A Law Student in the Supreme Court: United States V. Drayton and the Future of Consent Search Analysis

By Callahan, Dennis J. | The William and Mary Bill of Rights Journal, December 2004 | Go to article overview

A Law Student in the Supreme Court: United States V. Drayton and the Future of Consent Search Analysis


Callahan, Dennis J., The William and Mary Bill of Rights Journal


In my third year of law school, I hit the student note lottery. Like thousands of law students, the year before I had analyzed a legal issue in my student note. Despite my passion for the issue, I felt like many others that this was a warmingup exercise, a preliminary to my real future as a lawyer. However, the narrow issue I examined soon came before the Supreme Court and months later, I found myself in the Supreme Court watching oral arguments in a case I helped prepare. I would like to tell my story not only to relive an amazing episode in my own new career, but also to remind law students of the powerful legal tool that the student note can be. I will also recap and look forward from this important moment in consent search jurisprudence in which I was lucky to play a part.

Part I of this Article is my story. It outlines the topic and content of my student note and describes my whirlwind journey as a member of the respondent's representation team in United States v. Drayton.1 Though this story may be worth telling for its entertainment value alone, my hope is that future note writers will draw some tips and encouragement from my experience to make their note writing process more enjoyable and their work more valuable.

Parts ? and DT discuss the constitutional future of bus sweeps in the wake of the Supreme Court's Drayton decision with an eye toward aiding future defendants in preparing their motions to suppress. Part ? examines various situations in which a consent search may take place and draws from the reasoning in these cases to argue that in the significant subset of bus sweeps which delay the departure of a bus before contraband is discovered, the interdicting officers impermissibly "seize" all of the passengers for Fourth Amendment purposes. In such cases, the analysis presented in this Part urges defense attorneys to establish the delay at trial and outlines Supreme Court precedent for considering the delay to be a Fourth Amendment violation. The analysis presented in this Part may be exportable to consent searches in open areas.

Part HI explains why it may appear in suppression hearings that drug-carrying passengers voluntarily consent to a search they know will reveal illegal narcotics. This Part applies two quirks of human perception to on-bus police-initiated encounters that question traditional judgments of reasonableness in consent search scenarios. Defendants moving to suppress evidence under state constitutional search and seizure provisions that are interpreted to be more restrictive of law enforcement activities than are the Supreme Court' s pronouncements on the Fourth Amendment should consider the analysis of this Part in preparing their arguments.

The Article concludes by presenting the New York model for analyzing subconstitutional police-initiated encounters. Drawing on the analysis of Parts ? and HI, the Conclusion argues that the New York approach of applying common law principles to consent searches provides a sensible framework which demands that police have a "founded suspicion" that criminality is afoot before engaging in intrusive questioning of citizens. This quantum of suspicion is somewhat lower than the reasonable suspicion police need to stop and frisk a citizen. The balance struck by New York courts promotes individual autonomy while sacrificing little in the way of law enforcement.

I. A LAW STUDENT IN THE SUPREME COURT

A. Bus Sweep Background

Bus sweeps are a drug interdiction tactic used by federal and local police authorities in scores of cities across the United States.2 Bus sweeps developed in the early 1980s as part of President Reagan's proclaimed "war on drugs"3 and today bus sweeps everywhere follow essentially the same script.4 Officers mount intercity buses at stopover bus depots and ask passengers for permission to search their carry-on luggage and to conduct pat-down frisks of passengers in order to find drugs or other contraband. …

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