United States v. Drayton, 536 U.S. 194, 16 (2002)

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Cite as: 536 U. S. 194 (2002)

Souter, J., dissenting

invalid as a product of the illegal seizure. See Florida v. Royer, 460 U. S. 491, 507-508 (1983) (plurality opinion) ("[T]he consent was tainted by the illegality and . . . ineffective to justify the search"); id., at 509 (Powell, J., concurring); id., at 509 (Brennan, J., concurring in result).

Florida v. Bostick, 501 U. S. 429 (1991), established the framework for determining whether the bus passengers were seized in the constitutional sense. In that case, we rejected the position that police questioning of bus passengers was a per se seizure, and held instead that the issue of seizure was to be resolved under an objective test considering all circumstances: whether a reasonable passenger would have felt "free to decline the officers' requests or otherwise terminate the encounter," id., at 436. We thus applied to a bus passenger the more general criterion, whether the person questioned was free "to ignore the police presence and go about his business," id., at 437 (quoting Michigan v. Chesternut, 486 U. S. 567, 569 (1988)).

Before applying the standard in this case, it may be worth getting some perspective from different sets of facts. A perfect example of police conduct that supports no colorable claim of seizure is the act of an officer who simply goes up to a pedestrian on the street and asks him a question. See Royer, 460 U. S., at 497; see id., at 523, n. 3 (Rehnquist, J., dissenting). A pair of officers questioning a pedestrian,

in the first place"). While it is true that the Eleventh Circuit purported to address the question "whether the consent given by each defendant for the search was 'uncoerced and legally voluntary,' " 231 F. 3d 787, 788 (2000), elsewhere the court made it clear that it was applying the test in Florida v. Bostick, 501 U. S. 429 (1991), which is relevant to the issue of seizure, 231 F. 3d, at 791, n. 6. There is thus no occasion here to reach any issue of consent untainted by seizure. If there were, the consent would have to satisfy the voluntariness test of Schneckloth v. Bustamonte, 412 U. S. 218 (1973), which focuses on "the nature of a person's subjective understanding," id., at 230, and requires consideration of "the characteristics of the accused [in addition to] the details of the interrogation," id., at 226.


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