Page 63 - March April 2020 TPA

characterization, the district court concluded that essential principle recognized in Terry: the essence
the bus interdiction constituted an unconstitutional of an unconstitutional seizure is that a government
checkpoint. First, the police forced the bus driver to official has restrained a citizen’s liberty. See Terry
interact with them. The officers knew that v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Only when
Greyhound mandated that its bus drivers stop at [an] officer, by means of physical force or show of
specific locations for loading and unloading authority, has in some way restrained the liberty of
passengers. The Greyhound schedule was publicly a citizen may we conclude that a ‘seizure’ has
available, and the police exploited it. Thus, “[w]hen occurred.”).
the bus driver saw the police waiting, he could not Here, the Conroe Police Department did not
avoid them. Second, the checkpoint’s purpose was establish an unconstitutional checkpoint. The
impermissible because the police sought “to police did not require the bus driver to stop at the
uncover evidence of ordinary crimes, like station. The driver made the scheduled stop as
possession of narcotics.” required by his employer, Greyhound. The police
The district court incorrectly characterized the bus only approached the driver after he had
interdiction as an unconstitutional checkpoint. The disembarked from the bus. The police did not order
Supreme Court’s Edmond opinion illustrates the him to interact with them; after the police
court’s error. The checkpoint in Edmond involved approached him, the driver could have declined to
“roadblocks.” A central feature of the checkpoint speak with the police. The police in no way
was that the police stopped the motorist for restrained the driver. Thus, the interaction between
questioning. Drivers could not ignore the officers the officers and the driver lacked the essential
or decline to answer questions. Thus the law features of a checkpoint. No case supports a
enforcement officer forced the motorist to interact contrary conclusion. Instead, as discussed below,
with the authorities. the stop is better characterized as a bus interdiction.
The Supreme Court’s other cases discussing The Government argues that the district court
checkpoints similarly involved government clearly erred by finding that the bus driver did not
officials initiating the stop. Lidster involved the voluntarily consent to the Conroe Police
police “block[ing] the eastbound lanes of the Department’s search of Greyhound Bus #6408.
highway,” “forc[ing] traffic to slow down,” and— First, the Government argues that Wise does not
when each vehicle passed through the have standing to challenge the voluntariness of the
checkpoint—“stop[ping] [the vehicle] for 10 to 15 driver’s consent. Second, even if Wise has standing
seconds.” Illinois v. Lidster, 540 U.S. 419, 422 to challenge the driver’s consent, the Government
(2004). Sitz involved a situation where: “[a]ll argues that the driver voluntarily consented to the
vehicles passing through a checkpoint would be search. Wise disputes these points. We need only
stopped [by the police] and their drivers briefly address Wise’s standing to challenge the search.
examined for signs of intoxication.” Sitz, 496 U.S. Reviewing Fourth Amendment standing de novo,
at 447. And Martinez–Fuerte involved a permanent see Riazco, 91 F.3d at 754, we conclude that Wise,
immigration checkpoint stationed by law a commercial bus passenger, lacks standing to
enforcement officers that brought traffic “to a challenge the voluntariness of the driver’s consent
virtual, if not a complete, halt.” United States v. to permit the police to search the bus’s passenger
Martinez–Fuerte, 428 U.S. 543, 546 (1976) cabin.
(footnote omitted). Wise asserts that he has standing to challenge
This line of checkpoint cases—and the apparent whether the driver voluntarily consented to the
concern with the government initiating the stop and search of the Greyhound bus “because [he] had a
forcing motorists to interact—stems from an possessory interest in his luggage that was in the

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