Page 48 - May June 2020 TPA Journal

terminate the encounter. Thus, there is no basis to questions and consent to their requests. Thus, we
find that the officers unreasonably seized Wise. conclude that Wise’s interactions with the officers
Wise argues that his “consent to and/or were consensual.
cooperation with the officer’s requests to ask him
questions, search his luggage, exit the bus and The police did not need Wise’s consent to search
empty his pockets were not voluntary.” Wise the backpack. Wise forfeited any reasonable
repeats the arguments made for why he was expectation of privacy in the backpack when he
unreasonably seized to assert that his consent to voluntarily disclaimed ownership. Wise
answering questions and permitting the search of acknowledges that he “expressly disclaimed
his luggage resulted from police coercion. In ownership or recognition of [the backpack].” An
response, the Government argues that Wise’s individual who voluntarily disclaims ownership of
interactions with the detectives were consensual. a piece of luggage is considered to have
The district court determined that Wise’s consent abandoned that luggage. See United States v.
was involuntary because his consent resulted from Roman, 849 F.2d 920, 922 (5th Cir. 1988). The
an illegal seizure (i.e., the unconstitutional individual forfeits any expectation of privacy in
checkpoint stop). As discussed, the district court that luggage and lacks standing to challenge any
erred in finding that the bus interdiction effort unlawful search or seizure of the luggage. Thus,
constituted an illegal checkpoint. Thus, the after disclaiming ownership, Wise no longer had
finding that Wise’s consent was involuntary was any reasonable expectation of privacy in the
“influenced by an incorrect view of the law” and backpack, so he could not challenge the
should be reviewed de novo. subsequent search.

There is also no indication in the record that the Wise argues that the police performed an
officers’ interaction with Wise prolonged the unconstitutional Terry pat down on him. He
duration of the Greyhound’s scheduled stop at the contends that when the police asked him to leave
station. the bus and come with them, the police had
We use a six-factor evaluation for determining the detained him. He argues that the officers’ request
voluntariness of a defendant’s consent to a search; for him to empty his pockets constituted a pat
the factors include: down. Additionally, Wise asserts that the
detectives’ decision to take his keys was outside
1) the voluntariness of the defendant’s custodial the permissible scope of a Terry stop.
status; 2) the presence of coercive police
procedures; 3) the extent and level of the The Government contends that Wise voluntarily
defendant’s cooperation with the police; 4) the disembarked from the bus as requested by the
defendant’s awareness of his right to refuse officers. The officers did not order Wise off the
consent; 5) the defendant’s education and bus. Moreover, Wise emptied his pockets as a
intelligence; and 6) the defendant’s belief that no consequence of the detectives’ requests; the
incriminating evidence will be found. detectives did not frisk Wise or force him to empty
his pockets. Thus, the Government concludes,
However, when “the question of voluntariness Wise voluntarily emptied his pockets. Similarly,
pervades both the search and seizure inquiries, the Wise gave his keys to the detectives upon their
respective analyses turn on very similar facts.” request.
As noted, the police did not unreasonably seize
Wise. The record provides no basis for finding that The record does not support finding that the police
he did not voluntarily answer the officers’ performed an unconstitutional Terry pat down of
Wise. Terry stops represent a narrow exception to
44 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal