Page 49 - January February 2020 TPJ

an unconstitutional checkpoint. The police did not seized, and 2) whether that expectation of privacy is one
require the bus driver to stop at the station. The driver which society would recognize as [objectively]
made the scheduled stop as required by his employer, reasonable.”
Greyhound. The police only approached the driver after
he had disembarked from the bus. The police did not Wise satisfies both prongs with respect to his luggage.
order him to interact with them; after the police Thus, Wise could challenge a situation where the bus
approached him, the driver could have declined to speak driver permitted the police to search Wise’s luggage.
with the police. The police in no way restrained the
However, it does not follow that Wise has standing to
driver. Thus, the interaction between the officers and the
challenge the driver’s decision to consent to the search
driver lacked the essential features of a checkpoint. No
of the bus’s passenger cabin. Our case law provides
case supports a contrary conclusion. Instead, as
some guidance. Automobile “passengers who asserted
discussed below, the stop is better characterized as a bus
interdiction. neither a property nor a possessory interest in the
automobile that was searched . . . had no legitimate
The Government argues that the district court clearly expectation of privacy entitling them to the protection of
erred by finding that the bus driver did not voluntarily the [F]ourth [A]mendment.” United States v. Greer, 939
consent to the Conroe Police Department’s search of F.2d 1076, 1093 (5th Cir. 1991), op. reinstated in part
Greyhound Bus #6408. First, the Government argues on reh’g, 968 F.2d 433 (5th Cir. 1992) (citing Rakas v.
that Wise does not have standing to challenge the Illinois, 439 U.S. 128, 148 (1978)). We have recognized
voluntariness of the driver’s consent. Second, even if that a commercial bus passenger had a reasonable
Wise has standing to challenge the driver’s consent, the expectation of privacy in his luggage. However, in that
Government argues that the driver voluntarily consented same case we clarified that passengers have “no
to the search. Wise disputes these points. We need only reasonable expectation of privacy in the exterior
address Wise’s standing to challenge the search. luggage compartment of a commercial bus, and
Reviewing Fourth Amendment standing de novo, see therefore no standing to contest the actual inspection of
Riazco, 91 F.3d at 754, we conclude that Wise, a that compartment, to which the bus operator consented.”
commercial bus passenger, lacks standing to challenge
Passengers traveling on commercial buses resemble
the voluntariness of the driver’s consent to permit the
police to search the bus’s passenger cabin. automobile passengers who lack any property or
possessory interest in the automobile. Like automobile
Wise asserts that he has standing to challenge whether passengers, bus passengers cannot direct the bus’s route,
the driver voluntarily consented to the search of the nor can they exclude other passengers. Bus passengers
Greyhound bus “because [he] had a possessory interest have no possessory interest in a bus’s passenger cabin—
in his luggage that was in the interior overhead bin of except with regard to their personal luggage. Any
the Bus” and “[t]he Conroe Police’s request to board the reasonable expectation of privacy extends only to that
Bus (and the Driver’s alleged consent) directly affected luggage. Passengers have no reasonable expectation of
[his] possessory interest.” privacy with respect to the bus’s cabin. Therefore, Wise
The Government concedes that Wise had a legitimate lacks standing to challenge the driver’s decision to
expectation of privacy in his luggage. However, the consent to the search of the bus’s interior cabin.
Government argues that although Wise had a legitimate
We may affirm the district court’s ruling on the motion
expectation of privacy in his luggage, he still lacks
to suppress “based on any rationale supported by the
standing to challenge the voluntariness of the driver’s
record.” Wise identifies three potential avenues for
consent to allow police to search the bus’s passenger
affirming the suppression ruling: (1) he was
cabin.
We use a two-pronged test to determine whether a unreasonably seized in violation of the Fourth
Amendment when the police questioned him on the bus;
defendant has standing under the Fourth Amendment to
(2) he did not voluntarily consent to the search of his
challenge a search: “1) whether the defendant [can]
backpack; and (3) the officers lacked suspicion to justify
establish an actual, subjective expectation of privacy
a Terry pat down. We disagree.
with respect to the place being searched or items being

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