The New Jim Crow_ Mass Incarceration in the Age of Colorblindness - Michelle Alexander [39]
Justice Douglas dissented in Terry on the grounds that “grant[ing] police greater power than a magistrate [judge] is to take a long step down the totalitarian path.”10 He objected to the notion that police should be free to conduct warrantless searches whenever they suspect someone is a criminal, believing that dispensing with the Fourth Amendment’s warrant requirement risked opening the door to the same abuses that gave rise to the American Revolution. His voice was a lonely one. Most commentators at the time agreed that affording police the power and discretion to protect themselves during an encounter with someone they believed to be a dangerous criminal is not “unreasonable” under the Fourth Amendment.
History suggests Justice Douglas had the better of the argument. In the years since Terry, stops, interrogations, and searches of ordinary people driving down the street, walking home from the bus stop, or riding the train, have become commonplace—at least for people of color. As Douglas suspected, the Court in Terry had begun its slide down a very slippery slope. Today it is no longer necessary for the police to have any reason to believe that people are engaged in criminal activity or actually dangerous to stop and search them. As long as you give “consent,” the police can stop, interrogate, and search you for any reason or no reason at all.
Just Say No
The first major sign that the Supreme Court would not allow the Fourth Amendment to interfere with the prosecution of the War on Drugs came in Florida v. Bostick. In that case, Terrance Bostick, a twenty-eight-year-old African American, had been sleeping in the back seat of a Greyhound bus on his way from Miami to Atlanta. Two police officers, wearing bright green “raid” jackets and displaying their badges and a gun, woke him with a start. The bus was stopped for a brief layover in Fort Lauderdale, and the officers were “working the bus,” looking for persons who might be carrying drugs. Bostick provided them with his identification and ticket, as requested. The officers then asked to search his bag. Bostick complied, even though he knew his bag contained a pound of cocaine. The officers had no basis for suspecting Bostick of any criminal activity, but they got lucky. They arrested Bostick, and he was charged and convicted of trafficking cocaine.
Bostick’s search and seizure reflected what had become an increasingly common tactic in the War on Drugs: suspicionless police sweeps of buses in interstate or intrastate travel. The resulting “interviews” of passengers in these dragnet operations usually culminate in a request for “consent” to search the passenger’s luggage.11 Never do the officers inform passengers that they are free to remain silent or to refuse to answer questions. By proceeding systematically in this manner, the police are able to engage in an extremely high volume of searches. One officer was able to search over three thousand bags in a nine-month period employing these techniques.12 By and large, however, the hit rates are low. For example, in one case, a sweep of one hundred buses resulted in only seven arrests.13
On appeal, the Florida Supreme Court ruled in Bostick’s case that the police officer’s conduct violated the Fourth Amendment’s prohibition of unreasonable searches and seizures. The Fourth Amendment, the court reasoned, forbids the police from seizing people and searching them without some individualized suspicion that they have committed or are committing a crime. The court thus overturned Bostick’s conviction, ruling that the cocaine, having been obtained illegally, was inadmissible. It also broadly condemned “bus sweeps” in the drug war, comparing them to methods employed by totalitarian regimes:The evidence in this case has evoked images