01-631 U.S. v. Drayton

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Applying Bostick’s framework to this case demonstrates that the police did not seize respondents. The officers gave the passengers no reason to believe that they were required to answer questions. When Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that 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, or would indicate a command to answer his questions. There were ample grounds to conclude that their encounter was cooperative and not coercive or confrontational. There was no overwhelming show or application of force, no intimidating movement, no brandishing of weapons, no blocking of exits, no threat, and no command, not even an authoritative tone of voice. Had this encounter occurred on the street, it doubtless would be constitutional. The fact that an encounter takes place on a bus does not on its own transform standard police questioning into an illegal seizure. See Bostick, supra, at 439-440. Indeed, because many fellow passengers are present to witness officers’ conduct, a reasonable person may feel even more secure in deciding not to cooperate on a bus than in other circumstances. Lang’s display of his badge is not dispositive. See, e.g., Florida v. Rodriguez, 469 U.S. 1, 5-6. And, because it is well known that most officers are armed, the presence of a holstered firearm is unlikely to be coercive absent active brandishing of the weapon. Officer Hoover’s position at the front of the bus also does not tip the scale to respondents, since he did nothing to intimidate passengers and said or did nothing to suggest that people could not exit. See INS v. Delgado, 466 U.S. 210, 219. Finally, Lang’s testimony that only a few passengers refused to cooperate does not suggest that a reasonable person would not feel free to terminate the encounter. See id., at 216. Drayton argues unsuccessfully that no reasonable person in his position would feel free to terminate the encounter after Brown was arrested. The arrest of one person does not mean that everyone around him has been seized. Even after arresting Brown, Lang provided Drayton with no indication that he was required to answer Lang’s questions.

231 F.3d 787, reversed and remanded.

Local effect:

The Seventh Circuit has not directly addressed whether officers conducting a “bus sweep” must inform passengers of their right to refuse consent to a search, but has upheld searches made where no such information was provided. U.S. v. McDonald, 100 F.3d 1320 (7th Cir.1996).

Kennedy, J.; Souter, J., dissenting.