Rights of passage.

Recently, the Supreme Court has been disturbingly slow to grant certiorari and to decide cases, making for a long winter of discontent for those, like me, who are called on to analyze decisions of interest. But I'm happy to report that with the granting of certiorari in Brendlin v. California and a few other cases, winter may now be made glorious summer with an abundance of new criminal case law to study. Brendlin, in particular, offers an important opportunity to clarify a critical question in Fourth Amendment jurisprudence. (1)

In Brendlin, the California Supreme Court, in a 4-3 decision, held that a passenger in a car lacked standing to protest the stop of that car. (2) The ruling conflicts with the decisions of every federal circuit court that has considered this issue.

A police officer concededly illegally stopped a car in which Bruce Brendlin was a passenger, because the officer believed--mistakenly--that the car's temporary operating permit was invalid. During the stop, the officer recognized Brendlin as a parole violator and saw substances used for making methamphetamine in the car. The officer then pointed his weapon at Brendlin, told him to get out of the car, arrested him, and found more evidence of drug use on his person.

Brendlin moved to suppress the evidence found in the car and on his person, claiming that because the stop was illegal, any evidence recovered at the scene was the fruit of his unlawful seizure. The trial court denied the motion, concluding that Brendlin, as a passenger, lacked standing to suppress the items found in the car.

The appellate court reversed, but the California Supreme Court reversed that decision, agreeing with the trial court that Brendlin had not been seized within the meaning of the Fourth Amendment until the policeman ordered him out of the car at gunpoint and placed him under arrest. Until then he was "free to leave." (3) Consequently, the court found, he could receive no exclusionary benefit from the illegal stop.

Although the U.S. Supreme Court has officially disapproved of using the term "standing" since Rakas v. Illinois in 1978, (4) it is useful to consider standing as a separate issue from the question of whether there was a search or seizure. In Rakas, the Court held that the passenger lacks standing to protest the search of a car unless he or she owns it. A passenger who is not the owner (or driver) has no expectation of privacy in the car's interior, glove compartment, or trunk, and can't complain if the search was illegal. (5)

But as Justice Lewis Powell's concurring opinion made clear, Rakas didn't decide whether a passenger who is not the owner has standing to protest the stop. (6) And the issue in Brendlin is a passenger's standing to protest the stop of a car.

When the issue is the search of a car, the questions of whether there was a search, and the passenger's standing to protest the search, are distinct. Because of this distinction, courts could decide that certain police behaviors constitute a search, but still conclude that the passenger lacked standing to protest it.

But when the issue is the seizure of the car and the people in it, questions of whether there was a seizure, and the standing of the people to protest it, run together. Simply put: If you are seized, you automatically have standing. If you aren't, there is no Fourth Amendment event to protest.

The California Supreme Court conceded that a driver is seized the moment police stop his or her car, but also concluded that a passenger's situation is different. The test, as the court put it, citing various U.S. Supreme Court opinions, is whether "a reasonable person would have believed that he was not free to leave." (7) But, the court noted, "there must also be an actual taking into custody, whether by the application of physical force or by submission to the assertion of authority." (8)

The court also said, "[I]t is critical for purposes of the Fourth Amendment analysis to determine why the passenger's freedom is curtailed." (9) The ruling concludes that as soon as the car comes to a halt, the passenger can simply walk away and avoid any confrontation with the police. So far, so good, for the carefree passenger.

However, as the dissent points out, this conclusion is inconsistent with prior California law, which held that "the officer has the authority, as a matter of law, to order that the passengers remain inside." (10) It is also inconsistent with the U.S. Supreme Court's decision in Maryland v. Wilson, which holds that police can order passengers out of a vehicle and suggests that passengers are under police control. (11)

In Wilson, the Court noted that "the passengers are already stopped by virtue of the stop of the vehicle," seeming to settle the issue in this case, since a car stop is unquestionably a seizure for Fourth Amendment purposes. (12) Moreover, Wilson, analogizing an auto stop to the execution of a search warrant and quoting Michigan v. Summers, (13) emphasized the need for police to "exercise unquestioned command of the situation." (14) This reasoning suggests that the police officer can order the passengers out of the car and also require them to remain in the car or at the scene.

Are passengers really free to leave?

It would be a strange and dangerous rule to say--as the California Supreme Court suggests--that passengers have a right to exit the vehicle and either take off or mill around the scene, posing a threat to police and a danger to themselves and oncoming traffic. Think not of a car with one passenger, as in this case, but of a van with six people in it. Chaos! On the other hand, if passengers are not free to leave, then they are seized.

The California majority also relied on Florida v. Bostick, which held that a passenger on a parked bus was not seized when police boarded the bus to investigate narcotics violations. (15) The U.S. Supreme Court held that, just because a passenger may not feel free to leave for reasons independent of the police investigation (for instance, because he or she doesn't want to miss the bus), this doesn't mean he or she has been seized for Fourth Amendment purposes.

I question the wisdom of Bostick, since I doubt that a reasonable bus passenger does feel legally free to go when police officers board the bus. But certainly a passenger in a car, whether it's stopped or in motion, does not feel free to go when the police signal the driver to stop. The sense of official compulsion is too immediate. That's why Brendlin, a parole violator, who no doubt would have liked to disappear, did not leave in this case.

California v. Hodari D., which the California Supreme Court quoted in its decision, dealt with the question of whether a fleeing suspect was "arrested" before the police caught him and is not germane to the issue in this case. Admittedly, neither a driver nor a passenger is "seized" if the driver decides to flee rather than stop when the police signal. And since the issue deals with the attitude of a "reasonable passenger," the police officer's motive in making the stop is irrelevant.

In fact, the question of whether or not a passenger feels free to leave is also irrelevant. As the Court recognized in United States v. Place, a traveler has a "liberty interest in proceeding with his itinerary." (16)

More specifically, in Berkemer v. McCarty, the U.S. Supreme Court acknowledged that "a traffic stop significantly curtails the 'freedom of action' of the driver and the passengers.... Stopping an automobile and detaining its occupants constitutes a 'seizure' within the meaning of [the Fourth] Amendment." (17) The moment the police signal a driver to stop, all of the car's occupants are "seized" regardless of the fact that the passenger might subsequently be free to leave.

When evidence is seized

The Third Circuit recognized this in United States v. Mosley, which was decided after Brendlin. (18) The Mosley court held that "a Fourth Amendment seizure of every occupant of a vehicle occurs at the moment that a vehicle is pulled over by the police." (19)

The defendant in that case--Robert Mosley--was riding in the back seat of an illegally stopped car. After he was ordered out of the car, several guns were found in the back seat area, and he was charged with their possession.

Under Rakas, Mosley lacked standing to protest the search. But since the guns were the fruit of the illegal stop which Mosley did have standing to protest--he was able to suppress them as fruit of the poisonous tree. Only if the stop were legal would Rakas's limitation on standing bar passengers from suppressing evidence found during a subsequent illegal search, because ordinarily they don't have any expectation of privacy in the car (according to Rakas).

Police officers can usually come up with a "reasonable suspicion" for stopping a car, given the myriad traffic regulations they can cite. Consequently, this issue doesn't arise very often. But when it does, it makes sense to deter police from stopping cars for no reason and, in cases where the driver is not incriminated, this can only be done by allowing the passenger to exclude evidence that incriminates him or her.

So how will the Court decide this case? Given the unanimity among the appeals courts, it is odd that this Court, which has been so parsimonious with its certiorari grants, even agreed to hear it. But when a state with 40 million people--and, so it seems, 50 million cars--takes a radically different approach from the federal courts, that is a dispute worth resolving.

There seems, in fact, no way to resolve this case in the government's favor other than to conclude that passengers of stopped cars have a right to leave the scene as soon as the car comes to a halt. This reasoning would require the Court to disregard its previous suggestions that a seizure of everyone in the car occurs at the moment of the stop.

More important, it would render the police powerless to stop passengers from leaving unless they had independent "reasonable suspicion" about each one. It would be better for police and citizens alike to reverse the California Supreme Court and hold that, when a car is stopped, driver and passengers alike are seized.

There is an alternative way to regard this case, and it may be the one that the California high court was shooting for, even though the justices didn't really say it. Consider the passenger on a bus or a plane. He or she realizes that there are various reasons, beyond his or her control, why law enforcement authorities may stop a vehicle: for example, if the driver or pilot is drunk, or to arrest another passenger. If that stop/arrest was unreasonable, does the first passenger have a right to a civil suit against the police for the delay the arrest caused? In other words, were the passenger's Fourth Amendment rights violated in the same way as those of the person who was arrested? Is the passenger's interest in proceeding with his or her itinerary really an actionable right, comparable to that of someone who is illegally searched or arrested? Arguably not.

If not, isn't the passenger in a car in the same position? He or she recognizes that the driver may do various things, like speeding or driving with expired plates, that may cause the trip to be interrupted. If, as in Brendlin, the police unreasonably conclude that a driver has committed a traffic violation, the impingement on the passenger's rights is less, because a passenger's original expectations were reduced when he or she gave up control of the trip to the driver.

So the Court might argue that certain police activities, although they might look like seizures, do not actually count as Fourth Amendment seizures--much as it has done in concluding that searches of trash and open fields are not searches in Fourth Amendment terms.

In the end, however, while a passenger's interest in proceeding with his or her itinerary may be sufficiently reduced when boarding a common carrier as to wipe out any Fourth Amendment claim when that vehicle is unreasonably stopped, when someone is a passenger in a private car, I think that he or she is seized in both the ordinary and the Fourth Amendment sense when the car is stopped. After all, a passenger is sufficiently closely associated with a driver to be arrested for contraband found in the vehicle, (20) and the passenger's purse or briefcase (and possibly person) can be searched during a search of the car. (21)

Accordingly, in light of the "iron triangle" analysis that I have applied to other cases, (22) I have to conclude that a car passenger is seized at the moment of stopping, even if a bus passenger is not. The final outcome of this case will certainly be a highlight of the Court's spring season.

Notes

(1.) I don't consider Cunningham v. California, 127 S. Ct. 856 (2007), in which the Court essentially held, "We meant what we said about sentencing in United States v. Booker," to be interesting.

(2.) Brendlin v. California, 45 Cal. Rptr. 3d 50 (2006), cert. granted, 127 S. Ct. 1145 (Jan. 19, 2007). The eight (now nine) circuits that had gone the other way are cited by the dissent. 45 Cal. Rptr. 3d at 65 n. 4. Only two states take the same position as California. 45 Cal. Rptr. 3d at 66n. 6.

(3.) Id. at 52.

(4.) 439 U.S. 128 (1978).

(5.) In Wyoming v. Houghton, 526 U.S. 295 (1999), the Court assumed that a car passenger had standing to protest the search of her purse. However, the Court then held that a search of the purse left in the car was appropriate if the police had probable cause to search the car.

(6.) Rakas, 439 U.S. at 150-51.

(7.) Brendlin, 45 Cal. Rptr. 3d at 55.

(8.) Id. (citing California v. Hodari D., 499 U. S. 621 (1991)).

(9.) Id. at 58 (emphasis in original).

(10.) Id. at 62 (Corrigan, J., dissenting) (citing People v. Castallan, 91 Cal. Rptr. 2d 204 (1999)).

(11.) 519 U.S. 408 (1997).

(12.) Id. at 414.

(13.) 452 U.S. 692, 702-03 (1981).

(14.) Wilson, 519 U.S. at 414 (quoting Summers, 452 U.S. at 702-03).

(15.) 501 U.S. 429 (1991).

(16.) 462 U.S. 696, 708 (1983).

(17.) 468 U.S. 420, 436-37 (1984) (quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979)). Admittedly, this passage does not say that a stop automatically constitutes a "detainment of the occupants."

(18.) 454 F.3d 249 (3d Cir. 2006).

(19.) Id. at 253 n. 6.

(20.) Maryland v. Pringle, 540 U.S. 366 (2003).

(21.) Houghton, 526 U.S. 295.

(22.) Craig M. Bradley, The Fourth Amendment's Iron Triangle: Consent, Standing, and "Searchability, "TRIAL 75 (Aug. 1999). This argues that if a person has authority to consent to a search of a dwelling, then he or she also has standing to protest the search but can be detained by the police during it.

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University (Bloomington). He can be reached at [e-mail].