by Steve Horn

The more things change, the more they stay the same. That’s a truism to many observers of history and politics, but in the orbit of the U.S. criminal legal system, it’s literally governed by precedential decisions.

So, when news broke early this year about U.S. Customs and Border Protection (“CBP”) agents working alongside the company Greyhound to perform warrantless searches on its buses to sniff out people ICE agents think might be undocumented immigrants, something about that fact pattern seemed awfully familiar. Enter: the 1991 U.S. Supreme Court case, Bostick v. Florida.

The Bostick ruling — and everything that followed it — is key. Under 8 U.S.C. § 1357(a)(3), CBP has a 100-mile range extending from the border in which to conduct warrantless searches of any vehicle passing through that territory.

That 100-mile range, criticized as too broad by the American Civil Liberties Union (“ACLU”), was deemed “a reasonable distance from any external boundary of the United States” under that statute. The ACLU derisively calls the 100-mile range, in which two-thirds of the U.S. population lives, a “Constitution-Free Zone.”

But the reality: Greyhound buses have long been a place in which constitutional rights are encroached. And the right to do so became enshrined in law in the form of the Bostick case.

Dissent: Broward County not “Hitler’s Berlin”

Bostick took place during the dog days of the War on Drugs, something mentioned in the dissenting opinion by the three Justices who voted as part of the minority bloc in that case.

The case centered around a warrantless search on a Greyhound bus in Broward County, Florida. There, suspicionless drug sweeps had become a daily routine by the men in blue and were known as “working the buses.”

In 1985, an officer and a detective from the Broward County Sheriff’s Office boarded a Miami-to-Atlanta Greyhound bus with a stopover in Fort Lauderdale. Among its passengers was Terrance Bostick — then a 29-year-old African-American who recently died — who was ensnared as part of that routine.

Officers approached Bostick and asked to search a bag he carried on the bus, absent a warrant and without presentation of his Fourth Amendment rights.

Bostick complied and failed to assert his rights, but the officers did not find anything. The officers next asked if they could view Bostick’s suitcase, to which he consented, again not told of his Fourth Amendment rights or asserting them. The officers then found a pound of cocaine.

So the case that eventually become Bostick v. Florida started with the drug offense arrest of Bostick on a Greyhound bus on that fateful day.

Bostick was sentenced to five years in prison by the Broward County Criminal Court, serving two of those before being granted parole, and the case eventually navigated the Florida appeals court system, all the way to the Florida Supreme Court.

Florida’s highest court ruled in Bostick v. State that it was not the “working the buses” policy that was unconstitutional on its merits. But the way Bostick was detained and questioned that day presented a situation in which he felt compelled to answer questions even though he was not legally required to do so.

The U.S. Supreme Court then took up Bostick and the question of the Fourth Amendment constitutionality of Broward County’s “working the buses” policy and ruled that it was, in their 6-3 decision, legally kosher.

The Justices wrote that “the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter,” as opposed to the argument made by Bostick’s legal team. Bostick’s team argued that sitting on a confined bus by its very nature makes it feel like the passenger has no choice but to engage with law enforcement, having a quality about it akin to being detained.

In his dissenting opinion, Justice Thurgood Marshall decried the ruling as one akin to totalitarianism as it relates its potential impact going forward.

The Broward County Sheriff’s Office policy and majority’s ruling 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,” wrote Marshall. “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.”

The U.S. Supreme Court remanded Bostick to the Florida Supreme Court to rule on the “reasonable person” standard set in the U.S. Supreme Court case, with Florida’s highest court ruling 4-3 that Bostick did, indeed, freely consent to the search under this test. His prison sentence was put back in place.

The majority-ruling Justices in Bostick v. Florida did not limit the “working the buses” policing policy to buses alone, but extended the logic to apply to “trains, planes, and city streets,” as well.

In Bostick, the U.S. Supreme Court also wrote that the “‘reasonable person’ test presupposes an innocent person.” Translated, that means if you commit the crime of drug possession and it can be discovered in a bus sweep by law enforcement, under the precedent set in Bostick, your Fourth Amendment rights are de facto suspended on buses. And, in the case of Greyhound buses being boarded by CBP agents, then, they are actually following the law of the land, as neither Bostick nor the 100-miles rule have never been overturned or whittled down but only bolstered by future decisions and agency rulemaking.

Drayton Strengthens Bostick

In the aftermath of Bostick, several state-level cases with similar fact patterns cited the case’s ruling as precedent, including State of Florida v. Kuntzwiler (1991). Federal court decisions also would go on to cite Bostick in the years ahead. For example, in 2000 the U.S. Court of Appeals for the First Circuit cited Bostick in ruling in favor of warrantless searches of taxis in the case United States v. Woodrum.

Then, a bit over a decade after the U.S. Supreme Court’s Bostick ruling, the issue of consent to be searched on Greyhound buses again was decided upon by the Court in 2002 in the case United States v. Drayton. In nearly identical circumstances to Bostick, two men were searched without a warrant or without being made aware of their Fourth Amendment rights on a Greyhound bus, this time in Tallahassee, Florida. The scene ended with two arrests. One, Christopher Drayton, took his case all the way to the U.S. Supreme Court, with the Court ruling 6-3 that Bostick provided the precedent needed to rule against Drayton.

“Applying the Bostick framework to the facts of this particular case, we conclude that the police did not seize respondents when they boarded the bus and began questioning passengers” wrote Justice Anthony Kennedy. “The officers gave the passengers no reason to believe that they were required to answer the officers’ questions.”

Drayton reeled back the decisions made just a few years earlier in the 1998 U.S. Circuit Court of Appeals cases United States v. Washington and United States v. Guapi, in which Kennedy said the courts “erred” in their approach and application of the “reasonable person” test put forward in Bostick. The former pertained to a sweeping drug search performed by a badged agent of the U.S. Department of Justice on a Greyhound bus in Jacksonville, Florida, without a warrant. He declined to inform the defendant that he did not have to cooperate in the search and then found drugs in his possession.

And the latter case, Guapi, also centered around a dragnet law-enforcement search of a Greyhound bus, this time in Alabama. The court ruled in that case, based on the “reasonable person” standard put forth in Bostick, that no reasonable person would have felt free to depart from the bus when the Mobile Police Department Drug interdiction unit boarded and announced it would do a bus-wide search for “illegal contraband such as alcohol, narcotics, weapons, or explosives.”

Then in 2003, in the case Commonwealth of Pennsylvania v. Smith, the Supreme Court of Pennsylvania ruled that under the newly minted precedent set by Drayton, a similar bus sweep done without a warrant or prior suspicion that led to a drug bust, was done within the letter of the law because the cops had used a “normal tone of voice.”

“The officers did not single out appellant, but rather spoke to each passenger in turn, using a normal tone of voice. Thus, as in Drayton, police here ‘gave the passengers no reason to believe that they were required to answer the officers’ questions,” explained that ruling in citing Drayton. “At no time did [the officer] brandish a weapon, raise his voice, threaten appellant, or accuse her of criminal conduct. In addition, the officers kept the aisle clear and made sure that the door to the bus was open.”

Social science research, though, flies in defiance of the logic conveyed in the Bostick and Drayton rulings. As a case in point, in her seminal 2003 academic paper about the Drayton case, “No Need to Shout: Bus Sweeps and the Psychology of Coercion,” Northwestern University School of Law professor Janice Nadler detailed, based on a deep dive into social psychology research and lab experiments, that most reasonable people would feel coerced to comply with a search conducted by law enforcement in a Greyhound bus-type scenario.

“While it is true that there is no single study providing direct empirical evidence addressing all the specific circumstances of bus passengers, there is abundant evidence addressing almost all of the individual factors present on the bus (the authority of the officers, the politeness of the request, the physical proximity, the surprise nature of the request, etc.), and all of these factors point to the same conclusion: a reasonable passenger on the bus would have felt compelled to comply even if he or she would have preferred to refuse,” Nadler wrote.

The dissent in the Smith case, written by Justice Russell Nigro, agreed with the argument put forth in Nadler’s academic paper.

“[P]olice officers inherently display their authority and are intimidating solely by virtue of their position,” opined Nigro. “As I believe that an average person would not feel free to leave under the circumstances here, Smith was, in my mind, illegally seized.…”

VIPR Post-9/11 Sting

Drayton and Bostick are both War on Drugs-era cases, vestiges of a different set of law enforcement imperatives than those existing in post-September 11 America. U.S. citizens have become accustomed and acculturated into more intrusive searches before boarding planes as the most prominent case in point of the post-9/11 national security state dragnet searches that parallel the issues tackled in Bostick and Drayton.

But lesser known: The Transportation Security Agency, which regulates national security-related matters relating to planes, trains, and automobiles, has full regulatory and congressional authority to carry out a regime legalized by the Bostick and Drayton rulings. And, indeed, it has been doing just that via a program utilizing what are known as VIPR (“Visible Intermodal Prevention and Response”) teams.

That soon may change, however.

VIPR teams arose within the TSA in 2005 in 2005 in the aftermath of another terrorist attack, this time the 2005 Madrid subway bombings orchestrated by Al Qaeda. Congress, thereafter, gave the TSA appropriations money and a provision in the 286-page 9/11 Commission Act of 2007, which officially authorized the creation of VIPR teams. Those teams have broad-sweeping authority under the letter of the law.

Giving the TSA the ability to “augment the security of any mode of transportation at any location within the United States,” the bill gave the agency the authority to “use any asset of the Department, including Federal air marshals, surface transportation security inspectors, canine detection teams, and advanced screening technology” and to “determine when a VIPR team shall be deployed, as well as the duration of the deployment.”

VIPR teams have done things paralleling that of the conduct of law enforcement in the Bostick and Drayton cases, including random searches of trucks along Tennessee’s Interstate highway system under the banner of its First Observer Highway Security Program, warrantless searches of cars driving near the Port of Brownsville in Texas and on a trolley in San Diego, posting up to perform searches on the subway systems in Chicago andMinneapolis andsearches of passengers riding on the Amtrak train after their train ride was already over in Savannah, Georgia, including a 9-year-old child.

And those are the ones reported by the media. But in 2011, then-TSA Administrator John Pistole testified before a U.S. Senate committee that VIPR teams had actually conducted thousands of operations in that year alone.

“TSA conducted more than 8,000 VIPR operations in the past 12 months, including more than 3,700 operations in mass transit and passenger railroad venues,” Pistole testified at the time.

All of these developments came under fire by the American Civil Liberties Union, as well as by a member of Congress. In 2013, U.S. Rep. Scott Garrett (R-NJ) called for the abolition of VIPR teams, due to constitutional concerns he expressed in an opinion piece he published.

“The TSA VIPR program does not promote security but rather security theater,” wrote Garrett. “The TSA’s mission creep from the limited scope of air travel to every conceivable mode of transportation, as well as large events, is an unconstitutional violation of the Fourth Amendment guarantee against unreasonable searches and impedes the ability of every American to travel freely. Actual threats to our security should be dealt with by law enforcement agencies at various levels of government.”

Garrett then introduced the Freedom of Travel Act in 2013 and 2015, which called for abolishing VIPR. The bill, though, died a slow death on Capitol Hill both times around the block and was lobbied against in 2015 by the airlines’ lobbying group, Airlines for America.

Greyhound, Congress Responds

But under the Trump Administration, VIPR may be defunded.

Congressional Democrats, many of whom decried civil liberties overreaches when President George W. Bush was President, are now fighting for increased funding for VIPR, something they also did under the presidency of Barack Obama in passing the 2016 FAA appropriations bill.

While the Trump Administration has proposed eliminating funding for VIPR in the U.S. Department of Homeland Security’s 2019 proposed budget, congressional Democrats have proposed a bill — the Surface Transportation and Public Area Security Act of 2017 (H.R. 4474) — which calls for continued appropriations for VIPR.

On March 22, the U.S. House of Representatives voted nearly unanimously in support of that bill in a 409-5 vote, with 15 abstaining, and the bill is bound for the Senate. The office of U.S. Rep. Debbie Wasserman-Schultz (D-FL), former chairwoman of the Democratic National Committee until her 2016 resignation, launched a letter-writing campaign in support of the bill’s passage just weeks before that vote took place, according to the website DearColleague.us. Similarly, in the Senate, U.S. Sen. Maria Cantwell (D-WA) and 11 other Democrats called for DHS to reverse course on VIPR in a March 15 letter.

“We write to express concern with the Department of Homeland Security’s (DHS) Fiscal Year 2019 Budget proposal to eliminate Visible Intermodal Prevention and Response (VIPR) teams,” their letter reads. “As you are aware, VIPR teams serve as a critical element of the Transportation Security Administration’s (TSA) layered approach to securing our nation’s transportation systems.”

Cantwell’s office, through spokesman Reid Walker, told Criminal Legal News that “we don’t have a comment at the moment” on civil liberties and criminal justice procedural concerns raised about the VIPR program. Wasserman-Schultz, in a press statement provided by her spokesman, said her support for VIPR was contingent on a “balance” between the need for beefed-up security at transit hubs and a respect for civil liberties.

“We face the ever-increasing threat of mass casualties at our major transportation hubs. Having witnessed the aftermath of a mass shooting that killed five people in my hometown airport last year, I know firsthand that such threats exist. However, the pursuit of security must not trample the individual rights we mean to preserve,” said Wasserman-Schultz. “My push to adequately fund this program includes a desire to provide robust training programs to ensure that both our civil liberties and personal safety are protected. As with all types of law enforcement, we must be vigilant in pursuing that balance.”

Though it did not cite Bostick or Drayton in its decision, Trump’s DHS did say in its justification for this budget line-item that VIPR could be cut because local- and state-level law enforcement agencies already have the ability to do — and will continue to do — what VIPR was doing.

“TSA has determined these teams duplicate the efforts of State and Local law enforcement agencies,” reads the budget justification. “This proposed reduction is not expected to impact performance. State and local law enforcement agencies will continue to provide a presence at the same locations where VIPR teams would have deployed.”

Bostick Redux

Ironically enough, 12 state-level chapters of the ACLU have argued that Bostick could actually be cited by Greyhound as a means to tell the Customs and Border Patrol agency that they do not have the right to board buses and conduct warrantless searches. The ACLU cited the landmark 1991 case in a March 2018 letter written to Greyhound’s legal counsel.

“CBP does not even claim to have probable cause for each of its bus raids, and, as with any person or entity, Greyhound is not obligated to legitimize such raids through its consent,” wrote the ACLU, pointing to the language in the Bostick case reading “an individual may decline an officer’s request without fearing prosecution.” The “individual” in this case would be the company Greyhound.

Greyhound for its part, told Criminal Legal News that: “While we are required to comply with the law by allowing Border Patrol agents to board our buses when they ask to do so, we do not support or coordinate these searches, nor are we happy about them,” further explaining through its senior communications specialist, Lanesha Gipson, that: “We understand that this practice negatively impacts our customers, and have started conversations with the Border Patrol to determine if there is anything that can be done to balance the enforcement of federal law with the dignity and privacy of our valued customers. Greyhound is a private company caught in the middle of an issue that is not in our control.”

When asked about the ACLU’s argument, Gipson argued that the ruling does not apply to it as a private company.

“We believe [that in Bostick] an individual has the ability to decline an officer’s request without fearing prosecution, may refer to our customers as individuals, not Greyhound as a company,” said Gipson. “Our union drivers face arrest and fines for obstructing these agents, and we would not want to put their safety, or the safety of our passengers at risk by attempting to physically stop a federal agent.”

But David Loy, legal director of the ACLU’s Foundation of San Diego & Imperial Counties, told Criminal Legal News that he believes that, contrary to what Greyhound says, the company can assert its Fourth Amendment rights as a matter of business policy. It has simply chosen, instead, not to do so.

“As the Supreme Court held over 40 years ago in the case Almeida-Sanchez v. United States (1973), no statute or regulation can trump the Fourth Amendment. At bus stations or in roving stops, Border Patrol can’t board or search a motor vehicle without probable cause or consent,” said Loy. “The company can and should notify Border Patrol that it does not consent to search of its buses. Drivers can be protected by instructing them not to obstruct Border Patrol agents if they board anyway, but the company should not give away its constitutional rights.”

The lesson from all of this is actually pretty simple: It’s up to you to know and assert your Fourth Amendment rights. Because companies like Greyhound and law enforcement are counting on and hoping for, it seems, the opposite.

Sources: https://www.washingtonpost.com; https://www.law.cornell.edu; https://www.aclu.org; https://www.legacy.com; https://www.latimes.com; https://caselaw.findlaw.com; https://supreme.justicia.com; https://poseidon01.ssrn.com; https://washingtonpost.com; https://www.gpo.gov; https://www.youtube.com; https://www.nbcsandiego.com; https://web.archive.org; http://chicagoist.com; https://blogs.mprnews.org; https://www.aclu.org; https://www.breitbart.com; https://www.congress.gov; https://soprweb.senate.gov; https://dhs.gov; https://www.govtrack.us; https://clerk.house.gov; https://www.nyclu.org; https://cantwell.senate.gov; http://dearcolleague.us; http://docs.google.com