Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 152 Issue: 221

November 10, 2006

Real-World Approach Leads Court to Dump Search

A car has a driver and a passenger. A police officer pulls over the car for running a stop sign. Clearly the car and driver have been seized pursuant to the Fourth Amendment.

But has the passenger also been ''seized''? Sure, he has been ''stopped'' in the ordinary way we use that word. But the officer is only interested in the driver who ran the stop sign, not the passenger. Since the passenger is arguably free to go, can we really say he has been seized?

Two recent cases — one from the California Supreme Court and the other from the 3d U.S. Circuit Court of Appeals — come to very different conclusions. And the answer to this problem has more than merely academic interest, since it has a significant effect both on the behavior of police on patrol and on the role of the exclusionary rule in suppressing evidence.

First, let's look at the California Supreme Court opinion, which held that a passenger in a car that has been stopped is not necessarily seized under the Fourth Amendment. People v. Brendlin, 38 Cal.4th 1107 (2006).

A California sheriff's deputy stopped a car in which Bruce Edward Brendlin was a passenger. The deputy subsequently believed Brendlin might be a parole violator and thus asked him for identification. A radio check confirmed this and the deputy arrested Brendlin. A search of the car pursuant to the arrest turned up contraband drugs used to later convict Brendlin. The lower courts, however, found that the stop was not based on reasonable suspicion; therefore, they held that Brendlin was illegally seized and consequently suppressed the drugs as fruit of the poisonous tree.

A divided California Supreme Court rejected this analysis in a 4-3 decision. The majority emphasized that ''seizure'' is a legal term of art under the Fourth Amendment. It criticized the lower courts for not recognizing the distinction between ''being stopped as a practical matter'' and ''being seized as a constitutional matter.'' At 1120 (emphasis in original). As the majority saw it, what distinguished the driver from the passenger was the ''element of choice.'' At 1117. The driver is seized and is under the control of the police. The passenger, however, is free to leave the car.

The majority admitted that the U.S. Supreme Court has never established a one-size-fits-all definition of what it means to seize a person. But after reviewing Supreme Court precedent, the majority created this definition: ''A seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the person's liberty … [and] the police conduct communicated to a reasonable innocent person that the person was not free to decline the officer's request or otherwise terminate the encounter … and the person actually submitted to that authority for reasons not 'independent' of the official show of authority.'' At 1118 (citations omitted).

Applying this test, the court concluded that Brendlin failed to show he was seized under the Fourth Amendment because he did not establish either that he ''was the subject of the deputy's show of authority or that he actually submitted to it.'' At 1118.

The majority conceded that a passenger in a traffic stop could conceivably be seized by the police. For example, if the police physically detain the passenger in some way, he has been seized. The majority even conceded that the passenger would be seized if the police ordered him out of the car, although the Supreme Court has found this kind of seizure of a passenger proper under the Fourth Amendment. Maryland v. Wilson, 519 U.S. 408 (1997).

But Brendlin only argued that the original traffic stop was illegal. Because the traffic stop did not per se result in a ''seizure'' of Brendlin the passenger, the court denied the motion to suppress.

California's position on this issue is in the distinct minority. For an example of the majority position that a passenger is indeed seized during an illegal traffic stop directed at the driver, take a look at the 3d Circuit's recent decision in U.S. v. Mosley, 454 F.3d 249 (3d Cir. 2006).

Again, the facts are straightforward. During a traffic stop the police saw a firearm on the floorboard. The weapon was used to charge Robert Mosley the passenger with being a felon in possession of the firearm.

The trial court agreed that the traffic stop was illegal because it was not based on reasonable suspicion. The issue then was whether the illegal stop should per se result in suppression of the firearm as applied to Mosley the passenger.

Interestingly, the government did not claim that the passenger was not seized — the theory that prevailed in the Brendlin case. Instead, the government conceded that Mosley the passenger was illegally seized when the car was pulled over. But the government argued that there were two separate seizures — and that the seizure of the passenger was analytically distinct from the seizure of the driver.

On the other side, the defense argued that the illegal stop of the car occupied by the driver and the passenger resulted in a single constitutional violation with two victims. Consequently, each person could seek to suppress all the fruits of the violation.

Yet the government argued that the one police action actually results in two different seizures — one of the driver and one of the passenger. The ability to suppress evidence requires personal Fourth Amendment standing; what the driver may be able to suppress is not necessarily the same as what the passenger can suppress. Rakas v. Illinois, 439 U.S. 128 (1978). Thus, the illegal seizure of the driver resulted in the recovery of the firearm in the car. The driver owned the car and had a reasonable expectation of privacy over the contents of the car. Therefore, the driver could suppress the gun.

Yet, the government contended, the analysis is different for Mosley the passenger. True, he was illegally seized. True, he would have had standing to suppress anything seized on his person. But Mosley's relation to the interior of the car was purely ancillary; in sum, the evidence would have been seized regardless of whether he was there or not. The seizure of passenger Mosley simply has no relation to the seizure of the firearm; therefore, the government argued, Mosley has no standing to suppress the evidence. Conceptually, the government visualizes the car as being similar to a large piece of clothing worn only by the driver.

The 3d Circuit conceded that there was some logical appeal to the government's argument. It rejected it, nonetheless, agreeing with the large majority of courts that construe a traffic stop as a single act that equally affects all occupants of the vehicle. Thus, passenger Mosley had standing to suppress the evidence.

So which is the best argument? The prosecutor in Mosley who argued there were two seizures? The 3d Circuit that saw it as one unconstitutional act with two victims? Or the California Supreme Court that argued that the passenger was not seized at all?

The reason I choose the 3d Circuit's view is that it engaged in a type of analysis that the proponents of the other two positions did not. Both the California Supreme Court and the government lawyers in Mosley looked at the issue in isolation. The 3d Circuit, however, based its answer in the context of the law of traffic stops in general.

The Supreme Court has held that subjective racism that motivates a traffic stop is irrelevant under a Fourth Amendment analysis; a stop is proper as long as it is objectively reasonable under the Fourth Amendment. Whren v. U.S., 517 U.S. 806 (1996). No offense is too minor to not be considered an arrestable offense. Atwater v. City of Lago Vista, 532 U.S. 318 (2001). And an arrest of any occupant in a car will support a search of the passenger compartment of the car. New York v. Belton, 453 U.S. 454 (1981).

Taking this into consideration, the Mosley court noted that if passengers are not allowed to suppress evidence found in a car after an illegal traffic stop, police could brazenly make illegal vehicle stops based on racial profiling and mere hunches. Although the driver could suppress the fruits of the stop, the passengers — two or three or more — would be without a remedy.

What is refreshing about Mosley is that the 3d Circuit eschewed an overly technical analysis that saw the issue in a narrow ivory tower context. Instead, it allowed the pragmatics of real-life police work to inform its decision. It is an approach other courts would be wise to copy.

Reality — what a concept!