Page 46 - November December 2019 TPA Journal

decision to take the bus; it says nothing about brandishing of weapons, no blocking of exits, no
whether or not the police conduct at issue was threat, no command, not even an authoritative tone
coercive.” of voice.”

The Drayton Court evaluated whether police The Court again rejected the argument that because
officers who boarded a Greyhound and questioned the encounter took place on a stopped interstate bus,
certain passengers had unconstitutionally seized the an individual would not feel free to leave the bus or
passengers whom they questioned. During a terminate the encounter. The Court speculated that
scheduled stop, police boarded a Greyhound bus as passengers may even feel less pressured to
part of a routine drug and weapons interdiction cooperate with police officers while on a bus—
effort. “The officers were dressed in plain clothes compared to an encounter elsewhere—thanks to the
and carried concealed weapons and visible badges.” presence of other passengers as witnesses.
Three officers boarded the bus. One officer kneeled Here, the record does not support finding that the
on the driver’s seat and faced the passengers, so he detectives seized Wise when they approached him,
could monitor them. Another officer stationed
asked to see his identification, and requested his
himself in the rear of the bus. A third officer walked
consent to search his luggage. Salient Drayton
down the aisle, questioning passengers. While
factors are present. Detectives Sanders and Sauceda
questioning passengers, the officer avoided gave the Greyhound passengers no reason to believe
blocking the aisle by standing “next to or just that they were required to answer the detectives’
behind each passenger with whom [the officer]
questions. Detective Sanders, the primary
spoke.” One officer approached two individuals
questioning officer, did not brandish a weapon or
who were sitting next to one another.
make any intimidating movements. The officers left
The officer showed the individuals his police badge. the aisle free for passengers to exit. Detective
Then, speaking in a conversational tone, he Sanders questioned Wise from behind his seat,
identified himself and asked to search the
leaving the aisle free. Detective Sanders spoke to
passengers’ luggage. The passengers consented to
Wise individually. He used a conversational tone
the search. After the luggage search, the officer
when talking to Wise. Neither detective suggested
asked to search the person of one of the passengers. to Wise that he was barred from leaving the bus or
The passenger consented. The officer felt hard could not otherwise terminate the encounter.
objects on the passenger’s upper thighs; he believed
these were drug packages. He then arrested the The factors identified by Wise—that five officers
passenger. A similar process transpired with the participated in the interdiction, the proximity to the
other passenger. canine drug search, and the fact the detectives did
not inform Wise that he could refuse to answer their
The Court concluded that the interaction between questions or leave the bus—are not sufficient to tip
the officers and the passengers did not amount to an the scales in his favor. Wise does not explain why
unconstitutional seizure. The Court reiterated the either of the first two factors would change a
Bostick test for whether a bus passenger was reasonable person’s calculus for whether he could
unconstitutionally seized: the test “is whether a leave the bus or terminate his encounter with the
reasonable person would feel free to decline the officers. And police are not required to inform
officers’ requests or otherwise terminate the citizens of their right to refuse to speak with
encounter.” The Court found that “the police did officers; that is just one factor when evaluating the
not seize respondents when they boarded the bus totality of the circumstances surrounding the
and began questioning passengers” because “[t]here interaction.
was no application of force, no intimidating
movement, no overwhelming show of force, no A reasonable person in Wise’s position would feel

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