Page 45 - May June 2020 TPA Journal

possessory interest in his luggage that was in the “no reasonable expectation of privacy in the
interior overhead bin of the Bus” and “[t]he exterior luggage compartment of a commercial
Conroe Police’s request to board the Bus (and the bus, and therefore no standing to contest the actual
Driver’s alleged consent) directly affected [his] inspection of that compartment, to which the bus
possessory interest.” operator consented.”

The Government concedes that Wise had a Passengers traveling on commercial buses
legitimate expectation of privacy in his luggage. resemble automobile passengers who lack any
However, the Government argues that although property or possessory interest in the automobile.
Wise had a legitimate expectation of privacy in his Like automobile passengers, bus passengers
luggage, he still lacks standing to challenge the cannot direct the bus’s route, nor can they exclude
voluntariness of the driver’s consent to allow other passengers. Bus passengers have no
police to search the bus’s passenger cabin. possessory interest in a bus’s passenger cabin—
except with regard to their personal luggage. Any
We use a two-pronged test to determine whether a reasonable expectation of privacy extends only to
defendant has standing under the Fourth that luggage. Passengers have no reasonable
Amendment to challenge a search: “1) whether expectation of privacy with respect to the bus’s
the defendant [can] establish an actual, subjective cabin. Therefore, Wise lacks standing to challenge
expectation of privacy with respect to the place the driver’s decision to consent to the search of the
being searched or items being seized, and 2) bus’s interior cabin.
whether that expectation of privacy is one which
society would recognize as [objectively] We may affirm the district court’s ruling on the
reasonable.” motion to suppress “based on any rationale
supported by the record.” Wise identifies three
Wise satisfies both prongs with respect to his potential avenues for affirming the suppression
luggage. Thus, Wise could challenge a situation ruling: (1) he was unreasonably seized in violation
where the bus driver permitted the police to search of the Fourth Amendment when the police
Wise’s luggage. questioned him on the bus; (2) he did not
However, it does not follow that Wise has voluntarily consent to the search of his backpack;
standing to challenge the driver’s decision to and (3) the officers lacked suspicion to justify a
consent to the search of the bus’s passenger cabin. Terry pat down. We disagree.
Our case law provides some guidance.
Automobile “passengers who asserted neither a Wise argues that the Conroe Police Department
property nor a possessory interest in the unreasonably seized him in violation of the Fourth
automobile that was searched . . . had no Amendment when they questioned him on the
legitimate expectation of privacy entitling them to Greyhound. He asserts that he felt restrained by
the protection of the [F]ourth [A]mendment.” police officers while on the bus.
United States v. Greer, 939 F.2d 1076, 1093 (5th
Cir. 1991), op. reinstated in part on reh’g, 968 Wise identifies a number of factors that
F.2d 433 (5th Cir. 1992) (citing Rakas v. Illinois, contributed to feeling like he could not leave the
439 U.S. 128, 148 (1978)). We have recognized bus or end the encounter, including: (1) the
that a commercial bus passenger had a reasonable presence of officers inside and outside the bus; (2)
expectation of privacy in his luggage. However, the presence of a police canine and marked police
in that same case we clarified that passengers have car; (3) the fact that police were conducting a

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