from the United States District Court for the Southern
District of Texas
CLEMENT, PRADO, and HAYNES, Circuit Judges.
C. PRADO, Circuit Judge:
REVERSE the district court's decision to grant
Defendant-Appellee Morris Wise's motion to suppress.
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.
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.
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.
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
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
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.
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
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."
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.
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.'"
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.
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.
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.
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.
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.
off the bus, Detective Sanders identified himself to Wise.
The detective said that he worked in the Conroe Police
Department's narcotics division. 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. 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.
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).
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.
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."
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 summarily denied the motion for reconsideration. The
Government timely appealed.