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the Bostick test for whether a bus passenger was to tip the scales in his favor. Wise does not explain
unconstitutionally seized: the test “is whether a why either of the first two factors would change a
reasonable person would feel free to decline the reasonable person’s calculus for whether he could
officers’ requests or otherwise terminate the leave the bus or terminate his encounter with the
encounter.” The Court found that “the police did officers. And police are not required to inform
not seize respondents when they boarded the bus citizens of their right to refuse to speak with
and began questioning passengers” because officers; that is just one factor when evaluating the
“[t]here was no application of force, no totality of the circumstances surrounding the
intimidating movement, no overwhelming show interaction.
of force, no brandishing of weapons, no blocking
A reasonable person in Wise’s position would feel
of exits, no threat, no command, not even an
free to decline the officers’ requests or otherwise
authoritative tone of voice.” The Court again
terminate the encounter. Thus, there is no basis to
rejected the argument that because the encounter
find that the officers unreasonably seized Wise.
took place on a stopped interstate bus, an
individual would not feel free to leave the bus or Wise argues that his “consent to and/or
terminate the encounter. The Court speculated cooperation with the officer’s requests to ask him
that passengers may even feel less pressured to questions, search his luggage, exit the bus and
cooperate with police officers while on a bus— empty his pockets were not voluntary.” Wise
compared to an encounter elsewhere—thanks to repeats the arguments made for why he was
the presence of other passengers as witnesses. unreasonably seized to assert that his consent to
answering questions and permitting the search of
Here, the record does not support finding that the
his luggage resulted from police coercion. In
detectives seized Wise when they approached him,
response, the Government argues that Wise’s
asked to see his identification, and requested his
interactions with the detectives were consensual.
consent to search his luggage. Salient Drayton
factors are present. Detectives Sanders and The district court determined that Wise’s consent
Sauceda gave the Greyhound passengers no was involuntary because his consent resulted from
reason to believe that they were required to answer an illegal seizure (i.e., the unconstitutional
the detectives’ questions. Detective Sanders, the checkpoint stop). As discussed, the district court
primary questioning officer, did not brandish a erred in finding that the bus interdiction effort
weapon or make any intimidating movements. constituted an illegal checkpoint. Thus, the
The officers left the aisle free for passengers to finding that Wise’s consent was involuntary was
exit. Detective Sanders questioned Wise from “influenced by an incorrect view of the law” and
behind his seat, leaving the aisle free. Detective should be reviewed de novo.
Sanders spoke to Wise individually. He used a
conversational tone when talking to Wise. Neither There is also no indication in the record that the
detective suggested to Wise that he was barred officers’ interaction with Wise prolonged the
from leaving the bus or could not otherwise duration of the Greyhound’s scheduled stop at the
terminate the encounter. station.
The factors identified by Wise—that five officers We use a six-factor evaluation for determining the
participated in the interdiction, the proximity to voluntariness of a defendant’s consent to a search;
the canine drug search, and the fact the detectives the factors include:
did not inform Wise that he could refuse to answer
1) the voluntariness of the defendant’s custodial
their questions or leave the bus—are not sufficient
Sept./Oct. 2019 www.texaspoliceassociation.com • 866-997-8282 49
