(dissenting). I respectfully dissent from the opinions of the majority in this matter.
*251The majority concludes that the defendant’s liberty was sufficiently restrained to implicate his Fourth Amendment rights. I feel that the majority misapprehends the current constitutional standard and mischaracterizes the police conduct at issue.
This matter is controlled by federal law. People v Faucett, 442 Mich 153, 157-158; 499 NW2d 764 (1993). In Florida v Bostick, 501 US 429, 439; 111 S Ct 2382; 115 L Ed 2d 389 (1991), the United States Supreme Court stated:
[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.
It cannot be overemphasized that "the 'reasonable person’ test presupposes an innocent person.” Id. at 438 (emphasis in original). Furthermore, "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.” Id. at 437.
In applying this standard, the majority emphasizes that "the detective failed to advise the defendant that he had the right to refuse consent.” Ante at 244. No such advice is constitutionally required:
While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the *252response. [Immigration & Naturalization Service v Delgado, 466 US 210, 216; 104 S Ct 1758; 80 L Ed 2d 247 (1984).]
The determination of the voluntariness of a defendant’s consent does not
turn]] on the presence or absence of a single controlling criterion; each [case requires] ... a careful scrutiny of all the surrounding circumstances. . . .
[Knowledge of the right to refuse consent is one factor to be taken into account, [but] the government need not establish such knowledge as the sine qua non of an effective consent. [Schneckloth v Bustamonte, 412 US 218, 226-227; 93 S Ct 2041; 36 L Ed 2d 854 (1973).]
The majority concludes that the "repetitive, potentially incriminating questions undoubtedly would lead a reasonable person to believe that he was less able to terminate the encounter.” Ante at 244. In fact, the right of
police officers [to] approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions ... is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado1 are just a few examples. [Bostick, supra at 401.]
Furthermore, the detective’s questioning was not objectionably repetitive.
When he approached the defendant, the detective was dressed in casual clothes and his weapon *253was not visibly displayed. He immediately identified himself to the defendant as a police officer, showing him his picture identification and badge. He first asked the defendant if he could speak with him. He then asked the defendant if he was carrying any weapons, and the defendant said he was not. At the same time, the detective noticed that the defendant’s hands were shaking, his feet were tapping on the ground, he could not sit still in his seat, he seemed almost on the brink of crying, and he appeared to be concealing something with his hand in the duffle bag on the seat next to him. Because of this furtive behavior, the detective again asked the defendant if he had any weapons, and again the defendant said no. The detective then asked if he could look in the defendant’s bag. The defendant replied that he did not see the reason for the detective’s request, and the detective told him the reason: that he felt the defendant had something illegal in the bag and that the defendant should be honest with him. The defendant then stated that he had a weapon in the bag, specifically, a gun.
In Bostick, two police officers in full uniform, and one of them holding a zipper pouch clearly containing a pistol, approached a passenger on a bus. In this case, there was only one police officer, he was dressed in casual clothes, and his pistol was not visible. It is true that, unlike in Bostick, the defendant was not specifically advised that he had the right to refuse consent. However, as discussed above, this is not required. The majority relies on the assertion that "the detective was standing over the defendant and between the defendant and the bus door.” Ante at 244. The detective’s testimony, however, was that he was standing next to the seat in front of the defendant. He was not directly alongside the defendant’s seat, *254blocking access to the aisle. More importantly, as the Bostick Court specifically noted and the majority in the instant case concedes, the restriction of a passenger’s freedom of movement on a bus is not the product of police conduct; it is merely an inherent consequence of being a passenger on a bus. Id. at 435-436.
The majority relies on two federal appellate cases to support its interpretation of Bostick. Both cases are factually dissimilar from the case at bar and, in fact, evidence by comparison how unobtrusive the detective’s conduct was. In United States v Wilson, 953 F2d 116 (CA 4, 1991), the defendant allowed a police officer, who was accompanied by two other police officers, to search his person and his carry-on bag in an airport terminal. The defendant, however, refused permission to search two coats he was carrying and began to walk away. The police officer walked alongside the defendant and persisted in asking to be allowed to search the coats. The defendant replied in an angry tone that he was being harassed and continued to refuse permission to search the coats. When asked if he would accompany the police officers to the police station so that a drug-sniffing dog could examine the coats, the defendant said no and again proceeded toward the exit. The police officer continued to walk alongside the defendant and asked if he could just pat down the coats. Two of the police officers persisted in asking the same question even after the defendant had left the building and, ultimately, the defendant agreed to allow them to search the coats. Crack cocaine was found in the pocket of one of the coats and the defendant was arrested after a chase. Id. at 118-120. The district court denied the defendant’s motion to suppress the evidence, concluding that "a stop or seizure had occurred, but that it was founded on 'reason*255able suspicion or probable cause.’ ” Id. at 120. Citing Bostick, the Fourth Circuit Court of Appeals concluded that the defendant was seized within the meaning of the Fourth Amendment:
The officer’s prolonged and persistent questioning after the suspect had conveyed an unequivocal unwillingness to engage in further conversation with the officer is the type of conduct that is proscribed by the Fourth Amendment. [Wilson, supra at 123].
The court relied on the following facts: that the defendant continuously said that the police were stopping him and harassing him; that the defendant refused the officer’s requests in an angry tone and on numerous occasions was asked by the officers to lower his voice; and, most importantly, that the police persisted with the same questions even after the defendant attempted to terminate the encounter on at least four occasions. Id. The court also distinguished its case from "a case heavily relied upon by the government” in which "there was no effort whatsoever by the suspect to terminate the police-initiated encounter.” Id. at 123, n 2.
In the other case relied on by the majority, United States v Bloom, 975 F2d 1447 (CA 10, 1992), two police officers, one in uniform and visibly armed, the other in plainclothes with his weapon concealed, questioned the defendant from the hallway outside his small private train compartment. The officers examined the defendant’s ticket and identification and asked him if he had any drugs in his luggage. The defendant stated that he did not. When asked if he would voluntarily consent to a search of his luggage, the defendant said no, stating that his mother’s remains, which he was transporting for burial, were inside. *256Subsequently, one of the police officers questioned a train attendant, who confirmed that the defendant had told him to be very careful with his luggage because his mother’s remains were inside. The officer then made inquiries at the ticket office and the defendant’s story was again corroborated. Despite this, the officers returned to the defendant’s compartment and questioned him again. After eliciting a discrepancy in the defendant’s story, one of the officers seized the defendant’s suitcases over his objection. The results of a canine sniff indicated the presence of contraband, the defendant was arrested, and, after a warrant was obtained, a search of the luggage uncovered marijuana. Id. at 1449. The district court denied the defendant’s motion to suppress the evidence, concluding that the defendant had not been seized and that he voluntarily had provided the information requested by the police officers. In reversing the decision of the district court, the Tenth Circuit Court of Appeals held that "the location of the encounter in the confines of a small private train compartment” was a "critical factor [that] weighed heavily in our analysis.” Id. at 1453. The court specifically noted that a person traveling in a private train compartment has a higher expectation of privacy than an individual traveling in a public passenger car of the train. Id. at 1453, n 6. The court also distinguished a private train compartment from the public passenger section of a bus, the location of the encounter in Bostick. Bloom, supra at 1453-1454, n 7. The court cited two other factors in support of its conclusion that the defendant had been seized: there were two police officers, and one of them was in uniform and visibly armed. Id. at 1454. Finally, the court acknowledged that "[t]he Supreme Court has recognized that the failure to [advise a defendant that *257he is free to terminate the encounter] does not necessarily eliminate the consensual nature of the encounter.” Id. at 1454-1455. "Nonetheless, [the court] afforded this factor 'greater weight’ . . . because the encounter occurred in a nonpublic setting.” Id. at 1455.
In the case at bar, unlike in Wilson, the defendant did not refuse numerous requests, did not accuse the detective of harassing him, and made no effort to terminate the encounter. And, unlike in Bloom, the defendant did not expressly deny the detective’s request to look in his bag; his response to the request, that he did not see any reason for it, actually indicates that the defendant understood that he was free to refuse the request. Furthermore, far from expressing an unequivocal desire to terminate the encounter, the defendant’s response actually invited the response from the detective.
The circumstances of this encounter would not have led a reasonable innocent person to believe he was not free to decline the detective’s request or otherwise terminate the encounter. More significantly, this particular defendant does not appear to have so believed. The detective’s conduct was not the type of conduct that is proscribed by the Fourth Amendment.
The concurrence’s evocation of notoriously repressive regimes is emotionally compelling but analytically impotent. References to dragnet-style sweeps by groups of police officers and " 'other days, under other flags, when no man traveled his nation’s roads or railways without fear of unwarranted interruption’ ” are wholly impertinent, given the actual facts of this case. Such bombast does little to assist in the serious analysis required here.
Obviously, the case law dealing with encounters *258between the police and citizens, with its fact-intensive analytical framework, does not provide mechanically applicable rules to be administered by lower courts. That very fact, however, makes it all the more important to heed the underlying balance of policy considerations articulated in Bostick, supra at 439:
If that war [i.e., the war on drugs] is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation.
In the instant case, the circuit court clearly erred in granting the defendant’s motion to suppress the evidence. The defendant was not seized within the meaning of the Fourth Amendment. I would reverse the circuit court’s order and allow the evidence to be used at trial.
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968); Florida v Royer, 460 US 491; 103 S Ct 1319; 75 L Ed 2d 229 (1983); Florida v Rodriguez, 469 US 1; 105 S Ct 308; 83 L Ed 2d 165 (1984); Immigration & Naturalization Service v Delgado, 466 US 210; 104 S Ct 1758; 80 L Ed 2d 247 (1984).