Stevenson v. State

Springer, C. J.,

dissenting:

I see this case in an entirely different light from that of the *680majority. Interstate busses are being commandeered in Winne-mucca by small posses of lawmen (calling themselves Narcotics Task Forces). These posses interrogate and sometimes search bus passengers when the busses stop in Winnemucca. They call these forays “bus encounters,” and they admit to at least seventy-five of these boarding parties. In my opinion, these incursive boarding parties should be stopped because they are violative of state and federal constitutional prohibitions against unlawful searches and seizures.

The boarding party of four involved in this case was comprised of Investigator Craig Ronzone of the Nevada Investigations Division, Deputy Sheriff Dave Knopf, State Trooper Brent Harmon and a canine drug inspector named Katie. Each member of the posse had his or her special assignment. Investigator Ronzone was the first to board the bus and commandeer1 its passengers; he entered the bus and went to his command post at the rear of the bus. Deputy Sheriff Knopf (according to the State’s brief) was stationed at the door of the bus, “in [the] front of the bus close to the driver[’]s seat.” Trooper Harmon and Katie were posted outside of the bus near the entry door.

All members of the boarding party were armed (except Katie). Task Forcers Knopf and Harmon were in police uniform; Investigator Ronzone was not in uniform upon boarding the bus, but he immediately displayed his badge to the passengers, “so they could see it.”

After taking his post at the rear of the bus, Investigator Ron-zone (according to the State’s brief) announced to the passengers that he “was with the narcotic task force,” that he was searching for narcotics and that it was his intention to interrogate the passengers, or, as he put it “to take a few minutes of their time and talk to them.” Investigator Ronzone testified that he did not *681advise those being interrogated that they were free to leave or that they were not required to talk to him. It is clear to me that the bus passengers were “seized” at the time the Task Force commandeered the bus, rendering any evidence found thereafter inadmissible. The events that occurred after the bus was commandeered, including Mr. Stevenson’s claimed consent to having his bag sniffed by the police dog, then, have no bearing on the admissibility of the evidence taken from Mr. Stevenson’s bag.

“Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (emphasis added). In the context of this “bus encounter,” “the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 436. The test is not, of course, “whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” California v. Hodari D., 499 U.S. 621, 628 (1991).

The officers involved in this case clearly used a show of authority to elicit cooperation from the passengers, as evidenced by Investigator Ronzone’s statement that he displayed his badge to the passengers “so they could see it.” In addition, the officers’ tactical positions, with one armed officer at the rear of the bus, another at the only entry/exit of the bus, and a third with a police dog just outside the bus, makes it rather clear that the officers intended to exercise control over the bus and its passengers. The passengers on the commandeered bus did not “feel free to decline the officers’ requests or otherwise terminate the encounter” under such circumstances. Stevenson, himself, obviously, did not feel free to terminate his encounter with the boarding party, or he would not have agreed to have his bag “sniffed” by Katie (if, indeed, he did so consent).

Although the United States Supreme Court declined to rule that the bus sweeps at issue in Bostick were necessarily unconstitutional, under the circumstances attendant to the present case, the manner in which the bus was commandeered and the passengers sequestered exceeds the scope of permissible search and seizure.2

*682The bus-boarding here exceeds the scope of permissible search and seizure under the Nevada Constitution. See Barrios-Lomeli v. State, 113 Nev. 952, 957, 944 P.2d 791, 794 (1997), petition for reh'g pending, (although the United States Supreme Court abandoned the exigency requirement for warrantless search of automobile, Nevada declines to do so).

I am convinced that any citizen, any reasonable person, would have felt that the passengers’ movements were restricted by this boarding party. It may be, as contended by the State, that Investigator Ronzone did not intend “to block [Mr. Stevenson’s] ability to leave the bus at any time, that no guns were pulled and that he asked the same type of questions to each passenger”; but this does not alter the conclusion that any reasonable person would have considered himself or herself restrained by the four members of this boarding party and not free to leave once the bus was boarded and surrounded.

I dissent because I believe that these boarding parties, at least as they are currently being conducted, are illegal, and because I believe that Mr. Stevenson was subject to an unlawful search and seizure. I am worried about this practice because innocent passengers should not be subjected to systematic violation of their constitutional rights in the hope that a drug courier might occasionally be apprehended. This court should condemn the practice and reverse the district court’s order denying the motion to suppress.

“Commandeer” seems like the correct description of the Task Force’s incursion. The inspector testified that he boarded the bus, “pulled out [his] badge” and then engaged in some “consensual talk with the passengers on the bus, looking for a controlled substance . . . .”

After the time that the inspector announced that he was looking for contraband and that he was going to question the passengers about controlled substances, the passengers certainly were not, as claimed by the inspector, “free to do whatever they want[edj.”

The inspector’s conclusory testimony that people were “free” to leave the bus while he was interrogating them and his reply in answer to a leading question that passengers were actually “leaving [and] getting on and off the bus” does not persuade me that the passengers had not been “seized” at the time the officer was conducting his search for “controlled substancefs].” The officer’s telling passengers, in effect, “I am a narcotics officer. I am looking for narcotics and I want to question you,” cannot be taken as an invitation to leave the bus at will.

I note that the defendant in Bostick, unlike Stevenson, was “specifically advised . . . that he could refuse consent.” Id. at 437. I do not contend that the officers’ not informing Stevenson of a right to refuse to consent is alone dispositive of this case, but this does suggest the failure to advise him of this right would make a reasonable person even more inclined to believe that he was under the officers’ dominion and control.