Dissenting:
The majority rests its conclusion on the proposition that the encounter on the bus was an unlawful seizure. I respectfully dissent.
Within this nation there is an enduring tension between the common needs of all and the separate and distinct needs of individuals. ' The facts of this case reflect this tension. The Nation has made trafficking in certain drugs illegal. Nonetheless, many persons wish to acquire and use drugs. Inevitably, an illicit market in these drugs developed, staffed both by numerous lords and lackeys. The defendant in this case is but a lackey.
Our laws of search and seizure, which rest on the Constitution, protect not only the lords and lackeys of the illicit drug trade, but also by the fair and rigorous enforcement of these laws, the Constitution and the collective will of the people.
The search and seizure law under the Constitution draws a fine between the practices in law enforcement which are constitutional and those which are not. In so doing, a just balance between the interest of the Nation and of those engaged in the illicit drug traffic must be struck. Not even judges always agree on what constitutes such a balance. This is one of those cases.
The case most relevant is Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). At page 437-38, the Supreme Court observed:
The facts of this case, as described by the Florida Supreme Court, leave some doubt whether a seizure occurred. Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage — so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the Florida Supreme Court indicate that the officers did not *919point guns at Bostick or otherwise threaten him and that they specifically advised Bostick that he could refuse consent.
Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact — that the encounter took place on a bus — rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bos-tick’s argument that he must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the “reasonable person” test presupposes an innocent person, (emphasis added).
This quotation makes clear that the analysis of the coercive effect of the words spoken by the officers should be measured by their effect on an “innocent” person. The majority analysis, however, measures their effect on the “guilty” person.1
Although the majority acknowledges that in this case the officers advised the passengers they were not under arrest and were “free to leave” the bus, it discounts its significance because of its creation of a risk peculiarly dangerous to a drug courier while also irksome to an innocent passenger. See p. 916, Majority Opinion. The announcement, while not perfect, was at least effective in reducing the anxiety of the innocent passengers. Nevertheless, the majority seeks to destroy the effectiveness of the announcement by a pointing to the “cramped confines” of the bus and the presence of two officers questioning passengers while a third “guarded” the door. Bostick does not justify such a conclusion.
The “cramped confines of a bus” is only one factor in determining whether a seizure was unlawful. Other factors include (1) whether the police specifically advised the defendant that he had a right to refuse consent; (2) whether the police used authoritative language or tone of voice to indicate that compliance was required; (3) whether the officers threatened the defendant with a gun or otherwise; and (4) the number of agents present and their proximity to the defendant. See Bostick, 501 U.S. at 432, 437, 111 S.Ct. 2382; United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (authoritative language or tone of voice); Orhorhaghe v. INS, 38 F.3d 488, 494 (9th Cir.1994) (number of agents and their proximity).
The encounter between Stephens and the officers under Bostick did not constitute a seizure. Stephens had three choices: either to truthfully respond to Officer Risley’s question inquiring whether he had any baggage, to deny that he had baggage, or to ignore the question and say nothing.2 Had he chosen to remain silent *920it is likely that after all other passengers had denied ownership of the bag that it would have been removed from the bus to facilitate a dog sniff. Following an alert, Stephens very likely would have been arrested.
Of course, an innocent person who does not wish to consent to a search of his bag would not deny ownership of the bag. Rather, he would claim ownership of the bag and simultaneously withhold his consent to search it. Stephens could have done so and the STING officers lawfully could have done nothing further at that time. However, he likely feared the consequences of accepting ownership of the bag and thus abandoned it. This behavior is not consistent with the behavior of an innocent person, but rather that of a guilty person.
This merely illustrates the effectiveness of the technique employed by law enforcement officials. An innocent person may be inconvenienced but a guilty person frequently will give himself away. The inconvenience of the innocent does not turn the encounter into an unlawful seizure. An innocent person under these circumstances would not feel threatened by a simple question regarding ownership of a bag. As Florida v. Bostick makes clear, it is only when the “innocent” feel compelled to cooperate that the encounter runs afoul of the Fourth Amendment. Stephens put himself in a vulnerable position when he undertook to transport by bus such a large quantity of drugs. It was the drugs that he undertook to transport, not the conduct of the police, that led him to deny his ownership of the bag.
It can be argued that the actions of the officers in this case are inherently dangerous to the safety of all passengers seated on the bus and thus should be unconstitutional per se. The thought is that the suspect may attempt to bolt and that any response by the officers possibly would place the innocent in danger. The argument is not baseless; however, Bostick suggests that so long as the police aboard the bus conduct themselves politely and respectfully the procedure employed in this case was not unconstitutional.
Similar concerns about the safety of innocent passengers have prompted the distinction between instances in which the officers had no suspicion of any wrongdoing before boarding the bus and those in which suspicion previously had been aroused prior to the boarding. In the latter case, the officers would be required under the Constitution, it is argued, either to attempt to make the arrest prior to boarding or to forgo further efforts to arrest at that location. The Bostick Court could have so stated but it failed to do so. I see no sufficient reason to anticipate such a result.
I would affirm the conviction.
. The majority attempts to refute this assertion by claiming that "no passenger, innocent or guilty, would have felt free to refuse to answer the officers questions while remaining on the bus.” Majority opinion at 917, n. 2. However, their assertion overestimates the sense of terror that innocent people would have when asked simple questions. Thus, the majority’s portrayal of the innocent passengers is akin to Robert Burns’ portrayal of the mouse as a "Wee, sleekit, cow’rin, tim’rous beastie.” Robert Burns, To a Mouse: On Turning Back Her Nest with a Plough, November 1785, in The Golden Treasury of the Best Songs and Lyrical Poems in the English Language (Francis Turner Palgrave ed., London, MacMillan 1875). I respectfully disagree with this portrayal.
. There exists no requirement under existing Supreme Court decisions that a Miranda-like warning incorporating the advice that all passengers, including the defendant specifically, could stay on the bus and refuse to answer any questions. Nor should there be such a requirement. Its existence might well require that all baggage of bus passengers routinely be submitted to canine sniffs before departure. This presently appears to be unnecessary. The general public quite reasonably looks to law enforcement officials to enforce the law with minimum inconvenience to it. *920The facts of this case strongly suggest that present practices achieve that end.