Thurgood Marshall: Dissent in Florida v. Bostick

Explanation and Analysis of the Document

In addition to his concern over the death penalty and affirmative action, Marshall was opposed to decisions that supported arbitrary police practices, which he viewed as a civil rights issue. In an important criminal procedure case, Florida v. Bostick (1991), the Court did not hold it unconstitutional for police to board intercity buses and ask individual passengers to allow their bags to be searched. Marshall wrote a strongly worded dissent, joined by Justices Harry Blackmun and John Paul Stevens.

In this case, two uniformed police officers (one with a visible pistol) boarded a bus as part of a routine drug interdiction program. Without “articulable” suspicion—that is, suspicion the officers could put into words rather than a mere hunch—the officers asked the appellant to confirm his identity, which he did. The officers then informed him that they were searching for illegal drugs and requested the passenger's consent to search his baggage. The officers informed the passenger that he had the right to refuse consent. The passenger's baggage produced cocaine, and he was arrested and convicted in Florida state court. The appellant attempted but failed to suppress the evidence and appealed to the U.S. Supreme Court on the ground that the seizure of the evidence violated the Fourth Amendment.

This case involved the “free to leave” test of Fourth Amendment law as it applied to bus searches and seizures. This test considers whether a “reasonable person” would feel “free to leave” if asked by police, while a passenger on a bus, to consent to a search of baggage. The Court majority held that the “free to leave” test did not apply because the passenger's freedom of movement had been restricted not by the police conduct but by a factor independent of police conduct, specifically, by his being a passenger on a bus. The majority wrote that the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. The Court majority struck down the holding of the Florida Supreme Court that bus searches were seizures, arguing that the bus context was just one of a set of factual considerations.

Although Marshall did not disagree with the majority's preference for the test of “free to decline,” he strongly disagreed with their decision, arguing that the facts amounted to police coercion. He states that the consequences of this case had broader impact than the fate of this particular appellant, for such “dragnet”-style sweeps were a common tool of the “war on drugs.” Normally, officers are allowed to conduct warrantless searches and seizures only when they have reasonable “articulable suspicion” of criminal wrongdoing. Marshall argues that such sweeps were reminiscent of the general warrant in early English history, when searches and seizures did not require reasonable cause or specific suspicion of an individual and were often used for political reasons. He states that “the law-enforcement technique with which we are confronted in this case—the suspicionless police sweep of buses in intrastate or interstate travel—bears all of the indicia of coercion and unjustified intrusion associated with the general warrant.” Marshall concludes that the bus sweep “violates the core values of the Fourth Amendment,” and on this basis he dissented.

Marshall adds that such bus sweeps “occur within cramped confines, with officers typically placing themselves in between the passenger selected for an interview and the exit of the bus.” Further, because the bus is close to its destination, “passengers are in no position to leave as a means of evading the officers' questioning.” To Marshall, such bus sweeps were an unjust intrusion of government power, a practice that “burdens the experience of traveling by bus with a degree of governmental interference to which, until now, our society has been proudly unaccustomed.”

Marshall argues that it was unlikely that most people riding on such buses would feel that they could legally refuse to such a search. His work at the NAACP provided him with the recognition that working-class people and lower-income African Americans would be disproportionately affected by this type of police search, since these groups disproportionately rode on buses. He addresses the potential role of race in such sweeps, noting that they were not entirely random. He recalls the candid admission of one of the officers who routinely confronts interstate travelers that race influenced his decision about whom to confront.