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THE STATE OF FLORIDA
VS TERRANCE BOSTICK
No. 89-1717
In the Supreme Court of the United States
October Term, 1990
THE PEOPLE OF THE STATE OF FLORIDA,
Petitioner,
vs.
TERRANCE BOSTICK,
Respondent.
__________
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF FLORIDA.
__________
MOTION TO FILE BRIEF
AND BRIEF AMICUS CURIAE OF
AMERICANS FOR EFFECTIVE LAW ENFORCEMENT, INC.,
IN QUALIFIED SUPPORT OF AFFIRMANCE OF THE DECISION BELOW.
Possible Drug Courier Profiles! #1 Knowledge is power!
DETAINING SUSPECTED DRUG COURIERS: RECENT COURT DECISIONS
#2 from the F.B.I. :):):
Drug Courier Profiles!#3 Knowledge is power!
Note: This copy of the brief was reformatted to webpage
size. The Table of Authorities and the addresses of counsel has been omitted.
MOTION OF AMICUS CURIAE TO FILE BRIEF PURSUANT TO RULE 37.4 OF THE U.S.
SUPREME COURT RULES
Americans for Effective Law Enforcement, Inc., moves this Court for leave
to file the attached brief as amicus curiae, and declares as follows:
1. Identity and Interest of Amicus Curiae. The amicus curiae is described
as follows:
Americans for Effective Law Enforcement, Inc. (AELE), as a national
not-for-profit citizens organization, is interested in establishing a body of
law making the police effort more effective, in a constitutional manner. It
seeks to improve the operation of the police function to protect our citizens in
their life, liberties, and property, within the framework of the various State
and Federal Constitutions.
AELE sponsors law-related seminars for police executives, training
supervisors, internal complaint investigators, and their legal counsel. AELE
also publishes monthly law digests relating to police civil liability, jail and
prison legal issues and private security law.
AELE has previously appeared as amicus curiae over eighty-five times in
the Supreme Court of the United States and over thirty-eight times in other
courts, including the Federal District Courts, the Circuit Courts of Appeal and
various state courts, such as the Supreme Courts of California, Illinois,
Missouri, and Ohio.
2. Desirability of an Amicus Curiae Brief. Amicus is a professional
association representing the interests of law enforcement agencies at the state
and local levels. Our constituency includes: (1) law enforcement officers and
law enforcement administrators who are charged with the responsibility of
conducting street stops for investigations within the bounds of the law, and (2)
police legal advisors who, in their criminal jurisdiction capacity, are called
upon to advise law enforcement officers and administrators in connection with
such matters and to prosecute cases involving evidence obtained thereby.
Because of the relationship with our constituency -- including active law
enforcement administrators and counsel -- we possess direct knowledge of the
impact of the ruling of the court below, and we wish to impart that knowledge to
this Court. We respectfully ask this Court to consider this information in
reaching its decision in this case.
3. Reasons for Believing that Existing Briefs May Not Present All Issues.
AELE is a national organization, and its perspective is broad. This brief
concentrates on policy issues, including the values served by the adoption of
reasonable rules for guiding police conduct in the law of stops for
investigation. Although Petitioner and Respondent are clearly represented by
capable and diligent counsel, no single party can completely develop all
relevant views of such issues as these.
4. Avoidance of Duplication. Counsel for amicus curiae has reviewed the
opinion of the court below and the positions taken by respective counsel for the
parties in an effort to avoid unnecessary duplication. It is believed that this
brief presents vital policy issues involving the administration of law
enforcement that are not otherwise raised by either party in this case.
5. Consent of Parties or Requests Therefor. Counsel has requested consent
of the parties pursuant to Rule 37 of the U.S. Supreme Court Rules. This Motion
is necessary because such consents have not been received as of the time of
printing of the Brief. Should they be received thereafter, they will be filed
with the Clerk of this Court with a request that this motion be withdrawn.
For these reasons, the amicus curiae requests that it be granted leave to
file the attached amicus curiae brief.
Respectfully submitted,
WAYNE W. SCHMIDT, ESQ. Counsel for Movant Party, Amicus Curiae
INTEREST OF AMICUS
Americans for Effective Law Enforcement, Inc. (AELE), as a national
not-for-profit citizens organization, is interested in establishing a body of
law making the police effort more effective, in a constitutional manner. It
seeks to improve the operation of the police function to protect our citizens in
their life, liberties, and property, within the framework of the various State
and Federal Constitutions.
AELE sponsors law-related seminars for police executives, training
supervisors, internal complaint investigators, and their legal counsel. AELE
also publishes monthly law digests relating to police civil liability, jail and
prison legal issues and private security law.
AELE has previously appeared as amicus curiae over eighty-five times in
the Supreme Court of the United States and over thirty-eight times in other
courts, including the Federal District Courts, the Circuit Courts of Appeal and
various state courts, such as the Supreme Courts of California, Illinois,
Missouri, and Ohio.
ARGUMENT
I.
POLICE BOARDING OF A PASSENGER BUS AT A STOP-OVER WITHOUT PARTICULARIZED
SUSPICION, AND ASKING PASSENGERS FOR PERMISSION TO SEARCH LUGGAGE, CONSTITUTED
AN UNREASONABLE "SEIZURE" WITHIN THE MEANING OF THE FOURTH AMENDMENT.
THE PASSENGER'S ENSUING CONSENT TO A SEARCH OF LUGGAGE WAS NOT FREE FROM THE
TAINT OF THE ILLEGAL DETENTION, AND THE POLICE PROCEDURE, ALTHOUGH EFFECTIVE IN
THIS CASE, IS FAR REMOVED FROM WELL-ACCEPTED LAW ENFORCEMENT PRACTICES, AND IT
CURRENTLY EXCEEDS WIDELY RECOGNIZED JUDICIAL PRECEDENT.
Amicus will not discuss at length the case law analysis of the parties in
this case. Instead, we will concentrate upon policy issues raised by this case
and our need as law enforcement administrators and concerned members of Society
to ensure that law enforcement officers have sufficient guidance in the area of
Fourth Amendment jurisprudence.
In this case the Supreme Court of Florida, Bostick v. State, 554 So.2d
1153 (1989), ruled that an impermissible seizure resulted when sheriff's
officers, pursuant to departmental policy, launched a drug search of passengers
on buses traveling from Miami, Florida, to Atlanta, Georgia. The search, during
a scheduled stop, was accompanied by the questioning of passengers about drugs
without particularized or reasonable suspicion for doing so. In many instances
the police obtained the "consent" of passengers to search their
luggage.
The respondent, hereinafter referred to as "defendant," was
asked to display his ticket and identification when he was accosted while
sitting in the bus. He did so and his papers were immediately returned to him
when they appeared to be in order. He was then asked to consent to a search of
his luggage which he did, and cocaine was found therein.
The court ruled that the passenger had been "seized" without
reasonable suspicion. It found that when he was first approached by the
officers, while seated in the rear of the bus with the officers blocking the
aisle, whatever freedom to leave was only ephemeral at best under the rule of
United States v. Mendenhall, 446 U.S. 544 (1980). His "consent" was
ruled tainted by the illegal detention.
In Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968), this Court ruled that
"[o]nly 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." This rule was further clarified in United States
v. Mendenhall, supra, by the concurring Justices who stated that only if, in
view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave would such person be seized
for Fourth Amendment purposes.
Amicus finds no fault with the ruling of the court below that defendant
was seized within the meaning of Mendenhall, and agree that this was no mere
consensual encounter within the purview of Florida v. Royer, 460 U.S. 227
(1983). We likewise can find no facts in the record below that would constitute
reasonable suspicion for the seizure within the purview of Terry v. Ohio, supra.
As noted in the opinion below, "the state concedes that it lacked any basis
for suspecting illegal activity whatsoever." 554 So.2d 1158 (Fla. 1989). We
likewise have no quarrel with the court's conclusion that the defendant's
subsequent "consent" was tainted, there being no apparent break in the
chain of illegality sufficient to dissipate the taint of the illegal seizure.
Unlike the court below, however, amicus does not believe that "our
inquiry is at an end." 554 So.2d 1158.
Amicus, with more than sixteen years of experience in police training and
education, view the confrontation and search procedure used here as highly
unusual, if not unique. Despite the fact that the procedure employed was
successful in this case, few law enforcement agencies would seriously consider
adopting a policy of planned intrusions onto intercity buses and standard less
solicitations of consent to search a person's baggage and personal effects.
We submit that if such techniques -- which are undoubtedly successful in
ferreting out some unspecified amount of drugs and thus removing such material
from the street -- are to be countenanced at all by this Court, there should be
an objective, though minimal, finding of criminal activity before a mass
detention of interstate or intrastate travelers is permitted.
While the suspicionless drug testing of public safety employees has been
allowed by this Court, Skinner v. Railway Labor Executives Assn., ___ U.S. ___,
109 S.Ct. 1402 (1989); National Treasury Employees' Union v. von Raab, ___ U.S.
___, 109 S.Ct. 1402 (1989), such was done on the basis of a compelling need to
protect public safety with no practical alternative to the governmental means
employed. Much the same moved this Court to recently sanction the use of DUI
roadblocks in Michigan v. Sitz, ___ U.S. ___, 110 S.Ct. 2481 (1990).
The rationale of these cases has not been extended to citizens at large
merely because they are travelers, without any relationship to safety on board a
common carrier; moreover, any such extension would be constitutionally invalid.
Setting aside equal protection issues, it is difficult to imagine a scenario of
police activities, as in the present case, upon a planeload of business class
air passengers arriving at a busy air terminal after an interstate flight.
II.
WHENEVER A MASS DETENTION AND QUESTIONING OF TRAVELERS IS CONTEMPLATED,
THERE MUST BE A REQUIREMENT OF AN OBJECTIVE (THOUGH MINIMAL) INDICIA OF CRIMINAL
ACTIVITY. WE DO URGE THE COURT, HOWEVER, TO LEAVE UNDISTURBED ITS PRIOR HOLDINGS
AFFIRMING THE USAGE OF (a) LEGITIMATE DRUG COURIER PROFILES; (b) CITIZEN DRUG
DEALER TIPS, AND (c) OTHER LEGITIMATE DETENTIONS FOR INVESTIGATION AND
QUESTIONING.
Whenever a mass detention and questioning of travelers is contemplated,
there must be a requirement of an objective (though minimal) indicia of criminal
activity. We do urge the Court, however, to leave undisturbed its prior holdings
affirming the usage of (a) legitimate drug courier profiles, (b) citizen drug
dealer tips, and (c) other legitimate detentions for investigation and
questioning.
Because of the major epidemic of drug trafficking, with all its tragic
consequences, law enforcement authorities may understandably approach the edges
of the Fourth Amendment, and seek legal expansion of the situations where drug
evidence may be seized. However, it is equally important that any extension of
the Fourth Amendment must proceed in ways that protect our nation's citizens
against the arbitrary and often abusive techniques employed in totalitarian
societies.
Among police procedures that should be legally approved is the use of
drug-sniffing dogs at public bus stations and truck stops where vehicles are
temporarily parked. Such dog sniffs do not constitute a search under the Fourth
Amendment, United States v. Place, 462 U.S. 696 (1983). This technique could
provide a reasonable basis for the removal and detention of a specific suitcase
or box until consent or a search warrant is obtained for opening it. We are
concerned, however, that if the practices employed by the law enforcement
officers in the present case are condoned, similar practices would eventually
extend to schoolrooms, places of entertainment, offices and other workplaces.
Any extension of the strictures of the Fourth Amendment to permit the
confrontation and consensual search of travelers outside of airports and border
entry stations must be accompanied by a threshold requirement that law
enforcement officers possess a minimal, but nevertheless articulable indicia of
criminal conduct.
Regardless of whatever action the Court may take with respect to the
ruling below, we ask that the Court not disturb its prior rulings that have
sanctioned a wide-range of essential law enforcement activity in related areas.
Specifically, we urge this Court to make clear that its ruling would not call
into question the use by law enforcement agencies of drug courier profiles for
investigative stops, United States v. Sokolow, ___ U.S. ___, 109 S.Ct. 1581
(1989), investigative stops based upon corroborated anonymous citizen reports of
crime, Alabama v. White, ___ U.S. ___, 110 S.Ct. 2412 (1990), and the various
aspects of investigative stops related to the safety of law enforcement
officers, Adams v. Williams, 407 U.S. 143 (1972), and Michigan v. Long, 463 U.S.
1032 (1983). These activities are grounded upon the objective standard of
articulable suspicion flowing from Terry v. Ohio, supra, and are sufficiently
safeguarded by appropriate restraints upon officer discretion, ensuring their
reasonableness as well as necessity for effective law enforcement. The instant
case, we submit, is far removed from the facts and rationales of those cases,
and should be disposed of in a manner limiting this Court's ruling to the facts
of this case.
CONCLUSION
Amicus submit that the law enforcement activity involved in this case is
not a prevalent practice in law enforcement agencies. If this Court affirms the
decision of the court below, we respectfully urge that it not adversely affect
the Court's earlier rulings in the above cited cases.
Respectfully submitted,
FRED E. INBAU, ESQ. John Henry Wigmore Professor of Law, Emeritus
Northwestern University School of Law Chicago, Illinois
WAYNE W. SCHMIDT, ESQ. Executive Director
BERNARD J. FARBER, ESQ. Research Counsel, Americans for Effective Law
Enforcement, Inc. Chicago, Illinois
JAMES P. MANAK, ESQ. Counsel of Record, Glen Ellyn, Illinois
Counsel for Amicus Curiae |
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