Appealed from: California Supreme Court
Oral argument: April 23, 2007
Bruce Brendlin was a passenger in a car driven by Karen Simeroth when she was the subject of a traffic stop by a County Deputy Sherriff. During the stop, the Deputy discovered drugs and drug paraphernalia in the car and on Brendlin. Brendlin was charged with manufacturing methamphetamine and moved to suppress the evidence on the grounds that the original traffic stop was unreasonable, and therefore in violation of his Fourth Amendment rights. The trial court denied his motion, and the California Supreme Court upheld the denial on the basis that Brendlin had not been “seized” under the meaning of the Fourth Amendment, and thus could not challenge the stop. Brendlin appeals to the Supreme Court, arguing that he was effectively seized by the initial stop, and therefore should be able to challenge it. California argues that Brendlin was not seized, because he should have felt free to leave the scene of the traffic stop, and did not actually submit to the application of force or to a show of police authority.
Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the illegality of the traffic stop.
When does a passenger in an automobile become “detained” during a traffic stop and thereby gain the ability to challenge the stop under the Fourth Amendment?
Early in the morning of November 21, 2001, a vehicle driven by Karen Simeroth was stopped by Deputy Sheriff Robert Brokenbrough in Yuba City, California under suspicion of an expired inspection. See People v. Brendlin, 38 Cal. 4th 1107, 1111 (Cal. 2006). Deputy Brokenbrough noticed the inspection sticker on the windshield of the car had expired, and claimed that he could not initially determine the validity of the temporary sticker on the rear window. Id. The defendant, Bruce Brendlin, was a passenger in the automobile at the time of the stop. Id. Deputy Brokenbrough believed that he recognized Brendlin, and remembered that an arrest warrant for a parole violation may have been issued for him. Id. After confirming Brendlin’s identity, Deputy Brokenbough arrested Brendlin pursuant to the warrant. Id. During the search pursuant to this arrest, the Deputy discovered a hypodermic syringe cap on Brendlin’s person, various drugs and drug paraphernalia on Simeroth, and materials used for manufacturing methamphetamine in Simeroth’s vehicle. Id. at 1111-12.
The state of California charged Brendlin with various drug offenses and the original parole violation. Id. at 1112. Brendlin moved to suppress the evidence obtained in the search incident to arrest on the theory that the original traffic stop had violated his rights under the Fourth Amendment. Id. After the trial court denied Brendlin’s motion, he pled guilty to manufacturing methamphetamine and was sentenced to four years in prison. Id.
The California Court of Appeals reversed the trial court’s decision, holding that any traffic stop results in a seizure of the passengers of the stopped automobile, and that therefore Brendlin could challenge the original stop. Id. at 1113. The California Supreme Court then reversed the Court of Appeals, reinstating the trial court’s finding that Brendlin’s Fourth Amendment rights had not been violated. Id. The Supreme Court reasoned that Brendlin had not been seized because Deputy Brokenbrough had never given any indication that Brendlin was not free to leave the scene. Id. As Brendlin was not seized by the original traffic stop, his Fourth Amendment rights were never implicated, and thus he had no standing to challenge the stop itself. Id.
The Supreme Court of the United States has granted certiorari. See Brendlin v. California, 127 S.Ct. 1145 (2007).
The Fourth Amendment, which serves to prevent unlawful police intrusion into the private lives of citizens, is a significant constraint on the actions of law enforcement. In post-September 11th America, controversies involving the Fourth Amendment have risen in both frequency and prominence. See Bill Mears and Andrea Koppel, “NSA Eavesdropping Program Ruled Unconstitutional,” CNN.com, August 17, 2006. Federal courts have been forced to wrestle with the constitutionality of politically charged programs such as the NSA wiretapping program and the USA PATRIOT act. See id; see also Anita Ramasastry, “Reform the Patriot Act to Ensure Civil Liberties,” CNN.com, April 20, 2005. Brendlin’s case provides the Supreme Court with an important opportunity to further clarify the scope of the protection granted by the Fourth Amendment. See Sherry F. Colb, “Do Car Passengers Enjoy Fourth Amendment Rights? The Supreme Court Grants Review in Brendlin v. California,” Findlaw Writ, February 21, 2007. A decision for Brendlin would protect the individual liberty of passengers in automobiles as well as drivers, as the incentive for police officers to make only reasonable traffic stops would increase. See id. Police would be deterred from making unreasonable stops to obtain evidence from passengers because the passengers would be able to challenge the original stop. See id.
Concerns over individual liberty, however, must be viewed in the light of contravening concerns over officer safety. See People v. Brendlin, 38 Cal.4th 1107, 1120 (Cal 2006). In 2005, 41% of all police officers killed in the line of duty were killed during “routine” traffic stops. See National Law Enforcement Officers Memorial Fund, Drive Safely, NLEOMF.org. Thus, courts must be aware of the dangers to officers when designing the rules under which they will operate during traffic stops. See Maryland v. Wilson, 519 U.S. 408 (1997).
The Fourth Amendment protects citizens from “unreasonable searches and seizures” by government agents, including police officers. Thus, in order for an individual’s Fourth Amendment right to be implicated, a government agent must have either searched or seized him. See Terry v. Ohio, 392 U.S. 1, 16 (1968). The remedy for a violation of the Fourth Amendment is the “exclusionary rule,” which prohibits the use of evidence obtained through an illegal search against the defendant whose rights were violated. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). This right to security is a personal one, and is only violated by the government conducting an unreasonable search or seizure against an individual and then attempting to use evidence obtained through that violation against the individual. See Alderman v. US, 394 U.S. 165, 174 (1969); see also Rakas, 439 U.S. at 134. Only the person whose personal rights were violated by an unreasonable search or seizure has standing to challenge that search or seizure. See Rakas, 439 U.S. at 134. Due to the personal nature of the right, evidence obtained through a violation of the rights of one individual may be used against a different individual without giving the second individual the standing to challenge the search or seizure. See Alderman, 394 U.S. at 174.
A seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” See id. at 19, fn. 16. The key question in the seizure analysis is whether a reasonable person would have felt free to terminate the encounter with the police officer. See Florida v. Bostick, 501 U.S. 429, 436-37 (1991). In addition, the individual must have submitted to a display of the police officer’s authority. See California v. Hodari D., 499 U.S. 621, 626 (1991). The Supreme Court has never directly addressed the question of whether a passenger in a stopped automobile has been seized, but has conclusively determined that the driver of the car is seized by a stop. See People v. Brendlin, 38 Cal.4th 1107, 1114-15 (Cal 2006); see also Whren v. United States, 517 U.S. 806, 809-10 (1996). The majority of jurisdictions, however, both state and federal, have held that a passenger is seized by a traffic stop. See Brendlin, 38 Cal.4th at 1114-15.
The basic issue in Brendlin’s case is whether the passenger in an automobile “seized” for purposes of the Fourth Amendment when the automobile is the subject of a traffic stop. Brendlin argues that, while the Supreme Court has never directly addressed the question of whether a passenger in an automobile is seized during a traffic stop, in a number of cases the Court has implied that such a seizure occurs by allowing passengers to challenge traffic stops. See Brief for Petitioner at 11-13. Furthermore, the majority of state courts and federal circuits have held that a passenger is seized when the automobile in which he is riding is stopped. See id. at 14-16. Brendlin’s freedom of movement was obviously curtailed when Simeroth’s car was stopped by the police, as the means by which he was traveling was halted, and the officer necessarily took action toward both the driver and passenger in order to halt the car. See id. at 18. This is dissimilar from the circumstance in which an officer merely approaches a person on the street in order to begin a conversation, which would not necessarily involve such an impediment to movement, as the person could simply continue walking. Finally, the California Supreme Court’s conclusion that Brendlin should have felt free to leave is contradicted by the Supreme Court’s decision in Berkemer v. McCarty, 468 U.S. 420, where the Court noted that few automobile passengers would feel free to leave after being stopped by the police. See id.
The ACLU, NAACP, and the National Association of Criminal Defense Lawyers (“NACDL”) have filed amicus curiae briefs supporting Brendlin. The ACLU argues that failing to allow Brendlin to contest the stop of Simeroth’s car would allow unreasonable police conduct by permitting arbitrary stops of vehicles to harass passengers, particularly minority passengers. See Brief Amicus Curiae of the American Civil Liberties Union et. al. in Support of Petitioner at 12-15. Additionally, the NAACP notes that statistics indicate that preventing passengers from challenging stops will have a disproportionate impact on minorities, as they are more likely to be the target of such harassment stops. See id. The NACDL agrees with Brendlin’s argument that an automobile passenger is effectively seized when the car is stopped, and that the seizure does not end until the passenger is released. See Brief for the National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amici Curiae Supporting Petitioner at 12-16.
The government and the California Supreme Court argue that Brendlin should have felt free to terminate the encounter or decline the officer’s request, and therefore was not seized under the Bostick standard. See Brendlin, 38 Cal. 4th at 1118-20. The government also argues that the coercive government authority was directed only at the driver Simeroth, and not at Brendlin himself. See Reply Brief on the Merits, 2004 WL 2823267, at 4-5. As no coercive authority was directed at him, according to the state, Brendlin should have felt free to terminate the encounter. See id. Whether Brendlin actually felt free to leave the encounter is unimportant to the analysis. Furthermore, the California Supreme Court noted that because the stop was directed at Simeroth, the driver, Brendlin had no opportunity to submit to government authority, and therefore was never the subject of a seizure. See id.
As there is no categorical Supreme Court ruling on the issue, the California Supreme Court analysis used tests previously established by the Supreme Court for determining when an individual has been seized. See id. at 1115. The Supreme Court in Florida v. Bostick held that the correct inquiry for determining whether a person has been seized is whether that person would have felt free to decline to answer the officer’s questions or terminate the encounter. See 501 U.S. 429, 437. In Bostick, the Supreme Court held that a passenger on a bus that had been stopped by police officers was not seized, despite the fact that the passenger was effectively prevented from leaving the bus because no coercive police action was directed at the passenger. See 501 U.S. at 436. Furthermore, in order to have been seized, a person must actually submit to a display of police authority. See California v. Hodari D., 499 U.S. 621, 626 (1991). A person’s freedom of movement may therefore be restricted by police action without having been seized, as seizure requires that the police use “means intentionally applied” in order to stop the individual’s movement – an incidental restriction on freedom of movement is not necessarily a seizure. See County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998); see also Bostick, 501 U.S. at 436-37.
The California Supreme Court, in upholding the denial of Brendlin’s motion to suppress, reasoned that during a traffic stop “the passenger is not subject to the same restraints as the driver.” See Brendlin, 38 Cal. 4th at 1117. According to the Court, the passenger should feel free to leave the scene of the accident unless he is given some instruction to remain by the police officer or an indication that he is the subject of the investigation. See id. The Court maintains that if no such communication occurs, “the passenger is free to ignore the police presence and go about his or her business.” See id. Furthermore, as no actual police authority was directed at Brendlin, he could not have submitted to that authority, and thus he fails the Hodari D. requirement of submission. See id. at 1118-19.
Brendlin maintains that the significant weight of authority holding that a passenger is seized by a traffic stop stems from “the highly common-sense view that a passenger is unavoidably seized along with the car, and an implicit acknowledgement that reasonable passengers would not feel free to simply get out and walk away once an officer has pulled the car over.” See Brief for Petitioner at 1.
According to Brendlin, the Supreme Court’s decision in Delaware v. Prouse, 440 U.S. 648 (1979) clearly establishes that passengers have a Fourth Amendment interest in being free from unreasonable stops on public roadways. See id. at 10. In Prouse, the Court held that “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning” of the Fourth Amendment. 440 U.S. at 653. The Court has also noted that passengers may indeed have a stronger liberty interest than drivers, because it is probable cause of a driver’s traffic infraction that leads to a practical detention of the passenger. See Pet. Br. at 11; see also Maryland v. Wilson, 519 U.S. 408, 413-14 (1997).
After establishing that a passenger has a Fourth Amendment liberty interest when traveling, Brendlin moves to establishing that the traffic stop represents a seizure of the passenger. See Pet. Br. at 11. While the Court has never directly addressed the question of whether a passenger is seized by a stop, it has on previous occasions allowed passengers to challenge traffic stops. See id. at 11-12; see also Whren, 517 U.S. at 808-10; Prouse, 440 U.S. 648. This creates a clear implication that passengers are, in fact, seized by traffic stops. See Pet. Br. at 11-12. Furthermore, the Court has noted that “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle.” See Wilson, 519 U.S. at 413-14.
Brendlin also attacks the California Supreme Court’s ruling as misapplying Bostick and Hodari D. See Pet. Br. at 21. According to Brendlin, Hodari D. requires physical restraint or submission, and, as a passenger in a stopped automobile, Brendlin was the subject of a physical restraint. See id. Additionally, Brendlin maintains that Bostick was not intended to apply to cases in which an individual’s movement was actually restrained. See id. at 23-24. Thus, Brendlin claims that the Fourth Amendment is implicated whenever the police intentionally curtail an individual’s freedom of movement. See id. at 24.
California maintains that, whatever the implied status of passengers, the Court has never directly held that the Fourth Amendment interests of passengers are implicated by traffic stops. See Reply Brief on the Merits, 2004 WL 2823267, at 2. Additionally, all of the decisions creating the implied status of passengers in automobiles were handed down prior to the establishment of the Bostick and Hodari D. tests. See id at 2-3. Therefore, it is the analytical guidelines created by those cases, not the dicta and implied status created by the older cases, which should control the determination of whether a seizure has taken place. See id. at 3. California disputes Brendlin’s reading of Bostick as being inapplicable, stating that the case, by its very language, focused on curtailment of an individual’s freedom of movement. See id. at 4-5.
California further argues that the evidence obtained from Brendlin was not obtained as a result of the traffic stop itself, but rather because of the later arrest based on Brendlin’s parole violation. See Brief in Opposition at 10-11. The arrest of Brendlin based on the outstanding warrant was concededly valid, and the drug paraphernalia was discovered based on a search incident to that arrest. See id. California contends that under United States v. Crews, 445 U.S. 463 (1980) the causal chain between the traffic stop and Brendlin’s arrest was too attenuated for any unreasonableness in the original stop to provide a basis for the exclusion of the evidence obtained by the later legal arrest. See id. at 9. Crews requires that, in order for evidence to be excluded, the chain of causation stemming from the illegal conduct must not be attenuated or broken by some intervening circumstance. See 445 U.S. at 471. The arrest, according to the state, was a significant intervening event, and the officer’s misconduct was not flagrant. See BIO at 11-12. Thus, under Brown v. Illinois, 422 U.S. 590 (1975), the link between the traffic stop and the later search incident to arrest was too attenuated to support exclusion of the evidence.
California also disputes Brendlin’s argument that Wilson supports the claim that a passenger is detained by a traffic stop. See Reply Brief on the Merits at 3. The Court’s use of the word “stopped” rather than “detained” in describing the impediment to the passenger’s freedom of movement was significant, according to the state. See id. As it is clear that freedom of movement can be maintained without implicating the Fourth Amendment, California claims that if the Supreme Court had intended to indicate that a traffic stop is a seizure of the passenger, it would have said so explicitly. See id.
The Court’s decision in this case will determine whether Brendlin, as a passenger, was “seized” for Fourth Amendment purposes when Simeroth’s car was stopped, and therefore whether he can challenge the stop. The decision will have an impact on individuals who travel as passengers in automobiles and those in other situations where Fourth Amendment rights are implicated. If the Court finds against Brendlin, it will affirm the California Supreme Court decision that a passenger’s freedom of movement is not restricted during a traffic stop and passengers are therefore not seized under the Fourth Amendment. Passengers would thus not be allowed to challenge the reasonableness of traffic stops and police officers might have less incentive to adhere to the reasonable suspicion requirement when making traffic stops. A decision for Brendlin, however, would indicate that passengers are seized under the Fourth Amendment during a traffic stop. This would secure passengers’ ability to challenge stops, and provide further incentives for police officers to ensure that all traffic stops are reasonable.
Prepared by: Richard Beaulieu
- Bill Mears and Andrea Koppel, “NSA Eavesdropping Program Ruled Unconstitutional,” CNN.com, August 17, 2006.
- Anita Ramasastry, “Reform the Patriot Act to Ensure Civil Liberties,” CNN.com, April 20, 2005.
- Sherry F. Colb, “Do Car Passengers Enjoy Fourth Amendment Rights? The Supreme Court Grants Review in Brendlin v. California,” Findlaw Writ, February 21, 2007.