Sunday, February 10, 2008



This is the second in our Fourth Amendment series by DWT's Constitutional law expert, Jon Dodson.

Imagine you're taking a Greyhound bus. You board in Miami, and the first stop is Fort Lauderdale. You're sitting on the bus, minding your own business-- too early for a bathroom break. At that stop, two police officers board the bus. The two officers approach you, and ask for your identification. They have guns in their holsters. They block the only exit from the bus. The bus is filled with passengers gawking at the scene. When you show them your ID, they ask to search your bags. Still, there's no way out. Would you feel free to leave? To stand up and say "excuse me" as you try to slide by the armed cops in the narrow aisle? Would you feel that you had the power to end the interaction? That you could say "no thank you," and that would be that?

This was the factual backdrop leading to the definitive case on Fourth Amendment "seizures": Florida v. Bostick, 501 U.S. 429 (1991). Justice O'Connor wrote the majority opinion, defining "seizure," for purposes of the Fourth Amendment, as any situation where a "reasonable person" would not feel free to "disregard the police and go about her business." Not a bad definition, really. I would tend to agree. Of course, when confronted by officers, there are very few situations where I would feel free to disregard the police, but surely that's what the Court intended. Surely, the Court knew that refusing a breathalyzer is a crime in most other states, that refusing to provide identification is a crime, and that refusing any request can be construed as resisting arrest. I suppose I can disregard an officer when cross-examining him in open court (a truly transcendental experience), but that's about it. Given the confrontational nature of most any police encounter, surely the court used the adjective "reasonable" to broadly construe "seizures", thereby ensuring that each such confrontation is supported by a warrant and probable cause, right?

Wrong. The Court held that the interaction described above was consensual, and thus not a "seizure." Apparently, its reasonable to refuse to consent to two armed officers wishing to search your bags on a Greyhound bus. This exact scenario was reaffirmed in U.S. v. Drayton, 536 U.S. 194 (2002). Apparently, its reasonable to refuse to answer an officer's questions in an airport. INS v. Delgado, 466 U.S. 210 (1984). Apparently, its even reasonable to run from the police, inasmuch as there is no "seizure" if you do so. California v. Hodari D., 499 U.S. 621 (1991). But guess what? Your running gives the police reasonable suspicion to seize you. Its "reasonable" to run, just don't get caught. In sum, when you cooperate, the interaction is consensual, even though you don't have a choice, since when you do not cooperate your uncooperativeness gives the police sufficient justification to "search" and "seize" you without consent. Is your head spinning yet?

Perhaps many of us would resist the cops in this situation. I'd imagine we're an assertive bunch when it comes to our rights. But what about those people who aren't liberal rabble-rousers like you and me? What about an immigrant who doesn't speak English? What about an African-American who's been bullied by cops his whole life? What about someone with a criminal record? Would those persons feel free to end the interaction? According to Justice O'Connor they should.

I like to think I'm reasonable. Personally, when dealing with cops, my primary goal is to get everything over with as soon as possible. Apparently, however, I'm way off-base. Henceforth, when dealing with cops, I should pretend I'm a Supreme Court Justice. When looking at a police interaction from that perspective, its easy to see how unreasonable it would be to even have to speak to some pedestrian LEO. Because certainly, a Supreme Court Justice would feel free to indignantly refuse to cooperate with two armed officers when cornered in a Greyhound bus. In fact, I'm sure Justice O'Connor has ridden greyhound busses countless times in the past thirty years. I would imagine Justice Rehnquist was often harassed by the cops as he walked the mean streets surrounding his Annandale, Virginia home. Each of the Justices undoubtedly have impeccable street smarts when it comes to dealing with suspicious, menacing, armed police officers. And thankfully for all of us, they've deigned to share. So the next time an officer confronts me, I'll brush him off with the gentle admonition "please, no autographs." If the cop persists, I'll explain that I make the law, and could easily have him fired. If he continues to harass me, I'll call the Secret Service. Since this would be the reasonable course of action for Bill, Sandy, and the gang, the officers' behavior would not amount to a seizure.

Of course, nothing could be so simple as "reasonableness" in the bizarro-land of the Fourth Amendment. If you'll recall, "reasonable" is the operative word for "searches" as well. An investigative technique is a "search" when it invades a "reasonable" expectation of privacy. In that context, "reasonableness" is actually the product of a peculiar formula involving political preferences, police convenience, the Drug War, and the F.A.A.'s minimum elevation requirements. What could be more reasonable?

So, now you know what has been defined out of the Fourth Amendment: Investigative techniques that do not invade a "reasonable" expectation of privacy, (very few expectations being reasonable, even before the Bush Administration), and police interactions that one might "reasonably" feel free to terminate (apparently, most of them). The Fourth Amendment covers whatever is left. These residual police activities, (i.e. "searches" and "seizures"), must be supported by a warrant and probable cause. Except when they don't have to be. Which is most of the time. But that's another post.

Paul Simon, another expert:

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At 5:35 AM, Anonymous Anonymous said...

The divide, isolate and conquer approach of armed and sanctioned killers - i.e. that quaintly named bunch - "law enforcement officers" - is only a taste of what we'll get with the mercenaries of Blackwater et al after martial law is declared for a fabricated national emergency.

Insightful post. Now to go bak and read the others in the series.

Links anywhere?

(If interested, I'm building a group blog which is Constitution-themed. I just published a full index of the titles and content of the Federalist Papers - lots of other source documents and primary resources there.)

At 12:50 PM, Anonymous Anonymous said...

During a cross-country vacation, I had a run-in with the Utah state police. After checking me out, he asked if he could search my car. My response was, "I don't like it, but go ahead & do what you're going to do." It was easier to sit on the side of the road for 20 minutes while he went through the car than to sit in a jail overnight while the ripped the car to pieces in the impound lot. Sure, I had the "right" to refuse, but that doesn't mean squat in the police state of the USA.

At 7:24 AM, Anonymous Anonymous said...

i had lived in boston for over 25 years. when there was a noise problem, you called 911. five years ago i moved to a small city in southeastern massachusetts. one night, around midnight, some neighbors were out on their porch playing obscene christmas music so loud, despite my windows being closed, i couldn't hear my television. i called 911. i was told that i needed to call the business line, 911 was not appropriate. i told them i thought that was absurd and hung up. ten minutes later my buzzer rang. i went down to the first floor door and greeted two police officers who informed me that they wanted to enter my apartment. i told them, no, i did not want them in my apartment, i had only called because of the neighbors (who had gone back inside by now). they told me that they had to enter my apartment to make sure i wasn't being held hostage and that i could either let them in or i would be taken to the police station. obviously i let them into my apartment.

oh, yeah, i "voluntarily" let them into my apartment.

excuse me while i spit out some more teeth.


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