Thurgood Marshall: Dissent in Florida v. Bostick

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Marshall’s Dissent

Our Nation, we are told, is engaged in a “war on drugs.” No one disputes that it is the job of law enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law enforcement technique is not proof of its constitutionality.… In my view, 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. Because I believe that the bus sweep at issue in this case violates the core values of the Fourth Amendment, I dissent.

At issue in this case is a “new and increasingly common tactic in the war on drugs”: the suspicionless police sweep of buses in interstate or intrastate travel.… Typically under this technique, a group of state or federal officers will board a bus while it is stopped at an intermediate point on its route. Often displaying badges, weapons or other indicia of authority, the officers identify themselves and announce their purpose to intercept drug traffickers. They proceed to approach individual passengers, requesting them to show identification, produce their tickets, and explain the purpose of their travels. Never do the officers advise the passengers that they are free not to speak with the officers. An “interview” of this type ordinarily culminates in a request for consent to search the passenger’s luggage.

These sweeps are conducted in “dragnet” style. The police admittedly act without an “articulable suspicion” in deciding which buses to board and which passengers to approach for interviewing. By proceeding systematically in this fashion, the police are able to engage in a tremendously high volume of searches.… The percentage of successful drug interdictions is low.…

To put it mildly, these sweeps “are inconvenient, intrusive, and intimidating.”… They occur within cramped confines, with officers typically placing themselves in between the passenger selected for an interview and the exit of the bus.… Because the bus is only temporarily stationed at a point short of its destination, the passengers are in no position to leave as a means of evading the officers’ questioning. Undoubtedly, such a sweep holds up the progress of the bus.… Thus, this “new and increasingly common tactic,”… burdens the experience of traveling by bus with a degree of governmental interference to which, until now, our society has been proudly unaccustomed.…

Two officers boarded the Greyhound bus on which respondent was a passenger while the bus, en route from Miami to Atlanta, was on a brief stop to pick up passengers in Fort Lauderdale. The officers made a visible display of their badges and wore bright green “raid” jackets bearing the insignia of the Broward County Sheriff’s Department; one held a gun in a recognizable weapons pouch.… These facts alone constitute an intimidating “show of authority.”… Once on board, the officers approached respondent, who was sitting in the back of the bus, identified themselves as narcotics officers and began to question him. One officer stood in front of respondent’s seat, partially blocking the narrow aisle through which respondent would have been required to pass to reach the exit of the bus.…

Even if respondent had perceived that the officers would let him leave the bus, moreover, he could not reasonably have been expected to resort to this means of evading their intrusive questioning. For so far as respondent knew, the bus’s departure from the terminal was imminent.… The vulnerability that an intrastate or interstate traveler experiences when confronted by the police outside of his “own familiar territory” surely aggravates the coercive quality of such an encounter.…

The Fourth Amendment clearly condemns the suspicionless, dragnet-style sweep of intrastate or interstate buses. Withdrawing this particular weapon from the government’s drug war arsenal would hardly leave the police without any means of combatting the use of buses as instrumentalities of the drug trade. The police would remain free, for example, to approach passengers whom they have a reasonable, articulable basis to suspect of criminal wrongdoing. Alternatively, they could continue to confront passengers without suspicion so long as they took simple steps, like advising the passengers confronted of their right to decline to be questioned, to dispel the aura of coercion and intimidation that pervades such encounters. There is no reason to expect that such requirements would render the Nation’s buses law enforcement–free zones.

The majority attempts to gloss over the violence that today’s decision does to the Fourth Amendment with empty admonitions. “If th[e] [war on drugs] is to be fought,” the majority intones, “those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime.”… The majority’s actions, however, speak louder than its words.

I dissent.