United States v. Wise, 16-20808

• Decision Date: 06 December 2017
• Docket Number: No. 16-20808,16-20808
• Citation: 877 F.3d 209
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Morris Alexander WISE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

877 F.3d 209

UNITED STATES of America, Plaintiff–Appellant,

v.Morris Alexander WISE, Defendant–Appellee.

No. 16-20808

United States Court of Appeals, Fifth Circuit.

FILED December 6, 2017

Anna Elizabeth Kalluri, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellant.

John Benjamin Kinchen, Hughes Arrell Kinchen, L.L.P., Houston, TX, for Defendant–Appellee.

Before CLEMENT, PRADO, and HAYNES, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

We REVERSE the district court’s decision to grant Defendant–Appellee Morris Wise’s motion to suppress.

Wise was traveling on a Greyhound bus when police officers performed a bus interdiction at a Conroe, Texas bus stop. Officers boarded the Greyhound, and Wise aroused an officer’s suspicion. The officer questioned Wise about his luggage. Two pieces of luggage were stored in the luggage rack above Wise’s head. Wise claimed only one piece of luggage as his own; no one claimed the second piece. The officers removed the unclaimed article from the bus, and they determined that the luggage contained cocaine. The officers asked Wise to leave the bus. He complied. Off the bus, officers asked Wise to empty his pockets. He complied. Wise gave the officers an identification card with the name "Morris Wise" on it. He also gave the officers a lanyard with keys; one key connected Wise to the backpack. The officers then arrested Wise.

Wise moved to suppress the evidence that officers found in his pockets. Following a suppression hearing, the district court suppressed all evidence obtained during the bus search. The district court found that the officers had established an unconstitutional checkpoint stop. The court also concluded that the bus driver did not voluntarily consent to the bus search.

I. BACKGROUND

A. Factual Background¹

On September 15, 2011, Conroe Police Department officers stationed themselves at a Greyhound bus stop located in Conroe, Texas, in order to perform bus interdictions. Bus interdictions typically involve law enforcement officers boarding a bus to speak with suspicious-looking passengers. The officers aim to discover individuals transporting narcotics, weapons, or other contraband. If the officers suspect criminal activity, they ask a passenger for his identification and boarding pass; they may also ask whether the passenger has any luggage with him. During the interdiction, passengers may leave the bus. They may also refuse to speak with officers.

That day, five Conroe Police Department officers were present at the Greyhound bus stop. Four officers were dressed in plainclothes—civilian clothes that do not include any markings of being a police officer—and concealed their weapons and badges. The remaining officer, a uniformed canine handler, was accompanied by a trained narcotics-detection canine.

That same day, Morris Wise traveled on Greyhound Bus #6408, which departed Houston, Texas, bound for Chicago, Illinois. At around 8:00 a.m., the bus made a scheduled stop at the Conroe station.

After the bus stopped, the driver disembarked. Conroe officers approached the driver and asked for his consent to search the bus’s passenger cabin. The driver gave his consent. Detectives Randy Sanders and Juan Sauceda, veterans of the Conroe Police Department with narcotics interdiction experience, boarded the bus. The two were dressed in plainclothes. The remaining three officers waited near the bus. Detective Sauceda walked toward the back of the bus, while Detective Sanders remained at the front. The officers did not block the aisle.

Detective Sanders noticed Wise pretending to sleep, which he found suspicious. In his experience, criminals on buses often pretend to sleep to avoid police contact. Detective Sanders walked past Wise and turned around. Detective Sanders looked back at Wise, only to see that Wise had turned to look at him. Detective Sanders walked back toward Wise. The detective noticed that Wise’s eyes were closed—but his eyelids were tightly clenched, and his eyes darted back and forth beneath his eyelids.

Detective Sanders, standing directly behind the seat, asked to see Wise’s ticket. Wise handed Detective Sanders his ticket. The name on the ticket was "James Smith." That aroused Detective Sanders’s suspicion; he thought this "very generic name" may be fake. Detective Sanders returned the ticket to Wise. He then asked whether Wise had any luggage. Wise said yes and motioned to the luggage rack above his head. Wise "appear[ed] nervous."

Two bags sat in the luggage rack above Wise’s head: a duffle bag and a backpack that were "nestled together." No other bags were nearby. Detective Sanders asked Wise if he could search his bag. Wise stood, grabbed the duffle bag, and placed the bag on his seat. Detective Sanders then asked Wise if he could look inside the bag. Wise agreed. The detective found nothing of interest.

Detective Sanders then asked Wise whether the backpack belonged to him. Wise said no. Detective Sanders said, "Dude, it was right next to your duffle bag. It's right above your head. Are you sure that’s not your backpack?" Again, Wise said no. Detective Sanders thought Wise appeared nervous: "It's hard to explain, but he's not comfortable.... [H]e's looking at me kind of like the deer in the headlight look, like ‘Oh, crap.’ "

Detective Sanders then asked in a loud voice whether the backpack belonged to anyone on the bus. No one claimed the backpack. Detective Sauceda, who had joined Detective Sanders, then asked loudly whether the backpack belonged to anyone. No one claimed the backpack. Detective Sauceda grabbed the backpack and again asked loudly whether it belonged to anyone. No one claimed the backpack. He repeated the question one final time, showing passengers the backpack while asking. Again, no one claimed the backpack.

Detective Sauceda grabbed the backpack and exited the bus. The detective asked the bus driver whether he noticed who brought the backpack onboard. The driver had not noticed. Detective Sauceda then told the bus driver that no one had claimed the backpack, and he asked what to do. The driver said he did not want any unclaimed luggage on his bus. The detectives considered the backpack abandoned, so they complied with the bus driver’s request and removed the backpack. Meanwhile, Wise remained seated on the bus—even though no one had restrained him or told him to stay on the bus.

Off the bus, the detectives placed the backpack on the ground next to bags that had been removed from the bus’s luggage compartment. The canine handler then directed his dog to sniff the backpack and surrounding luggage. The canine alerted to the presence of drugs in the backpack. The backpack was locked with a small "TSA lock," so the officers cut the lock to open the backpack. The officers discovered "seven small brick-type packages that were ... all wrapped in a white cellophane." The detectives thought the packages contained narcotics. They cut the smallest package open, and it contained white powder that they believed to be cocaine.

After discovering the packages in the backpack, Detective Sanders re-entered the bus. Standing near the driver’s seat, Detective Sanders motioned and asked Wise—in a tone that "was a little bit elevated"—to come speak with him off the bus. Wise "sa[id] something to the effect of, ‘Who? Me?’ " Detective Sanders said, "Yes, sir. Do you mind getting off the bus?" Wise complied and exited the bus. Detective Sanders did not tell Wise that he could refuse to speak to him or refuse to exit the bus.

Once off the bus, Detective Sanders identified himself to Wise. The detective said that he worked in the Conroe Police Department’s narcotics division.² He told Wise that the backpack above his head contained a substance believed to be cocaine. In a conversational tone Detective Sanders asked Wise whether he had any weapons. Wise said no. Detective Sanders then asked Wise to empty his pockets. Wise complied. Among other items, Wise removed an identification card that Detective Sanders asked to see. Wise gave him the card. The card said "Morris Wise." Wise also removed a lanyard with several keys attached. Wise then put everything back in his pockets. The officers asked Wise if he could again remove the items from his pockets. The officers then asked to see Wise’s keys. Wise held out his hand, and Detective Sauceda took the keys.³ Detective Sauceda used a key to activate the locking mechanism on the "TSA lock" that the officers had cut from the backpack. Detective Sanders then arrested Wise.

B. Procedural Background

Wise was charged with two counts: (1) conspiracy to possess with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and § 846 ; and (2) possession with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii).

On March 4, 2013, Wise filed a motion to suppress the evidence the officers obtained after he was asked to exit the bus; he claimed this was an unconstitutional seizure. The Government timely filed its response and asserted that the officers had reasonable suspicion to perform an investigatory detention.

The district court held a suppression hearing on April 5, 2013. Detective Sanders and Detective Sauceda testified; Wise did not testify. During the hearing, both parties reiterated the arguments mentioned above. The district court then held a pretrial hearing on October 28, 2013. During the pretrial hearing, the district court judge stated that he would suppress "the bus search evidence."

On September 23, 2016—nearly three years later—the district court issued a written suppression order and opinion on suppression. The Government timely filed a motion for reconsideration, and Wise filed a response. The district court summ...