Reality of Police Power

By Lance M. Hester, October 2016

Justice Souter, in Bruce Edward Brendlin, Petitioner, v. California, 551 U.S. ____ 2007, No. 06-8120, delivered an opinion that when an officer makes a traffic stop and a passenger is seized as well the driver, the passenger may challenge the constitutionality of the stop under the Fourth Amendment.

Brendlin was a passenger in a car that was stopped by a police officer for no good legal reason. After the stop, the police officer recognized the passenger as a person who may have been on parole. The officer obtained his ID and discovered that there was an outstanding no bail warrant for parole violation. He then, at gun point, arrested the passenger. When the police searched the passenger incident to his arrest they found drug paraphernalia. The police did a pat down search of the driver, finding syringes. A search of the car disclosed the presence of items used to manufacture methamphetamine.

Brendlin was charged with possession and manufacture of methamphetamine. He moved to suppress the evidence obtained from the searches of his person and the car as fruits of an unconstitutional seizure. The trial court denied his motion, finding that the stop was lawful and that Brendlin wasn’t seized until he was ordered out of the car and formally arrested.

Brendlin pleaded guilty, subject to appeal on the suppression issue.

The State Court of Appeals reversed the trial court, holding that Brendlin was seized by the stop. The State Supreme Court reversed the appeals court, noting that California conceded that police had no reasonable basis to suspect unlawful operation of a car, but held that a passenger is not seized absent 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. Saying that a passenger cannot submit to an officer’s show of authority while the driver con- trols the car and that once the car is pulled over, a passenger (I can’t believe this part) “would feel free to depart or otherwise to conduct his or her affairs as though the police were not present.”

The U.S. Supreme Court restated the test to be applied to determine if a seizure occurs, saying “in view of all the circumstances surrounding the incident, would a reasonable person have believed that he was not free to leave.”

The Court stated that any reasonable passenger in Brendlin’s circumstances would have understood the police officer to be exercising control to the point that no one in the car was free to depart without police permission.

In its opinion the Supreme Court makes several statements demonstrating the logic of its holding including that if they were to hold that under these circumstances a passenger is not seized that such a conclusion would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal”, creating a powerful incentive for police to run the kind of ‘roving patrols’ that would violate the driver’s Fourth Amendment right.

The suppression motion was granted because the passenger, Brendlin, was seized from the moment the car came to a halt on the side of the road.