Academic journal article William and Mary Law Review

The Long Distance Remand: Florida V. Bostick and the Re-Awakened Bus Search Battlefront in the War on Drugs

Academic journal article William and Mary Law Review

The Long Distance Remand: Florida V. Bostick and the Re-Awakened Bus Search Battlefront in the War on Drugs

Article excerpt

The War on Drugs has led to the development of innovative police tactics (1) in much the same way that conventional wars have produced technological and medical breakthroughs. (2) To keep pace with law enforcement, the Supreme Court has been scrambling to set the boundaries of Fourth Amendment protection against "unreasonable searches and seizures" (3) in dozens of drug interdiction cases. (4) These cases have involved the entire run of Fourth Amendment issues, including what constitutes reasonable suspicion to conduct a search, (5) a traveler's reasonable expectation of privacy, (6) the extent of searches, (7) asset forfeiture, (8) and standing. (9)

One popular tactic in the domestic theater of the drug war (10) is drug-interdiction bus sweeps. The typical bus sweep scenario begins with police officers boarding intercity buses at scheduled stops and announcing themselves as officers searching for illegal narcotics, (11) and ends with either a generalized or passenger-by-passenger request to conduct a consent search of the passengers' carry on luggage. After years of conflicting opinions in lower courts, (12) in 1991 the Supreme Court addressed bus sweeps in Florida v. Bostick. (13) Over a vigorous dissent by Justice Marshall, (14) the Court rejected what it viewed as the Florida Supreme Court's per se rule prohibiting bus sweeps (15) and, in doing so, seemed to send the message "that lower courts are expected not to interfere with bus sweep procedures." (16) Although the Supreme Court chose to remand the case for the application of its own analysis, (17) the dire pronouncements from commentators that the Court had chosen to restrict citizens' Fourth Amendment protections in favor of the government's interest in fighting the drug war (18) were reflected in lower court opinions throughout most of the 1990s. (19)

After seven years of unremarkable application of the Supreme Court's Bostick analysis, which invariably led to the admissibility of evidence seized during bus sweeps, (20) in 1998 the Eleventh Circuit in United States v. Guapi (21) fired the first salvo in a renewed skirmish over bus sweeps. By applying the Court's Bostick analysis to a routine bus sweep, but finding that an impermissible seizure had occurred, (22) the Eleventh Circuit touched off a powderkeg of tension that had lain dormant for several years.

This Note first tracks the Supreme Court's development of the consent search exception to the Fourth Amendment's warrant requirement and then discusses the exceptions used in the context of bus sweeps. (23) The detailed treatment given to the procedural history of Terry Bostick's case before and after the Supreme Court's decision serves to illustrate the complexity of the constitutional questions posed by bus sweeps. This part contends that the polarization between the majority and dissenting opinions in Bostick was unnecessary and served to stunt a nuanced development of bus-sweep jurisprudence. Further, this part argues that rather than disparaging the majority opinion of Bostick as granting the police carte blanche in conducting bus sweeps, civil libertarians should embrace the opinion as opening a second avenue by which defendants can suppress evidence seized during bus sweeps. This section then analyzes the Eleventh Circuit's application of Bostick to a series of recent bus sweep cases and outlines the circuit split that has developed concerning the tactic. (24)

The next part examines the psychological backdrop of bus sweeps and argues that an inquiry into psychological coercion forms the fabric of the Supreme Court's Bostick standards. (25) To determine whether a police-passenger encounter was consensual and whether a passenger's consent to search was given voluntarily, then, requires courts to ascertain whether the initial encounter or the consent to search was the result of impermissible psychological coercion by the police. This part identifies three psychological theories which should inform courts in examining bus sweeps and applies the theories to the Eleventh Circuit's recent bus-sweep decisions. …

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