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.)
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Supreme Court Calls for A Response in Brendlin: Readers who were interested in my earlier blog post on Brendlin v. California might want to know that the Court has in fact called for a response. According to the docket page, the Court requested the response yesterday; California's Brief in Opposition is due on February 7.
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Supreme Court Grants Cert in Brendlin v. California: Wow, that was fast. Today the Supreme Court granted cert in Brendlin v. California, the Fourth Amendment traffic stop case that I blogged about two weeks ago.

  The timing of the grant is particularly interesting to me. The Court requested a response on Monday January 8th, and California filed its brief in opposition (BIO) on that Friday, just four days later. The Court distributed the case for today's conference and announced the grant this afternoon, just 11 days after requesting a response. If anyone has the BIO, can you send it to me? I'm curious if California conceded that it was a good grant.

  My prediction for the ultimate outcome: Brendlin will win unanimously, for the reasons mentioned in my earlier post and in the comment thread.

  In terms of the briefing, I'll be very interested to see what the SG's Office will do. Will they file an amicus brief on behalf of the state? They do that in most Fourth Amendment cases coming out of state courts, but this one is very odd; California's position is pretty hard to support, and DOJ probably has no problem with the contrary rule. Every federal circuit to have addressed the issue (6 or 7 circuits, I think) has ruled that stopping the car seizes the passenger. And this rule is fine for the government because under Whren, any traffic violation fully justifies the stop and resulting seizure. This means that the Brendlin issue only helps the government in the very rare case when an officer can't even come up with a traffic violation or other reasonable suspicion to justify the stop. I wonder, will the SG's office decide to stay out of this one? Stay tuned.

  UPDATE: In the comment thread, NYT Supreme Court reporter Linda Greenhouse fills us in on the state's argument:
  I have a non-electronic copy of California's BIO in Brendlin. The state did not acquiesce. Its summary of "reasons for denying the petition" is as follows: "The petition should be denied because, even if this court were to conclude that petitioner was seized within the meaning of the 4th Amendment by virtue of the traffic stop, the evidence obtained was not subject to suppression; thus resolution of the question presented in the petition would not lead to a change in the judgment." The state's point is that "there was no sufficient connection between that detention and the evidence obtained from his person and the vehicle." . . . "Although police would not have discovered the warrant for petitioner's arrest but for the contact following the traffic stop, the challenged evidence was the product of petitioner's arrest and not of that detention. As there is no claim the arrest was unlawful, the evidence is not connected to any illegality. The evidence was not subject to suppression."
  I can see why this argument didn't keep the Court away. The intermediate appellate court had in fact suppressed the evidence as an unlawful fruit, explicitly rejecting the state's argument now made in the BIO. See People v. Brendlin, 8 Cal.Rptr.3d 882 (Cal. App. 2004). Perhaps it's possible for California to relitigate this issue below if the U.S. Supreme Court reverses on the "seizure" question — I don't know the answer to that as a matter of state procedure — but such speculation seems a weak basis for arguing that this case presents a bad vehicle to resolve the issue.
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When A Police Officer Makes a Traffic Stop, Are Passengers "Seized"?: On Monday morning I plan to be at the Supreme Court to check out the oral argument in Brendlin v. California, which considers whether a traffic stop seizes passengers of the stopped vehicle in addition to its driver. I've blogged before that I think the answer is clearly "yes," and I wanted to add a few more thoughts on why. I plan to blog a few thoughts about the argument as well; I'll probably have them up on Monday afternoon or Monday night.

  In my view, the key principle that should decide Brendlin is that Fourth Amendment seizures are all about intentional control. A Fourth Amendment seizure occurs when a government actor takes steps to control the movement of "persons, houses, papers, and effects." The Court has usually framed the test somewhat differently depending on whether the item seized is a "person" versus "houses, papers, and effect." When the government seeks to control "houses, papers, and effects," the Court ordinarily applies the test that a seizure occurs "when there is some meaningful interference with an individual’s possessory interest." United States v. Jacobsen. When the government seeks to control persons, the Court ordinarily applies the test that a seizure occurs when government action causes "a reasonable person . . . to believe that he or she is not free to leave." Florida v. Bostick.

  These two tests reflect the different ways that police ordinarily control persons as compared how police ordinarily control houses, papers, and effects. When officers enter a suspect's home and take away his papers, those papers are taken by direct force. Officers pick up the papers and remove them, and the government’s control interferes directly with the individual’s possessory interest. In contrast, government control over a person is often less direct. In some cases, the police may exert direct physical control over the person, such as by placing him in handcuffs. In many cases, however, the police exert control by threat. If an officer points a gun at a suspect and orders him to "freeze!," the person is seized when he complies with the officer’s order. The moment that a reasonable person would not feel free to leave and does not leave is the moment that the officer controls the person. In sum, both tests for when a seizure occurs pinpoint the same moment in two different contexts. In both contexts, a seizure occurs when the government takes control of the person, house, paper, or effect.

  The Brendlin case is interesting because it involves control over a person in a context more typical of control of paper and effects. When an officer pulls over a car, he directs his authority at the driver because the driver has initial control of the vehicle. The passenger is simply along for the ride. This creates confusion under the usual test for seizing a person – whether a reasonable person would feel free to leave — because the officer is causing a seizure by threat not actually directed at the passenger. However, the uncertainty is readily resolved by recognizing the ultimate goal of both tests for seizures: identifying the moment of government control. A passenger in a seized car is controlled just like the contents of a seized package; when government action takes control of "effects," it seizes those effects as well as any person who happens to be located inside. When an officer pulls over a vehicle, he does not simply control the driver: he controls the entire vehicle and all of its contents. All are seized under the Fourth Amendment.

  In its brief, California tries to argue that a passenger is not seized because the Fourth Amendment requires intentional government conduct, and a passenger is seized only incidentally. See Brower v. Inyo County. This argument doesn't work because when an officer stops a car, he intends to stop the car and all of its contents. As the Supreme Court acknowledged in Brower, "[a] seizure occurs even when an unintended person or thing is the object of the detention or taking." The officer may not intend to stop the passenger specifically, but the passenger is still seized because he was in the car that the officer intentionally brought to rest. That distinguishes the passenger of a stopped car from people in other cars that may be inconvenienced by the officer's stop (such as the car behind the stopped car, which may need to come to rest as well). Pulling over a car intentionally seizes the car, its passengers, and its contents, but it does not intentionally seize other cars.

  Of course, the duration of the seizure can depend on the circumstances. In some cirumstances, a reasonable passenger will feel able to leave soon after the car comes to a stop. For example, if you're a passenger in a taxicab and the driver is pulled over for speeding, you may feel free to leave once it's clear that the officer doesn't need you. On the other hand, if the officers stopping the car are looking for a robbery suspect, they might approach the car in a way that makes clear that you're not free to leave. In that case, the duration of the passenger's seizure will be considerably longer. But in every case, the passenger is seized, at least temporarily, when the officer exerts his controls the car and brings it to rest.

  Some folks may argue that the passenger isn't seized by the government because it's the driver's decision to stop that creates the seizure. If the driver decides to ignore the police, then no seizure occurs; perhaps the driver's decision to stop is the decision of a private actor not regulated by the Fourth Amendment. This argument is misguided, however, as it misunderstands the line between state actors and private actors under the Fourth Amendment. "If a private party acts as an instrument or agent of the Government," that private party becomes a state actor for Fourth Amendment purposes. Skinner v. Railway Labor Executives' Assn. The Fourth Amendment clearly applies when the government commandeers a private actor and orders that actor to commit a search or seizure. When an officer orders a driver to pull over and the driver complies, the officer has effectively commandeered the driver. The driver becomes a government actor for the limited purposes of the Fourth Amendment, so the passenger in the vehicle is seized by government action rather than by private action.

  One final thought for now. Back when cert was granted, I wondered what the SG's office might do in this case:
In terms of the briefing, I'll be very interested to see what the SG's Office will do. Will they file an amicus brief on behalf of the state? They do that in most Fourth Amendment cases coming out of state courts, but this one is very odd; California's position is pretty hard to support, and DOJ probably has no problem with the contrary rule. Every federal circuit to have addressed the issue (6 or 7 circuits, I think) has ruled that stopping the car seizes the passenger. And this rule is fine for the government because under Whren, any traffic violation fully justifies the stop and resulting seizure. This means that the Brendlin issue only helps the government in the very rare case when an officer can't even come up with a traffic violation or other reasonable suspicion to justify the stop. I wonder, will the SG's office decide to stay out of this one? Stay tuned.
  That's exactly what happened, as it turns out. The SG did not file a brief. This means that California will have the full half hour tomorrow to try to defend its position that Brendlin was not "seized."
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Reaction to the Oral Argument in Brendlin v. California: I just returned from attending the oral argument at the Supreme Court this morning in Brendlin v. California. I thought it was a very engaging argument. The lawyers were very good, and the Justices asked a terrific set of questions. Here are a few reactions to the hour-long argument.

  A great deal of time was spent considering how the fruit of the poisionous tree doctrine should apply given the specific facts of Brendlin's case. Assuming that Brendlin was wrongly seized by the stop, was the arrest nonetheless legal because the warrant out for Brendlin's arrest was an intervening cause? A number of Justices seemed to think so, including Justice Kennedy. This is a very interesting question, but I don't think the Court will (or should) address it because it is not actually before them. As I've noted in an earlier post, the California intermediate appellate court ruled that the arrest was a fruit of the unlawful stop. The California Supreme Court denied discretionary review on this question. The U.S. Supreme Court granted cert on the narrow question that is the same question the California Supreme Court reviewed: When a traffic stop occurs, is the passenger seized? How the fruit of the poisonous tree doctrine applies is an interesting question, but I think it's beyond the scope of the question presented in this case.

  On the merits of whether a passenger was seized in a traffic stop, most of the Justices seemed to agree that he was. Kennedy, Souter, and Stevens indicated that they thought so; Breyer also said that it was his instinct, but he didn't know if he should be following his instinct or something else like an empirical study. (The test is whether a reasonable person would feel free to leave, and Breyer acknowledged that he has no idea how people feel in such settings. "What do people think?," he asked. "How do we find out?")

  The only serious pushback on this idea that I could identify came from Justice Scalia. Justice Scalia seemed to think that a reasonable passenger would never actually leave a car during a traffic stop — Scalia acknowledged that he certainly wouldn't — but that this is only because it's not prudent to leave rather than because a person would feel like he's not legally free to leave. By this reasoning, passengers of stopped cars think they are legally free to leave, but they chose not to excercise their rights out of respect for the officer and the officer's need to control the scene. However, I don't remember other Justices picking up Scalia's point. Alito and Roberts asked a number of questions, but didn't indicate their own views as directly as did some of the other Justices.
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Brendlin v. California: The Supreme Court has just handed down Brendlin v. California, the Fourth Amendment case I have blogged about a bunch of times on whether a passenger is "seized" when an officer pulls over the car for a traffic stop. I predicted a 9-0 win for the defendant back in January when cert was granted, and according to SCOTUSblog I was right: Lyle Denniston reports that the Court ruled unanimously in Brendlin's favor in a decision by Justice Souter. I'll add a link to the opinion and analysis of it when it becomes available.
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