Alex Brazier · June 2010
78 GEO. WASH. L. REV. 908 (2010)
During a scheduled bus stop in Tallahassee, Florida, two African-American men found themselves in an unexpected and unpleasant situation. After reboarding the Greyhound bus on which they came and surrendering their tickets to the bus driver, the two men reoccupied their adjacent seats, unaware of what would happen next and unable to do anything about it.
The driver exited the bus. Three police officers—in plainclothes but with their badges visible—boarded in his stead. One officer assumed the driver’s seat, perched in a kneeling position with the back of the chair in front of him, facing the bus. The second officer walked through the aisle to the rear and stationed himself there, facing the front. The third officer accompanied the second to the back and made his way forward, questioning passengers from a position either just behind or next to that passenger’s seat. He spoke softly, stating that the officers were conducting a routine drug interdiction, for which they “would like . . . cooperation.” When he spoke to the two men, his face was no more than a foot and a half away from their faces. After identifying which luggage belonged to them, the officer searched the bag and found no contraband. Yet, he persisted and obtained consent to search both of the men, Christopher Drayton and Clifton Brown, Jr., upon whose persons he eventually found duct-taped bundles of powder cocaine. The two men were charged with possession of cocaine with the intent to distribute and conspiring to distribute cocaine. At trial, Drayton and Brown moved to suppress the cocaine as the product of an illegal search and seizure. The district court denied the motion, and the two were convicted.
Despite the apparent coercion present in this sequence of events—the facts of United States v. Drayton—the Supreme Court applied a totality-of-the-circumstances test to the suspicionless bus sweep and found that Drayton and Brown had not been seized. In doing so, the Court established a precedent that improperly maintains that the constitutionality of warrantless bus searches can be fairly analyzed under a totality-of-the-circumstances test judged according to a “reasonable person” standard. There is no one reasonable person and perpetuating this fiction contravenes the intent of the Fourth Amendment.
This Note argues that the Court should recognize that the analysis for suspicionless bus searches should be aligned with other areas of Fourth Amendment law and should be easier to apply than a totality-of-the-circumstances test. A bright-line rule requiring police to inform passengers of their rights, however, could be as easily avoided in practice as the obligation to provide Miranda warnings has been. Therefore, the Court should adopt a rule that, should police wish to conduct a suspicionless bus sweep, they must do so within the temporal duration of a scheduled bus stop and must not behave in a way that would suggest they possess control over the bus. They should not be able to prolong a scheduled stop merely to conduct a suspicionless search. In a cramped and confined bus setting, where a passenger believes the bus should be resuming its itinerary at any moment, this would indicate that he is not “free to leave.”
Part I of this Note provides a more in-depth analysis of the Fourth Amendment and United States v. Drayton. Part II explores the problems with Drayton, with particular reference to the dissent in that case and racial and socioeconomic factors that the Court has not sufficiently addressed. Part III addresses the oft-proposed solution to this problem—a bright-line rule akin to that adopted by the Court for custodial interrogation in Miranda v. Arizona—and why it is not feasible. Part IV proposes that the focus must be, instead, on proscribing police conduct that extends the duration of a scheduled bus stop or clearly demonstrates control over the bus.
