United States v. Drayton – Oral Argument – April 16, 2002

Media for United States v. Drayton

Audio Transcription for Opinion Announcement – June 17, 2002 in United States v. Drayton

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William H. Rehnquist:

We’ll hear argument now in No. 01-631, the United States v. Christopher Drayton and Clifton Brown.

Mr. Thompson.

Larry D. Thompson:

Mr. Chief Justice, and may it please the Court: This Court has held in several decisions that the police questioning of individuals is a legitimate and, indeed, vital law enforcement technique.

The decision below ignores this Court’s teachings as to when a police-citizen encounter on a bus may violate the Fourth Amendment and may constitute the seizure of the passenger.

Police-citizen encounters have proven to be effective law enforcement techniques in the area of drug and weapon interdiction.

These encounters are also important in today’s environment with respect to the protection of passengers in the Nation’s public transportation system.

This case is controlled by this Court’s decision in Bostick and the court below incorrectly applied the Bostick test to these facts.

Ruth Bader Ginsburg:

Mr. Thompson, isn’t it so that in Bostick the police did inform the passengers that they had a right to refuse consent?

Larry D. Thompson:

That is correct, Your Honor, but also in Bostick this Court clearly pointed out, on remand to the Florida Supreme Court, the factors that the Court should evaluate in terms of determining whether or not the encounter was coercive or otherwise inappropriate.

And two of those factors are important here that would put into context what the court below considered.

For example, this Court pointed out to the Florida Supreme Court whether or not there were guns pointed and noted that there were no guns pointed in a… in the Bostick case.

This Court also pointed out to the Florida Supreme Court that… whether or not there was the existence of threatening language, and none of that existed in the case below.

Anthony M. Kennedy:

Well, I… I suppose that the advice that you have a right to decline the request applies… and I… I take it you could read Bostick this way; perhaps you disagree… to whether or not the… the consent was actually given as opposed to whether there was a coercive environment.

Larry D. Thompson:

That’s correct, Your Honor, and as the Bostick Court pointed out with respect to the test to be applied is whether or not, under all the circumstances, the police conduct communicated to a reasonable person… and that presupposes a reasonably… a reasonable innocent person… whether or not the passenger could have refused the officer’s request to consent or otherwise have terminated the… terminated the encounter.

There is really nothing remarkable about the facts of this case when you look at this Court’s decision in Bostick and compare Bostick with this Court’s decision in Robinette which clearly pointed–

Ruth Bader Ginsburg:

My question, Mr. Thompson, was your opening statement was that the Eleventh Circuit had ruled in direct conflict with this Court’s precedent.

If we’re applying a totality of the circumstances test, that’s one circumstance that was present there, is not present here.

So, whether the Eleventh Circuit erred is for us to determine today, but I do think it’s a bit much to say that they… they just disregarded this Court’s precedent.

Larry D. Thompson:

–Your Honor, the Eleventh Circuit considered factors that were unlike the factors that this Court in Bostick believed were important in determining whether the police conduct at issue was coercive.

And moreover, Your Honor, the Eleventh Circuit incorrectly applied the legal principles that this Court formulated with respect to the facts of this case.

For example, the Eleventh Circuit noted the importance of Officer Hoover at the front of the bus and pointed out that his presence might lead a… a passenger to believe that he or she could not leave the bus.

Well, this Court in Bostick clearly pointed out that the… in a… in the context of a bus interdiction effort, whether or not the passenger could leave the bus was the wrong question.

The question was whether or not the passenger… whether or not the police conduct communicated to the passenger whether or not they could refuse the consent requested or whether or not they could just terminate the questioning of the police officer.

David H. Souter:

Well, it’s… it’s true that the… the issue of whether someone could leave the bus or not is… is not really an issue that… that focuses the question, and we said so in Bostick.

But it doesn’t follow from that that it was irrelevant in Bostick or that it’s irrelevant here that there was an officer stationed at the front of the bus.

If we’re going to have a totality of the circumstances test, wouldn’t you agree that that is one relevant fact to consider in trying to reconstruct the atmosphere and decide whether or not it signaled to the… to the person searched the… the possibility of just ending the encounter?

Larry D. Thompson:

Yes, Your Honor.

That… it is one relevant fact to be taken into consideration with the other factors, but here the officer stationed at the front of the bus… at the front of the bus really did not communicate, nor did Officer Lang who was doing the questioning… did not communicate that… to any passenger that he or she could not terminate the questioning.

David H. Souter:

He did… nobody said, you can’t leave the bus.

But isn’t it a fact that a passenger would take into some consideration that there was an officer stationed at the front of the bus?

Larry D. Thompson:

Your Honor–

David H. Souter:

He wasn’t keeping people out, apparently.

Larry D. Thompson:

–Excuse me.

David H. Souter:

It’s… it’s a relevant fact in determining the coerciveness of the atmosphere, is it not?

Larry D. Thompson:

Your Honor, not in this case.

The court below and the Eleventh Circuit acknowledged in… in their findings, if you will, that the… the aisle was not blocked, the exit was not blocked.

In fact, every–

David H. Souter:

Let me… let me try a… a different suggestion.

The fact that the officer at the front of the bus was kneeling in the driver’s seat was one graphic reminder of another fact in this case, and that is, that the driver was gone.

The driver had left the bus.

The only people exercising any kind of official capacity in that bus were three police officers.

One of them was occupying the driver’s seat.

Isn’t that a signal that nobody is going to be going anywhere on this bus?

This bus isn’t going to be going anywhere until the officers are satisfied.

Now, that may or may not be dispositive of anything, but it is a relevant fact on the question of coercion and voluntariness.

Isn’t it?

Larry D. Thompson:

–Your Honor, the presence of the officer at the front of the bus is a factor, but in the context of these facts and if… in the context of this Court’s decision in Delgado where you had armed agents surrounding the factory, and this Court held that simply because the factory workers could not leave without passing those agents–

David H. Souter:

I agree with you.

You’re… you’re absolutely right there.

The… the point that I’m making is that you can’t go through this kind of analysis and say, well, this fact is irrelevant.

This shouldn’t have been considered by the court.

That fact was irrelevant.

That shouldn’t have been considered.

It was a relevant fact.

What it all adds up to, as you suggest by the Delgado reference, is a different question, but it’s a relevant fact, isn’t it?

Larry D. Thompson:

–It’s a relevant fact, but the factors to be considered and the factors that this Court clearly announced in… in the Bostick case were factors that were threatening, factors that were otherwise coercive, like pointing a gun.

In this particular case, Your Honor, the Eleventh Circuit even noted that there was no evidence that any of the passengers saw that this officer was armed.

The officers were–

Antonin Scalia:

Mr. Thompson, did they know that he was an officer?

Was it clear that he was an officer?

Larry D. Thompson:

–The officer was conducting individual passenger-specific questioning.

Antonin Scalia:

The… the other two officers were I know, but was there… was it clear that the person kneeling in the driver’s seat was an officer?

Larry D. Thompson:

He was casually dressed, Your Honor, and it’s not clear from the record as to whether or not he was a police officer.

Ruth Bader Ginsburg:

Did he have his badge?

The other two showed their badges.

Did the one in the front show–

Larry D. Thompson:

I don’t believe the record is clear as to where the badge was located with respect to the officer at the front of the bus.

David H. Souter:

–Did he enter with the other two?

Larry D. Thompson:

Yes.

They all entered as passengers, all casually dressed.

And with respect to the conduct of this… of this search–

Anthony M. Kennedy:

Well, I mean, I… what… I don’t know what that… why should that make a difference.

If somebody shows me a badge and he’s casually dressed, I know he’s got a gun, or he’s going to be fired.

An officer is fired if he doesn’t carry his gun.

Everybody knows that.

Let me… let me ask you this.

Would it be appropriate in your view for this Court to write an opinion in which we say that citizens have certain obligations to know their rights and to assert their rights?

That’s what makes for a strong democracy.

The law lives in the consciousness of the people.

And people have a certain obligation to assert their rights.

If they don’t want to be searched, they say I don’t want to be searched.

Should we write that in an opinion?

Larry D. Thompson:

–Well, that follows on with the… the clear test that this Court announced in Bostick, and the test was, Your Honor, whether or not the police conduct commuted anything… communicated anything to the citizens and these passengers as to–

Anthony M. Kennedy:

What about the proposition as I… as I’ve stated it?

Because if you say yes… and I think there’s a good answer for it… then I’d just say, well, we have to distinguish Miranda at least.

Miranda is based on a contrary assumption.

That’s what’s running through my mind as I’m asking the question.

Larry D. Thompson:

–Well, here… here the… the citizens… some citizens did refuse Officer Lang’s request, and what… what you posit is… is really the guts of what is going on here.

As Officer Lang testified, Your Honor, many of the citizens… most citizens went along with the police questioning in… in this particular… these particular bus interdictions, and they… and they were happy to do so.

Officer Lang testified that many of the bus passengers appreciated his efforts in coming onto the bus.

Larry D. Thompson:

They… it made them feel a sense of… of safety.

And here citizens generally do know their rights, and here the police did not communicate anything to these passengers that would indicate that they had to answer, that they were required or otherwise compelled to answer Officer Lang’s questions.

Ruth Bader Ginsburg:

Did any other case that we considered involve a body pat-down, not just a request to look at luggage?

This… in this case the… the luggage didn’t turn up anything of interest to the police, but the pat-down did.

And the image of let’s take what is… Mr. Drayton is sitting next to a man who has just been hauled off the bus, handcuffed.

I imagine he would feel some intimidation at that point when the police then turned to him and said, okay, we’d like to search you too.

Larry D. Thompson:

Well, the… the Bostick test presupposes a reasonable, innocent person.

In this particular case, Mr…. Mr. Brown’s consent was unambiguous.

He… in response to the question, he said, sure.

He opened his coat.

He took out a cell phone.

Ruth Bader Ginsburg:

But Drayton said nothing throughout the whole encounter.

Larry D. Thompson:

Drayton’s… Drayton’s consent, as the district court found, was clear and unambiguous.

He raised his hands off of his thighs, Your Honor.

There was nothing that Officer Lang said to Mr…. or said to Mr. Drayton or had said to Mr. Brown that would have indicated that Mr. Drayton could not have terminated the questioning or that he could have refused consent.

And as this Court noted… as this Court noted in Bostick, the fact that a lawbreaker knows that the search is going to uncover contraband or is… knows that the search is going to uncover drugs does not make the consent involuntary.

David H. Souter:

Well, it doesn’t make it involuntary, but it… it does suggest perhaps that there is an ambiguity here as… as against your claim that there was none in Brown’s consent because… and correct me if I’m wrong on the facts, but I… I think the first request to Brown was… or maybe to the two of them together… can I look at your… your luggage, your bag, whatever they had pointed to, and they said, sure.

And I presume they said sure because they knew there was nothing in it that was going to be incriminating.

So, the officer looked in the… in the luggage and he found nothing.

Then he turned to Brown and said, mind if I do a pat-down, or whatever the phrase was.

Well, that’s the search that’s in question here, and I would have thought that at that point Brown was in the situation in which the reasonable citizen would have thought I’m damned if I do and I’m damned if I don’t.

If he pats me down and he’s… he’s thorough about it, he’s going to find the… the drugs.

If I say you can’t pat me down, having just given permission to him to… to look in the… in the bag, he’s going to know that there must be something on me that wasn’t on the bag.

And… and, therefore, it seems to me that the… that Brown at that point was by no means in a position in which he had a kind of free choice to say yes or no.

So, it sounds to me as though it is ambiguous.

Have I got the facts wrong?

Larry D. Thompson:

You have the facts, but your conclusion, Your Honor, I would differ with because in… in the situation both individuals pointed to the bag.

There was nothing in Officer Lang’s request to Mr. Brown that would… that would… that… that would send or communicate to Mr. Brown that he could not have refused the request.

There was nothing in Officer Lang’s question that would indicate to Mr. Brown that he could not have otherwise terminated the questioning.

Why some of the–

Antonin Scalia:

Well, you don’t agree, I hope, with the… with the proposition that there would be no reason to decline the pat-down search except the reason that he had something incriminating on him.

I mean, the mere fact that you’ve… you’ve acceded to the luggage search, which is a much less intrusive search, does not show that… that you have something to hide when you… when you decline to… to have a pat-down.

Don’t… don’t you agree that a consent to a luggage search is a lot less difficult to obtain than consent to a pat-down?

Larry D. Thompson:

–The nature… the nature of the search is not necessary to the Bostick inquiry.

Antonin Scalia:

Well, I think you’re… I think you’re missing my point.

Justice Souter was suggesting that having acceded to the luggage search, the only plausible reason for objecting to the pat-down would be that I have something on me that is incriminating.

And I… I acceded to the luggage search because I knew there was nothing incriminating.

But don’t you think that an innocent citizen could agree to a… a policeman’s search of luggage but not agree to a pat-down?

Larry D. Thompson:

Absolutely, Your Honor.

David H. Souter:

And… and, of course, I would agree–

Antonin Scalia:

–You know, let’s be reasonable here.

David H. Souter:

Yes.

But don’t… don’t you think the most probable inference is the inference I gave you?

Larry D. Thompson:

No, Your Honor.

You have… again, you have to understand this Court’s holding in Bostick and that is the–

David H. Souter:

The holding in Bostick, if I remember it, was that the Florida Supreme Court was wrong in adopting a per se rule and left open the question of whether there was a seizure in that case.

Isn’t that right?

Larry D. Thompson:

–Yes, Your Honor.

But in this particular case, the reasonable person, as this Court said, presupposes a reasonable, innocent person.

Lawbreakers sometimes agree to be… agree to be searched, knowing that the drugs are in their luggage or on their person, for a number of reasons, sometimes as… as these gentlemen did.

They want to be cooperative.

They do not want to send some kind of message that they indeed have the items in question.

They want to appear innocent.

They do this for any number of reasons, hoping that the police officer will not search them and go away.

Ruth Bader Ginsburg:

Mr. Thompson, you–

Larry D. Thompson:

It has nothing to do with–

Ruth Bader Ginsburg:

–you were about to say–

Larry D. Thompson:

–compulsion.

Excuse me.

Ruth Bader Ginsburg:

–that the police… you were about to say when the police go over the line.

Ruth Bader Ginsburg:

I think you said here they did nothing that would imply that consent or that… that the search was required of the citizen.

What… can… can you give a description of when the police would step over the line?

Is it… must the police give words of command, get up, I want to search you?

Is that… does it take that?

Larry D. Thompson:

The… if… if the police would communicate to the citizen somehow that the citizen’s response was compelled.

For example, in… in Bostick this Court noted that pointing guns, drawn guns would lead to that… that kind of compulsion or coercion.

For example, if the police used threatening language.

If the police communicated to the reasonable person that he or she could not refuse the request for consent or could not otherwise terminate the questioning.

Antonin Scalia:

And that explains Miranda, of course, to the extent anything explains it.

[Laughter]

That… that was a custodial interrogation, wasn’t it?

Larry D. Thompson:

Yes, Your Honor.

Antonin Scalia:

And the… the physical custody would have had that… that effect of… of causing the person to believe that he had no choice.

Larry D. Thompson:

Absolutely.

Here you have unstructured, rapidly developing police-citizen encounters, and what is important here–

Antonin Scalia:

And you have a request and a response.

And the response is that there is no objection to the search.

And it seems to me that that is an objective consideration of the highest importance.

Larry D. Thompson:

–That’s correct, Your Honor.

John Paul Stevens:

May I ask, Mr. Thompson, do you regard this primarily as a seizure case or a search case?

Larry D. Thompson:

This is a seizure case, Your Honor.

That’s the… the court below decided this case under the… under the Bostick test.

Both parties before the Eleventh Circuit urged the Bostick test, and this is… I would submit that this is a seizure case.

John Paul Stevens:

Do you think it always would follow if you concluded that there was no seizure, that there was necessarily voluntary consent to the search?

Larry D. Thompson:

If there was no seizure?

John Paul Stevens:

Right.

Larry D. Thompson:

It… in this Court’s test in Bostick, the Court merged the voluntary issue and the voluntariness in with the… in with the Bostick seizure analysis.

So, I would say that… that the two are merged together and are related.

John Paul Stevens:

It doesn’t seem to me that analytically they have to be.

It seems to me you could have a case in which you could… the officer could say to the man, you’re perfectly free to get off the bus anytime you want to, but I’d like to… to search you first, and may I do so?

John Paul Stevens:

And then the question would be whether the search was voluntary even if there had been no seizure.

It seems to me that could be a scenario that would make sense.

Larry D. Thompson:

It’s… it’s hard to… in the context of these bus… police-citizen encounters on a bus, it’s hard to really see the distinction between the voluntariness test and the seizure test.

John Paul Stevens:

But it does seem to me the passenger might have two different thoughts.

One, I better not get off the bus.

I want to get to Columbus or Cleveland or wherever we’re going.

So, I… that… maybe I can get off the bus, but it just doesn’t make any sense.

But that’s one inquiry.

The second inquiry is, do I want to let this fellow search me?

It seems to me they are really two separate questions.

Larry D. Thompson:

I don’t know, Your Honor, but I… I would posit here that we do not really need in this particular case to… to understand the full extent of the scope of the voluntariness test because the court below clearly decided this case under Bostick and as a seizure case.

Antonin Scalia:

A seizure of the person or seizure of the contraband?

Larry D. Thompson:

The person, Your Honor.

Stephen G. Breyer:

If we were writing on a blank slate and other cases weren’t there, what would be the Department’s objections to a rule of law that said when you’re on a bus, only 11 inches of an aisle, three people get on.

One is sitting in the back looking over the crowd.

The other two systematically work their way to the front.

What would be the objection to saying, policeman, of course, you can ask citizens to cooperate?

Certainly that’s a very desirable thing.

But in those closed, cramped quarters where you have three, just say you don’t have to answer if you don’t want to.

You don’t have to be searched if you don’t want to, making clear that you’re eliciting voluntary cooperation and nobody is under compulsion.

What would be the objection to that?

Larry D. Thompson:

Well, as this Court noted in Bostick, Your Honor, just because the police-citizen encounter happens on a bus, there’s no reason to establish some kind of per se rule.

Antonin Scalia:

Well, I assume Congress could enact a statute like that, couldn’t it, for Federal officers?

Couldn’t Congress prescribe that whenever Federal drug agents enter a bus, they… and to conduct a… a search, they shall make such a statement?

Larry D. Thompson:

I… I don’t know–

Antonin Scalia:

You would have no problem with Congress doing that, would you?

Larry D. Thompson:

–I would… I would say, Your Honor, here that–

Stephen G. Breyer:

It might.

It might be bad policy.

And my question was are there policy objections to… I’m not saying what the constitutional rule is.

Stephen G. Breyer:

I understand those arguments.

I’m just, for my own benefit, trying to find out if that would cause a practical problem or not.

Larry D. Thompson:

–I can think of three reasons.

Your Honor, this Court has consistently held that we… you do not want to saddle law enforcement officers with some kind of bright line test in Fourth Amendment cases.

That’s very important here when I would submit that Bostick is an appropriate vehicle to determine the validity of consent.

In these particular cases, it’s… it’s very difficult.

You have an unstructured, rapidly evolving and developing situation, and warnings would not be–

William H. Rehnquist:

And one of the difficulties with… with a warning is, you know, Miranda was supposed to be a bright line test where, you know, we didn’t have to argue about anything.

Well, we had at least 60 or 70 cases here deciding whether somebody introduced… was interrogating and that sort of thing.

So, if you have some sort of a requirement like that, it’s just another layer of litigation.

Larry D. Thompson:

–Absolutely, Your Honor, and I would direct the Court’s attention to a case that was cited in the Government’s brief, United States v. Stephens, where there was some appropriate warning, and the court… the Ninth Circuit in that particular case said that the warning confused the passengers, intimidated the passengers.

But–

Anthony M. Kennedy:

Well, I assume the other policy objection is, the underlying premise of Justice Breyer’s suggestion is the Government has some obligation to teach everybody about their rights.

And that’s a… that’s a sweeping proposition.

Larry D. Thompson:

–I would agree.

Anthony M. Kennedy:

Especially when it’s not required by the Constitution.

Larry D. Thompson:

I would agree, Justice–

John Paul Stevens:

May I ask you what significance, if any… I don’t know if it’s significant or not… do you attach to the fact that, as I understand it from the court of appeals opinion, that this officer had made similar requests several hundred times and only five or six people had ever said no?

Is that relevant at all?

Larry D. Thompson:

–It is not relevant, Your Honor.

Some people did say no.

Most people–

John Paul Stevens:

You don’t think that suggests that perhaps most people thought they had an obligation to answer?

Larry D. Thompson:

–Well, Your Honor, as this Court… as this Court held in Delgado, simply because most citizens cooperate and most citizens agree with the officer’s request, that’s no indication that the consent at issue is involuntary.

If there are no further questions, I would like to reserve the remainder of my time.

William H. Rehnquist:

Very well, Mr. Thompson.

Ms. Spivey, we’ll hear from you.

Gwendolyn Spivey:

Mr. Chief Justice, and may it please the Court: This Court should reaffirm Bostick in its entirety.

We are not arguing that advice should be required.

Rather, we think that Bostick got it entirely right with the language that advice is a factor particularly worth noting.

Gwendolyn Spivey:

If Bostick is revised, we would ask the Court to remand to the court of appeals, as it did in Bostick, so that it can reconsider.

I believe the key to this test… and I don’t mean to sound presumptuous.

Having thought long and hard, I think the key is that the Eleventh Circuit really was trying to give voice to the seizure or… and the consent test, as set out in Bostick.

In Bostick at U.S. 437, the Court wrote… it focused on what the police conduct… conduct would have communicated to a reasonable person.

And in Washington at 1357 and Guapi at 1395, what the Eleventh Circuit focused on… it said, it is enough that the circumstances themselves would indicate that the search can proceed only if consent is given.

So, I believe that the Eleventh Circuit parallels Bostick’s use of the word… that focused on what does it communicate with their use of the word indicate.

And indicate necessarily refers back to… it expressly refers back to the circumstances, which is the totality.

And while courts tend to focus most commonly on whether or not advice was given or not given, I think there are any number of acts or omissions that focus on the police conduct–

Stephen G. Breyer:

That… that I think is true, but could… if their point is that if… if you were to take your case, this case before us, and say under the present law and the test that you’re enunciating, that you do have to tell the passengers what I suggested earlier… tell them they don’t have to answer or respond… well, then you’d have to in every case.

So, why don’t you give me an example of one where they wouldn’t.

Gwendolyn Spivey:

–Yes, sir.

I would… I would posit a… a… I could posit a scenario, and the best one I thought of is that that we’ve all flown on airplanes and–

Stephen G. Breyer:

No.

On a bus.

Could you possibly do… because actually oddly enough Bostick is about buses.

Gwendolyn Spivey:

–Yes, sir.

Stephen G. Breyer:

And… and there… it’s about buses.

Gwendolyn Spivey:

Yes, sir.

Stephen G. Breyer:

And the buses are stopped and somebody comes on.

All right.

So, what is… can you think of any example in those circumstances where they wouldn’t have to make that announcement?

Gwendolyn Spivey:

Yes, sir.

In a… besides referring to the specific factors here and suggesting that the police conduct ratchet down the coerciveness of any factor, I would suggest that if the police did not delay the… the departure of the bus, did not engage in bag-matching, and did not do any more than a… a flight attendant does standing in the aisle and talking individually to the passenger and does not use language that would communicate to a reasonable, innocent person that cooperation is required… for example, using language that it’s voluntary.

They could use language that it’s voluntary.

They could say, are you willing, with your permission.

Or specifically in this case, relating to Mr. Drayton, they could engage in acts.

For example, when you ask–

Antonin Scalia:

Didn’t they use language like that in this case?

Did they say, you know, open your coat, I want to pat you down?

Gwendolyn Spivey:

–They used–

Antonin Scalia:

Didn’t they make it clear that they were asking permission which suggests that the person has the ability to deny permission?

Gwendolyn Spivey:

–Respectfully, Justice Scalia, I don’t believe so.

I think it was very clear that what they were asking for was cooperation.

Antonin Scalia:

What… what words did they use in… in particular?

Gwendolyn Spivey:

They immediately approached each individual passenger–

Antonin Scalia:

Right.

Gwendolyn Spivey:

–and said, I’m Officer so and so.

I’m doing this.

Antonin Scalia:

Right.

Gwendolyn Spivey:

Do you have a bag on the bus?

Antonin Scalia:

Yes.

Gwendolyn Spivey:

I believe that point right there denied the Bostick right to refuse to engage with the officer.

Antonin Scalia:

Wait.

And… and that’s all they asked, and when the person said yes, they immediately searched the bag?

Anthony M. Kennedy:

No.

Gwendolyn Spivey:

No.

Antonin Scalia:

Surely, surely they required more.

Gwendolyn Spivey:

Then they asked another question.

Antonin Scalia:

What was the other question that they asked?

Anthony M. Kennedy:

On page 4 of the Government’s brief–

Gwendolyn Spivey:

Do you mind–

Anthony M. Kennedy:

–it says, do you mind if I check it?

Gwendolyn Spivey:

–Do you mind if I check it?

Antonin Scalia:

Does… does that not suggest exactly what you want them to suggest, that the person has the ability to withhold that consent?

Gwendolyn Spivey:

No, Justice Scalia.

In Schneckloth at U.S. 229, this Court referred to the, quote, subtly coercive police questions.

And I think one really does have to look at the nuances of the questions and how a reasonable, innocent person would take them.

William H. Rehnquist:

Well, what is the nuance of a question, do you mind if I inspect it?

Gwendolyn Spivey:

Because I think no matter how a reasonable, innocent person answers it, Mr. Chief Justice, the police can construe it as consent.

If they say–

William H. Rehnquist:

But… well, is there any doubt that this person answered it in a way that indicated consent?

Gwendolyn Spivey:

–Mr. Chief Justice, I believe there is doubt because I believe… not as to the bag, but as to the question, do you mind if I check your person.

I do believe there’s definitely doubt because of the indirect question and also because of his–

William H. Rehnquist:

Well, what’s… what’s indirect?

Do you mind if I check your person?

Gwendolyn Spivey:

–Because no matter whether you answer it yes or no, it’s not may I check your person.

If you say no, it means no.

Yes means yes.

But if you say, do you mind if I, if the person says yes–

William H. Rehnquist:

So, it… it turns on that sort of a subtle distinction?

Gwendolyn Spivey:

–I think it can, Your Honor.

I think it’s one factor–

Stephen G. Breyer:

But if we do, then don’t we have to follow the district court?

I mean, the district court there concluded in the facts that everything was cooperative, there was nothing coercive, there was nothing confrontational.

Gwendolyn Spivey:

–Yes, sir.

Stephen G. Breyer:

And he heard the officer and he heard the tone of voice.

So, how… how could we possibly get around that?

Gwendolyn Spivey:

Well, Justice Breyer, the district court applied the wrong test.

It applied the free-to-leave test.

That… that’s at the joint appendix at 132, and that’s specifically what this Court rejected in Bostick the Florida Supreme Court had done.

He also… I disagree with the Government’s representation that he said that Mr. Drayton was clear or unambiguous.

He did not address… he did not make any factual findings as to the actual encounter.

And–

Anthony M. Kennedy:

The freedom-to-leave test actually is… is more beneficial for your client.

Everybody knows you’re not free to leave the bus.

You’ll miss the bus.

I mean, that’s… that’s what we said in Bostick.

So, it seems to me that the district court applied a higher standard than… than was necessary and still found voluntary search.

Gwendolyn Spivey:

–Well, Justice Kennedy, from my perspective, the important point is that he applied the wrong test, the test this Court has rejected.

And also, he made two other legal–

Anthony M. Kennedy:

Do you want us to reverse because there was a test that’s too favorable to your client?

I don’t understand that.

Gwendolyn Spivey:

–No.

I… I have no… I have no objection with the Bostick test, either the test for seizure at U.S. 437 or the test for consent at U.S. 438.

I think that the court of appeals then applied the correct test and overturned the… the legal conclusion which the district court reached.

The district court said that… he made a global conclusion.

He said, quote, their consent leads me to believe there was no violation.

Well, I think that, with all respect, is a tautology.

Just because they consent, it doesn’t mean there’s no violation.

And I think that… he said–

Antonin Scalia:

Surely he meant their consent in those circumstances.

Didn’t he recite in the opinion all of the circumstances involved?

Gwendolyn Spivey:

–No, Your Honor.

Antonin Scalia:

Don’t you think it’s a little unfair to… to read that after… after he describes the whole situation as simply saying, well, since they consented, it must be okay?

Gwendolyn Spivey:

Justice Scalia–

Antonin Scalia:

I mean, you can say, you know, I’m going to torture you if you don’t let me look at it.

Okay, okay, okay, look at it.

[Laughter]

Antonin Scalia:

Surely nobody is going to say his consent shows that it was voluntary.

Gwendolyn Spivey:

–No, Justice Scalia, I don’t agree with the first part of the question because the district court made no findings whatsoever regarding the specifics of the actual encounter or exchange between the… the defendants and the… or the police officers and individual passengers.

William H. Rehnquist:

Did you ask for findings… did you ask for findings that were that detailed?

Gwendolyn Spivey:

The trial… neither trial counsel for the Government nor the defense did, Your Honor.

But the district court then said there’s nothing coercive about this encounter, and I believe that’s an ultimate legal conclusion which, when the court of appeals applied the correct test from Bostick, reached the correct result.

Ruth Bader Ginsburg:

As far as Drayton is concerned, there’s nothing in the record other than that he lifted his hands from his lap.

Is there… he didn’t utter any words, and so his consent rides on that gesture and what it meant.

Gwendolyn Spivey:

Yes.

Yes, Justice Ginsburg, that is correct.

And I think it’s clear under Schneckloth and Bumper that mere acquiescence… and that was… is not sufficient.

And that’s why I was saying I think that the police conduct can be either acts or… and/or omissions.

And I think the omission here or the act here was simply not waiting on an answer.

Antonin Scalia:

Excuse me.

When… when you’re asked a question, do you mind if I conduct a pat-down, and you raise up your arms like that, what… what does that naturally convey?

Gwendolyn Spivey:

I think that’s a classic example, Your Honor… after you’ve just watched the other passenger arrested and hauled across the top of you, that’s a classic example of mere acquiescence to a show of authority.

Antonin Scalia:

Mere acquiescence.

Stephen G. Breyer:

That’s apparently the opposite–

Antonin Scalia:

–Acquiescence would be just to sit there, it seems to me.

Stephen G. Breyer:

I mean, isn’t that the opposite of what the district court thought–

Gwendolyn Spivey:

The district–

Stephen G. Breyer:

–who saw all this?

I mean, the district court heard the witnesses.

He heard the tone of voice.

I mean, I don’t see how to get very far with this notion of the question.

What about the other two things?

Was this a case where the passengers knew that the bags were being matched?

Gwendolyn Spivey:

–Justice Breyer, in response to your first question, the district court never addressed the specifics of Mr. Drayton’s nonverbal response–

Stephen G. Breyer:

All right.

I… I see it.

What about… but was this a case where the… where… was this a case where the passengers knew that the bags were being matched?

Gwendolyn Spivey:

–I think it was very clear.

I don’t think a reasonable person sitting in that bus, unless they were deaf, could not have known that the bags… they were asking every person, do you… as the first question.

Do you have a bag?

If they did, may I check it.

In fact, Officer Lang–

Stephen G. Breyer:

Well, I don’t know what you meant then by bags being matched.

I thought you meant that they went outside or did something.

I–

Gwendolyn Spivey:

–No, Your Honor.

The carry-on luggage, which this Court, you know, focused on in Bond, the privacy of that carry-on luggage.

I believe that the Government… the officer used that as a means of basically forcing an encounter by asking a person, do you have a bag.

And Stephens pointed out the Hobson’s choice that a passenger faces.

Gwendolyn Spivey:

They don’t… it… it denies their right to ignore the officer because if they say nothing, the bag is construed as abandoned.

You have to respond to the officer.

So, I think Bostick gives you the right to ignore–

Anthony M. Kennedy:

–An American citizen has to protect his rights once in a while.

That’s… that’s a very bad thing?

Gwendolyn Spivey:

–I think the Bostick, Justice Kennedy, gave citizens, bus passengers, the right to ignore officers.

Anthony M. Kennedy:

Of course.

The right to say, officer, don’t bother me.

Gwendolyn Spivey:

But that’s not ignoring them, Your Honor.

That’s having to engage with them, and I think that’s part of the technique that’s used, is getting a person… if you can get them to–

Anthony M. Kennedy:

Well, I… I don’t read Bostick that way.

Now, this… this argument that because the first person is arrested, the second person feels coerced, that seems to me it goes the other way around.

The second person now knows the consequences of giving consent.

Under your theory, the first person is arrested and the second person says, oh, I… I’d like to be arrested too.

Come and search me.

[Laughter]

Gwendolyn Spivey:

–I don’t think–

Anthony M. Kennedy:

That… that doesn’t make sense.

Gwendolyn Spivey:

–I don’t think a reasonable, innocent person would take what happened to… to a passenger sitting next to him as anything but a classic example of a show of authority.

In… in response to your question, Justice Kennedy, to the Government earlier, I think that putting the burden on the citizen shifts the… the burden is on the Government in every case to prove that the encounter is consensual and that any consent given is voluntary and is uncoerced.

And I think–

Anthony M. Kennedy:

The question is whether or not the Government also has the burden to educate citizens as to their rights in every encounter, whether or not there isn’t some obligation on the part of the citizen to know and to exercise his rights or her rights.

Gwendolyn Spivey:

–Justice Kennedy, I believe that that ignores the demographic realities of the reasonable bus passenger.

The Government acknowledged below that most bus passengers are economically disadvantaged, and they don’t know who their Congressman is or the Governor.

They don’t… that was not acknowledged below.

I don’t mean–

Anthony M. Kennedy:

So, you want people to travel on buses where people might have weapons and drugs and can’t be searched.

You think that’s better for passengers.

Gwendolyn Spivey:

–Certainly not, Your Honor.

Certainly not, but I think there is a limit to the imposition on millions of innocent people for the purpose of ferreting out ordinary criminal wrongdoing.

Gwendolyn Spivey:

And to the extent that the… the departure of this bus was delayed, I think this case is right on point with the Edmund case.

To the extent they delayed the forward movement of that bus, I believe every passenger on it was seized even though I disagree that the court below addressed the seizure issue.

Antonin Scalia:

Ms. Spivey, is there anything in the record that… that indicates whether the police knew that these two people were traveling together?

Gwendolyn Spivey:

They knew that they were seated next to each other in a seat.

There was no testimony whatsoever… there was testimony that the officer had seen the respondents in… depending on which transcript we’re looking at.

There is testimony in the joint appendix that the officer had seen them boarding the bus, and that is at J.A. 105.

In response to questioning by the court, he indicated he had seen them boarding the bus, but there was no testimony in this record that he ever saw them together before he saw them seated next to each other in the seat.

And the other point I wanted to make, going to that question, if I might, is that–

Antonin Scalia:

Well, the… he did associate the two of them because of the fact that they were both wearing heavy, baggy clothes, although the weather wasn’t that cold in Tallahassee at the time.

Gwendolyn Spivey:

–Yes, sir.

But he never said that they were traveling together.

Antonin Scalia:

Okay, but they’re sitting next to each other, and unlike the other passengers in the bus, they’re all… they’re both wearing heavy, baggy clothes.

I’m not sure that… that the major result of the first… of the first seizure wouldn’t really have been to give the police probable cause anyway to… to search the second passenger, even without his consent.

Gwendolyn Spivey:

Well–

Antonin Scalia:

You see… you see two guys dressed extravagantly sitting next to each other.

You search the first one and find drugs on him.

You think you’re not going to search the second?

Gwendolyn Spivey:

–I think that if they had looked at the… at the passengers’ tickets, they would have had reasonable suspicion, but I do not think there are any facts in this case… and the police officer… they’re the best ones to judge… and the prosecutor at trial all agreed there was no reasonable suspicion here.

Antonin Scalia:

I would have searched the second one.

I would have thought I had probable cause having two guys both dressed in baggy clothes in warm weather, I find drugs on the first, they’re sitting next to each other.

I think I would have probable cause to search the second.

Gwendolyn Spivey:

Yes, Justice Scalia, I think the record adequately points out reasons why all of those factors could have been… could have been determined to be totally innocent.

The innocent people could have been doing that same thing.

Baggy pants are very popular these days.

One can look anywhere and see them.

There were reasons why they would have had their coats on.

Antonin Scalia:

Not in Tallahassee in the summertime.

Gwendolyn Spivey:

It was February 4th, 1999, Your Honor, which is not–

Stephen G. Breyer:

You… you think that the police should have asked them… told the people in the bus you’re free to leave.

That’s basically… would that make it all right in your opinion?

Gwendolyn Spivey:

–No, Your Honor, because I–

Stephen G. Breyer:

No.

What… what… is it that the police in your opinion can’t search anyone in the bus?

Period?

What… what is your view on that?

Gwendolyn Spivey:

–I… I don’t believe that either.

I think that… I clearly agree with Bostick that on-bus searches, consensual–

Stephen G. Breyer:

No, no.

I’m trying to… I’m sorry.

I misspoke.

Your… your view is that they should have told the passengers explicitly in a strong way you do not have to cooperate if you don’t want to.

Is that… is that your view?

Gwendolyn Spivey:

–My view is that in a case like this, which is at the margins, where a court of appeals looks at it and feels that it’s so coercive that there are various acts or omissions that the police can do to ratchet down the coerciveness of the environment, or they can choose to counter it, which the most… the typical example we see is the giving or… or withholding of advice.

And certainly that’s been determinative in some of the Court’s cases or appears to have been outcome-determinative.

But I think there are other things the police can do.

William H. Rehnquist:

So, we… we should accept the feel, as you describe it, of the court of appeals in this case?

Gwendolyn Spivey:

Well, Your Honor, I think that was one of the main… there were two main points of Arvizu.

One was to reject the divide and conquer approach of the Government that, well, because this… this factor didn’t weigh heavily, we shouldn’t even look at it.

But the other was that it recognized the importance of a court of appeals in a totality test, employing de novo review, to unify precedent and to provide guidance to district courts–

Stephen G. Breyer:

What… I’m trying to look at what to do.

I’m… I’m not… suppose I think for argument’s sake in many circumstances where policemen come up and question people, even if they say politely, are you willing to answer my questions or be searched, the person feels coerced.

But the law still tries to draw a line even if that’s fictional in reality.

Very well.

What’s the right line?

I mean, are buses special?

What is it that’s supposed to be done?

That’s what I’m trying to elicit from you.

Gwendolyn Spivey:

–Justice Breyer, I don’t believe I can give this Court a bright line test because of the totality of the circumstances.

I think it’s the nature of the totality test that, under the right circumstances, any factor can… can serve to tip the balance in the right circumstances.

And so, I… I don’t think I can give a bright… I don’t think a bright line test can be devised when the totality of the circumstances–

John Paul Stevens:

May I ask you a question that I keep… perhaps this is sort of strange.

But if the police made it perfectly clear to everyone that they… in the bus that there will be no adverse consequences whatsoever if you refuse to let me search your… your luggage, why would anyone let them search?

Why–

Gwendolyn Spivey:

–Well–

John Paul Stevens:

–In other words, I want to look through your luggage.

Why would you say yes?

If you know there can be no adverse consequences, it seems to me they would never be able to search anybody.

Gwendolyn Spivey:

–Unless they had an overwhelming desire to cooperate and have their personal stuff gone through.

John Paul Stevens:

Well, what is the cooperation?

We’re going to let you find out that I don’t have guns and drugs in my… I know I don’t have guns and drugs in my luggage.

So, why should… don’t… don’t bother me.

I don’t want you to search me.

I don’t see why anyone would ever consent if they knew it was totally risk-free.

Gwendolyn Spivey:

I agree, Justice Stevens.

Antonin Scalia:

I don’t agree.

I… I know it’s risk-free, and I would certainly give my consent.

I think it’s a good thing for the police to do.

Gwendolyn Spivey:

Well, Justice Scalia, I would certainly never consent to them checking my person for anything.

But I’m a lawyer and I know that–

Antonin Scalia:

If I was dressed like that, I would.

If I was dressed like that on a hot day, I’d be probably–

William H. Rehnquist:

–On a hot day in February.

[Laughter]

Antonin Scalia:

I’m… I’m only using the record, Chief Justice.

The record… the record says it was unusually hot.

[Laughter]

Gwendolyn Spivey:

–I would like to address the Government’s argument that there is a per se rule in this case.

And one of the points they make is… in their reply brief at 4, they argue that because we have not identified one case in which the Eleventh Circuit has ruled in favor of the Government in an on-bus case… I have been able to identify three unpublished decisions, which I’d like to cite to the Court.

And at Mr. Souter’s direction, I will lodge them with the Clerk after argument.

They are: the McLean case, which is case number 01-10678, dated July 6th, 2001, after Washington; the Reese case, 00-11291, dated March 15th, 2001; and the Garrett case, dated… case number 97-2202, dated November 19th, 1997.

Ruth Bader Ginsburg:

Does the Eleventh Circuit have any rule about using its unpublished opinions for any purpose other than preclusion in a particular case?

Gwendolyn Spivey:

It’s considered persuasive authority but not binding authority.

But my point was simply that if they had… if they had a de facto per se rule, then it would be outcome… the presence or absence of rights would be outcome… outcome-determinative in every case.

But in those three cases, which were on-bus searches, there was either no advice or no mention of it in the opinion.

And of course, these unpublished opinions are very hard to get, but the Government gave me an incentive to find them.

Anthony M. Kennedy:

The… the briefs make a big deal about the fact that they didn’t announce that everybody on the bus first… a general announcement what was going to happen.

I… I… it seems to me that if we go down that road and it’d be like our cases, where one case says they didn’t look at the officer, and the next case said they didn’t look at the… I… I just think that’s equivocal.

I think you can argue that either way.

And you go on for 15 pages in… in your brief about the… the police chose the… the locus, the bus locus, the fact that they were close to the passengers, which they obviously had to be in the bus, and… and talked individually to each passenger, the officer’s appearance and demeanor, they constructively blocked the aisle, they presented their badges, but they didn’t show the gun.

It… it seems to me this world you’re creating for us is… is not strong for the Constitution.

It seems to me a strong world is when officers respect people’s rights and… and people know what their rights are and… and assert their rights.

I don’t want to be searched.

Gwendolyn Spivey:

Well, Justice Kennedy–

Anthony M. Kennedy:

I don’t want to be searched.

Leave me alone.

Gwendolyn Spivey:

–I agree that would be an ideal world if all our citizens took civics or took law and knew their rights, but I don’t believe they do.

And I think the fact that we go through the factors is simply a product of the totality test.

That’s necessary to look at all the relevant factors in that totality test.

But I don’t think there is any defining point at which one… a person can say I think it’s up to the court in every case, is this too coercive, does it go too far?

I would note that in Bostick, Bostick did… did set out the seizure test at 437, the consent test at 438.

The one thing it really in my mind didn’t really clearly focus on was the test that the Eleventh Circuit was looking at.

The question they looked at is whether the circumstances here were so coercive that no reasonable person could have given a consent that would have been determined to be voluntary.

And I think that’s why in the court’s opinion, the court of appeals opinion… this is… excuse me… footnote 4 at page 6a of the petition to the appendix.

That is why they then used the language… I’m sorry.

I’m sorry.

It’s footnote 6 at page 8a.

They then used the language, quoting Bostick, but whether a reasonable person would have felt free to decline the officer’s request.

And I think that is… was their attempt to go to the element of was this… was this a coercive environment.

It distinguishes it from the seizure test which focuses on the police conduct and what it would have communicated and I… and then the consent test, which is at 438, which focuses… under Schneckloth includes a focus on the personal factors, factors personal to the defendant.

And I think that’s why the Court here said that those factors personal to the defendant were not determinative because we’re looking at a little higher level of analysis as to whether this environment was so coercive.

Gwendolyn Spivey:

I do agree that in the context of your average bus case, it’s a very short encounter, very brief.

The testimony was that in 15 to 20 minutes, the officer could engage with two to three people.

So, you’re looking maybe 5 to 10 minutes per person.

And I think that the test… that the factors relating to seizure and the factors relating to the… the consent tend to be conflated, and so it is sometimes sort of hard to sort out.

And a lot of the factors will apply to both of those tests.

Antonin Scalia:

Why… why is it that the most immediate expression of the police officers does not counteract whatever other indications of compulsion might exist under the circumstances?

I mean, if the policeman comes up and says, you know, lean up against the wall, spread your legs, I’m going to pat you down, you’re under compulsion.

But if he comes up and says, do you mind if I search your person, you know, I don’t care what other… there’s a policeman in the front of the bus.

Who cares?

He… he has made it very clear that he’s asking for your permission.

What… what more need he do than that?

Do you mind if I search your person?

Gwendolyn Spivey:

I believe, Justice Scalia, if the Court ruled that, it would be a bright line test as opposed to a totality test.

And I think one has to… when one applies a reasonable person… reasonable, innocent person test, one of necessity puts themselves in the seat of that bus passenger.

How do they feel?

And that’s why, Justice Breyer, I tried to give the… the little example of the airplane because–

Stephen G. Breyer:

My problem, of course, is I think if you go with an all-facts test, you’ve got to go with the district court.

He saw it and the court of appeals didn’t.

And that’s why I’ve been wondering if maybe there’s something inherently coercive about the bus environment that suggests a… a need for a warning.

But you don’t agree with that and… and therefore I’m sort of stuck.

And there we are.

David H. Souter:

Why… why don’t you agree with that?

I mean, it seemed that was almost the question that I… I asked when… when you were responding to Justice Stevens and you said, well, ultimately sure, anybody who gets these warnings, with a teaspoonful of brains, is going to say no, I… I’m not going to let you search.

And… and it seemed to me that maybe the… the answer to the problem is there are some situations in which if you don’t give the warning, it does get to the point of… or is virtually a… a coercive situation per se, and it may be that there’s no easy answer in those circumstances.

If you don’t let them know that they have a right to refuse, there’s inherent coercion.

If you do let them know, most people are going to say, no, you can’t search.

But you resist that.

You… you don’t regard it as inherently coercive.

And I… I guess I’m not sure why you… you resist it.

Why isn’t it?

Gwendolyn Spivey:

–Justice Souter, personally yes, I do agree with you.

I think it is an inherently coercive environment.

But I simply didn’t take that position because I didn’t think that was a position that I could–

William H. Rehnquist:

Sell.

Gwendolyn Spivey:

–prevail upon.

William H. Rehnquist:

Sell to the Court?

[Laughter]

Gwendolyn Spivey:

Yes, sir.

I… I did not because of it being sort of a bright line.

But I guess my feel about it is that there seems to be some contradiction between when we talk about in Miranda, we’re talking about a coercive… we’re talking about someone who’s suspected of a crime.

There’s probable cause, and so we’re going to give them some warnings.

But yet, a reasonable, innocent person, millions of bus passengers… they don’t get anything.

And there just… I don’t know… it seems to me something wrong with that–

Clarence Thomas:

Ms. Spivey, is there anything in the record about what the innocent people actually felt when the police officers came on the bus?

Gwendolyn Spivey:

–There’s nothing but the testimony of the officer as to what he thinks they felt.

There is no testimony of the passengers.

Clarence Thomas:

So, we really don’t know how the innocent passengers felt.

Gwendolyn Spivey:

No, sir, we don’t.

We just have to try to put ourselves in their shoes and how would we feel.

Not being lawyers–

Ruth Bader Ginsburg:

The only testimony was… Officer Lang was the only one.

He was one of the three.

He was one of the two questioners.

He’s the only one who testified in the district court.

Is that right?

Gwendolyn Spivey:

–Yes, Justice Ginsburg.

Ruth Bader Ginsburg:

Do you think… you haven’t said anything about the difference between, say, a bus terminal or a street where when the police say whatever… you… you are in a large space.

There is something different about a bus and… or the airplane cabin where you… you are rather confined compared to being stopped in the street.

Gwendolyn Spivey:

I think that is the primary point that goes to Justice Souter’s question about why it is inherently coercive.

It sort of goes back to a Royer’s situation where you had a person in a small, enclosed room.

Gwendolyn Spivey:

But I personally… if you’re sitting in a seat and that’s why I said if… if the person like a stewardess would just stand there and not come right in your face, but a person gets in your face, you can’t move over, you can’t back up, I don’t see how you could possibly get out of the seat without… even if you wanted to.

But that’s not the test.

William H. Rehnquist:

I thought the testimony showed that the officer leaned over from the back, not in your face.

Gwendolyn Spivey:

The… the district court characterized his style as sort of in your face.

He clearly stood.

His testimony was he was standing in the aisle, but I guess behind… he didn’t say this.

This is how I understand it… behind the arm… behind the armrest so that a person could theoretically get their legs out.

My… but he was very clearly leaning over 12 to 18 inches from Mr. Drayton’s face, holding his badge up.

William H. Rehnquist:

Thank you, Ms. Spivey.

Gwendolyn Spivey:

Thank you very much.

William H. Rehnquist:

Mr. Thompson, you have 4 minutes remaining.

Larry D. Thompson:

Your Honor, I have a couple points.

There was nothing in… in the record that would indicate that the bus was in fact delayed.

On the… on the consent point, the district court specifically held that the defendants consented after hearing the evidence at the… at the suppression hearing.

And the respondents were not naive individuals or unable to understand or assert their… their rights.

Respondent Drayton was 26.

He was employed for 6 of the last 8 years, and he had experience in dealing with previous drug charges.

Respondent Brown was 29 and had been a… a corrections officer.

And the point with respect to Justice Breyer’s question.

Your Honor, buses, as… as the Government pointed out in its reply brief, buses today in today’s environment are vulnerable.

They are vulnerable to specific public safety concerns, and the Government would submit that bus passengers are entitled to the kind of efficient, effective, and fair bus interdiction efforts that are… that characterize–

John Paul Stevens:

Do passengers on the buses go through the same kind of check that we do on airlines?

Larry D. Thompson:

–No, they do not, Your Honor.

Stephen G. Breyer:

That’s… that’s what I was wondering because today people might think if you’re on a airport and you don’t go through the detector, you don’t fly.

Well, they might think that if you don’t answer the questions, you don’t go–

Larry D. Thompson:

We do not–

Stephen G. Breyer:

–on the bus.

And… and… so maybe there’s more need now for something.

Larry D. Thompson:

–We… we do not have that specific kind of program, and certainly that was not the… the reason relied upon for the consent in… in the record below.

But in this particular case, Your Honor, Officer Lang testified that not only did most of the passengers that he encountered consent, but of them appreciated what he was doing.

Larry D. Thompson:

It gave them a sense of comfort.

It made them feel that their bus travel was safe.

And that would be the point that I would like to make here.

And unless the Court has any further questions.

William H. Rehnquist:

Thank you, Mr. Thompson.

The case is submitted.