dissenting:
In my view, the majority opinion establishes a per se rule that authorities must
*1358notify bus passengers of the right to refuse consent before questioning those passengers and asking for consent to search luggage. The Supreme Court has consistently rejected per se rules in the Fourth Amendment context. See, e.g., Ohio v: Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), and Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L,Ed.2d 389. (1991). In Bostick, 501 U.S. at 439-40, 117 S.Ct. at 2389, the Supreme Court noted that Fourth Amendment challenges are judged by the totality of the circumstances surrounding the encounter and accordingly determined that the Florida Supreme Court erred by adopting a per se rule that searches are unconstitutional solely because they take place within the confines of a bus. In Robinette, the Court rejected a per se rule that officers must inform á lawfully seized defendant of his right to refuse before asking for consent to search his vehicle as antithetical to the “traditional contextual approach.” Robinette, 519 U.S. at •-, 117 S.Ct. at 421. Although it acknowledges the Supreme Court’s admonition against per se rules, I suggest the majority opinion conflicts with that principle.
The majority draws a parallel between this case and United States v. Guapi, 144 F.3d 1393 (11th Cir.1998), another bus search case. In that case, the bus driver informed the passengers, as the bus made a scheduled stop, that they would be required to exit the bus temporarily. Before the passengers could do so, two officers boarded the bus. One of the officers was in uniform. The uniformed officer announced that they wished to check on-board cargo for contraband and announced to the passengers that he would like for them to open their on-board luggage for visual inspection. The uniformed officer began conducting the searches from the front of the bus. The officer blockéd the aisle as he conducted the searches, so'passengers who had not been searched did not have a clear path to exit the bus. While the uniformed officer conducted the searches, the second officer remained at the front of the bus. The Guapi Court determined that a reasonable person in the position of the defendant in that case would not feel free to refuse consent to search his luggage: The Court accordingly held that the search was conducted in violation of the Fourth Amendment. I agree with the Guapi Court’s conclusion. The totality of the circumstances in that case created the impression that a passenger would be prevented from exiting the bus until he complied with the officers’ request to search his luggage.
This case presents facts that are very different from those in Guapi. In this case, the officers conducted the search from the back of the bus moving forward, thereby leaving the aisle free for ingress and egress. Neither of the officers was in uniform. Both officers, remained behind the passengers as they questioned them. There was no law enforcement officer at the front of the bus. Furthermore, the officers asked each passenger only for his ticket and identification; both of those items were returned immediately to the passenger after inspection. The officers asked Washington individually for consent to search his luggage; there was no instruction for all passengers to open then-luggage and no indication that compliance was a requirement for egress from the bus.
Short of telling the passengers of the right to refuse consent, it is difficult to conceive of any actions these officers could have taken to make this search any more reasonable. With this case as precedent, it is not clear that there will ever be any set of circumstances under which.this Court can uphold a bus search if the officers do not inform the passengers of the right to refuse consent. In my view, the majority opinion makes notification of the right to refuse consent a requirement for a valid bus search. Although this may be a good policy, it departs from the spirit, if not the, letter, of Bostick and Robi-nette. For this reason, I respectfully dissent.