U.S. Supreme Court to Decide Privacy Interests of Passenger
Argument Heard April 23, 2007

By Jack Ryan

The United States Supreme Court heard oral argument yesterday {April 23, 2007} on another case impacting law enforcement operations. i   The case concerns whether a passenger in a vehicle which has been unlawfully stopped can challenge the basis of the stop when evidence is discovered relative to the passenger. In other words, does the passenger have an expectation in a vehicle they have been riding in, such that they can challenge the stop?

Bruce Brendlin was a passenger in a vehicle driven by Karen Simeroth when the vehicle was stopped at 1:40 in the morning on November 27, 2001. Deputy Brokenbrough had observed Simeroth’s 1993 Buick with expired tags. Prior to the stop he had run the vehicle registration and determined that an application for registration was in progress and the vehicle has a temporary tag indicating that the temporary registration expired at the end of November. Notwithstanding all indications that this vehicle was registered, Deputy Brokenbrough decided to stop the vehicle because he could not determine if the temporary tag matched the vehicle. It was subsequently determined that this stop was bad due to the evidence that the vehicle did, in fact, meet the registration requirements.

Upon stopping and approaching the vehicle, Deputy Brokenbrough observed a passenger that he knew to be one of the Brendlin brothers. He was also aware that one of the Brendlins, either Scott or Bruce, had skipped out on his parole. The officer asked Brendlin his name, at which time the subject lied and stated his name was Bruce Brown. While at the vehicle, Deputy Brokenbrough observed receptacles in the vehicle that contained substances used for the manufacture of methamphetamine. Brokenbrough returned to his police vehicle and verified that Bruce Brendlin was a parole violator and had a no-bail warrant. At one point, while waiting, Brendlin opened the door of the Buick but then closed it again. Brokenbrough then called for back-up and took Brendlin out at gunpoint, arresting him for the parole violation warrant.

Upon a search incident to arrest the officer found the cap from a syringe in Brendlin’s pocket, two syringes in the car, marijuana and methamphetamine on Simeroth. Materials used for the manufacture of methamphetamine were found in the backseat. When the trial court refused to suppress the evidence as to Brendlin, he pled guilty to methamphetamine manufacturing charges. His argument for suppression had been that the stop of the vehicle was illegal, therefore he was unlawfully seized and the evidence found as a result of the bad stop and seizure was the fruit of the poisonous tree. The trial court, in refusing to suppress the evidence found that Brendlin, as a passenger, had been free to leave at any point during the stop and this had not been seized until after the officer recognized him as a parole violator and placed him under arrest. The Court of Appeal for California reversed the trial court and concluded that the evidence should have been suppressed. This led to an appeal in the California Supreme Court, which sided with the trial court and held that the evidence was good. Brendlin is now appealing that decision to the United States Supreme Court.

The California Supreme Court noted in its decision that the United States Supreme Court has never ruled on whether a passenger is seized at the point a driver of a vehicle is pulled over. They noted a split of the lower courts on this issue. The court asserted that the proper inquiry comes from the United States Supreme Court’s decision in Florida v. Bostick ii  where the Court concluded that “the proper inquiry is ‘whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.' "

The court further explained that the type of seizure contemplated by a traffic stop is a show of authority seizure. These seizures require a law enforcement show of authority and submission. The California Supreme Court observed that since passengers are not in control of the vehicle they cannot possibly submit to the show of authority and therefore they are merely observers. Additionally the court indicated that Brendlin was free to leave as evidenced by his opening of the door at one point. The California Supreme Court concluded that Brendlin, as a passenger had not been seized by the traffic stop but rather he was seized after the officer verified his warrant. As such his seizure was good and thus, the evidence against him was valid.

Oral Argument

The oral argument began with Brendlin’s counsel arguing that the stop was bad, clearly Brendlin was seized as the result of a bad stop and therefore the narcotics related articles should have been suppressed as the fruit of the poisonous tree. This sparked an immediate question by Chief Justice Roberts who wanted to know whether the same would hold true for the passengers in a taxi-cab. Would they be free to get out of the stopped cab and hail another cab? Justice Alito then asked about whether the passengers on a bus were seized under the 4th Amendment when a bus was stopped. Counsel for Brendlin argued that at the moment the stop is made, a seizure has occurred. This seizure may quickly end as in the case of the person who is allowed to leave the cab and hail another one, but at the moment of the stop they are seized by a government stopping of movement by a means intentionally applied.

Several of the justices then followed up by questioning whether it really mattered if Brendlin had been seized since upon approaching the vehicle, the officer immediately recognized Brendlin as a potentially wanted subject and subsequently verified the warrant before taking action on Brendlin. The focus of this questioning noted that the arrest itself is valid, based on the warrant and therefore the evidence should be valid under the incident to arrest doctrine. Brendlin’s attorney conceded that she could not find a single prior decision by the United States Supreme Court where officers had made a valid arrest and the evidence was subsequently excluded. She refused to concede that the valid arrest, under the warrant, had been an intervening circumstance which undid the taint of the bad stop. It was pointed out during the state’s argument that this question had not been presented to the Court and the only question presented was whether or not a passenger had standing to argue that he had been unlawfully seized by an unlawful stop of the driver.

Some of the questions posed by the justices also raised the question of whether a driver is seized incidental to the stop of the driver rather than intentionally. An example from the prosecution’s brief was cited which involved an officer stopping a car on a narrow road and other vehicles behind the police car and the subject’s car are unable to pass by and are forced to stop and wait. The question is, like the passenger, have they been seized. Obviously Brendlin’s counsel argued that this was different in that the stopping of these vehicles was an unintentional consequence of a police action and as such did not constitute a physical seizure which requires a stopping of movement by a means intentionally applied. If the officers are stopping the driver, is the passenger similarly an unintended consequence.

An interesting question was posed by Justice Alito. If an officer observes a driver commit a traffic violation and pulls the car with passengers over, the officer’s justification goes only to the driver. If the Court accepts Brendlin’s argument that the passengers are seized, what is the officer’s justification for seizing the passengers? Certainly the officer in such a scenario has no suspicion toward the passengers and all seizures require, at minimum, reasonable suspicion. Would every stopping of a vehicle containing passengers based on traffic violations by the driver lead to an unreasonable stop of the passengers who have been seized with no reasonable suspicion.

The Court also peppered the attorney for the State of California with questions. His argument included a point that anytime law enforcement stops a vehicle, the passengers are free to get out of the car and walk away until told otherwise by the officers and therefore they have not been seized under the Constitution. Justice Kennedy asked if the rule being proposed would be good for law enforcement. Anytime a vehicle is stopped, the passengers are free to get out of the car and simply start walking away. In this line of questioning the justices noted that prior case law allows officers to control a stop by ordering both drivers and passengers to exit the car. The question is if the passenger is not seized, how can the officer order them to do anything? This seems to be an important issue for law enforcement to consider. This may be a case where law enforcement wins a battle at a tremendous cost. The cost could be a loss of the ability to control passengers during a car stop in exchange for the recovery of some narcotics evidence in a car. The State of California’s attorney conceded that once an officer told the passenger to remain, a seizure would have occurred.

Sometime between now and June law enforcement will have an answer to the questions raised by this case. The outcome may impact the ability to introduce evidence against a passenger in a stopped vehicle. In this sense it may open more options with respect to investigating passengers who are merely present in a vehicle stopped for motor vehicle violations. If the state prevails it may also be at a cost to law enforcement since controlling passengers is an important safety issue that may be impacted by a rule that concludes that officers have no authority over passengers in a stopped vehicle.

Citations

i  Brendlin v. California, 2007 U.S. LEXIS 1164 (US cert granted January 19, 2007).
ii Florida v. Bostick, 501 U.S. 429 (1991).

About the Author:

Jack Ryan is the Co-Director of the Legal & Liability Risk Management Institute (www.llrmi.com) and an attorney in Rhode Island, a graduate Juris Doctorate, Cum Laude Suffolk University Law School. Jack has 20 years police experience as a police officer with the Providence Police Department, Providence, RI.

Jack’s law degree and experience as a police officer gives him the unique perspective of the legal and liability issues.

Jack is a former adjunct faculty member at Salve Regina University and lectures frequently throughout the United States.

Find many more of the articles written by Jack Ryan at the PATC E-Newsletter Article Archive