Page 64 - March April 2020 TPA

interior overhead bin of the Bus” and “[t]he Conroe passengers. Bus passengers have no possessory
Police’s request to board the Bus (and the Driver’s interest in a bus’s passenger cabin—except with
alleged consent) directly affected [his] possessory regard to their personal luggage. Any reasonable
interest.” expectation of privacy extends only to that luggage.
The Government concedes that Wise had a legitimate Passengers have no reasonable expectation of
expectation of privacy in his luggage. However, the privacy with respect to the bus’s cabin. Therefore,
Government argues that although Wise had a legitimate Wise lacks standing to challenge the driver’s
expectation of privacy in his luggage, he still lacks decision to consent to the search of the bus’s
standing to challenge the voluntariness of the driver’s
interior cabin.
consent to allow police to search the bus’s passenger
We may affirm the district court’s ruling on the
cabin.
motion to suppress “based on any rationale
We use a two-pronged test to determine whether a
defendant has standing under the Fourth Amendment to supported by the record.” Wise identifies three
challenge a search: “1) whether the defendant [can] potential avenues for affirming the suppression
establish an actual, subjective expectation of privacy ruling: (1) he was unreasonably seized in violation
with respect to the place being searched or items being of the Fourth Amendment when the police
seized, and 2) whether that expectation of privacy is one questioned him on the bus; (2) he did not
which society would recognize as [objectively] voluntarily consent to the search of his backpack;
reasonable.” and (3) the officers lacked suspicion to justify a
Wise satisfies both prongs with respect to his luggage.
Terry pat down. We disagree.
Thus, Wise could challenge a situation where the bus
Wise argues that the Conroe Police Department
driver permitted the police to search Wise’s luggage. unreasonably seized him in violation of the Fourth
However, it does not follow that Wise has standing to
challenge the driver’s decision to consent to the search Amendment when they questioned him on the
Greyhound. He asserts that he felt restrained by
of the bus’s passenger cabin. Our case law provides
some guidance. Automobile “passengers who asserted police officers while on the bus.
neither a property nor a possessory interest in the Wise identifies a number of factors that
automobile that was searched . . . had no legitimate contributed to feeling like he could not leave the
expectation of privacy entitling them to the protection of bus or end the encounter, including: (1) the
the [F]ourth [A]mendment.” United States v. Greer, presence of officers inside and outside the bus; (2)
939 F.2d 1076, 1093 (5th Cir. 1991), op. reinstated the presence of a police canine and marked police
in part on reh’g, 968 F.2d 433 (5th Cir. 1992) car; (3) the fact that police were conducting a
(citing Rakas v. Illinois, 439 U.S. 128, 148 (1978)). canine drug search near the location they
We have recognized that a commercial bus questioned him; and (4) the officers’ failure to
passenger had a reasonable expectation of privacy advise him that he could refuse to answer their
in his luggage. However, in that same case we questions or comply with their requests.
clarified that passengers have “no reasonable The Government argues that Wise’s interaction
expectation of privacy in the exterior luggage with the police was a consensual encounter—not a
compartment of a commercial bus, and therefore seizure that could implicate the Fourth
no standing to contest the actual inspection of that Amendment. The Government contests Wise’s
compartment, to which the bus operator assertion that the factors mentioned above would
consented.” make a reasonable person feel that he could not
Passengers traveling on commercial buses decline to speak with the police officers or
resemble automobile passengers who lack any otherwise end the encounter. The Government
property or possessory interest in the automobile. directs us to Florida v. Bostick, 501 U.S. 429
Like automobile passengers, bus passengers cannot (1991), and United States v. Drayton, 536 U.S. 194
direct the bus’s route, nor can they exclude other

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