United States v. Drayton, 536 U.S. 194, 20 (2002)

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

Souter, J., dissenting

when the police have told passengers they had a right to refuse (as the officers sometimes advised them), id., at 81-82. Nor is it fairly possible to see the facts of this case differently by recalling INS v. Delgado, 466 U. S. 210 (1984), as precedent. In that case, a majority of this Court found no seizure when a factory force was questioned by immigration officers, with an officer posted at every door leading from the work-place. Id., at 219. Whether that opinion was well reasoned or not, the facts as the Court viewed them differed from the case here. Delgado considered an order granting summary judgment in favor of respondents, with the consequence that the Court was required to construe the record and all issues of fact favorably to the Immigration and Naturalization Service. See id., at 214; id., at 221 (Stevens, J., concurring). The Court therefore emphasized that even after "th[e] surveys were initiated, the employees were about their ordinary business, operating machinery and performing other job assignments." Id., at 218. In this case, however, Brown and Drayton were seemingly pinned-in by the officers and the customary course of events was stopped flat. The bus was going nowhere, and with one officer in the driver's seat, it was reasonable to suppose no passenger would tend to his own business until the officers were ready to let him.

In any event, I am less concerned to parse this case against Delgado than to apply Bostick's totality of circumstances test, and to ask whether a passenger would reasonably have felt free to end his encounter with the three officers by saying no and ignoring them thereafter. In my view the answer is clear. The Court's contrary conclusion tells me that the majority cannot see what Justice Stewart saw, and I respectfully dissent.


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