Page 60 - May June 2019 TPA Journal

expectation of privacy with respect to the bus’s an unconstitutional seizure.
cabin. Therefore, Wise lacks standing to challenge
the driver’s decision to consent to the search of the The Supreme Court in Bostick evaluated a
bus’s interior cabin. situation where uniformed police officers boarded
a bus, questioned a defendant (absent suspicion),
We may affirm the district court’s ruling on the and then sought the defendant’s consent to search
motion to suppress “based on any rationale his luggage.
supported by the record.” Wise identifies three
potential avenues for affirming the suppression The Court began its analysis by clarifying that “a
ruling: (1) he was unreasonably seized in violation seizure does not occur simply because a police
of the Fourth Amendment when the police officer approaches an individual and asks a few
questioned him on the bus; (2) he did not questions.” Instead, an encounter is “consensual”
voluntarily consent to the search of his backpack; so long as the civilian would feel free to either
and (3) the officers lacked suspicion to justify a terminate the encounter or disregard the
Terry pat down. We disagree. questioning. The police do not need reasonable
suspicion to approach someone for questioning.
Wise argues that the Conroe Police Department And “[t]he encounter will not trigger Fourth
unreasonably seized him in violation of the Fourth Amendment scrutiny unless it loses its consensual
Amendment when they questioned him on the nature.”
Greyhound. He asserts that he felt restrained by
police officers while on the bus. 6 Wise also asserts that the police lacked
reasonable suspicion to question him during the
Wise identifies a number of factors that bus encounter. However, the police did not need
contributed to feeling like he could not leave the any suspicion to question him in the manner they
bus or end the encounter, including: (1) the did. See Drayton, 536 U.S. at 201 (“Even when
presence of officers inside and outside the bus; (2) law enforcement officers have no basis for
the presence of a police canine and marked police suspecting a particular individual, they may pose
car; (3) the fact that police were conducting a questions, ask for identification, and request
canine drug search near the location they consent to search luggage—provided they do not
questioned him; and (4) the officers’ failure to induce cooperation by coercive means.”) (citation
advise him that he could refuse to answer their omitted).
questions or comply with their requests.
The respondent in Bostick argued that questioning
The Government argues that Wise’s interaction that occurs “in the cramped confines of a bus” is
with the police was a consensual encounter—not a “much more intimidating” because “police tower
seizure that could implicate the Fourth over a seated passenger and there is little room to
Amendment. The Government contests Wise’s move around.” Under those conditions, “a
assertion that the factors mentioned above would reasonable bus passenger would not have felt free
make a reasonable person feel that he could not to leave” while the police were on board and
decline to speak with the police officers or questioning the passenger “because there is
otherwise end the encounter. The Government nowhere to go on a bus.” The respondent
directs us to Florida v. Bostick, 501 U.S. 429 successfully persuaded the court below to adopt a
(1991), and United States v. Drayton, 536 U.S. per se rule prohibiting police officers from
194 (2002). Both of these cases shed light on randomly boarding buses and questioning
when questioning a bus passenger may constitute passengers as a means of performing drug

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