Traffic Stop by Police Officer Results in Seizure of Passenger for Purposes of Fourth Amendment

In Brendlin v. California (2007) 551 U.S. ___, 127 S.Ct. 2400, 168 L.Ed.2d 132, two police officers stopped a car that had expired registration tags, but displayed a temporary operating permit, to verify that the permit matched the vehicle. After the car was stopped, one of the officers recognized defendant passenger as a possible parole violator. After confirming his suspicion, the officer ordered defendant out of the car, and arrested him for the parole violation. The officer found drug paraphernalia on defendant's and the driver's persons, substances that appeared to be drugs on the driver's person, and materials used to manufacture methamphetamine in the car. Defendant moved to suppress the evidence obtained in the search of his person and the car on the ground that the officers lacked reasonable suspicion for the traffic stop, and that it was therefore an unlawful seizure of his person. The trial judge determined that defendant had not been seized until the officer ordered him out of the car and arrested him. The California Court of Appeal reversed, holding that a traffic stop necessarily results in a detention, and hence a seizure. The California Supreme Court reversed, stating that a passenger, whose progress is momentarily stopped as a practical matter, "is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer's investigation or show of authority." (127 S.Ct. 2404, 2405, 168 L.Ed.2d 137.) Held, when a police officer makes a traffic stop, a passenger is seized within the meaning of the Fourth Amendment and may challenge the constitutionality of the stop.

(a) A person is detained when his or her freedom of movement is restrained by a police officer's use of physical force or show of authority by "means intentionally applied." (127 S.Ct. 2405, 168 L.Ed.2d 138, quoting Brower v. Inyo (1989) 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628.) Where it is unclear whether the officer intends to restrain the person, or where the person submits to governmental authority by passive acquiescence, the test for whether a seizure has occurred is whether, in view of all the circumstances, the person would have believed that he or she was not free to leave. (127 S.Ct. 2405, 168 L.Ed.2d 138.) Where the person has no desire to leave for reasons unrelated to the police presence, the test is whether "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." (127 S.Ct. 2405, 2406, 168 L.Ed.2d 138, citing Florida v. Bostick (1991) 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §264.)

(b) It is settled that a traffic stop entails seizure of the driver for Fourth Amendment purposes. (127 S.Ct. 2406, 168 L.Ed.2d 138.) The United States Supreme Court has repeatedly stated in dicta that during a traffic stop, an officer seizes everyone in the vehicle, not just the driver. (127 S.Ct. 2406, 168 L.Ed.2d 138, 139, citing several cases.)

(c) Although the prosecution conceded that the police did not have adequate justification for the traffic stop, in the circumstances here a reasonable passenger would have understood the police officers to be exercising control to the extent that no one in the car was free to leave without police permission. Law enforcement officers make a traffic stop based on some kind of fault. A sensible person would not expect the police to allow people to freely come and go from the scene of an investigation into wrongdoing. Further, any passenger will expect the police to exercise control over the scene of a crime, arrest, or investigation sufficient to secure the officers' own safety. Thus, there is "a societal expectation of 'unquestioned [police] command' at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission." (127 S.Ct. 2407, 168 L.Ed.2d 140, quoting Maryland v. Wilson (1997) 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §248.) This conclusion comports with the views of all the federal Courts of Appeals and nearly every state court that has ruled on the question. (127 S.Ct. 2407, 168 L.Ed.2d 140.)

(d) The conclusion that defendant was seized only when he was formally arrested was based on three faulty premises:

(1) Defendant was not seized by the stop because the officers only intended to investigate the driver and did not direct a show of authority at defendant. This conclusion ignores the objective test of United States v. Mendenhall (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, in favor of an examination of the subjective motivation of the police for stopping the car. The Court has "repeatedly rejected attempts to introduce this kind of subjectivity into Fourth Amendment analysis.” (127 S.Ct. 2408, 168 L.Ed.2d 141.)

(2) As a passenger, defendant did not have the ability to submit to police authority because he was not in control of the vehicle. The nature of a submission depends on the nature of the preceding activity; a person sitting in a passenger seat may submit by remaining seated inside the vehicle. (127 S.Ct. 2409, 168 L.Ed.2d 142.)

(3) Application of the rule that a passenger is seized in a traffic stop "would encompass even those motorists following the vehicle subject to the traffic stop who, by virtue of the original detention, are forced to slow down and perhaps even come to a halt in order to accommodate that vehicle's submission to police authority." A motorist who knows that he or she is stuck in traffic because another car has been pulled over would not perceive that a show of authority has been directed at him or her. This is not a situation that requires a precautionary rule to prevent arbitrary interference with privacy and personal security by law enforcement officers. (127 S.Ct. 2409, 2410, 168 L.Ed.2d 143.)

(e) A rule that evidence uncovered as a result of an arbitrary traffic stop would be admissible against a passenger would invite police officers to stop cars with passengers, regardless of probable cause or reasonable suspicion of illegality. (127 S.Ct. 2410, 168 L.Ed.2d 143.)

Witkin References:

On stop on reasonable suspicion, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §240 et seq.

On what constitutes detention, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §261 et seq.

On whether traffic stop of passenger constitutes detention, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §262.