LOCATION:Free Speech Coalition
DOCKET NO.: 01-631
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit
CITATION: 536 US 194 (2002)
ARGUED: Apr 16, 2002
DECIDED: Jun 17, 2002
Bernard J. Farber – for Americans For Effective Law Enforcement, Inc., et al. as amici curiae
Carl Milazzo – for Americans For Effective Law Enforcement, Inc., et al. as amici curiae
Daniel J. Popeo – for the Washington Legal Foundation et al. as amici curiae urging reversal
Gwendolyn Spivey – Argued the cause for the respondents
Joshua L. Dratel – for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance
James P. Manak – for Americans For Effective Law Enforcement, Inc., et al. as amici curiae
Leon Friedman – for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance
Larry D. Thompson – Argued the cause for the petitioner
Richard A. Samp – for the Washington Legal Foundation et al. as amici curiae urging reversal
Richard Weintraub – for Americans For Effective Law Enforcement, Inc., et al. as amici curiae
Wayne W. Schmidt – for Americans For Effective Law Enforcement, Inc., et al. as amici curiae
Facts of the case
Christopher Drayton and Clifton Brown were traveling on a Greyhound bus. In Tallahassee, Florida, police officers boarded the bus as part of a routine interdiction effort. One of the officers worked his way from back to front, speaking with individual passengers as he went. The officer did not inform the passengers of their right to refuse to cooperate. As the officer approached Drayton and Brown, he identified himself, declared that the police were looking for drugs and weapons, and asked if the two had any bags. Subsequently, the officer asked Brown whether he minded if he checked his person. Brown agreed and a pat-down revealed hard objects similar to drug packages in both thigh areas. When Drayton agreed, a pat-down revealed similar objects. Both were arrested. A further search revealed that Drayton and Brown had taped cocaine to their legs. Charged with federal drug crimes, Drayton and Brown moved to suppress the cocaine on the ground that their consent to the pat-down searches was invalid. In denying the motions, the District Court determined that the police conduct was not coercive and Drayton and Brown’s consent to the search was voluntary. In reversing, the Court of Appeals noted that bus passengers do not feel free to disregard officers’ requests to search absent some positive indication that consent may be refused.
Must police officers, while searching buses at random to ask questions and to request passengers’ consent to searches, advise passengers of their right not to cooperate?
Media for United States v. Drayton
Audio Transcription for Opinion Announcement – June 17, 2002 in United States v. Drayton
William H. Rehnquist:
The opinion of the Court in No. 01-631 United States against Drayton will be announced by Justice Kennedy.
Anthony M. Kennedy:
This is a criminal case.
The two respondents, Drayton and Brown, were arrested and convicted for possession of drugs.
The police found the drugs after conducting a patdown search.
When Drayton and Brown were passengers on a bus going from Florida to Detroit.
In Tallahassee, three Tallahassee police officers, with the driver’s permission, boarded the Greyhound Bus during a scheduled stop.
One officer stayed in front of the driver’s seat and looked backward, the second officer went to the rear and looked forward, and the third officer worked his way from the back to the front speaking with the individual passengers.
Drayton and Brown were seated together.
When the officer reached them, he talked to Brown first and asked whether he could search the suitcase on the overhead rack.
There are many details in these opinions and we cannot summarize them all here, but the details are important in these search cases and the event that went on with reference to the bag has some significance.
But in any event, Brown agreed and a search of the bag revealed no contraband.
The officer then asked Brown whether he could check Brown’s person, and Brown agreed.
The patdown search revealed objects similar to drug packages on Brown’s person.
They were strapped it appears with adhesive taped in his inner thighs under his clothing.
Brown was arrested and taken off the bus.
The police officer returned and asked Drayton for Drayton’s consent to a patdown, Drayton gave consent.
He too was arrested when drugs were found with similar packages similarly concealed.
The statements the officer made to the passengers are important and as vindicated we will not recount every detail here.
Suffusive to say that the police officer identified himself, spoke in quite tones to each person and asked for permission to examine the baggage, and in Brown and Drayton’s case, to search their person.
He did not however, tell the passengers they had a right to refuse to give consent.
The Court of Appeals reversed the conviction.
It held the search was not voluntary.
The basis of the Court of Appeals’ reversal was because bus passengers do not feel free to disregard an officer’s request to search in circumstances like these absent some positive indication that the consent may be refused.
We now reverse the Court of Appeals.
We conclude that the behavior and the statements of the officer did not constitute the seizure of the passengers within the bus or of Drayton and Brown in particular.
The officer gave the passengers no reason to believe that they were required to answer questions.
The officer did not brandish a weapon or make any intimidating movements; he left the isle free so that the respondents could exit.
He spoke to passengers one by one and in a polite quiet voice, nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise, terminating the encounter.
Under our precedents, the officer’s display of his badge was not dispositive, and because it is well-known in our society that most officers are armed, the presence of a holstered firearm is unlikely to be coheresive absent act of brandishing of the weapon.
That one officer remained in the front of the bus also does not tip the scale to respondents since he did nothing to intimidate the passengers and said or did nothing to suggest the people could exit.
Anthony M. Kennedy:
What I have said before relates to whether or not there was a seizure.
In addition to not being seized, the respondents were not subjected to an unreasonable search., and this is because their consent to the search was voluntary.
Whereas here, the question of voluntariness pervades both the search and seizure inquiries, the respective analysis turns on very similar facts.
Officers need not always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.
In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own.
Police officers act in full accord with the law when they ask citizens for consent, and it reenforces the rule of law for the citizen to advice the police of his or her wishes, and for the police to act in reliance on that understanding.
When this exchange takes place, it dispels inferences of coercion.
Justice Souter has filed a dissenting opinion in which Justices Stevens and Ginsburg join.