A Stitch in Haste

A few years back I was riding in a taxi that was pulled over for some infraction, probably running a yellow-turning-red traffic light.

The police officer, utterly oblivious to me, asked the cabbie for his log and hack license and such, while I just sat there. After about two minutes, I finally stuck my head out the window and asked the officer, “Hi, do you need me?” He said no, and I promptly left the scene. He could have said that upfront, but at least he left me alone.

Now, shame on me — Mr. “A+ in CrimPro I Bigshot” — but I had no idea whatsoever what the state of Fourth Amendment jurisprudence was regarding passengers during a vehicle stop. And I certainly didn’t have the balls self-confidence to simply leave without fear of provoking the officer. I, like most people, tend to pacify myself around armed law enforcement.

Which is why this statement boggles my mind:

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.

Oh really? I have no idea what one can and cannot do under such circumstances, but Joe Sixpack does? Yeah right.

Nevertheless, that is one of several arguments the State of California is making in Brendlin v. California, No. 06-8120, which is being argued today before the Supreme Court:

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.

Apparently California believes that the Fourth Amendment simply does not apply to Brendlin because he was never “seized” (i.e., he not only was free to simply walk away, but also knew or should have known that fact without even asking the deputy).

Yeah right. I’ve seen enough episodes of “COPS” to know that it just doesn’t work that way. When a car is stopped, the police never simply let passengers “walk away.” To seize an automobile is to seize everyone in it. That’s even been true for buses.

(Incidentally, what if the stop occurs on a highway? How is a passenger like Brendlin supposed to “just walk away” then? Is there no such thing as “constructive seizure” under the Fourth Amendment?)

The question of what Fourth Amendment rights a passenger of a stopped vehicle may or may not have isn’t what’s irking me here. It’s the absurd presumption that, whatever those rights are, the passenger is expected to know them and should not be permitted to argue after the fact that he was “improperly” seized, because he was in fact never seized — properly or improperly — in the first place.

Strange how the Court presumes that people cannot be expected to “just know” their (far less complicated) Fifth and Sixth Amendment rights — hence Miranda v. Arizona, 384 U.S. 436 (1966). But the far more convoluted Fourth Amendment automobile jurisprudence? Self-apparent, and no warning necessary.

That simply cannot be right.

While this question has never been addressed head-on, California’s argument goes against indirect precedent suggesting that “seizing a vehicle” means “seizing the occupants.” Hopefully the Court will not only extend those precedents to their logical conclusion but will also impose a Miranda-style requirement that police clearly inform people of their Fourth Amendment rights during vehicle stops.

Wishful thinking, I know.

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UPDATE: Great minds think alike –

CHIEF JUSTICE ROBERTS: Well, it wouldn’t apply in a taxicab, right? I mean, the cab is driving erratically, the officer pulls it over. If I’m a passenger in the cab, I think I can get out and catch another cab, right?

Justice Kennedy, meanwhile, just plain nails it –

JUSTICE KENNEDY: You’re representing the State of California and you want to establish the proposition that any time there is a traffic stop in the State of California or I guess anywhere in the United States all the passengers are free to immediately leave, absent some further countermanding officer — order by the officer. I think that’s a quite surprising proposition. Now, we don’t have empirical studies and so forth, but at some point the Court takes judicial notice and I think indications from the bench are we just don’t think passengers, A, are or, B, should feel free to leave when there’s a traffic stop. I just think you have no social or empirical documentation for that position.

Keep in mind that this case has many moving parts and is not just about whether a “reasonable” passenger knows his Fourth Amendment rights in a vehicle stop. That’s just the issue that interests me the most in this case.