Subject:  FLORIDA v. BOSTICK, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



FLORIDA v. BOSTICK


certiorari to the supreme court of florida

No. 89-1717.  Argued February 26, 1991 -- Decided June 20, 1991

As part of a drug interdiction effort, Broward County Sheriff's Department
officers routinely board buses at scheduled stops and ask passengers for
permission to search their luggage.  Two officers boarded respondent
Bostick's bus and, without articulable suspicion, questioned him and
requested his consent to search his luggage for drugs, advising him of his
right to refuse.  He gave his permission, and the officers, after finding
cocaine, arrested Bostick on drug trafficking charges.  His motion to
suppress the cocaine on the ground that it had been seized in violation of
the Fourth Amendment was denied by the trial court.  The Florida Court of
Appeal affirmed, but certified a question to the State Supreme Court.  That
court, reasoning that a reasonable passenger would not have felt free to
leave the bus to avoid questioning by the police, adopted a per se rule
that the sheriff's practice of "working the buses" is unconstitutional.

Held:

    1. The Florida Supreme Court erred in adopting a per se rule that every
encounter on a bus is a seizure.  The appropriate test is whether, taking
into account all of the circumstances surrounding the encounter, a
reasonable passenger would feel free to decline the officers' requests or
otherwise terminate the encounter.  Pp. 3-7.

    (a) A consensual encounter does not trigger Fourth Amendment scrutiny.
See Terry v. Ohio, 392 U. S. 1, 19, n. 6.  Even when officers have no basis
for suspecting a particular individual, they may generally ask the
individual questions, Florida v. Rodriguez, 469 U. S. 1, 5-6, ask to
examine identification, INS v. Delgado, 466 U. S. 210, 216, and request
consent to search luggage, Florida v. Royer, 460 U. S. 491, 501, provided
they do not convey a message that compliance with their requests is
required.  Thus, there is no doubt that if this same encounter had taken
place before Bostick boarded the bus or in the bus terminal, it would not
be a seizure.  Pp. 4-5.

    (b) That this encounter took place on a bus is but one relevant factor
in determining whether or not it was of a coercive nature.  The state court
erred in focusing on the "free to leave" language of Michigan v.
Chesternut, 486 U. S. 567, 573, rather than on the principle that those
words were intended to capture.  This inquiry is not an accurate measure of
an encounter's coercive effect when a person is seated on a bus about to
depart, has no desire to leave, and would not feel free to leave even if
there were no police present.  The more appropriate inquiry is whether a
reasonable passenger would feel free to decline the officers' request or
otherwise terminate the encounter.  Thus, this case is analytically
indistinguishable from INS v. Delgado, supra.  There, no seizure occurred
when INS agents visited factories at random, stationing some agents at
exits while others questioned workers, because, even though workers were
not free to leave without being questioned, the agents' conduct gave them
no reason to believe that they would be detained if they answered
truthfully or refused to answer.  Such a refusal, alone, does not furnish
the minimal level of objective justification needed for detention or
seizure.  Id., at 216-217.  Pp. 5-7.

    2. This case is remanded for the Florida courts to evaluate the seizure
question under the correct legal standard.  The trial court made no express
findings of fact, and the State Supreme Court rested its decision on a
single fact -- that the encounter took place on a bus -- rather than on the
totality of the circumstances.  Rejected, however, is Bostick's argument
that he must have been seized because no reasonable person would freely
consent to a search of luggage containing drugs, since the "reasonable
person" test presumes an innocent person.  Pp. 7-10.

554 So. 2d 1153, reversed and remanded.

O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and White, Scalia, Kennedy, and Souter, JJ., joined.  Marshall, J.,
filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined.

------------------------------------------------------------------------------




Subject: 89-1717 -- OPINION, FLORIDA v. BOSTICK

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-1717



FLORIDA, PETITIONER v. TERRANCE BOSTICK


on writ of certiorari to the supreme court of florida

[June 20, 1991]



    Justice O'Connor delivered the opinion of the Court.

    We have held that the Fourth Amendment permits police officers to
approach individuals at random in airport lobbies and other public places
to ask them questions and to request consent to search their luggage, so
long as a reasonable person would understand that he or she could refuse to
cooperate.  This case requires us to determine whether the same rule
applies to police encounters that take place on a bus.

I
    Drug interdiction efforts have led to the use of police surveillance at
airports, train stations, and bus depots.  Law enforcement officers
stationed at such locations routinely approach individuals, either randomly
or because they suspect in some vague way that the individuals may be
engaged in criminal activity, and ask them potentially incriminating
questions.  Broward County has adopted such a program.  County Sheriff's
Department officers routinely board buses at scheduled stops and ask
passengers for permission to search their luggage.
    In this case, two officers discovered cocaine when they searched a
suitcase belonging to Terrance Bostick.  The underlying facts of the search
are in dispute, but the Florida Supreme Court, whose decision we review
here, stated explicitly the factual premise for its decision:

" `Two officers, complete with badges, insignia and one of them holding a
recognizable zipper pouch, containing a pistol, boarded a bus bound from
Miami to Atlanta during a stopover in Fort Lauderdale.  Eyeing the
passengers, the officers admittedly without articulable suspicion, picked
out the defendant passenger and asked to inspect his ticket and
identification.  The ticket, from Miami to Atlanta, matched the defendant's
identification and both were immediately returned to him as unremarkable.
However, the two police officers persisted and explained their presence as
narcotics agents on the lookout for illegal drugs.  In pursuit of that aim,
they then requested the defendant's consent to search his luggage.
Needless to say, there is a conflict in the evidence about whether the
defendant consented to the search of the second bag in which the contraband
was found and as to whether he was informed of his right to refuse consent.
However, any conflict must be resolved in favor of the state, it being a
question of fact decided by the trial judge.' "  554 So. 2d 1153, 1154-1155
(1989), quoting 510 So. 2d 321, 322 (Fla. App. 1987) (Letts, J., dissenting
in part).


    Two facts are particularly worth noting.  First, the police
specifically advised Bostick that he had the right to refuse consent.
Bostick appears to have disputed the point, but, as the Florida Supreme
Court noted explicitly, the trial court resolved this evidentiary conflict
in the State's favor.  Second, at no time did the officers threaten Bostick
with a gun.  The Florida Supreme Court indicated that one officer carried a
zipper pouch containing a pistol -- the equivalent of carrying a gun in a
holster -- but the court did not suggest that the gun was ever removed from
its pouch, pointed at Bostick, or otherwise used in a threatening manner.
The dissent's characterization of the officers as "gun-wielding
inquisitor[s]," post, at 9, is colorful, but lacks any basis in fact.
    Bostick was arrested and charged with trafficking in cocaine.  He moved
to suppress the cocaine on the grounds that it had been seized in violation
of his Fourth Amendment rights.  The trial court denied the motion but made
no factual findings.  Bostick subsequently entered a plea of guilty, but
reserved the right to appeal the denial of the motion to suppress.
    The Florida District Court of Appeal affirmed, but considered the issue
sufficiently important that it certified a question to the Florida Supreme
Court.  510 So. 2d, at 322.  The Supreme Court reasoned that Bostick had
been seized because a reasonable passenger in his situation would not have
felt free to leave the bus to avoid questioning by the police.  554 So. 2d,
at 1154.  It rephrased and answered the certified question so as to make
the bus setting dispositive in every case.  It ruled categorically that "
`an impermissible seizure result[s] when police mount a drug search on
buses during scheduled stops and question boarded passengers without
articulable reasons for doing so, thereby obtaining consent to search the
passengers' luggage.' "  Ibid.  The Florida Supreme Court thus adopted a
per se rule that the Broward County Sheriff's practice of "working the
buses" is unconstitutional. {1}  The result of this decision is that police
in Florida, as elsewhere, may approach persons at random in most public
places, ask them questions and seek consent to a search, see id., at 1156;
but they may not engage in the same behavior on a bus.  Id., at 1157.  We
granted certiorari, 498 U. S. --- (1990), to determine whether the Florida
Supreme Court's per se rule is consistent with our Fourth Amendment
jurisprudence.
II
    The sole issue presented for our review is whether a police encounter
on a bus of the type described above necessarily constitutes a "seizure"
within the meaning of the Fourth Amendment.  The State concedes, and we
accept for purposes of this decision, that the officers lacked the
reasonable suspicion required to justify a seizure and that, if a seizure
took place, the drugs found in Bostick's suitcase must be suppressed as
tainted fruit.
    Our cases make it clear that a seizure does not occur simply because a
police officer approaches an individual and asks a few questions.  So long
as a reasonable person would feel free "to disregard the police and go
about his business," California v. Hodari D., 499 U. S. ---, --- (1991)
(slip op., at 6), the encounter is consensual and no reasonable suspicion
is required.  The encounter will not trigger Fourth Amendment scrutiny
unless it loses its consensual nature.  The Court made precisely this point
in Terry v. Ohio, 392 U. S. 1, 19, n. 16 (1968): "Obviously, not all
personal intercourse between policemen and citizens involves `seizures' of
persons.  Only when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen may we
conclude that a `seizure' has occurred."
    Since Terry, we have held repeatedly that mere police questioning does
not constitute a seizure.  In Florida v. Royer, 460 U. S. 491 (1983)
(plurality opinion), for example, we explained that "law enforcement
officers do not violate the Fourth Amendment by merely approaching an
individual on the street or in another public place, by asking him if he is
willing to answer some questions, by putting questions to him if the person
is willing to listen, or by offering in evidence in a criminal prosecution
his voluntary answers to such questions."  Id., at 497; see id., at 523, n.
3 (Rehnquist, J., dissenting).
    There is no doubt that if this same encounter had taken place before
Bostick boarded the bus or in the lobby of the bus terminal, it would not
rise to the level of a seizure.  The Court has dealt with similar
encounters in airports and has found them to be "the sort of consensual
encounter[s] that implicat[e] no Fourth Amendment interest."  Florida v.
Rodriguez, 469 U. S. 1, 5-6 (1984).  We have stated that even when officers
have no basis for suspecting a particular individual, they may generally
ask questions of that individual, see INS v. Delgado, 466 U. S. 210, 216
(1984); Rodriguez, supra, at 5-6; ask to examine the individual's
identification, see Delgado, supra, at 216; Royer, supra, at 501 (plurality
opinion); United States v. Mendenhall, 446 U. S. 544, 557558 (1980); and
request consent to search his or her luggage, see Royer, supra, at 501
(plurality opinion) -- as long as the police do not convey a message that
compliance with their requests is required.
    Bostick insists that this case is different because it took place in
the cramped confines of a bus.  A police encounter is much more
intimidating in this setting, he argues, because police tower over a seated
passenger and there is little room to move around.  Bostick claims to find
support in language from Michigan v. Chesternut, 486 U. S. 567, 573 (1988),
and other cases, indicating that a seizure occurs when a reasonable person
would believe that he or she is not "free to leave."  Bostick maintains
that a reasonable bus passenger would not have felt free to leave under the
circumstances of this case because there is nowhere to go on a bus.  Also,
the bus was about to depart.  Had Bostick disembarked, he would have risked
being stranded and losing whatever baggage he had locked away in the
luggage compartment.
    The Florida Supreme Court found this argument persuasive, so much so
that it adopted a per se rule prohibiting the police from randomly boarding
buses as a means of drug interdiction.  The state court erred, however, in
focusing on whether Bostick was "free to leave" rather than on the
principle that those words were intended to capture.  When police attempt
to question a person who is walking down the street or through an airport
lobby, it makes sense to inquire whether a reasonable person would feel
free to continue walking.  But when the person is seated on a bus and has
no desire to leave, the degree to which a reasonable person would feel that
he or she could leave is not an accurate measure of the coercive effect of
the encounter.
    Here, for example, the mere fact that Bostick did not feel free to
leave the bus does not mean that the police seized him.  Bostick was a
passenger on a bus that was scheduled to depart.  He would not have felt
free to leave the bus even if the police had not been present.  Bostick's
movements were "confined" in a sense, but this was the natural result of
his decision to take the bus; it says nothing about whether or not the
police conduct at issue was coercive.
    In this respect, the Court's decision in INS v. Delgado, supra, is
dispositive.  At issue there was the INS' practice of visiting factories at
random and questioning employees to determine whether any were illegal
aliens.  Several INS agents would stand near the building's exits, while
other agents walked through the factory questioning workers.  The Court
acknowledged that the workers may not have been free to leave their
worksite, but explained that this was not the result of police activity:
"Ordinarily, when people are at work their freedom to move about has been
meaningfully restricted, not by the actions of law enforcement officials,
but by the workers' voluntary obligations to their employers."  Id., at
218.  We concluded that there was no seizure because, even though the
workers were not free to leave the building without being questioned, the
agents' conduct should have given employees "no reason to believe that they
would be detained if they gave truthful answers to the questions put to
them or if they simply refused to answer."  Ibid.
    The present case is analytically indistinguishable from Delgado.  Like
the workers in that case, Bostick's freedom of movement was restricted by a
factor independent of police conduct -- i. e., by his being a passenger on
a bus.  Accordingly, the "free to leave" analysis on which Bostick relies
is inapplicable.  In such a situation, the appropriate inquiry is whether a
reasonable person would feel free to decline the officers' requests or
otherwise terminate the encounter.  This formulation follows logically from
prior cases and breaks no new ground.  We have said before that the crucial
test is whether, taking into account all of the circumstances surrounding
the encounter, the police conduct would "have communicated to a reasonable
person that he was not at liberty to ignore the police presence and go
about his business."  Chesternut, supra, at 569.  See also Hodari D.,
supra, at --- (slip op., at 6).  Where the encounter takes place is one
factor, but it is not the only one.  And, as the Solicitor General
correctly observes, an individual may decline an officer's request without
fearing prosecution.  See Brief for the United States as Amicus Curiae 25.
We have consistently held that a refusal to cooperate, without more, does
not furnish the minimal level of objective justification needed for a
detention or seizure.  See Delgado, 466 U. S., at 216-217; Royer, 460 U.
S., at 498 (plurality opinion); Brown v. Texas, 443 U. S. 47, 52-53
(1979).
    The facts of this case, as described by the Florida Supreme Court,
leave some doubt whether a seizure occurred.  Two officers walked up to
Bostick on the bus, asked him a few questions, and asked if they could
search his bags.  As we have explained, no seizure occurs when police ask
questions of an individual, ask to examine the individual's identification,
and request consent to search his or her luggage -- so long as the officers
do not convey a message that compliance with their requests is required.
Here, the facts recited by the Florida Supreme Court indicate that the
officers did not point guns at Bostick or otherwise threaten him and that
they specifically advised Bostick that he could refuse consent.
    Nevertheless, we refrain from deciding whether or not a seizure
occurred in this case.  The trial court made no express findings of fact,
and the Florida Supreme Court rested its decision on a single fact -- that
the encounter took place on a bus -- rather than on the totality of the
circumstances.  We remand so that the Florida courts may evaluate the
seizure question under the correct legal standard.  We do reject, however,
Bostick's argument that he must have been seized because no reasonable
person would freely consent to a search of luggage that he or she knows
contains drugs.  This argument cannot prevail because the "reasonable
person" test presupposes an innocent person.  See Royer, supra, at 519, n.
4 (Blackmun, J., dissenting) ("The fact that [respondent] knew the search
was likely to turn up contraband is of course irrelevant; the potential
intrusiveness of the officers' conduct must be judged from the viewpoint of
an innocent person in [his] position").  Accord Chesternut, 486 U. S., at
574 ("This `reasonable person' standard . . . ensures that the scope of
Fourth Amendment protection does not vary with the state of mind of the
particular individual being approached").
    The dissent characterizes our decision as holding that police may board
buses and by an "intimidating show of authority," post, at 8 (emphasis
added), demand of passengers their "voluntary" cooperation.  That
characterization is incorrect.  Clearly, a bus passenger's decision to
cooperate with law enforcement officers authorizes the police to conduct a
search without first obtaining a warrant only if the cooperation is
voluntary.  "Consent" that is the product of official intimidation or
harassment is not consent at all.  Citizens do not forfeit their
constitutional rights when they are coerced to comply with a request that
they would prefer to refuse.  The question to be decided by the Florida
courts on remand is whether Bostick chose to permit the search of his
luggage.
    The dissent also attempts to characterize our decision as applying a
lesser degree of constitutional protection to those individuals who travel
by bus, rather than by other forms of transportation.  This, too, is an
erroneous characterization.  Our Fourth Amendment inquiry in this case --
whether a reasonable person would have felt free to decline the officers'
requests or otherwise terminate the encounter -- applies equally to police
encounters that take place on trains, planes, and city streets.  It is the
dissent that would single out this particular mode of travel for
differential treatment by adopting a per se rule that random bus searches
are unconstitutional.
    The dissent reserves its strongest criticism for the proposition that
police officers can approach individuals as to whom they have no reasonable
suspicion and ask them potentially incriminating questions.  But this
proposition is by no means novel; it has been endorsed by the Court any
number of times.  Terry, Royer, Rodriguez, and Delgado are just a few
examples.  As we have explained, today's decision follows logically from
those decisions and breaks no new ground.  Unless the dissent advocates
overruling a long, unbroken line of decisions dating back more than 20
years, its criticism is not well taken.
    This Court, as the dissent correctly observes, is not empowered to
suspend constitutional guarantees so that the Government may more
effectively wage a "war on drugs."  See post, at 1, 11-12.  If that war is
to be fought, those who fight it must respect the rights of individuals,
whether or not those individuals are suspected of having committed a crime.
By the same token, this Court is not empowered to forbid law enforcement
practices simply because it considers them distasteful.  The Fourth
Amendment proscribes unreasonable searches and seizures; it does not
proscribe voluntary cooperation.  The cramped confines of a bus are one
relevant factor that should be considered in evaluating whether a
passenger's consent is voluntary.  We cannot agree, however, with the
Florida Supreme Court that this single factor will be dispositive in every
case.
    We adhere to the rule that, in order to determine whether a particular
encounter constitutes a seizure, a court must consider all the
circumstances surrounding the encounter to determine whether the police
conduct would have communicated to a reasonable person that the person was
not free to decline the officers' requests or otherwise terminate the
encounter.  That rule applies to encounters that take place on a city
street or in an airport lobby, and it applies equally to encounters on a
bus.  The Florida Supreme Court erred in adopting a per se rule.
    The judgment of the Florida Supreme Court is reversed, and the case
remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


------------------------------------------------------------------------------
1
    The dissent acknowledges that the Florida Supreme Court's answer to the
certified question reads like a per se rule, but dismisses as "implau
sible" the notion that the court would actually apply this rule to "trump"
a careful analysis of all the relevant facts.  Post, at 6.  Implausible as
it may seem, that is precisely what the Florida Supreme Court does.  It
routinely grants review in bus search cases and quashes denials of motions
to suppress expressly on the basis of its answer to the certified question
in this case.  See, e. g., McBride v. State, 554 So. 2d 1160 (1989); Mendez
v. State, 554 So. 2d 1161 (1989); Shaw v. State, 555 So. 2d 351 (1989);
Avery v. State, 555 So. 2d 351 (1989); Serpa v. State, 555 So. 2d 1210
(1989); Jones v. State, 559 So. 2d 1096 (1990).





Subject: 89-1717 -- DISSENT, FLORIDA v. BOSTICK

 


    SUPREME COURT OF THE UNITED STATES


No. 89-1717


FLORIDA, PETITIONER v. TERRANCE BOSTICK
on writ of certiorari to the supreme court of florida [June 20, 1991]

    Justice Marshall, with whom Justice Blackmun and Justice Stevens join,
dissenting.
    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.  The
general warrant, for example, was certainly an effective means of law
enforcement.  Yet it was one of the primary aims of the Fourth Amendment to
protect citizens from the tyranny of being singled out for search and
seizure without particularized suspicion notwithstanding the effectiveness
of this method.  See Boyd v. United States, 116 U. S. 616, 625-630 (1886);
see also Harris v. United States, 331 U. S. 145, 171 (1947) (Frankfurter,
J., dissenting).  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.
I
    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.  United States v. Lewis, --- U. S. App. D. C. ---, ---,
921 F. 2d 1294, 1295 (1990); see United States v. Flowers, 912 F. 2d 707,
710 (CA4 1990) (describing technique in Charlotte, North Carolina); United
States v. Madison, 744 F. Supp. 490, 492-493 (SDNY 1990) (describing
technique in Port Authority terminal in New York City); United States v.
Chandler, 744 F. Supp. 333, 335 (DC 1990) ("[I]t has become routine to
subject interstate travelers to warrantless searches and intimidating
interviews while sitting aboard a bus stopped for a short layover in the
Capital"); 554 So. 2d 1153, 1156-1157 (Fla. 1989) (describing Florida
police policy of " `working the buses' "); see also ante, at 1.  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.  See generally United States v. Lewis, supra, at ---, 921 F. 2d,
at 1296; United States v. Flowers, supra, at 708-709; United States v.
Madison, supra, at 493; 554 So. 2d, at 1154.
    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. {1}  By proceeding
systematically in this fashion, the police are able to engage in a
tremendously high volume of searches.  See, e. g., Florida v. Kerwick, 512
So. 2d 347, 348-349 (Fla. App. 1987) (single officer employing sweep
technique able to search over 3,000 bags in nine-month period).  The
percentage of successful drug interdictions is low.  See United States v.
Flowers, supra, at 710 (sweep of 100 buses resulted in seven arrests).
    To put it mildly, these sweeps "are inconvenient, intrusive, and
intimidating."  United States v. Chandler, 744 F. Supp. at, 335.  They
occur within cramped confines, with officers typically placing themselves
in between the passenger selected for an interview and the exit of the bus.
See, e. g., id., at 336.  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.  See United States v. Fields, 909
F. 2d 470, 474 n. 2 (CA11 1990); cf. United States v. Rembert, 694 F. Supp.
163, 175 (WDNC 1988) (reporting testimony of officer that he makes " `every
effort in the world not to delay the bus' " but that the driver does not
leave terminal until sweep is complete).  Thus, this "new and increasingly
common tactic," United States v. Lewis, supra, at ---, 921 F. 2d, at 1295,
burdens the experience of traveling by bus with a degree of governmental
interference to which, until now, our society has been proudly
unaccustomed.  See, e. g., State ex rel. Ekstrom v. Justice Court, 136
Ariz. 1, 6, 663 P. 2d 992, 997 (1983) (Feldman, J., concurring) ("The
thought that an American can be compelled to `show his papers' before
exercising his right to walk the streets, drive the highways or board the
trains is repugnant to American institutions and ideals").
    This aspect of the suspicionless sweep has not been lost on many of the
lower courts called upon to review the constitutionality of this practice.
Remarkably, the courts located at the heart of the "drug war" have been the
most adamant in condemning this technique.  As one Florida court put it:
" `[T]he evidence in this cause has evoked images of other days, under
other flags, when no man traveled his nation's roads or railways without
fear of unwarranted interruption, by individuals who held temporary power
in the Government.  The spectre of American citizens being asked, by
badge-wielding police, for identification, travel papers -- in short a
raison d'etre -- is foreign to any fair reading of the Constitution, and
its guarantee of human liberties.  This is not Hitler's Berlin, nor
Stalin's Moscow, nor is it white supremacist South Africa.  Yet in Broward
County, Florida, these police officers approach every person on board buses
and trains ("that time permits") and check identification [and] tickets,
[and] ask to search luggage -- all in the name of "voluntary cooperation"
with law enforcement . . . . ' "  554 So. 2d, at 1158, quoting State v.
Kerwick, supra, at 348349 (quoting trial court order).

The District Court for the District of Columbia spoke in equally pointed
words:
"It seems rather incongruous at this point in the world's history that we
find totalitarian states becoming more like our free society while we in
this nation are taking on their former trappings of suppressed liberties
and freedoms."
    "The random indiscriminate stopping and questioning of individuals on
interstate busses seems to have gone too far.  If this Court approves such
`bus stops' and allows prosecutions to be based on evidence seized as a
result of such `stops,' then we will have stripped our citizens of basic
Constitutional protections.  Such action would be inconsistent with what
this nation has stood for during its 200 years of existence.  If passengers
on a bus passing through the Capital of this great nation cannot be free
from police interference where there is absolutely no basis for the police
officers to stop and question them, then the police will be free to accost
people on our streets without any reason or cause.  In this `anything goes'
war on drugs, random knocks on the doors of our citizens' homes seeking
`consent' to search for drugs cannot be far away.  This is not America."
United States v. Lewis, 728 F. Supp. 784, 788-789, rev'd, --- U. S. App. D.
C. ---, 921 F. 2d 1294 (1990).

See also United States v. Alexander, 755 F. Supp. 448, 453 (DC 1991);
United States v. Madison, 744 F. Supp., at 495-497; United States v.
Chandler, supra, at, 335-336; United States v. Mark, 742 F. Supp. 17, 18-19
(DC 1990); United States v. Alston, 742 F. Supp. 13, 15 (DC 1990); United
States v. Cothran, 729 F. Supp. 153, 156-158 (DC 1990), rev'd, --- U. S.
App. D. C. ---, 921 F. 2d 1294 (1990); United States v. Felder, 732 F.
Supp. 204, 209 (DC 1990).
    The question for this Court, then, is whether the suspicion less,
dragnet-style sweep of buses in intrastate and interstate travel is
consistent with the Fourth Amendment.  The majority suggests that this
latest tactic in the drug war is perfectly compatible with the
Constitution.  I disagree.
II
    I have no objection to the manner in which the majority frames the test
for determining whether a suspicionless bus sweep amounts to a Fourth
Amendment "seizure."  I agree that the appropriate question is whether a
passenger who is approached during such a sweep "would feel free to decline
the officers' requests or otherwise terminate the encounter."  Ante, at 7.
What I cannot understand is how the majority can possibly suggest an
affirmative answer to this question.   The majority reverses what it
characterizes as the Florida Supreme Court's "per se rule" against
suspicionless encounters between the police and bus passengers, see ante,
at 3-4, 5-6, 10, suggesting only in dictum its "doubt" that a seizure
occurred on the facts of this case, see ante, at 7.  However, the notion
that the Florida Supreme Court decided this case on the basis of any "per
se rule" independent of the facts of this case is wholly a product of the
majority's imagination.  As the majority acknowledges, the Florida Supreme
Court "stated explicitly the factual premise for its decision."  Ante, at
1.  This factual premise contained all of the details of the encounter
between respondent and the police.  See 554 So. 2d, at 1154; ante, at 2.
The lower court's analysis of whether respondent was seized drew heavily on
these facts, and the court repeatedly emphasized that its conclusion was
based on "all the circumstances" of this case.  554 So. 2d, at 1157
(emphasis added); see ibid. ("Here, the circumstances indicate that the
officers effectively `seized' [respondent]" (emphasis added)).
    The majority's conclusion that the Florida Supreme Court, contrary to
all appearances, ignored these facts is based solely on the failure of the
lower court to expressly incorporate all of the facts into its
reformulation of the certified question on which respondent took his
appeal.  See ante, at 3. {2}  The majority never explains the basis of its
implausible assumption that the Florida Supreme Court intended its phrasing
of the certified question to trump its opinion's careful treatment of the
facts in this case.  Certainly, when this Court issues an opinion, it does
not intend lower courts and parties to treat as irrelevant the analysis of
facts that the parties neglected to cram into the question presented in the
petition for certiorari.  But in any case, because the issue whether a
seizure has occurred in any given factual setting is a question of law, see
United States v. Mendenhall, 446 U. S. 544, 554-555 (1980) (opinion of
Stewart, J.); United States v. Maragh, 282 U. S. App. D. C. 256, 258-259,
894 F. 2d 415, 417-418 (CADC), cert. denied, --- U. S. --- (1990), nothing
prevents this Court from deciding on its own whether a seizure occurred
based on all of the facts of this case as they appear in the opinion of the
Florida Supreme Court.
    These facts exhibit all of the elements of coercion associated with a
typical bus sweep.  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.  See 554 So. 2d, at 1154, 1157.  These
facts alone constitute an intimidating "show of authority."  See Michigan
v. Chesternut, 486 U. S. 567, 575 (1988) (display of weapon contributes to
coercive environment); United States v. Mendenhall, supra, at 554 (opinion
of Stewart, J.) ("threatening presence of several officers" and "display of
a weapon"); id., at 555 (uniformed attire).  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.  See 554 So.
2d, at 1154.  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.  See id., at 1157.    As far as is
revealed by facts on which the Florida Supreme Court premised its decision,
the officers did not advise respondent that he was free to break off this
"interview."  Inexplicably, the majority repeatedly stresses the trial
court's implicit finding that the police officers advised respondent that
he was free to refuse permission to search his travel bag.  See ante, at 2,
7-8.  This aspect of the exchange between respondent and the police is
completely irrelevant to the issue before us.  For as the State concedes,
and as the majority purports to "accept," id., at 4, if respondent was
unlawfully seized when the officers approached him and initiated
questioning, the resulting search was likewise unlawful no matter how well
advised respondent was of his right to refuse it.  See Florida v. Royer,
460 U. S. 491, 501, 507-508 (1983) (plurality opinion); Wong Sun v. United
States, 371 U. S. 471 (1963).  Consequently, the issue is not whether a
passenger in respondent's position would have felt free to deny consent to
the search of his bag, but whether such a passenger -- without being
apprised of his rights -- would have felt free to terminate the antecedent
encounter with the police.
    Unlike the majority, I have no doubt that the answer to this question
is no.  Apart from trying to accommodate the officers, respondent had only
two options.  First, he could have remained seated while obstinately
refusing to respond to the officers' questioning.  But in light of the
intimidating show of authority that the officers made upon boarding the
bus, respondent reasonably could have believed that such behavior would
only arouse the officers' suspicions and intensify their interrogation.
Indeed, officers who carry out bus sweeps like the one at issue here
frequently admit that this is the effect of a passenger's refusal to
cooperate.  See, e. g., United States v. Cothran, 729 F. Supp., at 156;
United States v. Felder, 732 F. Supp., at 205.  The majority's observation
that a mere refusal to answer questions, "without more," does not give rise
to a reasonable basis for seizing a passenger, ante, at 7, is utterly
beside the point, because a passenger unadvised of his rights and otherwise
unversed in constitutional law has no reason to know that the police cannot
hold his refusal to cooperate against him.
    Second, respondent could have tried to escape the officers' presence by
leaving the bus altogether.  But because doing so would have required
respondent to squeeze past the gunwielding inquisitor who was blocking the
aisle of the bus, this hardly seems like a course that respondent
reasonably would have viewed as available to him. {3}  The majority lamely
protests that nothing in the stipulated facts shows that the questioning
officer "point[ed] [his] gu[n] at [respondent] or otherwise threatened him"
with the weapon.  Ante, at 8 (emphasis added).  Our decisions recognize the
obvious point, however, that the choice of the police to "display" their
weapons during an encounter exerts significant coercive pressure on the
confronted citizen.  E. g., Michigan v. Chesternut, supra, at 575; United
States v. Mendenhall, supra, at 554.  We have never suggested that the
police must go so far as to put a citizen in immediate apprehension of
being shot before a court can take account of the intimidating effect of
being questioned by an officer with weapon in hand.
    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' departure from the terminal was imminent.  Unlike
a person approached by the police on the street, see Michigan v.
Chesternut, supra, or at a bus or airport terminal after reaching his
destination, see United States v. Mendenhall, supra, a passenger approached
by the police at an intermediate point in a long bus journey cannot simply
leave the scene and repair to a safe haven to avoid unwanted probing by
lawenforcement officials.  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.  See Schneckloth v. Bustamonte, 412 U. S. 218, 247 (1973).
    The case on which the majority primarily relies, INS v. Delgado, 466 U.
S. 210 (1984), is distinguishable in every relevant respect.  In Delgado,
this Court held that workers approached by law-enforcement officials inside
of a factory were not "seized" for purposes of the Fourth Amendment.  The
Court was careful to point out, however, that the presence of the agents
did not furnish the workers with a reasonable basis for believing that they
were not free to leave the factory, as at least some of them did.  See id.,
at 218-219, and n. 7.  Unlike passengers confronted by law-enforcement
officials on a bus stopped temporarily at an intermediate point in its
journey, workers approached by law-enforcement officials at their workplace
need not abandon personal belongings and venture into unfamiliar environs
in order to avoid unwanted questioning.  Moreover, the workers who did not
leave the building in Delgado remained free to move about the entire
factory, see id., at 218, a considerably less confining environment than a
bus.  Finally, contrary to the officer who confronted respondent, the
law-enforcement officials in Delgado did not conduct their interviews with
guns in hand.  See id., at 212.
    Rather than requiring the police to justify the coercive tactics
employed here, the majority blames respondent for his own sensation of
constraint.  The majority concedes that respondent "did not feel free to
leave the bus" as a means of breaking off the interrogation by the Broward
County officers.  Ante, at 6.  But this experience of confinement, the
majority explains, "was the natural result of his decision to take the
bus."  Ibid. (emphasis added).  Thus, in the majority's view, because
respondent's "freedom of movement was restricted by a factor independent of
police conduct -- i. e., by his being a passenger on a bus," ante, at 7,
respondent was not seized for purposes of the Fourth Amendment.
    This reasoning borders on sophism and trivializes the values that
underlie the Fourth Amendment.  Obviously, a person's "voluntary decision"
to place himself in a room with only one exit does not authorize the police
to force an encounter upon him by placing themselves in front of the exit.
It is no more acceptable for the police to force an encounter on a person
by exploiting his "voluntary decision" to expose himself to perfectly
legitimate personal or social constraints.  By consciously deciding to
single out persons who have undertaken interstate or intrastate travel,
officers who conduct suspicionless, dragnet-style sweeps put passengers to
the choice of cooperating or of exiting their buses and possibly being
stranded in unfamiliar locations.  It is exactly because this "choice" is
no "choice" at all that police engage this technique.
    In my view, 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. {4}  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 lawenforcement-free zones.
III
    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."  Ante, at 9.  The majority's
actions, however, speak louder than its words.
    I dissent.
------------------------------------------------------------------------------
1
    That is to say, the police who conduct these sweeps decline to offer a
reasonable, articulable suspicion of criminal wrongdoing sufficient to
justify a warrantless "stop" or "seizure" of the confronted passenger.  See
Terry v. Ohio, 392 U. S. 1, 20-22, 30-31 (1968); Florida v. Royer, 460 U.
S. 491, 498-499 (1983) (plurality opinion).  It does not follow, however,
that the approach of passengers during a sweep is completely random.
Indeed, at least one officer who routinely confronts interstate travelers
candidly admitted that race is a factor influencing his decision whom to
approach.  See United States v. Williams, No. 1:89CR0135 (ND Ohio, June 13,
1989), p. 3 ("Detective Zaller testified that the factors initiating the
focus upon the three young black males in this case included: (1) that they
were young and black . . . ."), aff'd, No. 89-4083 (CA6, Oct. 19, 1990), p.
7 (the officers "knew that the couriers, more often than not, were young
black males"), vacated and remanded, 500 U. S. --- (1991).  Thus, the basis
of the decision to single out particular passengers during a suspicion less
sweep is less likely to be inarticulable than unspeakable.

2
    As reformulated, this question read:

"Does an impermissible seizure result when police mount a drug search on
buses during scheduled stops and question boarded passengers without
articulable reasons for doing so, thereby obtaining consent to search the
passengers' luggage?"  554 So. 2d, at 1154.

3
    As the majority's discussion makes plain, see ante, at 2, 7-8, the
officer questioning respondent clearly carried a weapons pouch during the
interview.  See also 554 So. 2d, at 1157.

4
    Insisting that police officers explain their decision to single out a
particular passenger for questioning would help prevent their reliance on
impermissible criteria such as race.  See n. 1, supra.
