"This is a free society." Solicitor General Kenneth Starr told the Supreme Court last week.
"You have the right to say no."
Starr was discussing a traveler’s options when confronted by two gun-toting sheriff’s deputies who corner him in the back of a bus, demand his ticket and identification, and then request "permission" to search his bag for drugs.
The solicitor general’s argument for the Bush administration would, if sustained, move us a step down the road toward a police state.
For Starr was pushing to allow police to hunt for drugs by interrogating at random tens of thousands of innocent people and soliciting "consent" to search them or their bags. Such techniques are spreading "across the country," he declared with evident enthusiasm.
The linchpin of Starr’s argument, eagerly seconded by Chief Justice William Rehnquist and Justice Antonin Scalia, was the transparent fiction that those who "consent" when approached in this manner know that they are perfectly free to refuse or walk away.
The case heard last week, Florida v. Bostick, arises from an operation in which police board interstate buses at regular stops and go down the narrow aisles interrogating passengers.
Two deputies wearing green "raid jackets" boarded a Miami-Atlanta bus at its Fort Lauderdale stop. They had "no particular reason to suspect" that anyone on the bus had illegal drugs, Starr conceded in his brief. The driver exited and closed the door. The officers went directly to the back row, where Terrance Bostick was reclining. Partially blocking the aisle, one officer questioned Bostick while holding a gun inside a small zippered pouch; at one point, Bostick recalls, the officer reached inside the pouch, putting his hand on the pistol.
The officers say Bostick consented to a search of his bag. They found cocaine. He got five years.
Donald Ayer, Bostick’s lawyer, contended that these facts plainly fit the Court’s prior holdings that such a suspicionless encounter violates the Fourth Amendment if "a reasonable person would have believed he was not free to leave."
The former Bush administration deputy attorney general had to spend much of his time during the argument fending off efforts by Scalia and Rehnquist (for whom he once clerked) to bury the facts in a barrage of pettifoggery.
Why would anyone be rattled just because a police officer stands over him with a gun in his hand? Scalia demanded to know. Cops carry guns. Nothing wrong with that.
"Do you think," chimed in Rehnquist, "a reasonable person might have concluded that if he didn’t consent, the officer would shoot him?"
As for Ayer’s contention that the police may have enhanced the aura of coercion by tapping Bostick on his foot to rouse him, the chief justice suggested that an officer "who wishes to interrogate a sleeping passenger" obviously must wake him up one way or another. The option of simply leaving sleeping passengers alone seems not to have crossed Rehnquist’s mind.
Scalia made short work of Ayer’s contention that Bostick could not readily absent himself from two cops who had him cornered in a bus that was due to leave any minute. This problem, Scalia suggested, stemmed from Bostick’s choice to travel by bus, not from the state’s choice to go onto buses to search random passengers for drugs.
"The mere fact that it’s a lot of trouble to leave," Scalia declared, "is irrelevant."
The Scalia approach would apparently allow drug-war-crazed police to take their dragnets into airplanes, restaurants, bars, classrooms, public restrooms-randomly knocking on toilet-stall doors, announcing themselves, asking occupants if they’d mind opening up to answer a few questions and to hand over their bags for inspection.
So what if the occupant feels a bit cornered? She entered that toilet stall voluntarily, Scalia might say. And besides, Rehnquist might add, what’s an officer on the toilet-stall beat supposed to do?
Ayer parried the conservative tag team’s thrusts with aplomb. He also pointed out, in his brief, that the very reason police work the buses, as they call it, is the chance to confront a "captive audience" in a cramped setting.
The lawyer disavowed seeking to void all random bus dragnets. And it is hard to imagine such a sensible decision coming from this Court, which in 1984 blessed, as a "classic consensual encounter," a grossly intimidating hunt by federal agents for illegal aliens among Hispanics at a California factory (Immigration and Naturalization Service v. Delgado).
Solicitor General Starr, arguing as a friend of the Court, assured the justices that "all of these officers … have read this Court’s cases." They have been trained, he gushed, to "back off" whenever a passenger just says no. Starr even suggested in his brief that Bostick could have avoided further scrutiny by repairing "to the nearby bathroom."
If the solicitor general believes all this, he’d believe pigs fly. In the fictional America posited by Starr, an encounter might unfold like this:
First officer (with elaborate courtesy): "Excuse us, my dear fellow, but it would seem drug couriers are about, and we were wondering whether you might be one of them. Would you be so good as to show us your ticket and ID?"
Second officer (casually placing hand on pistol): "And while you’re about it, would you mind handing over that blue bag there so we can search it for drugs?"
Passenger: "Sorry, gents, but I’m trying to get some rest."
First officer: "Pretty please?"
Passenger: "No way. I don’t appreciate being treated like a criminal, I don’t want anyone snooping through my toilet kit, and they haven’t repealed the Fourth Amendment yet. So kindly move along, or I’ll be constrained to go hide in the bathroom."
Second officer: "Well, partner, I guess we’d better do what the man says. You remember Terry v.Ohio, 392 U.S. 1, 27."
First officer: "Righto. See also Florida v. Royer, 460 U.S. 491, 502 (plurality opinion). Ever so sorry to have inconvenienced you, sir. Godspeed."
No one has suggested a plausible answer to the most pregnant question about the emerging regime of "consensual” drug searches: If it is as clear as Starr contends that "you have the right to say no," why do almost all of the thousands approached in such police dragnets meekly say yes?
D.C. police detective Vance Beard told Legal Times last year that he had received negative reactions from only nine of 400 people he had approached at bus and train stations. "Even guilty parties are happy to talk to you," he said.
Police approaching innocent people on the insulting premise that they may be drug dealers get a far higher quotient of consents than can be accounted for by citizens’ natural willingness to cooperate with reasonable police inquiries.
As for the guilty, "It’s always interesting to me," Justice Thurgood Marshall mischievously observed, "that all of the drug dealers, when you ask them to be searched, say ‘Sure, come on.’ " "They may not be a very bright bunch of people," countered Scalia. But it’s no compliment to innocent bus passengers if Scalia really thinks them "bright" enough to think they can safely tell police to buzz off, "bright" enough thereby to risk that an officer will hold up the bus, or take them off for further questioning or dog-sniffing, or find a pretext to arrest them. Nor would it be unimaginable for an unscrupulous cop to plant drugs on a passenger who spurns his demands.
At best, travelers who exercise their theoretical right not to be searched are sure to become instant suspects. Police will strain to detect or invent signs of nervousness, which can then be bootstrapped into a "reasonable suspicion" and used to justify an involuntary search if their quarry cannot be bullied into "consenting." Some officers have said they phone ahead to suggest further scrutiny of uncooperative sorts at the next stop.
This sort of thing "could be police harassment," Scalia averred, "but it would have nothing to do with whether there’s been a violation of the Fourth Amendment."
It will be a sad day for civil liberties if Scalia prevails-although not, perhaps, an immediate problem for those with the means to travel by plane rather than by bus.
"It is difficult to imagine," Americans for Effective Law Enforcement observed-in the first of the 86 Supreme Court amicus briefs in its history to side against the prosecution-police doing this to "a planeload of business class air passengers."