United States v. Morris Wise , 877 F.3d 209 ( 2017 )

Case: 16-20808 Document: 00514262147 Page: 1 Date Filed: 12/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-20808
Fifth Circuit
FILED
December 6, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff–Appellant,
v.
MORRIS ALEXANDER WISE,
Defendant–Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before CLEMENT, PRADO, and HAYNES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
We REVERSE the district court’s decision to grant Defendant–Appellee
Morris Wise’s motion to suppress.
Wise was traveling on a Greyhound bus when police officers performed
a bus interdiction at a Conroe, Texas bus stop. Officers boarded the Greyhound,
and Wise aroused an officer’s suspicion. The officer questioned Wise about his
luggage. Two pieces of luggage were stored in the luggage rack above Wise’s
head. Wise claimed only one piece of luggage as his own; no one claimed the
second piece. The officers removed the unclaimed article from the bus, and they
determined that the luggage contained cocaine. The officers asked Wise to
leave the bus. He complied. Off the bus, officers asked Wise to empty his
pockets. He complied. Wise gave the officers an identification card with the
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name “Morris Wise” on it. He also gave the officers a lanyard with keys; one
key connected Wise to the backpack. The officers then arrested Wise.
Wise moved to suppress the evidence that officers found in his pockets.
Following a suppression hearing, the district court suppressed all evidence
obtained during the bus search. The district court found that the officers had
established an unconstitutional checkpoint stop. The court also concluded that
the bus driver did not voluntarily consent to the bus search.
I. BACKGROUND
A. Factual Background 1
On September 15, 2011, Conroe Police Department officers stationed
themselves at a Greyhound bus stop located in Conroe, Texas, in order to
perform bus interdictions. Bus interdictions typically involve law enforcement
officers boarding a bus to speak with suspicious-looking passengers. The
officers aim to discover individuals transporting narcotics, weapons, or other
contraband. If the officers suspect criminal activity, they ask a passenger for
his identification and boarding pass; they may also ask whether the passenger
has any luggage with him. During the interdiction, passengers may leave the
bus. They may also refuse to speak with officers.
That day, five Conroe Police Department officers were present at the
Greyhound bus stop. Four officers were dressed in plainclothes—civilian
clothes that do not include any markings of being a police officer—and
concealed their weapons and badges. The remaining officer, a uniformed
canine handler, was accompanied by a trained narcotics-detection canine.
1The district court did not make extensive findings of fact in either its suppression
order or opinion on suppression. The facts come primarily from the suppression hearing
testimony of two Conroe Police Department officers who questioned and subsequently
arrested Wise.
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That same day, Morris Wise traveled on Greyhound Bus #6408, which
departed Houston, Texas, bound for Chicago, Illinois. At around 8:00 a.m., the
bus made a scheduled stop at the Conroe station.
After the bus stopped, the driver disembarked. Conroe officers
approached the driver and asked for his consent to search the bus’s passenger
cabin. The driver gave his consent. Detectives Randy Sanders and Juan
Sauceda, veterans of the Conroe Police Department with narcotics interdiction
experience, boarded the bus. The two were dressed in plainclothes. The
remaining three officers waited near the bus. Detective Sauceda walked
toward the back of the bus, while Detective Sanders remained at the front. The
officers did not block the aisle.
Detective Sanders noticed Wise pretending to sleep, which he found
suspicious. In his experience, criminals on buses often pretend to sleep to avoid
police contact. Detective Sanders walked past Wise and turned around.
Detective Sanders looked back at Wise, only to see that Wise had turned to
look at him. Detective Sanders walked back toward Wise. The detective noticed
that Wise’s eyes were closed—but his eyelids were tightly clenched, and his
eyes darted back and forth beneath his eyelids.
Detective Sanders, standing directly behind the seat, asked to see Wise’s
ticket. Wise handed Detective Sanders his ticket. The name on the ticket was
“James Smith.” That aroused Detective Sanders’s suspicion; he thought this
“very generic name” may be fake. Detective Sanders returned the ticket to
Wise. He then asked whether Wise had any luggage. Wise said yes and
motioned to the luggage rack above his head. Wise “appear[ed] nervous.”
Two bags sat in the luggage rack above Wise’s head: a duffle bag and a
backpack that were “nestled together.” No other bags were nearby. Detective
Sanders asked Wise if he could search his bag. Wise stood, grabbed the duffle
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bag, and placed the bag on his seat. Detective Sanders then asked Wise if he
could look inside the bag. Wise agreed. The detective found nothing of interest.
Detective Sanders then asked Wise whether the backpack belonged to
him. Wise said no. Detective Sanders said, “Dude, it was right next to your
duffle bag. It’s right above your head. Are you sure that’s not your backpack?”
Again, Wise said no. Detective Sanders thought Wise appeared nervous: “It’s
hard to explain, but he’s not comfortable. . . . [H]e’s looking at me kind of like
the deer in the headlight look, like ‘Oh, crap.’”
Detective Sanders then asked in a loud voice whether the backpack
belonged to anyone on the bus. No one claimed the backpack. Detective
Sauceda, who had joined Detective Sanders, then asked loudly whether the
backpack belonged to anyone. No one claimed the backpack. Detective Sauceda
grabbed the backpack and again asked loudly whether it belonged to anyone.
No one claimed the backpack. He repeated the question one final time, showing
passengers the backpack while asking. Again, no one claimed the backpack.
Detective Sauceda grabbed the backpack and exited the bus. The
detective asked the bus driver whether he noticed who brought the backpack
onboard. The driver had not noticed. Detective Sauceda then told the bus
driver that no one had claimed the backpack, and he asked what to do. The
driver said he did not want any unclaimed luggage on his bus. The detectives
considered the backpack abandoned, so they complied with the bus driver’s
request and removed the backpack. Meanwhile, Wise remained seated on the
bus—even though no one had restrained him or told him to stay on the bus.
Off the bus, the detectives placed the backpack on the ground next to
bags that had been removed from the bus’s luggage compartment. The canine
handler then directed his dog to sniff the backpack and surrounding luggage.
The canine alerted to the presence of drugs in the backpack. The backpack was
locked with a small “TSA lock,” so the officers cut the lock to open the backpack.
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The officers discovered “seven small brick-type packages that were . . . all
wrapped in a white cellophane.” The detectives thought the packages
contained narcotics. They cut the smallest package open, and it contained
white powder that they believed to be cocaine.
After discovering the packages in the backpack, Detective Sanders re-
entered the bus. Standing near the driver’s seat, Detective Sanders motioned
and asked Wise—in a tone that “was a little bit elevated”—to come speak with
him off the bus. Wise “sa[id] something to the effect of, ‘Who? Me?’” Detective
Sanders said, “Yes, sir. Do you mind getting off the bus?” Wise complied and
exited the bus. Detective Sanders did not tell Wise that he could refuse to speak
to him or refuse to exit the bus.
Once off the bus, Detective Sanders identified himself to Wise. The
detective said that he worked in the Conroe Police Department’s narcotics
division. 2 He told Wise that the backpack above his head contained a substance
believed to be cocaine. In a conversational tone Detective Sanders asked Wise
whether he had any weapons. Wise said no. Detective Sanders then asked Wise
to empty his pockets. Wise complied. Among other items, Wise removed an
identification card that Detective Sanders asked to see. Wise gave him the
card. The card said “Morris Wise.” Wise also removed a lanyard with several
keys attached. Wise then put everything back in his pockets. The officers asked
Wise if he could again remove the items from his pockets. The officers then
asked to see Wise’s keys. Wise held out his hand, and Detective Sauceda took
the keys. 3 Detective Sauceda used a key to activate the locking mechanism on
2 While outside, Wise was never told by an officer that he could remain silent or refuse
to comply with their requests to empty his pockets.
3 Some testimony supports Wise’s contention that an officer removed the lanyard from
Wise’s pocket. However, this testimony is vague and is contradicted elsewhere in the record.
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the “TSA lock” that the officers had cut from the backpack. Detective Sanders
then arrested Wise.
B. Procedural Background
Wise was charged with two counts: (1) conspiracy to possess with intent
to distribute five kilograms or more of a mixture or substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii),
and § 846; and (2) possession with intent to distribute five kilograms or more
of a mixture or substance containing a detectable amount of cocaine, in
violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii).
On March 4, 2013, Wise filed a motion to suppress the evidence the
officers obtained after he was asked to exit the bus; he claimed this was an
unconstitutional seizure. The Government timely filed its response and
asserted that the officers had reasonable suspicion to perform an investigatory
detention.
The district court held a suppression hearing on April 5, 2013. Detective
Sanders and Detective Sauceda testified; Wise did not testify. During the
hearing, both parties reiterated the arguments mentioned above. The district
court then held a pretrial hearing on October 28, 2013. During the pretrial
hearing, the district court judge stated that he would suppress “the bus search
evidence.”
On September 23, 2016—nearly three years later—the district court
issued a written suppression order and opinion on suppression. The
Government timely filed a motion for reconsideration, and Wise filed a
response. The district court summarily denied the motion for reconsideration.
The Government timely appealed.
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II. JURISDICTION
The Government appeals the district court’s ruling on a motion to
suppress evidence in a case involving the prosecution of a federal offense. The
district court properly asserted jurisdiction under 18 U.S.C. § 3231.
The district court granted Wise’s motion to suppress on September 23,
2016. The court denied the Government’s motion to reconsider the suppression
order on November 15, 2016. The Government timely filed a notice of appeal
and certification by the United States Attorney pursuant to 18 U.S.C. § 3731.
See United States v. Arce–Jasso, 389 F.3d 124, 127–28 (5th Cir. 2004) (finding
that the 30-day time period for appealing a suppression ruling began when the
court denied the motion for reconsideration). We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3731.
III. STANDARD OF REVIEW
A. Motion to Suppress
“When examining a district court’s ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error.” United
States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009). “Factual findings are clearly
erroneous only if a review of the record leaves this Court with a ‘definite and
firm conviction that a mistake has been committed.’” Id. (quoting United States
v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002)). Factual findings that are
“influenced by an incorrect view of the law or an incorrect application of the
correct legal test” are reviewed de novo. United States v. Toussaint, 838 F.3d
503, 507 (5th Cir. 2016); accord United States v. Rodriguez, 601 F.3d 402, 405
(5th Cir. 2010) (“The standard of review for a motion to suppress based on live
testimony at a suppression hearing is to accept the trial court’s factual findings
unless clearly erroneous or influenced by an incorrect view of the law.”)
(citation and internal quotations omitted). We view the evidence “in the light
most favorable to the prevailing party”—here, Wise. See Toussaint, 838 F.3d
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at 507. We may affirm the district court’s ruling on a motion to suppress “based
on any rationale supported by the record.” United States v. Waldrop, 404 F.3d
365, 368 (5th Cir. 2005).
B. Seizure
We review for clear error the district court’s finding of whether a seizure
occurred. United States v. Mask, 330 F.3d 330, 334 (5th Cir. 2003). However,
“a district court’s seizure determination is not entitled to deference if it is
influenced by an incorrect view of the law.” Id. at 335. In that case, the district
court’s conclusion is reviewed de novo. Id.
C. Fourth Amendment Standing
“We review de novo the legal question of whether a defendant has
standing to challenge an allegedly illegal search as violative of the Fourth
Amendment.” United States v. Riazco, 91 F.3d 752, 754 (5th Cir. 1996).
IV. DISCUSSION
A. The Conroe Police Did Not Establish an Unconstitutional
Checkpoint
The district court concluded that the Conroe Police Department’s
decision to stop Greyhound Bus #6408 constituted an unconstitutional
checkpoint stop. Accordingly, the court suppressed all evidence the police
obtained subsequent to the stop. 4 The opinion on suppression focused on this
issue. The court characterized a checkpoint stop as: “a police program in which
officers gather at a specific place and, following a department-issued script,
briefly speak to drivers without having any reason to suspect wrongdoing.”
4Neither Wise nor the Government briefed this issue in advance of the suppression
hearing. The parties also did not raise this issue during the suppression hearing. The district
court raised this issue for the first time in its opinion on suppression. The Government
rebutted this characterization in its motion for reconsideration. But the district court
summarily dismissed that motion. Both parties have briefed the checkpoint argument on
appeal.
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United States v. Wise, 208 F. Supp. 3d 805, 808 (S.D. Tex. 2016) (citing City of
Indianapolis v. Edmond, 531 U.S. 32, 35 (2000); Mich. Dep’t of State Police v.
Sitz, 496 U.S. 444, 447 (1990)). The court asserted that the essence of an
unconstitutional checkpoint stop is the forced interaction between an officer
and a motorist. Moreover, the court found that checkpoint stops are only
permissible “if they are for a narrow particular law enforcement purpose
directly connected to the use of the roads.” Id. at 809. According to the court,
permissible law enforcement purposes include removing drunk drivers,
verifying licenses, and conducting immigration checkpoints near the border;
checkpoints cannot be used “merely to uncover evidence of ordinary crimes.”
Id. (citing Edmond, 531 U.S. at 41–42 (2000)).
Under this characterization, the district court concluded that the bus
interdiction constituted an unconstitutional checkpoint. First, the police forced
the bus driver to interact with them. The officers knew that Greyhound
mandated that its bus drivers stop at specific locations for loading and
unloading passengers. The Greyhound schedule was publicly available, and
the police exploited it. Thus, “[w]hen the bus driver saw the police waiting, he
could not avoid them.” Id. at 808. Second, the checkpoint’s purpose was
impermissible because the police sought “to uncover evidence of ordinary
crimes, like possession of narcotics.” Id. at 809.
The district court incorrectly characterized the bus interdiction as an
unconstitutional checkpoint. The Supreme Court’s Edmond opinion illustrates
the court’s error. The checkpoint in Edmond involved “roadblocks.” 531 U.S. at
34–35. Police officers advised passing vehicles that they would be “stopped
briefly at a drug checkpoint.” Id. at 35. During this stop, which typically lasted
no more than “two to three minutes,” id. at 36, officers looked for “signs of
impairment and conduct[ed] an open-view examination of the vehicle from the
outside.” Id. at 35. They also asked drivers for their licenses. Id. In finding the
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checkpoint unconstitutional, the Court expressed concern about the “ability of
the authorities to construct roadblocks.” Id. at 42. A central feature of the
checkpoint was that the police stopped the motorist for questioning. Drivers
could not ignore the officers or decline to answer questions. Thus the law
enforcement officer forced the motorist to interact with the authorities.
The Supreme Court’s other cases discussing checkpoints similarly
involved government officials initiating the stop. Lidster involved the police
“block[ing] the eastbound lanes of the highway,” “forc[ing] traffic to slow down,”
and—when each vehicle passed through the checkpoint—“stop[ping] [the
vehicle] for 10 to 15 seconds.” Illinois v. Lidster, 540 U.S. 419, 422 (2004). Sitz
involved a situation where: “[a]ll vehicles passing through a checkpoint would
be stopped [by the police] and their drivers briefly examined for signs of
intoxication.” Sitz, 496 U.S. at 447. And Martinez–Fuerte involved a permanent
immigration checkpoint stationed by law enforcement officers that brought
traffic “to a virtual, if not a complete, halt.” United States v. Martinez–Fuerte,
428 U.S. 543, 546 (1976) (footnote omitted).
This line of checkpoint cases—and the apparent concern with the
government initiating the stop and forcing motorists to interact—stems from
an essential principle recognized in Terry: the essence of an unconstitutional
seizure is that a government official has restrained a citizen’s liberty. See Terry
v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Only when [an] 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.”).
Here, the Conroe Police Department did not establish an
unconstitutional checkpoint. The police did not require the bus driver to stop
at the station. The driver made the scheduled stop as required by his employer,
Greyhound. The police only approached the driver after he had disembarked
from the bus. The police did not order him to interact with them; after the
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police approached him, the driver could have declined to speak with the police.
The police in no way restrained the driver. Thus, the interaction between the
officers and the driver lacked the essential features of a checkpoint. No case
supports a contrary conclusion. Instead, as discussed below, the stop is better
characterized as a bus interdiction. 5
B. Wise Lacks Standing to Challenge Whether the Bus Driver
Voluntarily Consented to the Search
The Government argues that the district court clearly erred by finding
that the bus driver did not voluntarily consent to the Conroe Police
Department’s search of Greyhound Bus #6408. First, the Government argues
that Wise does not have standing to challenge the voluntariness of the driver’s
consent. Second, even if Wise has standing to challenge the driver’s consent,
the Government argues that the driver voluntarily consented to the search.
Wise disputes these points. We need only address Wise’s standing to challenge
the search.
Reviewing Fourth Amendment standing de novo, see Riazco, 91 F.3d at
754, we conclude that Wise, a commercial bus passenger, lacks standing to
challenge the voluntariness of the driver’s consent to permit the police to
search the bus’s passenger cabin.
Wise asserts that he has standing to challenge whether the driver
voluntarily consented to the search of the Greyhound bus “because [he] had a
possessory interest in his luggage that was in the interior overhead bin of the
5 See infra Part IV(C)(1) for a more detailed discussion. The Supreme Court approved
an interdiction where police officers boarded a commercial bus during a scheduled bus stop.
See United States v. Drayton, 536 U.S. 194, 197 (2002). A district court reached the same
conclusion. United States v. Wilmington, 240 F. Supp. 2d 311 (M.D. Pa. 2002), aff’d, 131 F.
App’x 336 (3d Cir. 2005). There, the court explicitly refused to characterize a similar bus
interdiction effort as an unconstitutional checkpoint. Id. at 317. Instead, the court treated it
as a “voluntary search and seizure.” Id.
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Bus” and “[t]he Conroe Police’s request to board the Bus (and the Driver’s
alleged consent) directly affected [his] possessory interest.”
The Government concedes that Wise had a legitimate expectation of
privacy in his luggage. However, the Government argues that although Wise
had a legitimate expectation of privacy in his luggage, he still lacks standing
to challenge the voluntariness of the driver’s consent to allow police to search
the bus’s passenger cabin.
We use a two-pronged test to determine whether a defendant has
standing under the Fourth Amendment to challenge a search: “1) whether the
defendant [can] establish an actual, subjective expectation of privacy with
respect to the place being searched or items being seized, and 2) whether that
expectation of privacy is one which society would recognize as [objectively]
reasonable.” Riazco, 91 F.3d at 754 (quoting United States v. Kye Soo Lee, 898
F.2d 1034, 1037–38 & n.5 (5th Cir. 1990)) (alteration in original).
Wise satisfies both prongs with respect to his luggage. See Bond v.
United States, 529 U.S. 334, 336–37 (2000) (citing United States v. Place, 462
U.S. 696, 707 (1983)); see also United States v. Ventura, 447 F.3d 375, 380 (5th
Cir. 2006). Thus, Wise could challenge a situation where the bus driver
permitted the police to search Wise’s luggage.
However, it does not follow that Wise has standing to challenge the
driver’s decision to consent to the search of the bus’s passenger cabin. Our case
law provides some guidance. Automobile “passengers who asserted neither a
property nor a possessory interest in the automobile that was searched . . . had
no legitimate expectation of privacy entitling them to the protection of the
[F]ourth [A]mendment.” United States v. Greer, 939 F.2d 1076, 1093 (5th Cir.
1991), op. reinstated in part on reh’g, 968 F.2d 433 (5th Cir. 1992) (citing Rakas
v. Illinois, 439 U.S. 128, 148 (1978)). We have recognized that a commercial
bus passenger had a reasonable expectation of privacy in his luggage. Ventura,
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447 F.3d at 380 (citation omitted). However, in that same case we clarified that
passengers have “no reasonable expectation of privacy in the exterior luggage
compartment of a commercial bus, and therefore no standing to contest the
actual inspection of that compartment, to which the bus operator consented.”
Id. (emphasis added) (citation omitted).
Passengers traveling on commercial buses resemble automobile
passengers who lack any property or possessory interest in the automobile.
Like automobile passengers, bus passengers cannot direct the bus’s route, nor
can they exclude other passengers. See United States v. Hernandez–Zuniga,
215 F.3d 483, 487 (5th Cir. 2000). Bus passengers have no possessory interest
in a bus’s passenger cabin—except with regard to their personal luggage. Any
reasonable expectation of privacy extends only to that luggage. Passengers
have no reasonable expectation of privacy with respect to the bus’s cabin.
Therefore, Wise lacks standing to challenge the driver’s decision to consent to
the search of the bus’s interior cabin.
C. There Is No Basis to Affirm the District Court’s Ruling
We may affirm the district court’s ruling on the motion to suppress
“based on any rationale supported by the record.” See Waldrop, 404 F.3d at
368. Wise identifies three potential avenues for affirming the suppression
ruling: (1) he was unreasonably seized in violation of the Fourth Amendment
when the police questioned him on the bus; (2) he did not voluntarily consent
to the search of his backpack; and (3) the officers lacked suspicion to justify a
Terry pat down. We disagree.
1. The Police Did Not Unreasonably Seize Wise
Wise argues that the Conroe Police Department unreasonably seized
him in violation of the Fourth Amendment when they questioned him on the
Greyhound. He asserts that he felt restrained by police officers while on the
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bus. 6 Wise identifies a number of factors that contributed to feeling like he
could not leave the bus or end the encounter, including: (1) the presence of
officers inside and outside the bus; (2) the presence of a police canine and
marked police car; (3) the fact that police were conducting a canine drug search
near the location they questioned him; and (4) the officers’ failure to advise him
that he could refuse to answer their questions or comply with their requests.
The Government argues that Wise’s interaction with the police was a
consensual encounter—not a seizure that could implicate the Fourth
Amendment. The Government contests Wise’s assertion that the factors
mentioned above would make a reasonable person feel that he could not decline
to speak with the police officers or otherwise end the encounter. The
Government directs us to Florida v. Bostick, 501 U.S. 429 (1991), and United
States v. Drayton, 536 U.S. 194 (2002). Both of these cases shed light on when
questioning a bus passenger may constitute an unconstitutional seizure.
The Supreme Court in Bostick evaluated a situation where uniformed
police officers boarded a bus, questioned a defendant (absent suspicion), and
then sought the defendant’s consent to search his luggage. Bostick, 501 U.S. at
431–32. The Court began its analysis by clarifying that “a seizure does not
occur simply because a police officer approaches an individual and asks a few
questions.” Id. at 434. Instead, an encounter is “consensual” so long as the
civilian would feel free to either terminate the encounter or disregard the
questioning. Id. The police do not need reasonable suspicion to approach
6 Wise also asserts that the police lacked reasonable suspicion to question him during
the bus encounter. However, the police did not need any suspicion to question him in the
manner they did. See Drayton, 536 U.S. at 201 (“Even when law enforcement officers have
no basis for suspecting a particular individual, they may pose questions, ask for
identification, and request consent to search luggage—provided they do not induce
cooperation by coercive means.”) (citation omitted).
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someone for questioning. Id. And “[t]he encounter will not trigger Fourth
Amendment scrutiny unless it loses its consensual nature.” Id.
The respondent in Bostick argued that questioning that occurs “in the
cramped confines of a bus” is “much more intimidating” because “police tower
over a seated passenger and there is little room to move around.” Id. at 435.
Under those conditions, “a reasonable bus passenger would not have felt free
to leave” while the police were on board and questioning the passenger
“because there is nowhere to go on a bus.” Id. The respondent successfully
persuaded the court below to adopt a per se rule prohibiting police officers from
randomly boarding buses and questioning passengers as a means of
performing drug interdictions. Id.
The Supreme Court, however, disagreed that randomly questioning a
bus passenger constitutes a per se unreasonable seizure. Id. at 435–37. The
proper inquiry for whether a bus passenger has been seized by police is
“whether a reasonable person would feel free to decline the officers’ requests
or otherwise terminate the encounter.” Id. at 436. The Court explained that
“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. As the Court noted, “the mere fact that
[the respondent] did not feel free to leave the bus does not mean that the police
seized him.” Id. at 436. The Court understood that the respondent’s movements
were confined because he was on a bus. Id. But it concluded that “this was the
natural result of his decision to take the bus; it says nothing about whether or
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not the police conduct at issue was coercive.” Id. Later, the Supreme Court in
Drayton reaffirmed Bostick’s core tenets. 7
The Drayton Court evaluated whether police officers who boarded a
Greyhound and questioned certain passengers had unconstitutionally seized
the passengers whom they questioned. 536 U.S. at 197–200. During a
scheduled stop, police boarded a Greyhound bus as part of a routine drug and
weapons interdiction effort. Id. at 197. “The officers were dressed in plain
clothes and carried concealed weapons and visible badges.” Id. Three officers
boarded the bus. Id. One officer kneeled on the driver’s seat and faced the
passengers, so he could monitor them. Id. at 197–98. Another officer stationed
himself in the rear of the bus. Id. at 198. A third officer walked down the aisle,
questioning passengers. Id. While questioning passengers, the officer avoided
blocking the aisle by standing “next to or just behind each passenger with
whom [the officer] spoke.” Id.
One officer approached two individuals who were sitting next to one
another. Id. The officer showed the individuals his police badge. Id. Then,
speaking in a conversational tone, he identified himself and asked to search
the passengers’ luggage. Id. at 198–99. The passengers consented to the search.
Id. at 199. After the luggage search, the officer asked to search the person of
one of the passengers. Id. The passenger consented. Id. The officer felt hard
objects on the passenger’s upper thighs; he believed these were drug packages.
Id. He then arrested the passenger. Id. A similar process transpired with the
other passenger. Id.
The Court concluded that the interaction between the officers and the
passengers did not amount to an unconstitutional seizure. Id. at 203. The
7 The Supreme Court did not decide whether a seizure occurred in Bostick; instead,
the Court remanded the case to Florida courts after announcing the proper legal standard
for evaluating whether an unreasonable seizure of a bus passenger occurred. 501 U.S. at 437.
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Court reiterated the Bostick test for whether a bus passenger was
unconstitutionally seized: the test “is whether a reasonable person would feel
free to decline the officers’ requests or otherwise terminate the encounter.” Id.
at 202 (quoting Bostick, 501 U.S. at 436). The Court found that “the police did
not seize respondents when they boarded the bus and began questioning
passengers” because “[t]here was no application of force, no intimidating
movement, no overwhelming show of force, no brandishing of weapons, no
blocking of exits, no threat, no command, not even an authoritative tone of
voice.” Id. at 203–04. The Court again rejected the argument that because the
encounter took place on a stopped interstate bus, an individual would not feel
free to leave the bus or terminate the encounter. See id. at 204 (finding that
just because “an encounter takes place on a bus does not on its own transform
standard police questioning of citizens into an illegal seizure.”). The Court
speculated that passengers may even feel less pressured to cooperate with
police officers while on a bus—compared to an encounter elsewhere—thanks
to the presence of other passengers as witnesses. Id.
Here, the record does not support finding that the detectives seized Wise
when they approached him, asked to see his identification, and requested his
consent to search his luggage. Salient Drayton factors are present. Detectives
Sanders and Sauceda gave the Greyhound passengers no reason to believe that
they were required to answer the detectives’ questions. Detective Sanders, the
primary questioning officer, did not brandish a weapon or make any
intimidating movements. The officers left the aisle free for passengers to exit.
Detective Sanders questioned Wise from behind his seat, leaving the aisle free.
Detective Sanders spoke to Wise individually. He used a conversational tone
when talking to Wise. Neither detective suggested to Wise that he was barred
from leaving the bus or could not otherwise terminate the encounter.
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The factors identified by Wise—that five officers participated in the
interdiction, the proximity to the canine drug search, and the fact the
detectives did not inform Wise that he could refuse to answer their questions
or leave the bus—are not sufficient to tip the scales in his favor. Wise does not
explain why either of the first two factors would change a reasonable person’s
calculus for whether he could leave the bus or terminate his encounter with
the officers. And police are not required to inform citizens of their right to
refuse to speak with officers; that is just one factor when evaluating the totality
of the circumstances surrounding the interaction. See id at 206–07. A
reasonable person in Wise’s position would feel free to decline the officers’
requests or otherwise terminate the encounter. Thus, there is no basis to find
that the officers unreasonably seized Wise. 8
2. Wise Voluntarily Consented to Answering the Officers’
Questions and to the Search of His Luggage
Wise argues that his “consent to and/or cooperation with the officer’s
requests to ask him questions, search his luggage, exit the bus and empty his
pockets were not voluntary.” Wise repeats the arguments made for why he was
unreasonably seized to assert that his consent to answering questions and
permitting the search of his luggage resulted from police coercion. In response,
the Government argues that Wise’s interactions with the detectives were
consensual.
The district court determined that Wise’s consent was involuntary
because his consent resulted from an illegal seizure (i.e., the unconstitutional
checkpoint stop). As discussed, the district court erred in finding that the bus
interdiction effort constituted an illegal checkpoint. Thus, the finding that
8 There is also no indication in the record that the officers’ interaction with Wise
prolonged the duration of the Greyhound’s scheduled stop at the station.
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Wise’s consent was involuntary was “influenced by an incorrect view of the
law” and should be reviewed de novo. Toussaint, 838 F.3d at 507.
We use a six-factor evaluation for determining the voluntariness of a
defendant’s consent to a search; the factors include:
1) the voluntariness of the defendant’s custodial status; 2) the
presence of coercive police procedures; 3) the extent and level of
the defendant’s cooperation with the police; 4) the defendant’s
awareness of his right to refuse consent; 5) the defendant’s
education and intelligence; and 6) the defendant’s belief that no
incriminating evidence will be found.
United States v. Williams, 365 F.3d 399, 406–07 (5th Cir. 2004) (citations and
internal quotation marks omitted). Although Wise identifies this as the
appropriate legal test, he does not analyze these particular factors. The record
also does not discuss some of these factors (e.g., the defendant’s awareness of
his right to refuse consent and the defendant’s education and intelligence).
However, when “the question of voluntariness pervades both the search
and seizure inquiries, the respective analyses turn on very similar facts.”
Drayton, 536 U.S. at 206. As noted, the police did not unreasonably seize Wise.
The record provides no basis for finding that he did not voluntarily answer the
officers’ questions and consent to their requests. Thus, we conclude that Wise’s
interactions with the officers were consensual. 9
9The police did not need Wise’s consent to search the backpack. Wise forfeited any
reasonable expectation of privacy in the backpack when he voluntarily disclaimed ownership.
Wise acknowledges that he “expressly disclaimed ownership or recognition of [the backpack].”
An individual who voluntarily disclaims ownership of a piece of luggage is considered to have
abandoned that luggage. See United States v. Roman, 849 F.2d 920, 922 (5th Cir. 1988). The
individual forfeits any expectation of privacy in that luggage and lacks standing to challenge
any unlawful search or seizure of the luggage. See id. Thus, after disclaiming ownership,
Wise no longer had any reasonable expectation of privacy in the backpack, so he could not
challenge the subsequent search.
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3. The Officers Did Not Perform an Unconstitutional Terry Pat
Down
Wise argues that the police performed an unconstitutional Terry pat
down on him. He contends that when the police asked him to leave the bus and
come with them, the police had detained him. He argues that the officers’
request for him to empty his pockets constituted a pat down. Additionally, Wise
asserts that the detectives’ decision to take his keys was outside the
permissible scope of a Terry stop.
The Government contends that Wise voluntarily disembarked from the
bus as requested by the officers. The officers did not order Wise off the bus.
Moreover, Wise emptied his pockets as a consequence of the detectives’
requests; the detectives did not frisk Wise or force him to empty his pockets.
Thus, the Government concludes, Wise voluntarily emptied his pockets.
Similarly, Wise gave his keys to the detectives upon their request.
The record does not support finding that the police performed an
unconstitutional Terry pat down of Wise. Terry stops represent a narrow
exception to the Fourth Amendment’s general prohibition against warrantless
searches and seizures. United States v. Hill, 752 F.3d 1029, 1033 (5th Cir.
2014). “Under Terry, if a law enforcement officer can point to specific and
articulable facts that lead him to reasonably suspect that a particular person
is committing, or is about to commit, a crime, the officer may briefly detain—
that is, ‘seize’—the person to investigate.” Id. (citation omitted). Officers may
“draw on their own experience and specialized training to make inferences
from and deductions about the cumulative information available to them that
‘might well elude an untrained person.’” United States v. Arvizu, 534 U.S. 266,
273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
Determining the reasonableness of the officer’s suspicion requires assessing
the “totality of the circumstances” prior to the stop. Id.
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Consensual encounters between the police and civilians, however, do not
implicate the Fourth Amendment. Williams, 365 F.3d at 404. We determined
in Williams that when police officers asked a Greyhound passenger to
disembark and accompany them to the bus terminal’s baggage handling area
for the purpose of answering questions—and the passenger voluntarily
complied—a Terry stop did not occur. Id. at 405 (“[Defendant’s] voluntary entry
into the baggage handling area for purposes of answering questions does not
amount to a seizure, nor does it convert the consensual encounter into a Terry
stop.”).
Here, the police asked Wise to speak with them off the bus. The police
did not indicate that his compliance was required. Once off the bus, the police
did not restrain Wise. They also did not tell him that he must obey their
requests. The police asked Wise to empty his pockets, and he complied. He also
complied with the police officers’ requests to show them his identification card
and keys. Wise has not explained why this interaction was anything but a
consensual encounter.
Even if Wise could characterize the interaction as a Terry stop-and-frisk,
the stop-and-frisk would be permissible under the Fourth Amendment. See
Hill, 752 F.3d at 1033. Detectives Sanders and Sauceda, drawing on their
experience and specialized training, could reasonably infer from the
circumstances surrounding their interaction with Wise that he may have been
in the process of committing a crime. The detectives witnessed Wise pretend to
sleep on the Greyhound. Wise then produced a ticket with a “very generic”
name: “James Smith.” He denied ownership of a backpack that was sitting next
to his own duffle bag. Yet, no other passengers sat near the backpack. The
officers discovered that the backpack contained a substance they believed to be
cocaine. The detectives were aware that narcotics traffickers often carry
weapons. Evaluating the totality of the circumstances, the detectives
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established requisite suspicion to detain Wise for questioning and to request
that he empty his pockets. See United States v. Reyes, 349 F.3d 219, 225 (5th
Cir. 2003).
V. CONCLUSION
The district court erred in characterizing the bus interdiction as an
unconstitutional checkpoint stop. Also, Wise lacks standing to challenge the
bus driver’s consent to the officers’ request to search the Greyhound’s
passenger cabin. Finding there is no other basis in the record to affirm the
district court’s ruling on the motion to suppress, we REVERSE the district
court’s suppression order.
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