Argument Recap: Brendlin v. California on 4/23

The following argument recap is by Troy D. Cahill, an associate in Akin Gump’s DC office. Troy’s preview of this case can be found here.

Yesterday, the Supreme Court heard argument in Brendlin v. California (No. 06-8120). A copy of the transcript is available here. At issue was whether a passenger in a vehicle subject to a traffic stop is “seized” for Fourth Amendment purposes and thus can contest the stop’s legality. The Supreme Court of California held Brendlin had not been seized because the police had never given any indication that he was not free to leave the scene.

Elizabeth Campbell from the California Appellate Project argued the case on behalf of Brendlin. The outset of Ms. Campbell’s argument involved attempts by the Chief Justice and Justice Alito to define the contours of the rule that she proposed – i.e., that “[w]hen an officer makes a traffic stop, activates his flashing lights, he seizes not only the driver of the car but also the car and every person and everything in that car.” Upon Ms. Campbell’s concession that the underlying arrest was lawful, Justice Kennedy wasted no further time in cutting to the exclusionary rule aspect of the case and asking her whether she had “any case in which [the Court] exclude[s] the evidence seized incident to an arrest when the arrest is lawful?” When she failed to identify a case directly on point, Justice Kennedy made clear that was the answer he expected and that he was “not aware of authority which says that when the arrest is lawful and the search is incident to that arrest, that the evidence is excluded.” Other Justices, including Justice Scalia and Justice Souter, appeared to share Justice Kennedy’s concern. According to Justice Souter, the arrest was either a product of an unlawful stop or an act of executing a validly issued arrest warrant, and he saw no basis for putting “all the eggs” in the basket of the former over the latter.

Returning to the issue of the various circumstances in which a vehicle might or might not be unreasonably seized, Ms. Campbell made clear – in the face of pointed questions from the Chief Justice and Justices Scalia, Breyer, and Alito – that although any intentional stop is a seizure of the vehicle and its occupants, not all such seizures are unreasonable. For example, she explained, although seized for purposes of the Fourth Amendment, a passenger in a vehicle that has been stopped because the driver committed a traffic violation does not have a Fourth Amendment claim because “when you get into the car as a passenger, you take a risk that you may be subject to a reasonable search or reasonable detention. But the Fourth Amendment doesn’t provide any protection for anyone against reasonable detentions and that would be a reasonable detention.” Finally, Ms. Campbell emphasized that, in addition to adhering to real life expectations, the rule proposed by Brendlin protects officer safety by providing a measure of predictability for drivers, passengers, and law enforcement personnel.

Clifford Zall, Deputy Attorney General for the State of California, argued for California. The discussion initially focused on when a person is deemed “seized” for purposes of the Fourth Amendment. According to Mr. Zall, a passenger in a vehicle is not seized until a show of authority is directed at the passenger and he submits to that show of authority. Justice Souter then steered the argument toward the question of whether a reasonable passenger in the context of a traffic stop would feel free to leave. Maintaining consistency, despite clear doubts from several Justices, Mr. Zall argued that a reasonable passenger would feel free to leave. Justice Scalia appeared to agree with Mr. Zall and acknowledged that a passenger’s decision to remain in the vehicle during a traffic stop may be more readily attributable to prudence than police action.

Justice Kennedy described Mr. Zall’s position as “surprising” and questioned the social or empirical support for the State’s position. Justice Breyer voiced a similar concern about the lack of empirical data relating to behavioral norms in the context of a traffic stop. In one of several lighter moments that occurred during Monday’s argument, Justice Scalia suggested, to much laughter, that, in light of Justice Breyer’s concerns, the Court await rendering a decision until the requisite studies are completed and analyzed.

Justice Ginsburg, and later Justices Kennedy and Stevens, raised the practical question of how, based on prior Supreme Court decisions, a reasonable person could feel free to leave the scene of a traffic stop knowing that the police can order the passenger out of the car or, if he tries to get out, order the passenger to stay in the car? Mr. Zall distinguished those other holdings on the basis that officer safety gave rise to the control over the passengers, regardless of whether the passengers have been seized within the meaning of the Fourth Amendment.

Turning back to the exclusionary aspects of the case, Justice Souter inquired about the significance of the arrest warrant in this case. Justices Kennedy, Breyer, Souter, and Ginsburg each voiced their concerns over whether the question regarding the application of the exclusionary rule in this case is properly before the Court. According to Mr. Zall, the presence of the arrest warrant for Brendlin attenuates any taint from the initial seizure and, for this reason, the evidence seized as a result of the arrest would not be subject to the exclusionary rule.

In her rebuttal, Ms. Campbell made clear that the Court’s prior decisions mandating officer control of the occupants of a stopped vehicle would not have been decided in that fashion had there not been an underlying assumption that the passengers were seized. In addressing the need or propriety of remand, Ms. Campbell reminded the Court that the intermediate appellate court had ruled that the evidence should be suppressed and that the California Supreme Court had not granted review on that question.

In the end, it appears that a majority of the Court will agree that Brendlin was “seized” for purposes of the Fourth Amendment when the vehicle in which he was traveling was stopped by the police in a traffic stop. The more difficult issue, it appears, will be whether the Court should address the effect of that seizure on the admissibility of the evidence seized as a result of Brendlin’s arrest. At least four members of the Court voiced their reticence to decide that issue. A decision in this case is anticipated some time prior to the Court’s summer recess.