                                                                                          PUBLISH

                        IN THE UNITED STATES COURT OF APPEALS
                               FOR THE ELEVENTH CIRCUIT

                                         ---------------
                                         No. 97-2146
                                                                       FILED
                                         ---------------        U.S. COURT OF APPEALS
                              D. C. Docket No. 96-111-CR-J-99(S) ELEVENTH CIRCUIT
                                                                            08/28/98
                                                                         THOMAS K. KAHN
               UNITED STATES OF AMERICA,                                     CLERK

                                                                    Plaintiff-Appellee,

               versus

               WILLIE WASHINGTON,

                                                                    Defendant-Appellant.


                                          ---------------
                        Appeal from the United States District Court for the
                                    Middle District of Florida
                                          ---------------
                                        (August 28, 1998)

Before COX and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

       In this warrantless search of passengers traveling on an interstate bus, the government

relies upon the consent of the searched passengers to obviate the need for a warrant. After the

district court denied the defendant’s motion to suppress evidence obtained during the search, the

defendant was convicted at a bench trial of possession with intent to distribute cocaine, 21

U.S.C. § 841(a)(1). The only issue before us is whether the consent given by the defendant for

the search was uncoerced and legally voluntary. We hold that it was not and vacate the
conviction. In the discussion of this case, we parallel our opinion in a similar a case heard by a

different panel, United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998).

       The federal agents conducting this search did not inform the passengers that they were

not required to consent to the search. Although we reject the notion of a per se rule requiring

bus passengers to be informed of their constitutional rights, the facts and circumstances of this

search required some indication to passengers that their cooperation was voluntary rather than

mandatory. Because no such indication was provided, and because a reasonable person traveling

on this bus would not have felt free to ignore the search request, we hold that this search was

unconstitutional.

       For purposes of this appeal, we accept the findings of fact in the magistrate judge’s

report, and we interpret the record in the light most favorable to the government. At 6:50 on the

morning of August 5, 1996, two federal agents boarded a Greyhound bus making a scheduled

stop in Jacksonville, Florida. The bus was scheduled to depart at 7:00, and the driver was still in

the bus station. Special Agent Bruce Dean Savell of the Drug Enforcement Administration went

to the rear of the bus, and Agent James Andrew Perkins of the United States Border Patrol stood

at the front of the bus. Both agents were casually dressed, and their weapons were concealed in

fanny packs. Agent Perkins held his credentials and his badge over his head and made the

following announcement:

       Good morning, ladies and gentlemen. My partner and I are both federal agents
       with the United States Department of Justice. No one is under arrest or anything
       like that, we’re just conducting a routine bus check. When we get to you, if we
       could please see your bus ticket, some photo identification if you have some with
       you, please, and if you would please identify which bag[] is yours on the bus we’d
       appreciate it and we’ll be out of your way just as quick as we can.




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       Agent Perkins joined Agent Savell at the rear of the bus and they began making their way

forward, questioning passengers and asking them if they were carrying “drugs, weapons, large

sums of money or firearms.” The agents were careful to stand behind each passenger and not

block the aisles of the bus as they conducted their sweep. The record is unclear if any

passengers other than the defendant were actually searched.

       Willie Washington was sitting in the rear half of the bus on the driver’s side. He was

sitting in a window seat, and the aisle seat next to him was vacant. When Agent Perkins reached

him, Washington handed Agent Perkins a one-way ticket from Miami to Bamberg, South

Carolina, and a Georgia driver’s license. When Agent Perkins asked the defendant where he

lived, the defendant informed him that he lived in Miami. Washington also informed the agents

that he was not carrying any contraband with him. When Agent Perkins asked the defendant to

identify his luggage, Washington indicated a maroon bag on his lap. Agent Perkins asked

Washington if he could search the maroon bag, and Washington told him that it was alright and

handed him the maroon bag.

       As he handed the maroon bag to Agent Perkins, Washington reached over and retrieved a

white plastic bag from the floor and placed this bag on his lap. He hunched over his lap and

began moving his left hand under the plastic bag. Agent Perkins was suspicious of

Washington’s behavior. He asked Washington if Agent Savell could search the maroon bag, and

when the defendant consented, he handed the maroon bag to Agent Savell, who was standing

behind Agent Perkins. Agent Perkins asked Washington what was in the white plastic bag.

Washington told him that it contained potato chips and a soda. Agent Perkins asked for consent

to search the white plastic bag, and Washington handed it to him. Washington continued to


                                                3
crouch over, covering his lap as he gave Agent Perkins the white plastic bag. Agent Perkins then

noticed a tubular bulge extending underneath Washington’s pants beyond the normal length of a

pants pocket. Agent Perkins asked Washington if he could search his person, and Washington

consented. Agent Perkins felt the bulge underneath Washington’s pants and found the bulge to

be consistent with previous seizures of cocaine and heroin he had made. He also noticed other

similar bulges concealed underneath Washington’s pants. At this point, Agent Perkins placed

Washington under arrest and escorted him off the bus. After conducting a more thorough search

outside the bus, Agent Savell discovered $3,500 worth of powder cocaine in six tubular packages

concealed in a homemade “apron” Washington wore underneath his pants.

       In Florida v. Bostick, the Supreme Court reversed a Florida Supreme Court decision

which adopted a per se rule prohibiting police from randomly boarding buses and questioning

passengers as a means of drug interdiction. Florida v. Bostick, 501 U.S. 429 (1991). The

Supreme Court had previously held that the Fourth Amendment permits officers to approach

individuals at random in airport lobbies and other public places to ask 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. See Florida v. Royer, 460 U.S. 491, 502 (1983); United States v.

Mendenhall, 446 U.S. 544, 554 (1980). In Bostick, the Court simply held that the rule applies

equally to police encounters that take place on buses. It rejected the “free to leave” rubric that

has been articulated for street encounters because a passenger may well not want to leave the bus

because he or she wants to go when the bus goes, so that factors other than the police encounter

would dilute the application of the “free to leave” determination. It held that the appropriate

inquiry is whether under “all the circumstances surrounding the encounter . . . the police conduct


                                                 4
would have communicated to a reasonable person that the person was not free to decline the

officers’ requests or otherwise terminate the encounter.” Id. at 439 (1991).     It held that the

fact the encounter is in the cramped confines of a bus is but one factor to be taken into

consideration, rather than the sole consideration given by the Florida court.

       In Bostick, the Supreme Court found two facts “particularly worth noting. First, the

police specifically advised Bostick that he had the right to refuse consent. . . . Second, at no time

did the officers threaten Bostick with a gun.” Bostick, 501 U.S. at 432. In this case, although

Agent Perkins did not threaten Washington with a gun, he also did not inform Washington that

he had a right to refuse consent. In both of our reported bus search cases prior to Quapi, the

police officers involved also specifically informed individual passengers that they had a right to

refuse any search and that cooperation with law enforcement efforts was voluntary. United States

v. Fields, 909 F.2d 470, 472 (11th Cir. 1990); United States v. Hammock, 860 F.2d 390, 392

(11th Cir. 1988).

       The Supreme Court has steadfastly rejected the notion of imposing per se rules on police

officers conducting warrantless searches. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996);

Bostick, 501 U.S. at 435-37 (1991). The Court has specifically rejected the notion that police

officers must always inform citizens of their right to refuse when seeking permission to conduct

a warrantless consent search. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). It is

enough that the circumstances themselves would indicate that the search can proceed only if

consent is given. Looking at the circumstances of this case, we feel that a reasonable person in

the defendant’s position would not have felt free to disregard Agent Perkins’ requests without

some positive indication that consent could have been refused.


                                                 5
       The Constitution does not permit police officers, without probable cause or reasonable

suspicion, to restrain the liberty of American citizens. The well-established test is that if, by

physical force or show of authority, a reasonable citizen would not believe that he is free to

ignore police questioning and go about his business, he has been unconstitutionally seized.

Bostick, 501 U.S. at 439; Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“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.”). There is no doubt in this case that the

encounter began with a “show of authority,” because Agent Perkins held his badge above his

head and identified himself as a federal agent. He announced what he wanted the passengers to

do, and what he was going to do. Absent some positive indication that they were free not to

cooperate, it is doubtful a passenger would think he or she had the choice to ignore the police

presence. Most citizens, we hope, believe that it is their duty to cooperate with the police.

       Unlike the searches in Robinette and Schneckloth, in this case the agents conducting the

search stated no legitimate reason to detain any passengers on the bus. In both Robinette and

Schneckloth, police obtained consent to search a vehicle only after lawfully detaining the

occupants pursuant to a traffic stop. See Robinette, 117 S. Ct. at 421; Schneckloth, 412 U.S. at

220.

       It seems obvious to us that if police officers genuinely want to ensure that their

encounters with bus passengers remain absolutely voluntary, they can simply say so. Without

such notice in this case, we do not feel a reasonable person would have felt able to decline the

agents’ requests.




                                                  6
       At the suppression hearing, the defendant here testified that “in a way I was like about a

citizen, like respect the police. If they ask you for something, order, I was following they order,

just being a citizen, respecting the law.” While we understand that the test is objective, a

reasonable person sitting in the defendant’s position should feel the same way. This search,

conducted in the cramped quarters of an interstate bus, was consciously designed to take full

advantage of a coercive environment. A federal agent boarded a bus, held a badge over his head,

and asked to see the defendant’s ticket and identification. Then the agent asked to search the

defendant’s belongings and person. Under these circumstances, the typical bus passenger would

not feel free to refuse the requests, but would consider these “requests” to be orders backed by

the full force of the United States government. Therefore, we hold that this search violated the

Fourth Amendment’s prohibition against unreasonable searches and seizures.

       VACATED AND REMANDED.




BLACK, Circuit Judge, dissenting:


                                                 7
       In my view, the majority opinion establishes a per se rule that authorities must notify bus

passengers of the right to refuse consent before questioning those passengers and asking for

consent to search luggage. The Supreme Court has consistently rejected per se rules in the

Fourth Amendment context. See, e.g., Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996),

and Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382 (1991). In Bostick, 501 U.S. at 439-40,

111 S. Ct. at 2389, the Supreme Court noted that Fourth Amendment challenges are judged by

the totality of the circumstances surrounding the encounter and accordingly determined that the

Florida Supreme Court erred by adopting a per se rule that searches are unconstitutional solely

because they take place within the confines of a bus. In Robinette, the Court rejected a per se

rule that officers must inform a lawfully seized defendant of his right to refuse before asking for

consent to search his vehicle as antithetical to the “traditional contextual approach.” Robinette,

519 U.S. at __, 117 S. Ct. at 421. Although it acknowledges the Supreme Court’s admonition

against per se rules, I suggest the majority opinion conflicts with that principle.

       The majority draws a parallel between this case and United States v. Guapi, 144 F.3d

1393 (11th Cir. 1998), another bus search case. In that case, the bus driver informed the

passengers, as the bus made a scheduled stop, that they would be required to exit the bus

temporarily. Before the passengers could do so, two officers boarded the bus. One of the

officers was in uniform. The uniformed officer announced that they wished to check on-board

cargo for contraband and announced to the passengers that he would like for them to open their

on-board luggage for visual inspection. The uniformed officer began conducting the searches

from the front of the bus. The officer blocked the aisle as he conducted the searches, so

passengers who had not been searched did not have a clear path to exit the bus. While the


                                                  8
uniformed officer conducted the searches, the second officer remained at the front of the bus.

The Guapi Court determined that a reasonable person in the position of the defendant in that case

would not feel free to refuse consent to search his luggage. The Court accordingly held that the

search was conducted in violation of the Fourth Amendment. I agree with the Guapi Court’s

conclusion. The totality of the circumstances in that case created the impression that a passenger

would be prevented from exiting the bus until he complied with the officers’ request to search

his luggage.

       This case presents facts that are very different from those in Guapi. In this case, the

officers conducted the search from the back of the bus moving forward, thereby leaving the aisle

free for ingress and egress. Neither of the officers was in uniform. Both officers remained

behind the passengers as they questioned them. There was no law enforcement officer at the

front of the bus. Furthermore, the officers asked each passenger only for his ticket and

identification; both of those items were returned immediately to the passenger after inspection.

The officers asked Washington individually for consent to search his luggage; there was no

instruction for all passengers to open their luggage and no indication that compliance was a

requirement for egress from the bus.

        Short of telling the passengers of the right to refuse consent, it is difficult to conceive of

any actions these officers could have taken to make this search any more reasonable. With this

case as precedent, it is not clear that there will ever be any set of circumstances under which this

Court can uphold a bus search if the officers do not inform the passengers of the right to refuse

consent. In my view, the majority opinion makes notification of the right to refuse consent a




                                                  9
requirement for a valid bus search. Although this may be a good policy, it departs from the

spirit, if not the letter, of Bostick and Robinette. For this reason, I respectfully dissent.




                                                  10
