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Argument Preview: Brendlin v. Califronia on 4/23

The following argument preview is by Troy D. Cahill, an associate in Akin Gump’s DC office.

Tomorrow in Brendlin v. California (No. 06-8120), the Court will consider whether a passenger in a vehicle subject to a traffic stop is “seized” for purposes of the Fourth Amendment and thus can contest the stop’s legality. In the decision below, the Supreme Court of California held that Brendlin had not been seized because the police had never given any indication that he was not free to leave the scene. Therefore, the court reasoned, his Fourth Amendment rights were never implicated, and he lacked standing to challenge the stop itself. Elizabeth M. Campbell, an attorney with the Central California Appellate Project, will argue for petitioner Bruce E. Brendlin. Clifford E. Zall, Deputy Attorney General for the State of California, will argue for respondent California.

The Fourth Amendment protects individuals from “unreasonable searches and seizures” by government agents, including police officers. Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person, and the Fourth Amendment requires that the seizure be “reasonable.” In turn, the reasonableness of a particular seizure depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.

Bruce Brendlin was a passenger in a car driven by Karen Simeroth when she was stopped by a Sutter County Deputy Sheriff. During the stop, the deputy asked Brendlin to identify himself, which he did. After running a check, the deputy learned that Brendlin was wanted for failing to report to his parole officer, ordered him out of the car, and placed him under arrest. After a search incident to arrest unearthed drugs and drug paraphernalia in the car and on Brendlin’s person, Brendlin was charged with manufacturing methamphetamine. He moved to suppress the evidence — arguing that the original traffic stop was unreasonable and therefore violated his Fourth Amendment rights – but the trial court denied the motion. After pleading guilty, Brendlin appealed, challenging the failure to suppress the evidence found in the search incident to his arrest. The Court of Appeal of California reversed, and the State sought review in the California Supreme Court. In a 4-3 decision, the California Supreme Court reversed the intermediate appellate court, holding that Brendlin had not been “seized” within the meaning of the Fourth Amendment and thus could not challenge the stop. Brendlin then filed a petition for certiorari, which the U.S. Supreme Court granted on January 19.

Brendlin’s brief before the Court begins by arguing that the liberty and privacy interests of both motorists and passengers are well-established and well-recognized. As such, Brendlin argues, as a passenger he possessed a Fourth Amendment interest in continuing on his journey without unreasonable police interference. Moving on to the issue of whether a traffic stop amounts to a seizure of a passenger, Brendlin notes that the Court has never directly confronted whether passengers are seized during a traffic stop. Nonetheless, he maintains, the decisions of the Court holding that a police detention of a moving vehicle generally results in a seizure of its “occupants, no matter how brief the duration of the stop[,]” and the cases in which the Court has considered passenger challenges to the reasonableness of automobile stops clearly indicate that passengers are, in fact, “seized” by traffic stops.

To hold otherwise, Brendlin argues, would be difficult to square with the Court’s holdings that police officers are constitutionally justified when ordering a passenger to exit or return to a vehicle during the course of a stop. These decisions and the power they vest in police officers to control passengers, according to Brendlin, undercut any suggestion that a passenger, as opposed to the driver, in a vehicle pulled over for a traffic stop would feel free to leave once the car has stopped.

Moreover, Brendlin points out, every federal circuit court has held that a passenger may challenge a traffic stop in circumstances similar to these. In addition, Brendlin notes that the vast majority of states have held that passengers are seized in a traffic stop and may challenge both the legality of the stop and the admissibility of any evidence obtained during the stop.

As for the cases relied upon by the California Supreme Court, Brendlin emphasizes that none of the primary cases cited by the California Supreme Court involved traffic stops. Finally, if permitted to stand, the California Supreme Court’s ruling will result in an anomaly — a rule that allows drivers to move to suppress the fruits of unreasonable traffic stops but precludes passengers from the same vehicle from challenging the admissibility of the evidence.

California’s brief outlines three arguments why Brendlin was not “seized” within the meaning of the Fourth Amendment. In the State’s view, these arguments rest on the application of the principles established in prior Supreme Court cases examining whether a seizure within the meaning of the Fourth Amendment has taken place.

First, California argues that a person is not “seized” unless the police willfully use force or direct a show of authority at the person claiming the Fourth Amendment’s protections. Incidental intrusions on a person who is not the subject of police conduct such as those imposed upon a passenger in a car that is subject to a traffic stop, are merely unintended consequences of government action and should not amount to a seizure. In this case, California contends, the police action in stopping the vehicle was directed at the driver, Ms. Simeroth, and any intrusion on Brendlin’s freedom was unintentional and incidental. Second, California argues, a passenger in a car stopped in a normal traffic stop ordinarily would not be “seized” because a reasonable, innocent person would have believed he was free to decline the officer’s requests or otherwise terminate the contact. Third, California argues, there must also be a submission to the show of authority; because Brendlin was merely a passenger in the vehicle being stopped, it was Ms. Simeroth — not Brendlin — who submitted to the officer’s show of authority.

California further argues that Brendlin’s reliance on Supreme Court precedent to support the conclusion that a passenger is “seized” by a routine traffic stop of a police vehicle is misplaced, as none of those cases settles the question whether the stopping of a vehicle, in and of itself, results in a “seizure” of the passenger. And Brendlin’s concerns regarding constitutional protections for passengers are overblown, the State explains, because passengers in vehicles stopped by police are not without constitutional protections. Indeed, California contends, once the officer — either by word or deed — directs action at the passenger, the passenger’s Fourth Amendment rights may be implicated. Even assuming that the Court were to find the initial stop unlawful, California argues, the discovery of the incriminating evidence was attenuated from the challenged stop and flowed instead from the search incident to Brendlin’s arrest for his pre-existing parole violation.

Brendlin’s reply brief chides California’s “seizure” analysis as “result-driven” and reliant upon “untenable extensions” of Supreme Court precedent. First, Brendlin argues, California is wrong in asserting that, under Supreme Court precedent, a seizure occurs only when the specific person whom the officer seeks to apprehend is detained. According to Brendlin, the cases cited by California require only that the police action be intentional; a seizure may occur even when an unintended person or thing is the subject of the detention. Second, Brendlin clarifies that a seizure for Fourth Amendment purposes begins when the traffic stop occurs, i.e. when individuals in a car —whether driver or passenger— are subject to the authority of the police officer and other important operations of law. Third, the Court has previously rejected California’s suggestion that a person is not “seized” unless the police willfully use force or direct a show of authority at the person claiming the protections of the Fourth Amendment. Finally, Brendlin argues that — contrary to California’s one-dimensional analysis and characterization of the discovery of the challenged evidence as attenuated — the exclusionary rule applies here because Brendlin’s identity, the discovery of his parole status, and his subsequent arrest and search were all the immediate and direct result of the unlawful traffic stop and the deterrent benefits of excluding the evidence are clear and significant.

Among the various amicus briefs filed, the brief submitted by the American Civil Liberties Union (“ACLU”) is noteworthy. Rather than focusing solely on the legal arguments in support of Brendlin, the brief instead highlights the impact an affirmance of the California Supreme Court’s ruling could have on arbitrary and illegal stops and seizures. It contends that a constitutional arena in which drivers are afforded full Fourth Amendment protections but passengers none at all would result in an incentive for police to stop vehicles arbitrarily in the hopes of discovering evidence that, while inadmissible against the driver, would still be admissible against the passengers. In addition, statistics indicate that preventing passengers from challenging such arbitrary and illegal stops will have a disproportionate impact on minorities, who are more likely to be the target of such stops. Finally, a ruling foreclosing a legal remedy under the Fourth Amendment for passengers would re-open the door to racial profiling and leave all passengers, but particularly minority passengers, without a remedy for baseless traffic stops.