questioned and obtained consent to search bus passenger arriving in Washington).
Moreover, while the typical Amtrak passenger keeps his luggage with him, defendant's luggage was in the luggage compartment, and to retrieve it, she would have required the aid of the bus driver, the person who had permitted the police on the bus. A request to the driver for such help would risk inviting additional police scrutiny.
In this situation, a reasonable, innocent person would not feel free to leave.
Moreover, if the through passengers on the bus that evening suspected what the Court learned at the motions hearing, it would have been clear to them that they were also not free to refuse the police request to search. The evidence disclosed that refusal to cooperate is sometimes treated as an admission of guilt.
Detective Hairston testified that if a passenger refuses to permit a search of his or her bags or claims not to have identification, he "might be suspicious" and, depending on the conversation with the passenger, would notify authorities at the next stop that he suspected the passenger of carrying drugs.
Thus, denying a police officer's request to search could result in further scrutiny and questioning at every stop. Any reasonable person would feel less than free to refuse a police search if aware that refusal to cooperate could lead to repeated harassment. As the hour became late, police in every city down the line could board the bus and wake the uncooperative passenger. Perhaps an over-zealous police questioner, less familiar with Fourth Amendment strictures and concerned by a renegade passenger's repeated refusal to have her bag searched, would detain the passenger while the bus went on its way. Such a seizure, if tested in court, might ultimately be ruled a Fourth Amendment violation, but from the perspective of the innocent person the harm would already have been done. Having permitted the police to check her papers and search her purse and coat, a reasonable innocent person would feel compelled to permit a further search of a tote bag or to deny ownership of the bag; to do otherwise would signal to the suspicious officers that she had something to hide.
In these circumstances, where police officers boarded an interstate bus, informed a passenger, in a strange city and with her luggage locked away, that they were searching for drugs, asked for her identification and ticket, requested permission to and then searched her handbag and coat, and then inquired whether a bag in the luggage rack belonged to her -- and where refusal to cooperate invited further scrutiny at future stops -- an innocent passenger would not genuinely have felt free to leave or to refuse a request to search luggage. The procedure, as described by Detective Hairston, was sufficiently intimidating to render it a seizure.
As this seizure was made without any articulable suspicion of wrongdoing, it violated the Fourth Amendment. See Terry v. Ohio, supra.2 That determination, however, is not the end of the matter; a search pursuant to an unlawful seizure may nevertheless be upheld if, but only if, the defendant voluntarily consented to such search. United States v. Battista, 876 F.2d at 206. Only such an intervening "act of free will" can "purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
By disavowing ownership of her tote bag the defendant permitted the police to search it. In determining whether this conduct was voluntary, the Court must consider the totality of factors, Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); United States v. Lloyd, 868 F.2d at 451.
The defendant is 20 years old. There is no indication that she has previously been involved with the law. She had not been informed of rights, she did not feel free to leave, and despite her calm manner in answering questions, Detective Hairston had searched her purse and coat. Considering the totality of circumstances, her consent was not voluntary. Accordingly, the evidence obtained must be suppressed.
In 1990, federal judges cannot ignore the origins of our constitutional liberties. There is serious ground for concern that present police practices in furtherance of the "war on drugs" represent, in modern sophisticated dress, the same type of government behavior that led to this nation's war of independence. As a government publication stated 50 years ago:
The Fourth Amendment guarantees the security of the people in their persons, houses, papers, and effects against unreasonable searches and seizures. Almost up to the hour of the Revolution the American people had suffered from such injuries at the hands of the British government; and they were determined that their own government should not have the power to invade their privacy by "writs of assistance," as general search-warrants were called. John Adams, speaking of James Otis' heroic protest against that practice, declared, "The child Independence was born on that occasion."