Five officers boarded a Greyhound bus in Conroe, Texas just to search it and confront passengers. Defendant’s consent to search belongings suppressed. This was a forced interaction by detaining the bus. United States v. Wise, 2016 U.S. Dist. LEXIS 130681 (S.D.Tex. Sept. 23, 2016):
In September of 2011, Morris Alexander Wise boarded Greyhound Bus 6408 in Houston to travel to Chicago. The driver stopped the bus in Conroe, Texas, at a gas station used by Greyhound as a waypoint — where passengers may buy snacks, use the restroom, board, or disembark.
Five officers of the Conroe Police Department laid in wait at the station to search buses. Four of the officers wore casual clothes — jeans, t-shirts, and sneakers — with their badges and guns hidden. A uniformed officer with a drug dog stood near the south margin of the parking lot. A marked car was 50 yards away, beyond the store.
Two of the officers — Randy Sanders and Juan Sauceda — approached the driver as he stepped off the bus. They asked to search the passenger cabin and the luggage hold for drugs. The driver agreed. Sanders and Sauceda boarded the bus. Sauceda walked to the back while Sanders stayed in front to watch the passengers. Neither identified himself.
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(2) Illegal Request to Search.
Checkpoints are a permissible law enforcement tactic but only to investigate specific crimes; by waiting at mandatory stops, the police dishonorably evade those restrictions.
If the police wanted to monitor a road that stretched for three hundred miles without any stops except a gas station at the half way point, they could: (a) gather on the road, stopping every car that travels it, or (b) wait for nearly every car to make the natural stop at the gas station and ask the drivers for permission to search their vehicle. Both are checkpoints.
Greyhound buses must stop at specific gas stations, restaurants, and terminals. By waiting at the gas station, the police achieve a checkpoint — asking permission to search every bus — while avoiding the constitutional requirements. The Constitution cannot be so loose a straight-jacket that officers can evade it by merely waiting at normal, necessary stops.
Without any suspicion of crime, the officers forced the bus driver to speak to them; they created a checkpoint that trespassed on the Constitution. They failed.
B. No Particular, Permissible Purpose.
The Constitution requires searches and seizures to be reasonable. Brief stops at checkpoints are reasonable if they are for a narrow particular law enforcement purpose directly connected to the use of the roads. Police can use a checkpoint to remove drunk drivers, verify licenses and registrations, and run immigration checkpoints near the border.
A checkpoint that seeks merely to uncover evidence of ordinary crimes, like possession of narcotics, violates the Fourth Amendment. The buses were seized without particularized suspicion to search for drugs and, as Conroe’s officers testified, anything else. It was an illegal seizure.
When the government gets evidence from an illegal seizure, it must be suppressed unless the government can show that because of a break in the chain of events, the evidence was not a product of the illegal seizure. The government says (a) the bus driver consented to the search of the bus and (b) Wise consented to the search of his bag.
Assuming that the consents were voluntary, they must be independent acts of free will to break the causal chain between them and the seizure. To ascertain whether the passengers and the driver consented by independent acts of free will, the law considers intervening circumstances, time between the seizure and the consent, and purpose and flagrancy of the officer’s illegal seizure.
These consents were not independent acts of free will. Neither grant of permission could have been given without the illegal seizure. Further, the police asked the bus driver for permission to search immediately after the illegal seizure and Wise within five minutes of it. Another court held that voluntary consent after an illegal seizure is not voluntary. Most important, the purpose of the suspicionless seizure was to detect ordinary crimes. Thus, only suppression will deter future, systemic, obfuscation of the Fourth Amendment.
The government strains to justify its agents becoming highwaymen, saying that it stopped the bus because of “security precautions or immigration.” One of the officers explained the Conroe program. He testified that they held the bus — with Wise on it — to search for drugs, money, guns, aliens, or anything else they could find — presumably over-due library books included. The government was not ensuring that the driver was sober or verifying the bus’s registration. It was not searching for aliens close to a border. The closest international land border — with Mexico — is 350 miles away, and the one with Canada is 1,470 miles away.
Conroe set up a checkpoint at the gas station and seized every bus that stopped there. It impeded the flow of traffic without a shadow of an articuable hunch. The government says that it “knows” people carry drugs on buses. If the police search 1,000 bus passengers, someone will likely have drugs. If they search 1,000 homes in Conroe, they will likely find drugs in at least one of them. That the police are likely to find something when they search enough people in some ordinary place is exactly why the Constitution prohibits their intrusion into the lives of 999 others. The probability that enough searches will discover contraband is a definition of a suspicionless search. This is being arbitrary with a statistical gloss. This was a gratuitous stop at a checkpoint.
The cocaine in Wise’s backpack, found as a result of the illegal seizure, must be suppressed.
