Page 42 - TPA Journal March April 2019

available, and the police exploited it. Thus, occurred.”).
“[w]hen the bus driver saw the police waiting, he
could not avoid them. Second, the checkpoint’s Here, the Conroe Police Department did not
purpose was impermissible because the police establish an unconstitutional checkpoint. The
sought “to uncover evidence of ordinary crimes, police did not require the bus driver to stop at the
like possession of narcotics.” station. The driver made the scheduled stop as
required by his employer, Greyhound. The police
The district court incorrectly characterized the bus only approached the driver after he had
interdiction as an unconstitutional checkpoint. The disembarked from the bus. The police did not
Supreme Court’s Edmond opinion illustrates the order him to interact with them; after the police
court’s error. The checkpoint in Edmond involved approached him, the driver could have declined to
“roadblocks.” A central feature of the checkpoint speak with the police. The police in no way
was that the police stopped the motorist for restrained the driver. Thus, the interaction
questioning. Drivers could not ignore the officers between the officers and the driver lacked the
or decline to answer questions. Thus the law essential features of a checkpoint. No case
enforcement officer forced the motorist to interact supports a contrary conclusion. Instead, as
with the authorities. discussed below, the stop is better characterized as
a bus interdiction.
The Supreme Court’s other cases discussing
checkpoints similarly involved government The Government argues that the district court
officials initiating the stop. Lidster involved the clearly erred by finding that the bus driver did not
police “block[ing] the eastbound lanes of the voluntarily consent to the Conroe Police
highway,” “forc[ing] traffic to slow down,” and— Department’s search of Greyhound Bus #6408.
when each vehicle passed through the First, the Government argues that Wise does not
checkpoint—“stop[ping] [the vehicle] for 10 to 15 have standing to challenge the voluntariness of the
seconds.” Illinois v. Lidster, 540 U.S. 419, 422 driver’s consent. Second, even if Wise has
(2004). Sitz involved a situation where: “[a]ll standing to challenge the driver’s consent, the
vehicles passing through a checkpoint would be Government argues that the driver voluntarily
stopped [by the police] and their drivers briefly consented to the search. Wise disputes these
examined for signs of intoxication.” Sitz, 496 U.S. points. We need only address Wise’s standing to
at 447. And Martinez–Fuerte involved a challenge the search.
permanent immigration checkpoint stationed by
law enforcement officers that brought traffic “to a Reviewing Fourth Amendment standing de novo, see
virtual, if not a complete, halt.” United States v. Riazco, 91 F.3d at 754, we conclude that Wise, a
Martinez–Fuerte, 428 U.S. 543, 546 (1976) commercial bus passenger, lacks standing to
(footnote omitted). This line of checkpoint challenge the voluntariness of the driver’s consent to
cases—and the apparent concern with the permit the police to search the bus’s passenger cabin.
government initiating the stop and forcing Wise asserts that he has standing to challenge
motorists to interact—stems from an essential whether the driver voluntarily consented to the
principle recognized in Terry: the essence of an search of the Greyhound bus “because [he] had a
unconstitutional seizure is that a government possessory interest in his luggage that was in the
official has restrained a citizen’s liberty. See Terry interior overhead bin of the Bus” and “[t]he
v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Only when Conroe Police’s request to board the Bus (and the
[an] officer, by means of physical force or show of Driver’s alleged consent) directly affected [his]
authority, has in some way restrained the liberty of possessory interest.”
a citizen may we conclude that a ‘seizure’ has The Government concedes that Wise had a

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