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CFR in Brendlin v. California?:
Perhaps the most cert-worthy issue in Fourth Amendment law right now is whether the passenger of an automobile is "seized" when a police officer orders the car to pull over. In a remarkable opinion issued this past June, People v. Brendlin, a closely-divided Supreme Court of California held that the passenger is not seized by a stop of the car. The Court ruled that stopping the car seized the driver, as it acts on him, but not the passenger, who just so happens to be in the car. Thus, in the Brendlin case, the fruits of an admittedly unlawful stop of the car Brendlin was in were used against him on the theory that he was not himself "seized" by the unlawful stop.

  Brendlin is one of the nuttiest Fourth Amendment decisions I have read in a long time. Its rule makes no sense at all. A seizure occurs when a person or thing is stopped, by whatever intentional means, and it simply doesn't matter whether the thing is a driver, a passenger, or a box in the trunk. Seizing an item always seizes its contents; you can't pick some contents inside that were seized and others that weren't. On a practical level, police officers can't just pull over cars illegally and then start trying to get evidence on passengers by asking them questions or trying to get their consent. In such cases, the passengers are just as seized (and illegally so) as the drivers.

  Fortunately, the Brendlin case is deliciously certworthy. The decision created a huge and ugly split, as it's contrary to what federal circuits (including the Ninth) and many state Supreme Courts have held. A few state courts adopted the Brendlin approach a long time ago, but the fact that they were courts from low-population states (like Idaho and Montana) made the split less pressing before. When the entire California state criminal justice systems adopts a different rule involving cars, however, a split really matters. It's a particularly ugly split because the 9th Circuit has a different rule, and most criminal cases involving auto stops are drug cases with concurrent federal/state jurisdiction. This means that if federal officials violate the Fourth Amendment as construed in federal court, they can just pass off the case to the states.

  A cert petition was filed in the case on November 28th. Remarkably, the state of California waived its opportunity to file a brief in opposition. According to the docket page, the case has been distributed for the January 12 conference. I would expect the Court to "call for a response," essentially ordering California to respond so the Court can take a better-informed look before it decides whether to grant the petition. Stay tuned. (For the record, I have discussed this case with Brendlin's counsel, and have offered my assistance in the case; I haven't actually worked on the case, however.)
Joel B. (mail):
I don't see how it is fair to call this opinion "nutty" you may disagree with it, but I think the court makes a legitimate point.

The officer in conducting a stop acts on the driver not the passenger. Now, if a passenger flees the officer that's certainly suspicious, but if anything the seizure of the passenger occurs by the driver's actions. That is, the passenger is seized because the driver yields. Since, one's fourth amendment rights extend only against the governtment, there is no seizure issue.

[OK Comments: Joel, if a police officer goes up to you and grabs a box you're carrying, have the contents of the box been seized? Under the theory you suggest, the box itself would be seized but the stuff inside the box would not be. The stuff inside the box is just acted on by the box, the thinking would go; because the box is a non-government actor, the contents are not "seized." That seems totally nutty to me, which is why I think Brendlin is nutty.]
1.3.2007 9:55pm
r78:
OK

Yes, a nutty decision indeed.

I can't imagine there is a cop around who would let passengers from a car just get out and start walking away after he pulls a car over.
1.3.2007 10:05pm
arbitraryaardvark (mail) (www):
I will be nervous about how this case will turn out if the court does take cert. Predictions anyone?
Do we have an empirical info on what cops actually do when the passenger, who is nominally free to leave, does so, by calmly walking away? Under Hiibel, was the passenger under any obligation to say who he was?
I have a case at the moment in which I'm contending that my client was seized, when they wouldn't let him walk forward to the voting booth to cast his vote, when he wouldn't show a driver's license.
It's one of the weaker claims in the case; the search claims are stronger and the state voting rights claims are stronger, but I enjoy the kitchen sink style of pleading.
If the court denies cert, as sometimes happens, does Brendlin have a way to access the federal courts, maybe habeus writ or 1983 action damages?
1.3.2007 10:19pm
Charlie (Colorado) (mail):
Kempermanx, I'm probably anticipating Orin, but you are wildly confused (and an arrogant ass) if you think that Orin is somehow obligated to respond to any particular incident on a blog. You want his opinion, I'm sure he's got a consulting hourly rate.

You want free ice cream, you get the flavor he feels like giving away.

[OK Comments: Yes, I deleted the "Kempermanx" comment, which seemed to accuse me of something bad for not blogging about the Duke rape case. In case anyone cares, I haven't really followed it more closely than everyone else; the issues are factual rather than legal, and I don't think I have anything particularly helpful to say about it.]
1.3.2007 10:22pm
Justin (mail):
"The officer in conducting a stop acts on the driver not the passenger. Now, if a passenger flees the officer that's certainly suspicious, but if anything the seizure of the passenger occurs by the driver's actions. That is, the passenger is seized because the driver yields. Since, one's fourth amendment rights extend only against the governtment, there is no seizure issue."

If the passenger gets out of the car, will he, you know, be shot? My money's on yes. So yea, I go with seized.
1.3.2007 10:31pm
elChato (mail):
<i>
I can't imagine there is a cop around who would let passengers from a car just get out and start walking away after he pulls a car over.</i>

Perhaps you're right- that would be the human tendency of most police. When I was an ADA, my office had a case where the cops pulled over a driver. His passengers got out and started walking away; the cops told them to come back and they said "screw you!" and kept going. Then the cops called for backup and it ended up being a fight, which the cops won once they had enough force and then they arrested the passengers for resisting and "battery on an officer."

But resisting WHAT? In my state by the way, you have the right to resist an unlawful arrest and we didn't see what law they had violated that would justify arrest. We thought the whole thing was stupid and dismissed it; which made the police mad but it still sounds right to me. I can see the cops having the right to "control" passengers to the extent of forcing them to either stay in the car or go away, to prevent interference with any legit purpose of the stop. But what authority does or should a cop have to prevent a passenger from getting out of a car and freely moving on about his apparently lawful business? Does the cop have the right to control the passenger and keep him in the car against his will?

I've glanced through <i>Brendlin</i> and am not sure how to feel about it. The court does cleverly limit the issue-- "Because defendant claims only that the traffic stop itself
constituted a seizure, we need not consider whether defendant was seized when Deputy Brokenbrough asked him to identify himself or whether, assuming such conduct constituted a seizure, it was justified by the deputy's reasonable suspicion that he was a parolee at large." It seems only realistic to admit however that when you stop a car you are "seizing" everything and everyone in it, except in the unusual case where the passenger will be close enough to somewhere he would like to walk to, and just get out and "take a hike" as the trial judge said.

IF the cop didn't have a good enough reason to stop the vehicle, does the passenger have standing to raise that? And if this passenger had told the cop he wasn't going to talk to him instead of telling him lies- but the defendant stupidly gave enough information to lead the cop to guess his actual identity- would the result be different?

This is a deliciously complicated case with a lot of not-so-obvious answers. I do agree it's probably cert-worthy.
1.3.2007 11:01pm
Visitor Again:
In my neighborhood, not too far from the Coliseum in Los Angeles, the police give directions to passengers as well as drivers when they make a vehicle stop, usually over a loudspeaker. Any passenger who thinks he's free to leave and acts on it risks getting plugged because of the shiny glitter some gun-happy officer sees emanating from his hand. At the very least he'll be halted at gunpoint or taken down by force.

Not seized? Heh. This is another of those War on Drugs decisions that have all but destroyed fourth amendment protections.
1.3.2007 11:44pm
kelvin mccabe (mail):
Cert-worthy for the wrong reason - giving the supreme court an opportunity to curtail the 4th amendment and the exclusionary rule even more.

I predict if the supremes take the case, they will issue a ruling affirming the california court, albeit limiting the holding to the specific facts of the case, and then slowly over the years they will expand the holding to reach a result in 30 yrs time wherein there will be the triumphant return of the old bright line rule. Which will simply be "there is no general fourth amendment protection against unreasonable searches and seizures." Which will be easy, because by then, all practical notions of what constitutes a "seizure" or a "search" will be long gone.

Apparantly, right now in California of all places, a passenger arrested for drugs found in the car may find himself wondering how he ended up in jail. Afterall, according to his lawyer, the "stop" was not a "seizure" and the dog "sniff" wasn't a "search". Sorry mr. client, there is nothing to challenge under the 4th. amendment. Tell me again, the client asks looking confused, "how does one who was not seized and never searched get arrested for possession of narcotics found under his seat?" (silence.....)

Is this not where 4th amendment jurisprudence is leading us?
1.3.2007 11:47pm
OrinKerr:
Kelvin McCabe,

No, I don't think it is. If the Court takes the case, I would think that this is an easy 9-0 reversal. Even if the passenger can walk away after being stopped, he is still seized: he is just seized for a short period of time and then released.
1.4.2007 12:13am
anonVCfan:
r78 and Justin, would it still be a seizure if the policeman told the passengers "you're free to go" or "you can sit here if you want, but I don't need to talk to you"?

If no one in the car's done anything, I'm guessing that most passengers would sit tight just because they'd rather not walk to wherever they're going...

This isn't a counterargument, I'm just trying to think about this.
1.4.2007 12:15am
tmittz:
I think in many cases, it's a de facto seizure anyways. I'm originally from suburbania Georgia, and now from DC, and there are plenty of places where getting out of a car and walking are not an option (the former because of distance, the latter for safety). Even if the police claimed/practiced allowing the passengers to leave, the large majority of the time that's not an option.
1.4.2007 12:57am
kelvin mccabe (mail):
Professor Kerr: I hope you are right, and you are more expert than I. However, it seems to me that the Court has been slowly distancing itself from taking cases upholding application of the exclusionary rule and instead would prefer a case restricting it. From my quick read of the california case, affirming the california sup ct would do just that for a large segment of the criminal population who were mere "passengers."

I do wonder though, how (if taken and affirmed) this would interplay with Caballes. If your not seized when the dog does its non-search sniff, and the dog alerts on the passenger, is the passenger then considered "seized" the instant the dog alerts but at no time before? And if the dog alerts on some other area of the car such as the trunk or a tire, is the passenger still "not seized" since the law enforcement attention has yet to be focused directly on him? Hmmm...
1.4.2007 12:58am
Realist Liberal (mail):
One complete side note that I found interesting is that Justice Kennard joined the majority and Justice Corrigan wrote the dissent. Justice Kennard is probably the most liberal justice on the CA Supreme Court and Justice Corrigan is pretty conservative (though both are pretty moderate). Just goes to show that labels can be misleading.
1.4.2007 1:24am
Andy Freeman (mail):
> Do we have an empirical info on what cops actually do when the passenger, who is nominally free to leave, does so, by calmly walking away?

If the car was stopped where it's illegal to be a pedestrian (such as many freeways), the passenger can't legally walk away. If the car was stopped in a bad neighborhood, the passenger can't safely walk away.
1.4.2007 1:58am
Jeremy T:
I once argued this sort of an issue in a moot court competition, and I argued that a passenger is not seized when the car he is travelling in is stopped. The reason is simple; he is (generally) free to get out of the car and go wherever he wants.

Most passengers will stay in the car for convenience' sake, but they are not, in the usual case, legally obliged to do so. At the very least, after the reason for the stop becomes clear to the passengers, they are free to leave when they know they are not a target of the stop.

If you are carpooling, and your friend gets pulled for speeding right in front of your office, nothing stops you from getting out and walking into your office. You are free to go.

This is different from Orin's proffered rule that when a container is seized, everything within it is seized. If you seize my cigarette pouch, the cigarettes within are also seized, because cigarettes cannot open the pouch and walk out. People can do that when they're riding in cars, and are therefore not seized in such circumstances.
1.4.2007 2:19am
PAC:
Remarkably, the state of California waived its opportunity to file a brief in opposition.


There may be an obvious answer to this that I'm missing, but why is this remarkable? Why would the state spend its time and money preparing a brief in opposition if the court might otherwise deny cert without one? As you suggest, if the court is interested in the case, all it will do at the next conference is request a response; there's no chance of the court granting cert without first hearing from the state.
1.4.2007 2:22am
anonVCfan:
Jeremy T, I think Prof. Kerr answered your question. The passengers are seized for a short time and then let go.

I guess the container analogy would be if the police took a container from you, but gave you back some of the contents before walking off with the rest.
1.4.2007 2:33am
Malvolio:
Wow. I would never have imagined it was legal for a passenger to just get out and walk away from a traffic stop. I wonder if the state could cite any case where that had actually happened.

I guess the moral of the story is, if you are carrying meth and get pulled over, give it to the passenger and tell him to get out of the car.
1.4.2007 3:11am
ScottB (mail):
There are two problems which everyone seems to be ignoring. First, it's clear that an officer who has reasonable suspicion that the driver, but not the passenger, has commited a crime, may pull the car over. At that point, a blanket rule that the passenger is seized makes no sense. It means that the police violate the rights of the passenger every time they pull over a car upon seeing the driver commit some violation.

Second, there is a clear safety requirement for officers to maintain some sort of control over the passengers. Let's imagine this: a 5'2 female police officer pulls over a car with five occupants. The driver stays put, the four passengers, all over 6 feet tall and over 200 pounds, calmly exit, walk toward the officer, and stop five feet away, surrounding her on all sides. Is this a crime? No. Should the officer feel somewhat concerned for her safety? Absolutely. May the officer give some sort of command to the passengers which prevents this? I think the Supreme Court will say that they may.

The scenario I gave is extreme, but it illustrates the point. Does the officer have a compelling and reasonable interest in preventing some lawful but threatening actions on the part of the passengers? How does this interest compare to the infringement upon the rights of the passengers? When looked at this way, I think the answer is clear- officers may order a passenger to stay in a vehicle, and arrest him if he fails to do so.
1.4.2007 4:18am
Arbusto Spectrum:

Second, there is a clear safety requirement for officers to maintain some sort of control over the passengers. Let's imagine this: a 5'2 female police officer pulls over a car with five occupants. The driver stays put, the four passengers, all over 6 feet tall and over 200 pounds, calmly exit, walk toward the officer, and stop five feet away, surrounding her on all sides. Is this a crime? No. Should the officer feel somewhat concerned for her safety? Absolutely. May the officer give some sort of command to the passengers which prevents this? I think the Supreme Court will say that they may.


I am neither a cop nor a lawyer, but I would imagine that the behavior you describe is bordering on obstruction of justice.
Moreover, how is your scenario different from a 5'2" officer standing on the sidewalk being approached and surrounded by four larger men? Is there a right to order large men off the street preemptively because they might do this? There is a fine line here, but the officer has means to maintain his or her safety other than preventing passengers/non-targets from leaving the scene.
1.4.2007 7:30am
Malvolio:
First, it's clear that an officer who has reasonable suspicion that the driver, but not the passenger, has [committed] a crime, may pull the car over. At that point, a blanket rule that the passenger is seized makes no sense...Second, there is a clear safety requirement for officers to maintain some sort of control over the passengers.
Well, which is it? Has the officer seized the passengers or not? If so, and the seizure is illegal, nothing obtained from the search is admissible against the passenger (the instant case). If not, the "clear safety requirement" cannot be met.
1.4.2007 7:51am
Visitor Again:
One complete side note that I found interesting is that Justice Kennard joined the majority and Justice Corrigan wrote the dissent. Justice Kennard is probably the most liberal justice on the CA Supreme Court and Justice Corrigan is pretty conservative (though both are pretty moderate). Just goes to show that labels can be misleading.

Janice Rogers Brown, the most conservative of justices, was excellent on the fourth amendment before the federal courts grabbed her from the California Supreme Court. She had the integrity to recognize what was really going on and she called it like she saw it. There's no way she would have gone along with this majority opinion, and Corrigan is the justice who replaced her.
1.4.2007 7:54am
sk (mail):
Your summary of the case doesn't tell enough about it to understand whether it is 'nutty' or not. I'm not a lawyer, so I don't know the legal definition of 'seize.' But if it is different (or has different applications), it is not intuitive to me that a passenger is 'seized.' I question your method of argument, though. Claiming that 'seize' in terms of passengers is obvious, because one 'seizes' the contents of a container when one seizes the container, confuses the commonsense definition of 'seize' with the legal definition of 'seize.'

A hypothetical example: suppose the legal definition of 'seize' includes the concept that one must provide medical care to any individual who is 'seized.' I would not argue that upon seizing a box of oranges, I am obligated to provide medical care to those oranges-I would be unjusting conflating the commonsense definition of seize (take control of) with the legal definition of seize (take control of and provide for the well being of the contents).

And so it is with your argument: you claim it is obvious that stopping a car includes 'seizing' the passengers because one can't seize a box without seizing the oranges inside. But maybe 'seizing' in the legal sense, and 'seizing a car full of passengers,' implies and includes more than the commonsense act of seizing a box of oranges. And maybe the court was correct in recognizing this. Without a clearer explanation of the legal concept of 'seize,' we can't know.

Sk
1.4.2007 7:54am
bchurchhowe (mail):
Prof Kerr--

I am no expert on 4th amendment law, so perhaps there are elements of this case that are over my head. But I don't believe oranges in a box have their own constitutional rights; this perhaps puts them in a different category than passengers in a car?

Also if we blur inanimate objects and American citizens via analogy, does that mean that passengers in the car are assumed to be property of the driver, just as inanimate objects would be? And what does that mean for the 13th amendment?
1.4.2007 8:39am
Justin (mail):
Anon, as Professor Kerr says, the seizure would still occur from the time of the stop till when the Cop informs the passenger of his (relatively useless) freedom. Even for the Scalia "formality is all the rage" types, a seizure still occurs.
1.4.2007 8:47am
Justin (mail):
sk, if a police officer detains a passenger and the passenger needs medical assistance, the police officer must terminate the seizure or give medical assistance. If he terminates the seizure, he must do it in a useful way to the officer. This is the exception to the DeShaney principle.
1.4.2007 8:52am
Justin (mail):
I should have said useful way to the passenger. Judge Posner took the position that a seized individual cannot be left "free" when placed in a "snake pit" under DeShaney
1.4.2007 8:53am
Joel B. (mail):
Orin,

Yeah sure, the contents of the box have been seized, but it's not like the Oranges have any free will of their own. It's also very important to note that the oranges are in the box because you or I placed them there. That is, they are in the box by the box possessor's choosing. Unless someone is kidnapped, they consent to being in the car. That is, they chose to be in the car with that driver. The traffic stop acts on the driver, and I'd still argue that the driver is the one acting on the passenger, unless the driver is government employee I don't see the 4th amendment issue.

I would analogize this case to say two people riding on a tandem bike, Joe and Scott, Joe is the "driver" in the sense that he controls the breaks, steering and petals, Scott rides along in back, adding some motive assist on his petals now and again. An horseback officer recognizes one, Joe, and says "JOE, STOP POLICE I NEED TO TALK TO YOU." Now, Joe, in control of the breaks stops and talks to the officer, Scott, along for the ride, waits around, but the cop then recognizes Scott, and says, what's your name, and runs find no bail warrant on Scott. Joe's encounter seems like it would be a seizure and an illegal seizure at that. Scott's seems like a consenual encounter, not 100%, "Scott comes up and talk to the officer consent," but still the cop asked basic question that Scott did not have to answer or even stay around to answer then Scott answered, but Scott wasn't stopped, Joe was.

Say though, that in either the car example or this one, Scott decides to leave, then the cop says, "STOP, you! POLICE." Scott stops and then evidence of wrongdoing is found on Scott, there I think you have the seizure, and Scott can supress, but without that, I don't see the independent free will of Scott being acted on more in either situation.
1.4.2007 9:43am
sk (mail):
Justin-
I just made up the medical aspect of my example. I could have equally suggested we are obligated to protect the constitutional rights of passengers but not oranges, or protect the property of passengers but not oranges, or anything else. The point of my post was to suggest that using the commonsense definition of 'seize' to establish that the legal definition of 'seize' is the same doesn't make any sense, unless the legal definition of 'seize' is in fact identical with the commonsense definition-and this would be determined by some other standard (legal history, statute, etc)-not by that commonsense definition itself.

Sk

Just curious, though. If you cease a seizure in a seized person, is the person still seized? (for that matter, if you seized a box of oranges undergoing a seizure, would you have to attempt to cease those oranges' seizure?) Let's see what Orin sez' about the need to cease a seizure in a seized orange.
1.4.2007 9:55am
Steve:
Even if the passenger can walk away after being stopped, he is still seized: he is just seized for a short period of time and then released.

This intuitively strikes me as wrong. If a typical passenger would feel free to get up and walk away from the traffic stop, then I don't think he's ever seized in the first place.

Prof. Kerr's bewilderment at this result reminds me of Justice Marshall's bewilderment at the majority decision in Florida v. Bostick. I think there are, actually, considerable parallels between the two fact patterns.

Under Bostick, it seems to me the police officer could even ask the vehicle passenger for permission to search his person, and it STILL wouldn't necessarily be a seizure. It seems crazy to me, but I just read the precedents, I don't write them.
1.4.2007 10:00am
Joel B. (mail):
Also,

Scott B made an excellent point that I want to highlight.

"There are two problems which everyone seems to be ignoring. First, it's clear that an officer who has reasonable suspicion that the driver, but not the passenger, has commited a crime, may pull the car over. At that point, a blanket rule that the passenger is seized makes no sense. It means that the police violate the rights of the passenger every time they pull over a car upon seeing the driver commit some violation. "

And that's absolutely right, if Orin's definition is to hold then everytime you pull over the driver for violating a traffic law (after all no one is suggesting that the "car" or the passenger is breaking the law), you are violating the rights of the passenger(s) after all, they are seized, what's the probable cause for their seizure? I can't see any. This becomes a fundamental problem if passengers are seized when the driver is pulled over, a result, that follows logically from Orin's argument.
1.4.2007 10:10am
Jeremy T:
AnonVCFan,


Jeremy T, I think Prof. Kerr answered your question. The passengers are seized for a short time and then let go.


I didn't ask a question. ;-) I think Prof. Kerr is wrong, and explained why. It is a close question, in my opinion, and it's certainly not "nutty" for the California court to come down the way it did. The California courts do lots of nutty things, but this isn't one of them.
1.4.2007 10:27am
Bored Lawyer:

There are two problems which everyone seems to be ignoring. First, it's clear that an officer who has reasonable suspicion that the driver, but not the passenger, has commited a crime, may pull the car over. At that point, a blanket rule that the passenger is seized makes no sense. It means that the police violate the rights of the passenger every time they pull over a car upon seeing the driver commit some violation.


This argument strikes me as flawed. In the posited scenario, the police have justification to "seize" driver because of a reasonable suspicion of criminal activity.

The license to "seize" the driver to me includes whatever is reasonably necessary to effect the seizure. Because he is driving a car, that perforce includes seizing the car. (Contrast this with the situation where the person/driver is walking, say down his driveway to his car. The justification to stop the person would not justify seizing the car, at least not necessarily, unless there was independent reason to believe the car was being used for a crime.)

The passengers voluntarily determined to ride in the car driven by the driver. As the old song says, "Wherever he goes, I go." A passenger's very life is put into the driver's hand. Furthermore, cars are routinely stopped all the time -- for speeding and traffic violations if for no other reason. The passenger certainly should reasonably expect that, if for some reason the car is stopped, he or she will be included in that stop.

In short, if there is a legitimate need by the police to stop the car to "seize" the driver, then that need extends to the car and everything and everyone in it. At least to the point of stopping the car so that the driver can be questioned.
1.4.2007 10:31am
OrinKerr:
Joel,

Re your 10:10 comment, check out Whren v. United States. Probable cause to believe a traffic violation has been comitted creates sufficient cause to "seize" the car and its contents temporarily to enforce the traffic laws. Notably, in the Whren case, Whren himself was a *passenger* in the car, not a driver.

Re your 9:43 comment, wouldn't you have to overrule cases like Tennessee v. Garner for your "free will" theory to hold? In Garner, the police shot a fleeing felon as he was running away, killing him. The Court held that stopping Garner had "seized" his body. Under your theory, I gather you would say that Garner must be overruled, as Garner did not stop under his own free will? After all, Garner was trying to run away; he didn't make the free decision to stop.

To be clear, a Court could adopt your approach if it wanted to overrule -- or, in the case of lower courts, ignore -- a lot of cases. But if we take existing Fourth Amendment law as a given, I think it's quite clear that Brendlin is wrong.
1.4.2007 11:06am
kelvin mccabe (mail):
Scott B - you are mistating the law when you claim that if Orin had his way, every time a cop pulls over a driver on reasonable suspicion of a traffic violation its an automatic violation of the passenger's right to be free from unreasonable seizure.

There is nothing 'unreasonable' about a brief temporary detention of a passenger during a lawful traffic stop of the driver. Its not that there isnt reasonable suspicion as to him, its just that the brief detention is unavoidable given the cirucmstances. Hence, its reasonable under the circumstances and there is no 4th amend.violation.

And before you go on about the correctness of the california court's decision, i suggest you ask yourself why this particular position has the support of ( i believe) only one federal circuit and only a handful of states. It seems to me that the overwhelming weight of consensus is that a passenger is seized for 4th amendment purposes when the driver is stopped and submits to lawful authority. Its not because the passenger aroused suspicion - although i can think of plenty of examples where its the passengers actions which cause the stop - its because the car is stopped and he is in it.

If reasonable or individualized suspicion is needed for every stop of every person -what happens to dui roadblocks? Border check points? Airport searches?

Also- think of the converse fact pattern. That is, where the passenger is the one who the cops want. In this situation, would you seriously argue that the police action of turning on their blue and red lights, directing the driver to pull over, and approaching the car is not a seizure of the driver? There is no reasonable suspicion as to him. Is that temporary seizure (of the driver) illegal according to you?
1.4.2007 11:38am
Monkberrymoon (mail):
Shouldn't Hodari D answer some of this? I mean, I can certainly see the argument that a passenger has been "seized" when an officer starts ordering the passengers of a car to do things (like don't get out of the car, etc). But until that happens, and until the passenger has actually submitted to the cop's authority by doing what he said, he hasn't been seized.

Plus, I agree with what was said above about the box or oranges. A box of objects is a poor a poor analogy to determining when a person has been seized.
1.4.2007 11:56am
OrinKerr:
Monkberrymoon,

Do you you have a response to my 11:06 post? I'd be interested in how you deal with Garner and Whren.
1.4.2007 12:12pm
elChato (mail):
Orin,

if the cop had had sufficient reason to stop the vehicle, would you regard the police actions as to Brendlin lawful?
1.4.2007 12:56pm
Monkberrymoon (mail):
Orin,

I'm not sure I understand why you think Whren is so important. The issue in that case, of course, was not whether Whren had been seized, but whether we should be concerned with a cop's subjective motives for stopping a car. One could read that case and presume that Brown (the driver) was detained when the car was stopped, but that Whren (the passenger) was not seized until the cops saw that he had drugs in his lap. It certainly wasn't the issue, so it didn't get discussed.

WRT Garner, I don't see how that conflicts with Hodari D. True, Garner didn't stop of his own free will, but the test is whether suspect yielded to a show of authority OR was forced to submit (I think Hodari was actually tackled). Being shot is the ultimate form of being tackled, I suppose.
1.4.2007 2:57pm
whit:
"I can't imagine there is a cop around who would let passengers from a car just get out and start walking away after he pulls a car over"

um. i HAVE to. that's because i work as a cop in a state that has deemed passengers in a traffic stop "free to leave" unless there are terry stop particulars, or they committed a violation themselves, such as no seatbelt.

i am also prohibited from "id'ing" passengers EVEN ON A VOLUNTARY basis during a traffic stop, and if I do so, it is deemed a seizure

again,the law varies from state to state, as we know, but that's the law (and state supreme court) decisions in my state

passengers are free to leave from a traffic stop, and if i try to detain them - that throws the whole stop into fruits of the poisonous tree, unlawful detention, etc. territory.

this is of course an ABSURD decision, but that is the law of the land in Washington state

so, to answer your question, I am required to let passengers walk away from a traffic stop.

and of course, the first time some cop does that, and the guy gets to a position of cover and starts tossing rounds at the cop, because in fact the cop just stopped an unreported stolen vehicle with robbery evidence inside, or something, then there will be much handwringing etc.

but for now, that is the law i operate under
1.4.2007 4:28pm
Bored Lawyer:
Someone may have already raised this, but is the "freedom to walk away" supposedly held by the passenger vary depending upon where the stop was made?

A stop on a busy interstate highway is quite different than a stop on a quiet residential street with sidewalks.

It is downright DANGEROUS for a passenger to walk away on a highway. In some places it may be illegal for pedestrians to walk on a highway. So both practically and legally, if a policeman stops a car on a highway, he has stopped all the passengers from leaving.
1.4.2007 4:59pm
whit:
i think you actually mean "freeway". not to get all technical and all.

lots of roads are "highways". many rural 2 lane roads are highways. you mean freeway.

but this is kind of irrelevant. in my state at least, where passengers are free to leave, the laws applying to passengers on the freeway are the same as the laws applying to any other pedestrian

so, he has not stopped the passengers from leaving , ASSUMING they are not allowed to walk on the freeway. they are just victims of circumstance :l

they chose the wrong driver
1.4.2007 5:06pm
public defender:
wow...I wish I was public defending in Whit's state
1.4.2007 5:09pm
whit:
yup, it's great for criminals :)

iirc, it's based on an independant reading of our state's constitution - which UNLIKE the federal one - has a right to privacy.

also, we have much stronger (clearly worded) gun rights than the fed const.

and sweeet self defense laws (state has to prove it was not self-defense. you don't have to prove it was)
1.4.2007 5:28pm
Paxti:

I'm not sure I understand why you think Whren is so important. The issue in that case, of course, was not whether Whren had been seized, but whether we should be concerned with a cop's subjective motives for stopping a car. One could read that case and presume that Brown (the driver) was detained when the car was stopped, but that Whren (the passenger) was not seized until the cops saw that he had drugs in his lap. It certainly wasn't the issue, so it didn't get discussed.

WRT Garner, I don't see how that conflicts with Hodari D. True, Garner didn't stop of his own free will, but the test is whether suspect yielded to a show of authority OR was forced to submit (I think Hodari was actually tackled). Being shot is the ultimate form of being tackled, I suppose.


I agree with the above. The factual scenarios matter. Given the facts above, isn't attentuation a factor? The defendant had a warrant for his arrest. Even if his arrest was illegal, isn't the existence of the warrant an intervening cause?

(disclaimer: been drinking).
1.4.2007 10:46pm
J'hn'1:
Well, in Ilinois back in the late 70s (IIRC 1979) and Largo Florida about 11 months ago, passengers would be shot attempting to leave the vehicle of a traffic stop.
I witnessed Hoffman Estates, Il draw a service revolver and cock it in the first instance from the rear seat, and the Largo stop I saw from a parking spot about 75 feet from the stop.
Legal or not, it was follow orders or die in both cases.
1.5.2007 12:28am
r78:

r78 and Justin, would it still be a seizure if the policeman told the passengers "you're free to go" or "you can sit here if you want, but I don't need to talk to you"?

You could quibble if you were in a remote location and there was no place to go or something, but I would agree generally that your scenario would not be a seizure.

Whit - I'd like to move where you are, too. I have twice seen officers unholster their weapons and stop passengers. Once they ordered them back into the car and the other time they told them to put their hands on the trunk of the car. I don't know the circumstances, but I did see the car getting pulled over and it seemed like a routine traffic stop to me. But, to be fair, this was in a neighborhood where there is rampant drug dealing so maybe the officers were, in fact, pulling them over for that.
1.5.2007 3:45pm
whit:
relating to the comment about "reasonableness" of stops, etc.

you mentioned dui checkpoints. those, in my state (and to my knowledge - some others) are illegal. cops can't do them. so, again, it comes down to - does the STATE constitution, with an independant grounds type analysis, offer additional protections on privacy, etc. vs. the federal one, and to what extent?

border checks are not analogous in this regards, since they are (to my knowledge) done by federal agents, and thus the state const. is irrelevant.

my point is that a seizure/stop/search etc. that is reasonable under the federal const. may be unreasonable under the state, and DUI checkpoints and passengers in vehicles are two examples of this.
1.7.2007 2:33pm