The New Jim Crow_ Mass Incarceration in the Age of Colorblindness - Michelle Alexander [40]
The U.S. Supreme Court reversed. The Court ruled that Bostick’s encounter with the police was purely voluntary, and therefore he was not “seized” within the meaning of the Fourth Amendment. Even if Bostick did not feel free to leave when confronted by police at the back of the bus, the proper question, according to the Court, was whether “a reasonable person” in Bostick’s shoes would have felt free to terminate the encounter. A reasonable person, the Court concluded, would have felt free to sit there and refuse to answer the police officer’s questions, and would have felt free to tell the officer “No, you can’t search my bag.” Accordingly, Bostick was not really “seized” within the meaning of the Fourth Amendment, and the subsequent search was purely consensual. The Court made clear that its decision was to govern all future drug sweeps, no matter what the circumstances of the targeted individual. Given the blanket nature of the ruling, courts have found police encounters to be consensual in truly preposterous situations. For example, a few years after Bostick, the District of Columbia Court of Appeals applied the ruling to a case involving a fourteen-year-old girl interrogated by the police, concluding that she must be held to the same reasonable-person standard.15
Prior to the Bostick decision, a number of lower courts had found absurd the notion that “reasonable people” would feel empowered to refuse to answer questions when confronted by the police. As federal judge Prentiss Marshall explained, “The average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse to answer.”16 Professor Tracey Maclin put it this way: “Common sense teaches that most of us do not have the chutzpah or stupidity to tell a police officer to ‘get lost’ after he has stopped us and asked us for identification or questioned us about possible criminal conduct.”17 Other courts emphasized that granting police the freedom to stop, interrogate, and search anyone who consented would likely lead to racial and ethnic discrimination. Young black men would be the likely targets, rather than older white women. Justice Thurgood Marshall acknowledged as much in his dissent in Bostick, noting “the basis of the decision to single out particular passengers during a suspicionless sweep is less likely to be inarticulable than unspeakable.”18
Studies have shown that Maclin’s common sense is correct: the overwhelming majority of people who are confronted by police and asked questions respond, and when asked to be searched, they comply.19 This is the case even among those, like Bostick, who have every reason to resist these tactics because they actually have something to hide. This is no secret to the Supreme Court. The Court long ago acknowledged that effective use of consent searches by the police depends on the ignorance (and powerless-ness) of those who are targeted. In Schneckloth v. Bustamonte, decided in 1973, the Court admitted that if waiver of one’s right to refuse consent were truly “knowing, intelligent, and voluntary,” it would “in practice create serious doubt whether consent searches would continue to be conducted.”20 In other words, consent searches are valuable tools for the police only because hardly anyone dares to say no.
Poor Excuse
So-called consent searches have made it possible for the police to stop and search for drugs just about anybody walking down the street. All a police officer has to do in order to conduct a baseless drug investigation is ask to speak with