An Upcoming Supreme Court Fourth Amendment Decision: Can a Passenger Be Constitutionally Searched After an Unconstitutional Traffic Stop?

By VIKRAM DAVID AMAR

Friday, Mar. 30, 2007

In April, the Supreme Court will hear oral argument in California v. Brendlin - an interesting Fourth Amendment case. As I will explain, though the facts of Brendlin are relatively straightforward, the legal analysis involves some complications.

What Happened in the Case - the Automobile Stop and Subsequent Arrests

On the evening of November 27, 2001, Deputy Robert Brokenbrough, an eleven-year veteran in the Sheriff's Department of Sutter County, in rural California, was out on patrol, when he noticed a brown 1993 Buick Regal with expired plates in a parking lot. Brokenbrough called in the Buick's license number and received confirmation that its registration was expired but that a renewal application was in progress.

Brokenbrough then left to attend to other matters.

Later, however, Brokenbrough spotted the same Buick driving on a county road, and pulled over the auto to verify the car's registration.

Brokenbrough approached the driver's side of the Buick and asked the driver, Susan Simeroth, for identification. At the same time, he shined his flashlight into the car and recognized the passenger as either Scott or Bruce Brendlin. Aware that one of the Brendlin brothers was a parolee at large, Brokenbrough asked the passenger to identify himself. After determining that the passenger was Bruce Brendlin, Brokenbrough radioed for confirmation that Bruce Brendlin was indeed a parolee at large.

After receiving such confirmation, Brokenbrough drew his gun and ordered Brendlin out of the car. He then arrested Brendlin and searched his person incident to the arrest, discovering an orange syringe cap. A subsequent search of the Buick yielded various drugs and drug production equipment.

The Decisions by the Trial Court, Court of Appeal, and California Supreme Court

Brendlin was charged with manufacturing methamphetamine and with possessing and transporting methamphetamine. Before the trial court, Brendlin moved to suppress the evidence gathered as a result of the traffic stop, on the ground that it was the fruit of a Fourth Amendment violation.

However, the court denied the motion. It found that Brendlin, as a passenger in rather than the driver of the car, had no expectation of privacy in the Buick. It also found that Brendlin- again, unlike the driver -- was not detained when the car was pulled over. Rather, the court held that Brendlin was detained, within the meaning of the Fourth Amendment, only after Brokenbrough recognized him and ordered him from the vehicle at gunpoint. Because Brendlin was not detained at the time the officer pulled the vehicle over, the court held that he could not invoke the Fourth Amendment in order to challenge the traffic stop.

After pleading guilty to manufacturing methamphetamine, Brendlin appealed the denial of his motion to suppress. The Court of Appeal reversed the trial court's decision, holding that a passenger is, indeed, seized in a traffic stop, and that Brokenbrough lacked reasonable suspicion to stop the Buick. Based on this reasoning, the Court of Appeal deemed the evidence the fruit of a Fourth Amendment violation.

(While we sometimes think of "seizure" in the Fourth Amendment context regarding a seizure of evidence, an arrest or detention can also be a "seizure," and thus an also violate the Fourth Amendment. It is the person who is seized, and the seizure lies in his inability to leave.)

However, the California Supreme Court reversed again. It agreed with the trial court that, as a passenger, Brendlin was not seized when the car was stopped, so that even if the stop itself was not reasonable or justified, Brendlin (again, as opposed to the driver) suffered no Fourth Amendment injury from it. According to the California Supreme Court, a seizure for Fourth Amendment purposes did not take place until Brendlin was arrested, by which time the officer had probable cause to seize him (based on his status as a parolee at large) and then, based on that arrest, also had justification for searching the car.

The Case's Posture in The Supreme Court: Focusing on the Seizure Question

Due to the case's posture in the Supreme Court, the parties and the Court will assume that the initial stop of the car was unjustified. Thus, the only question that will be before the Court is whether Brendlin - not just the driver -- was seized by that unjustified stop or not.

If he was, then the ensuing arrest and search would be tainted, and the evidence against him could be suppressed under the so-called Fourth Amendment "exclusionary rule." Under the exclusionary rule, otherwise relevant evidence is removed from a case because the police came upon it as a result of illegal means.

If, by contrast, no seizure took place, as to Brendlin, when the traffic stop occurred, then the officer's identification and arrest of him after the stop would be OK, since that identification and arrest were grounded in accurate information about his status as a fugitive. In addition, the search of the vehicle after a legitimate arrest would also be permissible, and the evidence found would thus be admissible.

The Fourth Amendment prohibits unreasonable "searches and seizures." No one doubts that the driver of a car is seized when a police officer pulls the vehicle over. The question is whether the passenger, who is not likely the cause or target of the traffic stop, is likewise seized.

What is a Seizure?

The Supreme Court has stated the test for "seizure" in various ways. For example, it has said that a "Fourth Amendment seizure [occurs] only when there is a governmental termination of freedom of movement through means intentionally applied."

In the present case, California argues (as did the majority of the California Supreme Court) that because the officer's "intent" was to pull over the car and driver, the presence or absence of a passenger - and the interference with the passenger's liberty - was incidental, and therefore any impingement on his liberty was not through "means intentionally applied." After all, the officer could not pull over the driver's seat alone, and allow the passenger seat to go on its merry way.

In this regard, California analogizes to a situation in which persons in one vehicle get stuck behind another vehicle that the police have pulled over. Even though the persons in the first are affected by the traffic stop of the second, they are not "seized" by virtue of it.

But another, more generally applicable, statement of the definition of a seizure would seem to argue quite forcefully in favor of Mr. Brendlin. The Court has held that "a person has been 'seized' within the meaning of the Fourth Amendment . . . if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

This more generic definition (like much of Fourth Amendment law) does seem to have a circular quality about it, insofar as what a reasonable person believes he has a right to do depends in part on what the Supreme Court has held - and proclaimed to the world - that people are free to do.

But putting this circularity aside, I think the average person in America, invoking the kind of "commonsense judgments and inferences about human behavior" the Supreme Court has said is key in applying the Fourth Amendment, would not, as a passenger, feel free to exit and walk away from a car that had just been pulled to the side of the road by the police.

Reasons Why Passengers Would Not Feel Free to Leave a Pulled-Over Car

There are a number of specific reasons, none of which was adequately addressed by the California Supreme Court, that explain this likely widely-held sense of passenger constraint.

First, a passenger knows (or should know) that a police officer can, without any particularized reason, order passengers in a stopped car to remain inside, motionless. The Supreme Court has (seemingly wisely) said that this authority stems from the need for police officers to control a traffic stop situation to ensure their own safety. Quick movement by a passenger might be part of an attempt to overpower or harm the officer, and so the officer can insist that all persons in the vehicle remain put.

The California Supreme Court said that the power to order passengers to remain is not the same thing as an exercise of that power by a police officer. That is, until and unless the officer asserts the authority that is his to order passengers to stay put, then no constraint on the passengers' liberty has taken place. But surely knowing that a police officer can tell a passenger to stay put - for no particular reason, other than it makes him feel safer - puts a cramp on the passenger's sense that he is "free" to leave.

(This feature distinguishes the analogy described above, involving one car stopped because a car ahead has been pulled over. In this setting, a police officer cannot order the people in the car that is behind the pulled-over car to do, or not do, anything. Nor, as explained below, would changing one's route because of a traffic stop ahead be viewed as suspicious, the way a passenger's walking out of a pulled-over car would.)

Moreover, even if a passenger isn't sure whether his attempt to exit a detained car would prompt the officer to say "stay put," the passenger has a tremendous incentive never to find out. For starters, any such attempt to leave that was rebuffed by the officer would escalate the situation, and perhaps make it more likely that the officer would nervously draw his firearm and risk injury to all involved.

Perhaps more importantly, if a passenger were to open the car door and walk out of a pulled-over car, that action itself might suggest that the passenger has something to hide from the police and may indeed provide so-called "reasonable suspicion" to further investigate, detain and search the passenger. In a related setting, in Illinois v. Wardlow, the Supreme Court has held that "unprovoked flight" occasioned by a police officer's entry onto a scene can often generate an inference of criminal activity -- and that inference can then justify further police investigation and detention.

The Court in Wardlow distinguished "flight" from a police officer, on the one hand, from failure to answer a police officer's questions on the street and "going about one's business" on the other hand, which cannot give rise to any reasonable suspicion. But a passenger's exiting a pulled-over car is certainly not like simply walking past and ignoring an officer who is asking questions of passersby. Rather, the passenger who exits the car (presumably before reaching his intended destination) is not going about his business; he is apparently changing his business (which had been riding in a car to his destination) on account of the police presence. That seems much more like "flight."

For these reasons, I think passengers do feel - and reasonably so - very constrained to stay put when a police officer has pulled the car over, whether or not the officer has yet told them to do anything. Thus, I think the California Supreme Court is simply wide of the mark when it said: "While we are all familiar with the sinking feeling a driver experiences upon seeing police lights in the rearview mirror, few of us sense impending doom when we are in the passenger seat." Perhaps the sinking feeling passengers experience isn't as sinking (because, unlike the driver, they do not face a potential ticket or traffic school requirement). Yet I believe passengers feel significant nervousness and anxiety nonetheless, especially if they belong to the large segments of society that fear police authority and the possibility of unanticipated escalation more generally.

An Alternative Explanation of the California Supreme Court Result

At the end of the day, I think it is the California Supreme Court, and not Mr. Brendlin, that - in the words of the California Justices - has tried to "torture the definition of seizure" in this case. A straightforward, commonsense interpretation of that word would suggest that passengers are, in fact, seized when the car in which they ride has been detained.

Why is the California Supreme Court unduly limiting the meaning of the word, then? My suspicion is that the exclusionary rule - and its seemingly draconian consequences - is the real explanation here. Calling this traffic stop a "seizure"of Mr. Brendlin might mean that all the otherwise quite probative drug evidence gets excluded from the case against him. Thus, judges are predictably reluctant to give the word "seizure" its natural meaning here - because that very well might allow a rogue to prosper.

In the same way, the exclusionary rule and the warrant requirement imposed by the Court have in a number of cases caused many judges and Justices to define "search" in the Fourth Amendment narrowly and unnaturally - because the consequences of calling a search a search are so severe.

An Alternative Route for the Supreme Court That Would Allow the Seized Evidence to Still Be Used

All of this suggests one possibility the Supreme Court might pursue: calling a seizure a seizure, but not applying the exclusionary rule to this case.

The Court last term, in Michigan v. Hudson, made clear that the exclusionary rule is drastic medicine that should be administered only if its deterrent value is great, and only if there are no civil remedy alternatives that could do the trick. In the present case, one could argue that because police already know under settled law that evidence obtained in an unjustified traffic stop cannot be admitted against the driver of a car, perhaps they are already deterred enough from making unwarranted stops. After all, the driver, not the passenger, is almost always the focus of the stop in the first place. Extending the exclusionary rule to protect passengers might thus be unnecessary in this context.

Moreover, perhaps passengers such as Mr. Brendlin could pursue civil damage actions against the law-breaking officers under state law or under the federal civil rights statute that allows for damages awards. If they are meaningfully available, then such damage actions - and the deterrent incentives they create -- would seem to incline the current Court against applying the exclusionary rule here.

There are obviously problems in relying on damage actions when such actions are impeded by immunity doctrines and other hurdles. But limitation of the exclusionary rule in this case would be preferable, in my mind, to denying that a seizure occurred and ignoring the restraint that was imposed on Mr. Brendlin's liberty, the way the California Supreme Court did.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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