It is an elementary principle of law that persons may waive their constitutional rights. In Schneckloth v. Bustamonte[case]Schneckloth v. Bustamonte[Schneckloth v. Bustamonte] (1973), the Court held that, when a suspect is not in custody, the evidence obtained in a consensual search may be used in a criminal trial even when the suspect did not know that he could refuse to agree to the search. Encouraged by this ruling, some police officers routinely boarded buses or trains and asked individual passengers for permission to search their luggage. Using this technique, two officers found cocaine in a bag belonging to Terrance Bostick. The police claimed that they advised Bostick of his right to refuse the search, but he denied that he gave his permission. After the trial court denied Bostick’s motion to suppress the evidence, the Florida supreme court held that Bostick had been unconstitutionally seized because a “reasonable person” would not have felt free to leave the bus to avoid police questioning.Search and seizure;Florida v. Bostick[Florida v. Bostick]

By a 6-3 vote, the Supreme Court reversed the judgment. Justice Sandra Day O’Connor’sO’Connor, Sandra Day[OConnor, Sandra Day];Florida v. Bostick[Florida v. Bostick] majority opinion quoted earlier decisions holding that the police did not need reasonable suspicion in order to ask questions of a person in a public place and that such questioning did not constitute a seizure. Because there were many circumstances preventing Bostick from leaving the bus, O’Connor concluded that the legal issue was not whether a reasonable person would have felt free to leave but rather whether a reasonable person would have felt free to refuse to submit to the search. The “reasonable person test,” moreover, presupposes “an innocent person.” Thus, the Court remanded the case to the state courts for a reexamination of “all the circumstances” of the search in order to decide whether Bostick had given his consent voluntarily.

Expanding upon Bostick in Ohio v. Robinette[case]Ohio v. Robinette[Ohio v. Robinette] (1996), the Court ruled that the police are not required to inform motorists who are stopped for other reasons that they are “free to go” before their consent will be recognized as voluntary.

Automobile searches

Fourth Amendment

Search warrant requirement

Terry v. Ohio