By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association
he U.S. Supreme Court’s recent decision in the case of Brendlin v. California broke no new ground in the law of motor vehicle stops and passenger searches.1 By holding that a passenger was seized, for Fourth Amendment purposes, when the police stopped the vehicle’s driver, the Court simply brought the State of California into line with the rest of the country. That an “uninvolved” vehicle passenger may challenge the validity of the initial stop of the vehicle’s driver had been the accepted rule for some time in all the federal courts of appeal as well as nearly every state appeals court to have ruled on the question. That is, does an unconstitutional stop of the driver also violate the constitutional rights of the passenger, who is incidentally stopped? The answer is yes, according to the U.S. Supreme Court—confirming what a study of lower-court decisions would have suggested anyway.
An underlying issue, of course, is whether passengers may contest the admissibility of evidence against them when that evidence is the product of an unlawful stop of the driver. Closely related is the question of whether passengers may successfully sue police for violating their constitutional rights while stopping the driver. The answers to both questions have now been confirmed as affirmative.
The background to the Brendlin case is as follows. After stopping a car without legal justification to check its registration, an officer recognized Brendlin, a passenger in the car, as a parole violator. After confirming his parole status, the officers present formally arrested Brendlin and searched him, the driver, and the car, finding, among other things, methamphetamine paraphernalia. Brendlin argued that the officers lacked probable cause or even reasonable suspicion to make the vehicle stop and therefore caused an unconstitutional seizure of his person. He moved to suppress the evidence obtained in searching his person and the car. His efforts, including appeals, were ultimately unsuccessful in lower courts. The Supreme Court of California held that, because he was only a passenger, he had no “standing” to contest the validity of the stop (of the driver).
The Supreme Court, however, apparently sensitive to the possibility of racial profiling or border patrol sweeps, seemed concerned that “[h]olding that the passenger in a private car is not (without more) seized in a traffic stop would invite police officers to” illegally (i.e., without probable cause or reasonable suspicion of a violation) stop cars with passengers in them in order to gain admissible evidence against the passengers—even if the resulting evidence would be inadmissible against the driver. The Court pointed out that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers—creating a powerful incentive to run the kind of “roving patrols” that would still violate the driver’s Fourth Amendment rights.2
So When Does a Seizure Occur?
Courts recognize that not every case where a person remains present following a showing of police authority amounts to a continuing seizure. A person may simply elect not to leave, even when free to do so. In such cases, the “coercive effect of the encounter” can be measured better by asking “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”3
As in Brendlin the Court explained, “A person is seized and thus entitled to challenge the government’s action when officers, by physical force or a show of authority, terminate or restrain the person’s freedom of movement through means intentionally applied.”4 A crucial distinction may involve the difference between when the police stop the vehicle and when they act in a way that conveys to a reasonable person that he or she is not free to leave. “There is no seizure without that person’s actual submission.”5 When police actions do not show an unambiguous intent to restrain or when an individual’s submission takes the form of passive acquiescence, “the test for telling when a seizure occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he [or she] was not free to leave.”6
The Court determined that “Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to ‘terminate the encounter’ between the police and himself.”7 Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission. The Court pointed out that “[a] traffic stop necessarily curtails a passenger’s travel just as much as it halts the driver, and the police activity that normally amounts to intrusion on ‘privacy and personal security’ does not normally (and did not here [in Brendlin]) distinguish between passenger and driver.”8
As a side note, it may be possible to make a vehicle stop without “seizing” a passenger more than momentarily. Officers could inform passengers immediately upon stopping a vehicle that they are not “seized” and are free to leave. This explicit statement would certainly overcome any reasonable person’s perception to the contrary. However, if the person actually leaves, the ability to investigate the passenger’s possible criminal involvement is obviously curtailed.
What May an Officer Do to Restrain a Passenger?
As the Supreme Court explained in Brendlin, passengers would reasonably expect that an officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize the officer’s safety.9 It is well established that officers may order motorists and passengers out of a vehicle at the officers’ discretion, without any need to justify such action and without violating the U.S. Constitution.10 And certainly, if the officer has probable cause to arrest or reasonable suspicion to detain the passenger, the passenger’s freedom of movement may be curtailed to the extent reasonable to effect the legally justified detention or arrest. However, when passengers whose only apparent “offense” is that they happen to be in a car with a law-violating driver refuse to comply with officers’ instructions to remain in the car and instead attempt to leave the scene of the stop, the answers are much less clear.
It seems logical that if an officer can require passengers to get out of the car, the officer could require them to stay in the car. That is, if an officer has the authority to control the movements of a passenger, that authority would run in both directions. Still, this question has not been answered with the same authority as whether the officer can require passengers to exit the vehicle. It is not hard to envision a lawsuit against police for force used to prevent a passenger who has done nothing illegal from leaving the scene of a traffic stop of a driver. The wiser course, all things considered, may be to allow such passengers to simply leave the area if they seem determined to do so. Of course, if passengers want to get out of the car to interfere with the officer instead of leaving the scene, that would be a different story. And if such a stop takes place on a highway where pedestrian traffic is illegal, the appropriate law enforcement decision might again be different.
Police officers should be certain that they have an adequate justification before stopping a motor vehicle. And unless officers expressly inform passengers that they are free to leave, courts will treat them as having been “seized” for Fourth Amendment purposes. Therefore, unless officers had at least reasonable suspicion, if not probable cause, to stop the vehicle, passengers may succeed in having any evidence against them suppressed in court and may be able to sue successfully for violation of their rights.
One benefit chiefs and legal advisers can derive from the Brendlin case is the opportunity to review the law concerning vehicle stops and searches. Being sure a department’s policies, procedures, and training are current and in conformity with applicable case law is always worthwhile. What to do about a passenger who is incidentally seized during a traffic stop and tries to leave (“I’m late to work. Leave me alone!”) is also a question worth answering.■
This column is a service of the IACP Legal Officers Section, which is composed of police legal advisers who are members of IACP and the section. The opinions expressed and positions taken are those of the column’s author and do not necessarily represent the views of the IACP, The Police Chief, or even the Legal Officers Section. Attorneys who wish to submit articles for possible use in this column or anyone wishing to join the Legal Officers Section should contact Randy Means at firstname.lastname@example.org.
1Brendlin v. California, 127 S. Ct. 2400, 168 L.Ed. 2d 132 (2007).
2Id. at 2410. See also, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973) (stop and search by Border Patrol agents without a warrant or probable cause violated the Fourth Amendment); Delaware v. Prouse, 440 U.S. 648, 662–663 (1979) (police spot check of driver’s license and registration without reasonable suspicion violated the Fourth Amendment).
3Florida v. Bostick, 501 U.S. 429 at 435–436, 111 S. Ct. 2382 (1991), 2405–2407.
4Brendlin, 127 S. Ct. at 2400; Bostick, 501 U.S. at 434; Brower v. County of Inyo, 489 U.S. 593, 597, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989).
5Brendlin, 127 S. Ct. at 2400; See, e.g., California v. Hodari D., 499 U.S. 621, 626, n. 2, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).
6Brendlin, 127 S. Ct.; See, e.g., United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (principal opinion).
7Brendlin, 127 S. Ct.; Bostick, 501 U.S. at 436, 111 S. Ct. 2382.
8Brendlin, 127 S. Ct.; United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976).
9Brendlin, 127 S. Ct.; See, e.g., Wilson, 519 U.S. 408, 414–415, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997).
10Brendlin, 127 S. Ct.; Wilson, 519 U.S.; and Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1975). (Note: Some state constitutions have been interpreted more restrictively.)