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The Supreme Court's Recent Decision Regarding Whether a Car Passenger is "Seized" in a Traffic Stop:
What the Court Held, What it Didn't Hold, and Why the Decision Was Unanimous


Friday, Jun. 22, 2007

Earlier this week, the Supreme Court ruled, in Brendlin v. California, that when a police officer effects a traffic stop of a passenger vehicle, the passengers - and not just the driver -- are "seized" within the meaning of the Fourth Amendment. Accordingly, the passengers - and not just the driver -- may challenge the constitutionality of the stop.

The decision was interesting for a number of reasons - including its unanimity. (Justice Souter wrote for the entire Court.) In this column, I'll discuss why the decision was unanimous, and focus on the specific nuances of the Court's holding.

The Facts of the Case

The facts of the case, which I recounted in more detail in a previous column, are pretty straightforward: An officer made an unjustified stop of a car. After he approached the stopped vehicle, he for the first time recognized the passenger, Mr. Brendlin, as someone who had an outstanding no-bail arrest warrant out on him for parole violation.

The officer then arrested Brendlin, and searched both him and the car incident to that arrest. The searches turned up drugs and drug paraphernalia, which was then used to convict Brendlin of drug possession and manufacture.

Brendlin invoked the Fourth Amendment to try to suppress the evidence generated from the searches (under the so-called exclusionary rule). The California Supreme Court rejected his claim, however, on the ground that he wasn't "seized" until he was arrested. The court concluded that, since the arrest was based on a valid warrant, there was no problem with it, or with the subsequent searches.

One Reason the Decision Was Unanimous: An Intuitive, Common Sense Point

Why was the decision unanimous? As my fellow FindLaw columnist Edward Lazarus pointed out yesterday, the Roberts Court - notwithstanding Chief Justice Roberts's expressed hopes during his confirmation process - remains a somewhat divided Court, one that often breaks down 5-4 on important rulings. Fourth Amendment criminal procedure cases regularly generate fractured rulings. Thus, the unanimity of the Brendlin decision is significant.

One reason for the unanimity may have been that the California Supreme Court's opinion seemed to ask some of the wrong questions. The majority of California Justices focused much of their analysis on whether the officer had directed his authority toward the passenger when he made the traffic stop, and whether the officer's interest was focused on the passenger - as opposed to the driver and the car - when he decided to pull the vehicle over.

As Justice Souter explained, however, Fourth Amendment doctrine makes clear that what counts - in determining whether a seizure has taken place - is not the subjective intentions of the police officer, but rather the objective matter of how a reasonable person in the situation of the defendant would feel during this interaction with authority. In particular, the Court ruled, the key question is whether a "reasonable person in Brendlin's position when the car stopped would have believed himself free to [leave or to otherwise] 'terminate the encounter' between the police and himself."

On this crucial question, the Justices had little trouble concluding that a reasonable passenger would not feel free to walk away or otherwise terminate the encounter with the police officer who had just pulled the vehicle over. At oral argument, Justice Breyer lamented the lack of academic studies or empirical evidence on how people in the real world feel about their freedom to leave in such situations (and jokingly chided the legal academy for not producing helpful studies along these lines). Nevertheless, the Brendlin opinion quickly concluded that it was simply "intuitive" that no "sensible" passenger would feel free to walk away from the car, in part because it is "so obviously likely" that such a move would prompt an objection from the officer, who -- previous cases had already held -- has the authority to tell everyone in a car to stay put in order to control the situation and maximize safety.

In contrast, the California Supreme Court had missed the significance of this intuitive conclusion - which led to its conclusion that Brendlin had not been "seized," and that no Fourth Amendment violation had occurred.

As I wrote my earlier column on this case, I asked a few dozen friends and acquaintances - laypersons, as well as lawyers - whether they would feel free as passengers to leave a car that had just been pulled over. Not a single person said yes. (The Brendlin opinion does recognize, however, that context is key in deciding what a reasonable person would feel free to do. So the Court left open the question whether a passenger in a taxicab is "seized" when the cab is pulled over, because the expectations of cab passengers and the police in such situations may be different than when the car pulled over is a private vehicle.)

More Reasons for Unanimity: An Outlier Decision, and a Limited Ruling

Another likely reason for the unanimity of the Brendlin ruling is that the California Supreme Court approach had already been rejected by all nine U.S. Court of Appeals that had considered the question, and by seven out of the other nine state Supreme Courts that had looked at the issue. Although Justice Souter's opinion is very respectful of the California Supreme Court, there is an implicit message in his opinion, which cautions lower courts to be careful before deciding to be an extreme outlier on a particular question of law.

Yet another possible explanation for the Court's unanimity in Brendlin is that perhaps the Court chose not to resolve all the thorny issues the case might have presented. Although the High Court clearly rejected the California Supreme Court's reasoning, Justice Souter's opinion left open the possibility that the application of the exclusionary rule might be avoided - and some of the evidence obtained in the searches admitted - on another legal theory.

As the High Court wrote at the very end of its ruling, "[i]t will be for the state courts to consider in the first instance whether suppression turns on any other issue."

The Other Issues that Might Lead to the Admission of the Evidence Recovered

What could these "other" issues - that might justify admission of the evidence - be? I can think of a few. One is an argument made by California when it urged the Supreme Court not to take the case: The argument that because there was a valid arrest warrant out for Brendlin, any Fourth Amendment violation of his rights was too far "attenuated" from the evidence obtained in the searches to justify suppression of evidence.

To put this argument (or a close cousin) differently, once the police officer came across a person who had an arrest warrant out on him, what could the officer do other than arrest the person? And once the officer arrests the person, she must search him and his surroundings for possible weapons, and so on. In sum, the arrest and the search are both things we want a police officer to do in such circumstances. In light of this fact, why should we ignore the evidence that following these appropriate sensible steps taken by the police officer would uncover?

I think this argument - and the earlier cases on which it relies, such as United States v. Crews - can explain why the arrest of Mr. Brendlin should stand, even though it was occasioned by an illegal seizure of him and the car in which he was riding. Whether or not the initial seizure was valid, once a police officer seizes someone and finds out he has an arrest warrant out, she can't cut him loose. No one can credibly argue that Brendlin should not be convicted of the parole violation offense merely because he was improperly seized in the car.

One way to understand that conclusion is to say that Brendlin's arrest and punishment on the parole violation was inevitable - it was going to happen sooner or later. For this reason, the police didn't gain any new evidence or unfair advantage against him (concerning his parole violation) by virtue of the illegal seizure. They had enough evidence to bring him in simply based on the knowledge of the warrant, and the officer's recognition that Brendlin was subject to it.

But that rationale can't extend to the drug offenses. For those offenses (unlike the parole violation), the only evidence of his crime was obtained as a direct result of the illegal seizure. (If there had been no illegal seizure, the police wouldn't necessarily have found the drugs and drug equipment on him when they properly arrested him on the parole violation, because he doesn't necessarily carry that stuff around with him all the time.)

So California's argument can, I think, explain why Brendlin's own body should not be suppressed in the parole violation case (allowing for his incarceration), but it doesn't really address the drug offenses very well.

A second possible way around the exclusionary rule would be to say, as the Court did a few terms ago in another Fourth Amendment setting, in Michigan v. Hudson, that the availability of civil damage actions - which already sufficiently deter the police from violating Fourth Amendment rights -- makes the strong remedy of the exclusionary rule unnecessary in this circumstance. However, this argument - while still technically open to California on remand - seems to run up against some of the observations Justice Souter's opinion made in Brendlin about the apparent need to deter police from engaging in "roving patrols" in which they stop cars without justification in the hope that there will be evidence in plain view that incriminates passengers.

A third possible issue on remand concerns not the search of Brendlin's person but the search of the car. An earlier Supreme Court case, Rakas v. Illinois, held by a narrow 5-4 margin that a passenger who does not own the car or any of the evidence uncovered in a search of the car cannot challenge the admissibility of the items in the car that were seized, because he lacks a personal or property interest in them.

In the present case, it may be that the drug equipment found in the car that incriminates Brendlin in drug manufacture was not owned by Brendlin himself. If that is true, the applicability in this setting and continuing vitality of Rakas may be issues in the lower courts, and ones as to which the Supreme Court's Justices might not be unanimous in their views. It is in part because of its ability to avoid such issues that the Court was able to reach unanimity in this case.

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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