Do Car Passengers Enjoy Fourth Amendment Rights? The Supreme Court Grants Review in Brendlin v. California
By SHERRY F. COLB
|Wednesday, Feb. 21, 2007|
Last month, the U.S. Supreme Court granted review in Brendlin v. California, a case that asks whether police who unreasonably stop a car have violated the Fourth Amendment rights of the car's passenger or only those of the driver.
The case provides an important opportunity for the Court to clarify exactly what the Fourth Amendment protects when it grants people the right against "unreasonable seizures."
Standing Versus the Merits
To understand why the Fourth Amendment might have different things to say about passengers and drivers, it is helpful to know that the Court considers Fourth Amendment rights - like most others in the Constitution - to be "personal." That is, each individual holds her own set of rights and cannot generally complain in court unless she in particular suffers a violation of one of them.
If you are vested with the legal entitlement to complain about unlawful police conduct, then you have "standing" to object to that conduct. If you happen to lack standing, however, it does not necessarily follow that there is nothing unconstitutional to complain about. The Constitution, in other words, requires police to refrain from unreasonable seizures, but it does not empower the entire population to come into court and enforce that requirement.
Demanding that people have standing before coming into court, of course, is not self-evidently a good idea. One could imagine a system in which anyone who learned that the police have violated the Constitution could bring them to court and hold them accountable. This, after all, is to some degree the principle that drives the criminal law: The District Attorney, representative of all of "the people," prosecutes offenders even when their direct victims may have no desire to see justice done.
Thus, though there are specific victims of crime, we view the community as a whole to be vested with an interest in discovering the facts and punishing the offenders. In that context, the victim might be a witness, but he otherwise has no special claims on the criminal courtroom.
Two Kinds of Standing
For a system designed only to procure compliance with a set of rules, then, it could be practical to do away with the notion of "standing" and thereby simplify and facilitate the process of demanding accountability. But notions of standing do have a useful role to play within a system designed not only to guide behavior but also to provide compensation for victims.
If, for example, the goal of a civil case is to force an assailant to pay money for his victim's medical expenses, lost wages, and pain and suffering, then we must identify the person or persons against whose specific entitlement(s) the assailant has offended. There will, accordingly, be people (the vast majority of the population) who cannot come to court and sue the assailant for compensation. Courts properly determine that such people lack standing.
There are two senses in which a person can lack standing to complain about misconduct. First, it may be that the offender did not cause that particular complainant to suffer an injury. In such a case, the offender does not owe the complainant anything and should not be subject to her suit. When compensation is at issue, standing matters because it determines which people are entitled to be "made whole" (as nearly as possible) by the person who violated the rules. This first kind of standing is called "Article III standing," because the Supreme Court has interpreted Article III of the Constitution to provide that only people who have suffered or will likely soon suffer injuries because of an offender's conduct, and whose injuries can be repaired in some way by a federal court, may bring a lawsuit against that offender.
The second kind of standing requires more of the complainant than that he simply prove he has suffered as a result of the offender's conduct. It demands, in addition, that he be one of the people whose protection is the point of the rule that the offender violated.
Consider, for example, a police officer who unconstitutionally arrests John Doe for criticizing the mayor. As a result of the arrest, John Doe's employer, Jane Roe, must pay $100 in overtime wages to another employee in order to meet customer needs. Roe thus suffers a concrete financial loss as a result of Doe's arrest (an arrest carried out in violation of the First and Fourth Amendments). Roe is nonetheless not entitled to receive compensation for that loss from the police officer who unconstitutionally arrested Doe. This is because neither the First Amendment right to freedom of speech nor the Fourth Amendment right against unreasonable seizures is designed to protect employers' expectations of employee punctuality or attendance.
An alternate way of describing the employer's lack of standing is to say that although the employer suffered an injury, it was not a First Amendment injury or a Fourth Amendment injury that she suffered. In civil lawsuits, this second kind of standing is called "prudential standing" (because it expands upon the constitutional standing requirements, for reasons of prudence).
Fourth Amendment Standing
It is this second kind of standing - extending beyond the requirements of Article III - that can determine the outcome in Fourth Amendment motions to suppress evidence at a criminal trial.
The defendant always has Article III standing in such cases: He has suffered an injury in fact from the Fourth Amendment violation, because it uncovered evidence that led to his arrest and prosecution. Moreover, for obvious reasons, he could benefit greatly from suppression of that evidence at trial.
Whether, in addition to Article III standing, a given defendant also has Fourth Amendment standing depends on whether his injury is of the sort against which the Fourth Amendment is designed to guard. The Supreme Court has consequently indicated that only a person who holds a protected Fourth Amendment interest that the police have violated may seek suppression of the evidence resulting from the violation.
Many scholars (including me) have criticized this approach to standing. The stated purpose of exclusion - as the Supreme Court itself has said - is to deter misconduct, not to compensate search and seizure victims. It therefore ought to follow that anyone with Article III standing should get to exclude evidence from her criminal trial, regardless of whose specific rights the police misconduct violated.
Unreasonable Car Stops
In Brendlin v. California, the case with which I began this column, Fourth Amendment standing is the central question.
In Brendlin, a police officer stopped a car, based on the belief that the driver's registration had expired. As the government has since conceded, the officer did so without either reasonable suspicion or probable cause and thereby violated the Fourth Amendment's prohibition against unreasonable seizures.
Once the car was stopped, the officer observed substances used in the production of methamphetamine and was able to connect those substances to the defendant, Brendlin, who was a passenger in the car.
Shortly thereafter, the officer arrested the defendant for methamphetamine-related offenses. The defendant subsequently moved to suppress the evidence found in the car, but the trial court denied the motion, after which denial the defendant pleaded guilty to manufacturing methamphetamine.
Because the government conceded that the police officer lacked a constitutional basis for stopping the car, it follows that he necessarily violated the Fouth Amendment prohibition against unreasonable seizures. The remaining question, then, is whether the police violated Brendlin's particular right against unreasonable seizures.
Was Brendlin "Seized"?
The Supreme Court has said that a Fourth Amendment seizure occurs when an officer, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen" and that "a person has been 'seized' within themeaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."
The Court has also said that a Fourth Amendment seizure entails "an intentional acquisition of physical control." If the government deliberately brought about a situation in which a reasonable person in Brendlin's shoes would not have felt free to leave, then Brendlin was "seized."
One could certainly argue, under this definition, that Brendlin was seized. As a passenger in the car that was stopped, he was - necessarily - made to stop as well. He was not free to leave, because he was relying on the vehicle in which he sat for transportation, and because the driver was stopped, the vehicle itself was not free to leave.
Granted, the officer might not have intended for Brendlin to be stopped. The Supreme Court has said, however, that "[a] seizure occurs even when an unintended person or thing is the object of the detention or taking," provided "the detention or taking itself must be willful." Thus, because the police deliberately brought about the stop of the car in which Brendlin was seated, it follows - on this approach - that Brendlin was seized.
Finally, if Brendlin had gotten up and tried to leave the car (perhaps in the hopes of hitching a ride with a stranger or calling for a taxicab), the police officer could have been expected to order him to remain where he was, especially in light of the fact that the officer asked Brendlin in particular for identification. Under these circumstances, Brendlin can properly be characterized as reasonably feeling unable to leave due to the police stop.
What if Brendlin's Inability to Leave Was Incidental to the Police Action?
On the other hand, one could view the right against unreasonable seizures as protecting people from being directly singled out by the police and deliberately prevented from moving freely. One could thus argue that, as a passenger, Brendlin's inability to leave was largely incidental to (and thus derivative of) the stop of the driver and the driver's own resulting inability to leave. The police officer was intentionally stopping only the driver of the car (because the officer - erroneously - believed that the driver's registration had expired).
Someone taking this position - that Brendlin was not "seized" - might note the fact that the passenger's coming to a stop along with the driver was not part of the officer's plan - it arguably represented a mere incident of the defendant's physical presence in the car at the time. Though the police, in other words, did intend to detain the driver through a show of authority, any passengers within the vehicle were not the intended objects of the detention.
One could analogize this situation to that of a driver who gets stuck behind a car that the police have stopped. The driver in such a case has not been "seized," even though he cannot continue driving as a result of what the police have done.
As soon as the car came to a stop, Brendlin could have asked the officer, "Do you mind if I leave?" If the officer had said "Stay put," then - at that point - Brendlin would clearly have been "seized." If the officer had instead said "Go ahead," then Brendlin could have left (as inconvenient as that might have been).
By remaining where he was, Brendlin was thus (perhaps) responding less to the police presence than to the fact that he was dependent on his driver for transportation (much as the employer in our earlier example was dependent on John Doe to cover his assigned work shifts) and was prepared to suffer along with the driver.
A Related Precedent
Lending support to the second approach is the Supreme Court's decision in Florida v. Bostick. There, the Court held that a bus passenger has not necessarily been seized by police who board the bus at a scheduled stop and ask for a passenger's consent to search his luggage.
In one respect, Brendlin is an easier case than Bostick, because the police in Bostick specifically approached the passenger in question to ask for consent. Brendlin, by contrast, was not the police officer's target when the latter pulled over the car; only the driver was.
Yet the Bostick majority emphasized that if a passenger on a bus feels constrained not to leave, it may be because the passenger has chosen to take the bus for his trip (and not because of the police presence on that bus). The same, of course, could be said of Brendlin, who was apparently planning to remain in the car - whether stopped or in motion - until he reached his destination. And Brendlin - unlike the bus passengers in Bostick - was not even the target of the officer's conduct.
Decoding the Right Against Unreasonable Seizures
It is actually difficult to say whether the Fourth Amendment right against unreasonable seizures is truly meant to protect passengers or only drivers. When the Fourth Amendment was first drafted, the setting in which Brendlin found himself - a motorvehicle in transit - was not yet invented.
Still, when people enter into a vehicle - whether it is a horse-drawn-carriage or a car - they arguably align their interests with those of the driver and accordingly suffer the same constitutional harms that the driver does when the progress of the vehicle or their experience in that vehicle encounters an obstacle.
This seems true, however, of bus passengers as well, and yet the Supreme Court in Bostick saw fit to allow for attribution of a passenger's failure to leave to his choice of transportation (rather than holding police responsible for deliberately exploiting the passenger's independent commitment to remaining on the bus).
One Supreme Court precedent that might resolve the conflict is Brower v. County of Inyo. There, the Supreme Court said that setting up a roadblock with the objective of forcibly stopping cars there represents a seizure by the police of any cars that are ultimately stopped by that roadblock - even if some of those cars were not the ones that the police had had in mind.
The police officer in Brendlin intentionally brought about the stop of a car through a show of authority, and that deliberate action resulted in Brendlin's detention, however brief.
How Standing for Passengers Protects Drivers
Beyond the application of existing precedent, I would favor a decision for the defendant, on the theory that denying Brendlin standing would unduly interfere with the driver's right against unreasonable seizures.
As Justice White said in his dissent in Rakas v. Illinois, denying a passenger standing would "invite police to engage in patently unreasonable [conduct] every time an automobile contains more than one occupant."
To prevent police from conducting baseless vehicular stops (on top of the pretextual stops they already conduct, as discussed in an earlier column), the Court should draw the line at cars and say that everyone legitimately present in a private vehicle has been unreasonably seized when the police unreasonably stop that vehicle.