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Authors ›› Marshall
The majority's [opinion]... rests on a misconception of the basis for third-party consent searches. That such searches do not give rise to claims of constitutional violations rests not on the premise that they are "reasonable" under the Fourth Amendment, but on the premise that a person may voluntarily limit his expectation of privacy by allowing others to exercise authority over his possessions. [...] If an individual has not so limited his expectation of privacy, the police may not dispense with the safeguards established by the Fourth Amendment. [...] That a person who allows another joint access to his property thereby limits his expectation of privacy does not justify trampling the rights of a person who has not similarly relinquished any of his privacy expectation.
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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. [...] 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.
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This ["inconvenient, intrusive and intimidating," United States v. Chandler, 744 F. Supp. at, 335], 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.
"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). [...]
I agree that the appropriate question is whether a passenger who is approached during such a sweep [taking place on a bus] "would feel free to decline the officers' requests or otherwise terminate the encounter." What I cannot understand is how the majority can possibly suggest an affirmative answer to this question.
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, 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 gun-wielding 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. [...] 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. (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.) 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.
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