent had been given.

Byron R. White:

–In their theory, whether he was advised or not was irrelevant.

Donald B. Ayer:

Well, I don’t seek to make a great deal of whether he was advised or not either.

Because, frankly, I don’t think it is terribly important.

The issue here is whether Mr. Bostick was seized under the Fourth Amendment.

And I would state the legal test roughly as follows, trying to incorporate this Court’s thinking in a series of cases: Mendenhall and Delgado.

But also in the more recent opinion in Inyo v. Broward County, it seems to me the question is something like this: Whether intentional police conduct, in the setting in which it plainly is occurring, that is on a bus, communicated to a reasonable person, by which I mean an innocent person, that he is not free to leave the presence of the officer, assuming that he would want to leave the presence of the officer.

And I would argue, based on the facts that I just reviewed that a reasonable person here would plainly feel that he had been and was being temporarily detained for the purpose of being questioned by these officers.

Anthony M. Kennedy:

But isn’t the fact is, the reason he didn’t want to leave is he didn’t want to get off the bus, not because he didn’t want to talk to the officers necessarily.

Donald B. Ayer:

Well, I don’t think we know that, Justice Kennedy.

I think there is nothing in the record that indicates–

Anthony M. Kennedy:

Well, the reason we don’t know it is because your client didn’t exercise his rights.

If he had, then we would have found out the answer.

Donald B. Ayer:

–Well, if you assume, if you assume that everyone who is on a bus that is laying over temporarily in an intermediate city does not want to get off that bus, I think as an initial matter, you can probably say, yes, that is right.

That is, you don’t want to get off because you have a ticket to Atlanta and we are in FtLauderdale, and I don’t want to go to FtLauderdale.

I want to go to Atlanta.

That doesn’t mean that events can’t occur on that bus that can cause you to say, you know, I would just as soon get off in Ft Lauderdale.

I would just as soon not be here being questioned by officer so and so, and I have changed my mind.

I would like to leave.

I don’t think that this Court is in a position, or would want to make the judgment, that because someone had bought a through ticket, that they had lost the right to decide to get off the bus at an intermediate point, if indeed they decide that that is what they want to do.

And that is why, in stating the tests that I have stated, I have put it in terms of the intentional police conduct and its effect, in the setting, on a person, assuming the person decides he wants to leave.

So I think what you have to look at is the overall set of factors that would restrict one, apart from the fact that you generally start with a preference not to get off the bus.

Antonin Scalia:

Well, now, wait.

Not all the factors that would restrict one.

I assume when you say that the reasonable person would think he is not free to leave, you mean, he is not free to leave because of the assertion of State authority against him, right, either force or the threat of restraint?

Donald B. Ayer:

That is correct.

Antonin Scalia:

So the mere fact that it is a lot of trouble to leave, that he would have to take his baggage out of the baggage compartment of the bus; that he would have to chuck away half of his ticket, all of that is irrelevant to whether he thought that force was being applied against him to prevent his leaving?

You acknowledge that those circumstances are irrelevant?

Donald B. Ayer:

We agree.

Donald B. Ayer:

They are irrelevant to the question of whether he is free to leave.

Nonetheless, well, let me come back to the question of whether they are relevant at all to the Fourth Amendment issue here.

But specifically, the confinement that results here, I think results from three different sort of collections of factors.

And I would enumerate them as follows:

First of all, obvious physical confinement within the bus, that is to say, the bus itself is a very small area.

There are very few ways to move about on a bus.

You don’t have just much room to get around.

There is one exit.

It is at the front of the bus.

And in this case, the officer was half in the aisle which is 15 inches wide.

The door to the bus is closed, and there is another officer standing, right, practically in his face.

So you have, number one, these factors of physical confinement.

Number two, you have police officers who are making apparent, that is to say they are communicating by their actions, their ability to use force if they need to do it or believe it is appropriate to do it.

That is to say, they are displaying in a visible form, not to say, out of its purse, but nonetheless in a visible form, they are making observers aware that they have a weapon handy if they need it.

And they are wearing raid jackets, which I think most people are familiar with from watching television, as garments that are worn by law enforcement officers when the officers are most typically engaged in arresting people and carrying out somewhat urgent law enforcement activities.

So they have the garb and the outward dress of readiness for action, that is the second factor.

And the third, which I think may be perhaps the most important of all is the apparent purposefulness of their behavior by virtue of several specific aspects of what went on.

A couple of them are minor, I think, sounding, but when you put them together, become more significant.

The touching on the foot, a sort of an indication, you know, if you spell it out… you may want to rest, but we want to talk to you.

William H. Rehnquist:

But what if a person is asleep?

Is there some one way, according to you, that the officers could constitutionally get his attention?

Donald B. Ayer:

No, Mr. Chief Justice.

And I am not suggesting that touching someone on the foot is, per se, unconstitutional, by any means.

I am simply suggesting that it is one of the factors, as this Court indicated in Mendenhall, a physical touching is one thing that may sometimes indicate or tend to indicate a seizure.

So it is one factor.

William H. Rehnquist:

Well, would it have been preferable for Fourth Amendment purposes in your view if the police had simply admonished him to wake up in a loud voice?

Donald B. Ayer:

I don’t know if it would be or not.

I think that would raise another of the Mendenhall factors.

William H. Rehnquist:

Well, then how… then in your view, how, consistently with the Fourth Amendment, should a police officer who wishes to interrogate a sleeping passenger on a bus go about it?

Donald B. Ayer:

Well, I guess I think that there, if you have no reasonable suspicion of someone and he is asleep–

William H. Rehnquist:

You can’t–

Donald B. Ayer:

–I would certainly not say that there is a, per se, bar on doing it at all.

William H. Rehnquist:

–You say a lot about things that are not a per se bar, but apparently a lot of things are factored in.

But when we get down to brass tacks on this, I get the impression you think there really is no way that they can properly wake him up without having it counted against him in this calculus that you are putting together?

Donald B. Ayer:

Well, I think that it tends to make the encounter feel more like a command performance.

That is, that one is directed by the police; and if one is directed, and one in fact has the right to decline, I think there is a bit of a tension there.

I think that is something that–

William H. Rehnquist:

But you can’t say, would you agree to wake up?

The person can’t say no.

If you wake him, you wake him up.

Donald B. Ayer:

–I will put it this way, I think certainly if they had tapped him on the foot, and they had said, we have a couple of questions we would like to ask you.

You don’t have to talk to us, and you are free to leave.

Certainly, that would have ended any question whatsoever.

I mean not saying that again, that that is required.

But that would certainly be a way of addressing that problem.

Antonin Scalia:

But, Mr. Ayer, correct me if I am wrong, we don’t know in this case that he was asleep.

Donald B. Ayer:

No, we don’t.

Antonin Scalia:

And we don’t know that he was touched on the foot.

Donald B. Ayer:

That is true.

We have a record that is unclear on both of those points.

What we have, we have him–

Antonin Scalia:

Well, what are we talking about it for?

Donald B. Ayer:

–We are talking about it because–

Antonin Scalia:

I mean, it is a factor that we don’t know existed in this case.

So how can we factor it in when we are not sure it was there.

Donald B. Ayer:

–The Court is going to have to make a determination as to what facts it believes has occurred in order to decide whether the situation is a Fourth Amendment violation.

Antonin Scalia:

We are going to determine whether he was touched on the foot?

Donald B. Ayer:

Not necessarily, only if you think you have to in order to decide the case.

And I would suggest you probably don’t.

A second thing that I think, well, two other things I think are worth mentioning with regard to the purposefulness.

Donald B. Ayer:

One is the request for documents.

That is to say, focusing attention specifically on Mr. Bostick.

And the most important one I think has to do really with where this is taking place.

I think we in this country are lucky, very lucky to be able to take for granted some, what you could sort of call quasi-public, quasi-private places, places like restaurants, churches, where you can’t say that they are private in the sense that police officers or other people may never go in there.

Of course, they can go in there, and you can’t object to that.

On the other hand, they are places where people typically expect that they are going to be allowed to go about their business unless there is some significant reason for interruption.

And what that bears upon is not the notion that it is, a per se, or any other kind of violation, simply to go on a bus.

It rather bears upon how a reasonable person would interpret it.

If you were sitting in a restaurant and an officer came into the restaurant in uniform, which he obviously would have a perfect right to do, and he came directly to your table, and he addressed you and asked you for your driver’s license, the assumption that I think most people would make would be that the officer was there in order to carry out some specific, purposeful mission that the officer needed to carry out.

One wouldn’t be, I think, necessarily totally pleased because one might have the impression that one had become some sort of a target of inquiry.

And I think that same kind of reasoning transfers over here, where you are talking about, say a bus or an airplane or a train, a situation where I think most people generally expect that they are not going to be approached.

If they are going to be approached, I will put it this way, it is going to be for some reason.

Now again, that doesn’t mean that the officers can’t ever do it, and I don’t argue that.

I am simply arguing now, what would a reasonable person conclude from this event occurring?

And my suggestion is that a reasonable person would conclude that the officer was about some business, very purposeful business; and the officer in this case, both blocking the way out, displaying force and an ability to use force, communicates a sense of an intention to accomplish the mission that he was about.

That is to say, to identify the defendant, look at his papers and then to go about searching his luggage.

Byron R. White:

Why shouldn’t we be satisfied or why shouldn’t you be satisfied with our deciding this case on the basis of the facts which the Supreme Court of Florida recited as being the facts of the case?

Donald B. Ayer:

I think that would be fine, Your Honor.

I think that would be quite reasonable.

Byron R. White:

So we don’t know whether he… on A2 they say the facts in this case are succinctly stated by Judge Letts in his dissenting opinion.

Is that good enough for you?

Donald B. Ayer:

Yes.

I think those are… I think that is a fair statement of the facts that are really quite clear on the record.

Byron R. White:

And so the evidence disputed about whether the defendant consented or whether he was informed of his right, but the conflict must be resolved in favor of the State–

Donald B. Ayer:

Well, I–

Byron R. White:

–That we don’t know whether… on these facts, you don’t know whether they touched the man at all.

Donald B. Ayer:

–That is correct.

And under this brief statement, we do not.

Antonin Scalia:

Mr. Ayer, the problem is even worse than that.

As I understand the Supreme Court of Florida opinion, all of those facts were ultimately irrelevant.

Antonin Scalia:

It answered, it rephrased the certified question which was very general and contained no facts in it.

And I gather the basis for its ruling was on A1 of your appendix:

“Does an impermissible seizure result when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passenger’s luggage. “

There are no details in that at all.

I take that to be the basis for the Supreme Court of Florida’s holding.

Donald B. Ayer:

I would… I haven’t looked into this too far, but I would suggest that perhaps it raises a question to simply ignore the facts of this case, or for this Court to simply decide the case, ignoring the facts of this case, simply on the basis of a very brief statement of a question, certified in the Florida Supreme Court.

Antonin Scalia:

Well, I gather that it was irrelevant to the Florida Supreme Court what the facts were, so long as the situation came within that rephrased question, they were going to find for the defendant.

Donald B. Ayer:

I would not reach that conclusion, Justice Scalia, based on what follows on page A2, the discussion quoting directly from the dissent in the district court of appeals.

Antonin Scalia:

At the end of the opinion they refer back again, the very last paragraph:

“For the foregoing reasons, we answer the certified question, as rephrased, in the affirmative. “

They decided this on the basis of a rule of law that you can’t have bus searches.

Donald B. Ayer:

Well, we are certainly not asking this Court for a rule of law that you can’t have bus searches.

It seems to us perfectly clear that the judgment must be made on the basis of all the circumstances.

And the circumstances here I think really do break into two categories.

There are the peculiar, aggravating circumstances that I think fairly can be said are unmatched in any of the later cases that you find either in the Federal courts or the State courts.

The factors relating to the display of this gun, in the pouch visible and recognizable as a gun; the blocking of the aisle that is half way in, half way out of the aisle; the fact that the door to the bus is closed throughout this encounter.

How would a person get off the bus if he wanted to?

Those are unique facts here.

I think everything I have just said is utterly undisputed on the record.

There is no dispute that those are the facts of this case.

And on those facts, it seems to me, it is very hard to say that there was not a confinement, especially when you look at the second category of facts which I would describe as the generic facts, the generic bus search facts, which I think frankly raise very serious problems, questions about whether there is a seizure.

But by no means, is every bus search without reasonable suspicion, going to involve a seizure.

Again, just to repeat that generic set of facts includes, as Justice Kennedy noted, it includes the fact that you have got a busload of passengers who basically don’t want to get off, and the police are taking advantage of that desire.

Maybe they have their luggage under the bus in the storage.

Maybe they have given up their ticket.

Maybe they can’t afford to stay overnight in FtLauderdale, lots of reasons they don’t want to get off and the police are saying, we have sort of a captive audience.

I think that is a problem.

But the bigger problem is the fact that people on a bus, like people on an airplane, like people in church, like people in a restaurant, think if an officer comes on board or comes into the restaurant and comes up to them and focuses on them and doesn’t say, this is just routine or you don’t have to talk to me or something that contradicts the inference of the situation, something that says, relax, we are not after you.

This is just a routine conversation we are having.

When you focus in on somebody in those settings, the normal person is going to say–

Sandra Day O’Connor:

Then, Mr. Ayer, how do you square your argument with what this Court held in the Delgado case, where the immigration officers had basically closed off the doors to the work area and the employees were not free to leave and they were being questioned?

It seems to me, faced with that case, that you have kind of an uphill battle here.

Donald B. Ayer:

–Well, I think Delgado is distinguishable on the ground that the setting is entirely different in the sense of confinement.

The bus, obviously, there is simply no where to go.

There is not a foot or two hardly to move in.

In the factory, the opinion for the Court made clear that there is an opportunity to move around the factory.

Sandra Day O’Connor:

But they weren’t free to leave it, were they?

Donald B. Ayer:

No.

But I think the question is, would a reasonable person feel that they were put in a situation where they were detained, that is to say, their physical freedom, to move about and to move out of the presence of the officer had been restricted.

And I think where you have an entire factory to move around in, it is a far different circumstance than where you simply have no where to go at all to get away from the presence of the officer, and you are relying entirely, as the other side has argued in their brief is enough, you are relying entirely on the willingness of the officer to walk away from you because you can’t go anywhere.

I think it is a very, very different circumstance.

Antonin Scalia:

Mr. Ayer, I thought you said earlier, I thought you acknowledged earlier that it is not the confinement; it is only the confinement by reason of authority, so that the mere fact that you are on a bus or anymore than the fact that you are on an elevator doesn’t make it an arrest.

So to be sure, he may only be able to move three seats away, but so long as he can move three seats away and there is no force or threat of force that prevents him from moving that distance or further, I don’t see why it is an arrest, why it is a seizure.

Donald B. Ayer:

Number one, I don’t see how he could move even three seats away here.

But in any event, if I understand the argument you are making, Justice Scalia, it would suggest that if there is a building that has for some reason a little nook that has three walls and somebody is leaning against the wall sunning himself and the nook is only 2 feet wide and an officer walks up to him and blocks the way out, and says, I want to talk to you–

Antonin Scalia:

Oh, no.

If the officer is blocking the way out, that is restricting his movement by force or threat of force.

But if an officer in an elevator, the man standing in an elevator, the officer begins a conversation with him.

Now he can’t move very far in the elevator.

Has he been seized?

I would think you would say no because it has to be… the reason he can’t move has to be the assertion of authority over him.

Donald B. Ayer:

–I would agree with that.

I would agree that one would not be seized in that circumstance.

I think on the other hand… on the other hand I think here, where the officers have boarded the bus, and they have approached someone who is in the back of the bus and they have acted in a way that they should know, and really must know, communicates a sense of their control, that they have to take responsibility for that.

That they can’t say, as is argued, you chose to put yourself on the bus.

Antonin Scalia:

That is a good point.

I am not questioning that point of your argument.

I am just questioning the part of your argument that says he couldn’t go far, he could only move two or three seats away.

That seems to me irrelevant.

Donald B. Ayer:

Our argument really is that here he had no where to go at all.

Byron R. White:

If we understood the Supreme Court of Florida as saying that in no case, under no circumstances may police board a bus and inquire from passengers about their luggage, you would not defend that rule?

Donald B. Ayer:

My view is that–

Byron R. White:

You say you are not asking for it?

Donald B. Ayer:

–We are not asking for that rule–

Byron R. White:

And furthermore, would you defend it if we understood that to be the rule?

Donald B. Ayer:

–I think that is broader than the rule should be.

I think on the other hand that there are–

Byron R. White:

Well, give me the circumstances under which police may board the bus and ask a customer or a passenger, may we search your luggage?

Donald B. Ayer:

–Well, I think if the police–

Byron R. White:

If a small person, that couldn’t block the aisle–

Donald B. Ayer:

–If the police go out of their way to negate what I believe to be the normal inference that a person would draw from the rather unusual, to most passengers, occurrence of an officer coming on a bus, that is to say, he is here for a reason–

Byron R. White:

–So if they say, don’t get us wrong, you are quite free to leave the bus.

Of course, you may not get to FtLauderdale, but you are quite free to leave.

Donald B. Ayer:

–I think they shouldn’t say that, but I think if they say, you are free to leave.

This is routine questioning.

You know, we have a real drug problem here and we would like to talk to you.

I think my view is that that would be acceptable, as long as they do nothing else–

Byron R. White:

And if the Florida Supreme Court would not accept that, you think it is wrong?

Donald B. Ayer:

–I think that is going too far, Your Honor.

Thank you, Your Honor.

William H. Rehnquist:

Thank you.

Mr. Ayer.

Ms. Fowler, do you have rebuttal?

You have 4 minutes remaining.

Joan Fowler:

Thank you, Your Honor.

I would like to reemphasize the fact that these officers spoke to Mr. Bostick in normal conversational tones.

They at no time raised their voices.

The gun was not drawn at any time.

It was kept within the pouch.

All people in America know that police officers carry weapons.

Joan Fowler:

They may not know where they are being holstered–

Byron R. White:

I take it, you think that the Florida Supreme Court based its ruling on the particular circumstances of this case: The fact of the gun, the fact of blocking the aisle.

Whereas, if those facts hadn’t been present, they would have had a different view?

Joan Fowler:

–No, Justice White.

I think that you are correct in saying that the Supreme Court of Florida has held a–

Byron R. White:

Justice Scalia, please.

Joan Fowler:

–I am sorry, Justice Scalia.

That there was the per se rule that under no circumstances can police go on buses to discuss with citizens, to ask their cooperation for a search for any type of contraband.

And we are saying here today that that bright line rule, that test should not be the test.

Also, we are saying that under the specific facts of Bostick, that there was no show of authority sufficient to restrain his liberty, so as to implicate the Fourth Amendment.

The aisle was not blocked.

Mr. Bostick’s counsel has gotten up here and repeatedly said that the aisle was blocked.

It was partially blocked.

Mr. Bostick could still have gotten past–

William H. Rehnquist:

We are a little bit in the dark about some of the facts, are we not, Ms. Fowler?

Joan Fowler:

–Yes, we are.

William H. Rehnquist:

In view of the… the trial court did not make specific findings.

Joan Fowler:

That is correct.

We would ask that this Court look at those facts that are set forth in the Supreme Court opinion which is in our petition for cert at A2.

William H. Rehnquist:

Which quotes from Judge Letts’ dissent?

Joan Fowler:

Yes.

Those facts are sufficient, I think for this Court to make a ruling.

Therefore, we don’t have to get into any questions about whether or not he was sleeping, and there is evidence that he was not.

Just because the door to this bus was closed does not mean that the defendant could not have gotten off the bus.

It could have still be opened.

There is no evidence that it was locked.

That would be a fire hazard or something.

Harry A. Blackmun:

Would you know how to open it?

Joan Fowler:

My understanding is, all you have to do is push it.

There is no specific levers or anything like that.

Joan Fowler:

A mere pushing is sufficient.

And under Delgado, this Court has found that it is not a test of whether or not you are free to leave, it is whether or not you are free to go about your business.

And Mr. Bostick’s business was staying on the bus to continue his travels, and he did not have to talk to these officers if he did not want to.

Thank you.

William H. Rehnquist:

Thank you, Ms. Fowler.

The case is submitted.