crime control in violation of adman which resulted in unconstitutional seizure of the bus the driver did not park the bus at the bus stop as a result of police action but simply as a matter of greyhound schedule accordingly and the bus under the fourth amendment in addition the district the argument that they know the greyhound policy is to stop at this particular road stop whatever it was and they're poor they're kind of laying in wait and then it's the equivalent of a check the it's true that there's a schedule the gray headed hears too and the schedule did dictate that the bus would stop at that stop at that scheduled time and the police officers were there however this is not a checkpoint it is not a seizure the choice of individual or corporate action to stop the bus there does not result in government seizure of a boston police because the officers were there and they requested board entry onto the bus virtually the same situation was approved of injury and during the same thing happened there was a scheduled bus stop the bus pulled in the all of the passengers disengaged from the bus they got off the bus they did whatever they were doing at t stop and then as they were going back on to the bus the bus server collected all of their all their bus tickets they all stayed on the bus the bus driver then went to deal with some administrative matters keeping hold of the tickets and when he was leaving the bus coercive if you will this stop here the passengers were able to get on and off the bus they still retain their tickets there wasn't anything that kept them on the bus there wasn't anything that kept them off the bus were there just ask him every bus driver that made a stop there at the stop question or look inside the bus was it something that there were there were several hours doing it or did do for some reason pick out just this this bus there is no evidence in the record regarding us this was not an issue raised by the defendant below the defendant only challenge he said he was seized at the moment that's a police officer asked him to step off the bus so i think prior to that fact to keep the aisles clear they've had other passengers who declined to speak with them they let them go about their business people and to the best people i was at the bus so the officers have done this before but there's no act record there's zero evidence in the record about what specifically occurred this day if it was every bus if it was just this bus how long they were there those details were not developed as a matter of the officers didn't tell mr wise that he could refuse to cooperate no and in fact the supreme court has clearly said that they don't have  to tell the office of the passengers that they could seize the conversation as long as it is clear to a reasonable person and here i would suggest that it was clear to a reasonable person they didn't confiscate their tickets they kept the aisles clear they spoke in conversational off or if you just speak to him at the stop all we know was mr wise but we know but the reaction of other people to people walk off call the police when we're interviewing people are walking around or did anybody refuse to talk to them and there's no they just recorded question the officers about this they said it's typical for people to get on and off the bus was still stopped there they assume people got on and off but neither the officer saw people did they got on the bus one went to the back one was in the front they were talking to the passengers on the bus they didn't have any knowledge of people getting on or off the bus but we do know that when it pulled and the driver did exit the bus in the bus the doors are opened so it's likely that people did this was the bus stop this is where in the air this was not a checkpoint he the district court found that this was a checkpoint because it was the forced interaction between the police officers and the bus driver and the passengers but here there was no force forced interaction the fourth amendment comes into play only when there's a seizure and here there was no seizure greyhounds decided that this was the bus stop the bus driver pulled the bus into the station into the stop stops the vehicle exited the vehicle and that's when the police approach he gave consent for the bus on the the officers to board the bus and at that point and engage with a consensual encounter with the passengers on the bus this was not a checkpoint and it took to the bus driver to determine consent and the passengers have no no right to obey any expectation of not being detained totally up to the bus driver of the one in charge of the bus but what rights do the play if the passenger for example has an ownership interest in the vehicle or later if there is a search of something that the passenger has a an expectation of privacy and for example if it's their luggage in the back or something like that  that that confers a fourth amendment right to them to challenge the search or the seizure here a person on a bus yes it is the bus driver who can give consent to board the bus or not but that's within the context of once the officers are on the b e district court case from two thousand and two in pennsylvania and there greyhound said that its policy in that area in that time in that state in that year was that the bus drivers should consent if they could it to the officers boarding the bus but i say we're not on schedule there was some other reason they could declined to do that so i think that that policy there indicates that there was a general willingness to cooperate with officers and they wanted to board the bus however the driver still has the discretion to say no and that was fully that was fully a part of the policy that greyhound has now i need to say even under that policy if it applies i think that still here there is no force coersion here the driver could have said no that would have been well within the policy presumably he's aware of the policy the greyhound has again no that case that the district relied on was from two thousand and two in pennsylvania there's no bearing on how that applies to  just underlining policy you know discretion on the bus driver just that if you're working on one of our buses give consent to the police officers here would that change the outcome no it wouldn't because the defendant doesn't have speed doesn't have standing to challenge the consent the defendant only has standing if he has an ownership interest or a privacy interest in the thing being seized here the boss or the thing being searched which would be the backpack that had the they can do that right as a blanket since then it's not really a matter of the driver thing because well i would agree with you your honor and i think that's why below the defendant didn't challenge the consent of the driver this wasn't an issue raised in the district he challenge was the what he alleged to be a seizure when the officer asked mr wise to depart from the bus that's the point where he says a seizure occurred he doesn't challenge the stop he doesn't challenge the driver's consent and again going back to unfair as the motion that he made the prism of billions a wave in his request that mr wise exit the bus he says that he was seized at that point and that there was no reasonable suspicion that is incorrect at the point that the officer went back to the b m asked him to step off the bus first it was a consensual encounter it was a request the district court found that his consent was not voluntary but again it was based on this policy from greyhound in pennsylvania and this thousand and two casey said it can't be voluntary because there was a checkpoint and if there's a checkpoint then that he was unconstitutionally season and there wasn't enough dissipating time between the seizure and the consent for that to actually truly be voluntary and then also he relied on the greyhound policy so the district court assumed that his sent his consent was voluntary but that it was not freely given given the checkpoint given the greyhound policy and within that context he said it was not however here i think that the interaction was the facts about the consent are in are not disputed he does and he the district court looks at the law of checkpoints and law of the greyhound policy as a matter that saying even though this consent was voluntary it the generic name the fact that the the backpack and the duffel bag were nestled together the backpack was abandoned they later found cocaine in it after drugs and all of that is reasonable suspicion there is no other luggage around these two pieces of bags it was directly above mr wise i think all of that is enough to have reasonable suspicion to call and carol him to his pockets right yes he did so after he gets off the bus they ask if he has any weapons and he says no and they ask him to volunt so the after they ask everyone on the bus if it was anyone's mr wise it is claimed ownership of the people around who disclaimed ownership everyone on the bus to disclaimed ownership they pick up the backpack and they walk outside and they talk to the driver the driver says he doesn't recall whose it is and they ask well no one's claiming it what would you like us to do that he says get off my bus so they take it off the bus they put it on the ground they pull out a few other luggage pieces and they have the canine go around and sniff the canine alerts to the backpack up and there's the white powdery substance later confirmed to be cocaine in there so it's at this point do they go back in and they request that he gets off the bus again she consents to it he gets off the bus at that point they ask him if he has weapons he says no they ask him to empty his pockets and he does and that's when they find his id which gives his true name which is a match to his ticket and then they also find a key there that matches the lock to the backpack which the eighty's bolt cutters to remove so at this point the stop took about twenty five minutes from the point where they asked consent to board the bus until when mr wise is arrested it was all proper it was a consensual encounter that developed into reasonable suspicion then later probable cause i think you might be were oh i i don't know the reason for it so the stop occurred at the end of two thousand and eleven the motion to see there was after this incident occurred there was further investigation and so defend it was actually i believe indicted the beginning of two thousand and twelve the motion to suppress was litigated in two thousand and thirteen and shortly after the hearing the judge indicated that he was going to grant the motion to suppress and the parties responded saying you know w consider whether appeal when we get the written decision defend it filed a motion to dismiss as is appropriate with a mission to suppress that is granted and they just report said well i've got to write it up essentially you had to write the initial opinion over three years later he wrote the may please the court john canter for morris alexander wise your honor is there are several basis upon which this court can affirm the district court suppression order and i want to begin with the first one that was discussed by government counsel and that is that this incident at the bus station was a checkpoint following up on judge changes initial question this was not a situation where the just happens upon a parked bus casually talks to the driver and gets consent to board to question the passengers this was an orchestrated program to go to judge prados question about whether or not all buses were stopped that's exactly what the district court found based upon the evidence of the testimony in the testimony also at the bond hearing these were planned weeks in advance and they occurred every two weeks the difference between this and a checkpoint that the stoppage is not caused by the officer it's not in fact the supreme court waited head on into this distinction as to whether or not a checkpoint requires a stop in the case of us versus martinez where it is where the government much like in this situation said not a checkpoint the bus never actually the automobile was never actually stopped the defendant said yeah there is a stop here it is a checkpoint and what the supreme court ultimately said is that it doesn't matter we're going to consider that it's a virtual stop this is not something you're a bunch  of there and you kind of slow down to get past them and and all of that and then maybe they wave you in or something like that this is something where the stop itself whether a stop a slowdown or anything else is entirely voluntary on the part of gray on a grander sided we don't like this truck stop any more we're going to go want to it down obviously have nothing to do with it so there's no slowdown or stop caused by the officers the ops are simply taking advantage of the fact that they've already been to stop doesn't that make a difference what is the primary factor in all these checkpoint cases is the intrusion on the motorists and there are levels of intrusion and that's where the government's argument properly should be is that hey the level of intrusion here on this motorist is low let's compare it to the program matic purpose of the checkpoint but that's not what the argument is saying they're set at the government is saying they're saying that there is some bright line rule by the supreme court that there has to be an actual sto the supreme court has not created a constitutional loophole here what the supreme court has looked at time and time again is the government intrusion and in this case you certainly had the government intrusion and when the court has said you know what we're also looking at the subject of intrusion and we're looking at the effect the anxiety the concern it would be caused upon the unoffending motorists and you've got leading up to the stop you've got signs saying you are coming up to a checkpoint we're going to be looking for drugs or something to that effect and the supreme court has determined that that reduces the anxiety level where you didn't weeks bus drivers already stopped i mean to me you are conflating the notion of whether it's a stop slow down and that's not that's kind of a technicality versus a voluntary decision i decide to go to rest stop a every day at ten o'clock on my drive from houston to dallas or whatever and the police officer knows and decides to take advantage of that that's just different the police you don't have a case that suggests otherwise your honor i didn't get there every single supreme court case cuts through and talks about the government intrusion upon the unoffending motorists and you certainly have the higher the government is causing the stoppage or the slowdown you've been making a distinction about well i didn't really stop because i was going five miles an hour and i agree that's not the distinction but here if the government isn't causing the stop and all has nothing to do with the stop it has nothing to do with greyhounds policy or anything like that how can that be a governmental intrusion if it great i'm going to stop every day of the  congress stop for fifteen minutes how is that a governmental intrusion for the police officer to show up and talk to the best driver because at some point right and your honor correctly points out that purse kegel this bus stops like every bus  on that schedule stops at this at this point on south fraser the only place they're in conroe and the fact is i doubt point you've got five operators that are confronting that boss one of them uniformed you've got canine unit you've got a parked car right now you can get into well at that point you know if it sees how much of an intrusion is that you didn't actually cause to stop but there you are are you delaying it you can get in all of these types of issues that the supreme court says is perfectly appropriate when you are determining whether or not the intrusion is minimal because if this court does determine that the intrusion is minimal that's one part of the test then you get to the program out of purpose because it is a program at the end of the day that's what this is it is a program to check busses edmon was a program to check busses martinez who right there was a program to check busses martinez for today they said the intrusion is minimal the purpose outweighs finding illegal aliens outweighs the intrusion in the court talked about how practically this is better then and certainly more cost to the saloon a roving stop because the impracticality of looking at cars along the freeway and trying to  out how how long the stop would last without the officers being there there is no evidence and certainly our position is that the facts have been fully developed but if there is anything that this court feels the where the record should be further different now i'm i think our pleadings are very clear that we that our position is this is this is the primary basis of the appeal because of the supreme court law on government intrusion and as your honour's pointed out there is a policy of greyhound that requires these buses to and in the end the government and the law enforcement knew about this and the government says well that's a two thousand and two case but hey that's what's in the record and that's all we have in the record in the court took that in the testimony of the agents and said say judge i'm just going to always go cooperate with police officers it does that mean that any time i cooperate and that's forced it does not mean this situation when you're talking about and looking at the level of government intrusion it does to call it that now that the district court raised that fortunately there is no rule or law that the district court can't be smarter than i am in this district court wasn't on several issues and we certainly appreciate that and these are valid points but but but i personally didn't raise that issue but it has been fully briefed and in the fact is that the court the court did find based partly on that policy but also based upon consideration of outer evidence that factually there drivers consent was coerced but i don't understand really if the greyhound is the owner of the bus and greyhound has made a determination that with maybe an exception of you know emergency i don't know what the driver should consent driver being their employee that they're paying to drive this bus and do with a tell him to do why does that make that any less consensual what the driver of the greyhound does  the entire bus could be all the all the passengers could be questioned in the entire bus could be served that obviously applies to mr wise and his belongings so you know he didn't give consent for them to as i don't commit a crime or something they're not going to do anything to me so i don't understand why mr wise can challenge greyhound who owns the bus and employs the bus drivers policy is not talent in grey hair is just essentially saying that  unconstitutional boarding of the bus pursuant to the involuntary consent of the driver but for that involuntary consent what if instead of the driver they had called up greyhound and said we have your bus here it's parked at a restaurant may we search and the president of greyhound said yes the bus driver said nothing would that be an involuntary search i think that that there were facts that the court could consider to determine whether or not the driver has been coerced and i'm certain that that the district court would consider exactly that that's not what happened but based upon the facts that the court had the court determined that the driver was coerced we have a you're talking about a constitutional right of the driver that assuming you're right was violated so the bus driver was coerced therefore it's his constitutional right hundreds that  over to your client's constitutional right because he was a passenger on the bus and it wasn't his right to just say whether the bus could be searched or not and so how do you adopt someone else's court not this circuit this circuit hasn't directly addressed this issue but the district court and the and the appellate court in that circuit looked at that and determined that the driver's consent to the court that this has been an issue that's been addressed before by another circuit and that's the wilmington case that well meant and was was one of the facts in that case the wilmington case involved the single bus it was on the checkpoint made one of his arguments that the court fully briefed and determined whether or not the driver had provided consent now ultimately the court determined that the driver had provided consent but my point is a bag with the cocaine on it in your honor aspect question about whether or not he voluntarily emptied his pockets and government's counsel indicated that he did he did not with respect to the keys that was a finding by the district court and actually page one nineteen of the record on appeal talks about how he was requested to empty his pockets he did it one of the officers then said he talking about another officer told you to empty your pockets when and grabbed the keys out of his pocket that was not consent and that netspace were not any of the record on appeal the district court determined that he was requested  appeals pockets he consented and then the options of pain from his pocket so that's been correct and that is a very important point with respect to both  consent of the passenger which is one of the basis that we are going to appeal and also our argument with respect to tear and if that's true which i doubt he did allow him to use the keys to open up the bag that he had abandoned he didn't say that's my private suit case i can't start to iran i don't i don't recall anything in the record where once they obtain the key if there was any request at all as to what they could could or could not do with it that that that hasn't been argued it's far as i know by the government the government's only said that he complied with emptying his pockets and with them taking th back off the bus he didn't say oh wait stop that's that's my grandmother's quote in the back i want to keep it you're exactly right he did not say that your honor but the point is they then took that he went our position is he did not consent to is a qualified to carry they didn't arrest him at that point there was no concern at that point there was no determination that based on probable cause that it could be arrested they took that and then they will as your are pointed out to the backpack use that opened it saw them and open it and then they arrested so that takes care of to the to the offenses that the government raises with respect to terry one that it was concerned with respect to the keys no it wasn't and the the second point is that it was incident to arrest no it wasn't they took that key they went to open the backpack and only then did they arrest him those are the two points the government raises with do contest second scent and then they went on so this isn't a case that holds that the passenger has standing says well you lose anyway even if you have the standing so i don't think it stands for the proposition you sorry and your honor is looking at the  yes decision this what you're holding out to says as evident a precedent and i'm just saying it's not precedent for the point that you're making i would say that it that that is a case of a district court  through and determines whether or not consent existed because they did they went and determined that consent did exist in response to a defendant passenger argue window that the passenger had had standing to contest the driver's consent and will go off on this consent that doesn't show that a passenger has standing it's not it's not a holding to that effect that we would be in violate we would be going creating a circuit split with respect to where we to rule the other way that's the point i'm making maybe that's not relevant to you but it's very important and yeah you know i understand the point you're making with respect to the concern of the driver again i would i would say that the the district court goes through and you know we can speculate as to what the appellate court would have done yet they would have been firm and consented not to do so if they determined it did you know again speculation but perhaps that allows them to say something argument zero because it doesn't really matter and that was their point it doesn't matter there was consent my point in this case there was not consent but you know candidly your honour's this was the primary point with respect to this appeal and the affirmation of the suppression order is that this was a check point this follows point by point almost exactly in fact they probably looked at it with respect to the edmunds case going through exactly what happened with respect to edmunds it was not a fixed location it was drug interdiction you can't have that as a problematic purpose it was a plan for weeks in advance every single one of these that i'm saying right now is this case and edmunds it was chosen on two things it was chosen based on and profit plough that's why they chose the bus station is because all buses had to go there that's why they chose the location  just briefly the first when it comes into play only where there's a seizure a seizure under terry occurs when an officer has restrained the liberty of a citizen again it was great here who decided when and where the bus was going to stop and it was a greyhound employee the driver who allowed the officers on to the bus and i think that you can see all of this play out most clearly in drayton which is two years after atman and drayton again it was a scheduled bus stop three officers approached the driver the driver consented to them boarding the had they were visible badges they had plain clothes they id themselves as police they asked request they requested the driver to board the bus and then they spoke with all of the passengers this is bring court said this was a consensual encounter of the there's no indication on the record that he didn't consent to that indeed the district court's finding was they asked him to empty his pockets and he emptied his pockets and there was a lanyard with a key and the officer took the lanyard with the key and times mr wise put his hands his pocket and pulled things out and put his hands back and put things out there were a number of things in there change id the keys but there's no indication that his pulling everything out of the pocket was forced or coerced it seems to be it was put in his own hands in his pocket the policeman wasn't putting correct and in the correct there was a request by the police officer that he pull everything out of his keys it's true that the officer took the keys from him and use it to open up the