SUPREME COURT APPROVES SEARCH OF PASSENGER IN STOPPED VEHICLE

Passengers of a vehicle pulled over in a police traffic stop are not
"seized" for Fourth Amendment purposes, the Supreme Court ruled yesterday.

Reversing a Court of Appeal holding that traffic stops necessarily
result in the detention of both drivers and passengers, the high
court in a 4-3 decision affirmed Bruce Brendlin's conviction for
manufacturing methamphetamine.

Brendlin was the passenger of a Buick that Sutter County Sheriff's
Deputy Robert Charles Brokenbrough stopped in 2001 on the basis of
expired registration tabs. Although he learned that there was a
pending application for the registration's renewal, Brokenbrough
directed the driver to pull over in order to investigate the validity
of the temporary operating permit taped to the car's rear window.

Testimony at a suppression hearing indicated that the deputy
approached the car's driver side and asked for the driver's license,
and upon recognizing Brendlin as a possible parolee at large and
verifying that there was an outstanding warrant for his arrest,
ordered Brendlin out of the car at gunpoint and arrested him for
parole violation. During a search incident to the arrest,
Brokenbrough found an orange syringe cap on Brendlin, along with
drugs and drug paraphernalia on the driver and in the back seat of the car.

Motion to Suppress

Brendlin moved to suppress the drug evidence, arguing that
Brokenbrough's detention of the Buick and its driver constituted an
illegal seizure of his person that tainted all of the subsequently
discovered evidence.

In denying the motion to suppress, Sutter Superior Court Judge
Christopher R. Chandler held that Brendlin was seized not at the
point of the traffic stop but rather when Brokenbrough commanded out
of the car and placed him under arrest. Until then, Chandler
reasoned, "[Brendlin] was free to leave...if he wanted to."

The Court of Appeal found that Chandler erred in not suppressing the
evidence Brokenbrough seized from Brendlin and the Buick, reasoning
that Brendlin was illegally detained as a result of the traffic stop
and the stop itself was unlawful.

Baxter Opinion

But Justice Marvin Baxter, writing for the high court, said the Court
of Appeal incorrectly based its ruling on the fact that a traffic
stop curtails a passenger's freedom of movement.

"A police detention of an orderly pushing a wheelchair-bound
individual or a detention of a parent pushing a child in a stroller
may well incidentally curtail the freedom of action of the passengers
who are dependent on those adults. ...But it is absurd to say that
either passenger has thereby been seized within the meaning of the
Fourth Amendment," Baxter said.

While it is clear that the "progress" of a passenger in a pulled-over
car is "momentarily curtailed," the justice explained, it is the
driver and not the passenger against whom police are asserting
authority. Passengers may in most cases choose to remain in the car
until it stops and to stay until police complete their investigation,
but they are in reality free to leave the car at anytime unless the
police say otherwise--unlike the driver who must submit to the
officer's show of authority, Baxter said.

Pointing out the distinction between being stopped "as a practical
matter" and being seized as a "as a constitutional matter," the
justice said that a rule equating the two "would encompass even those
motorists following the vehicle subject to the traffic stop, who, by
virtue of the original detention, are forced to slow down and perhaps
even come to a halt in order to accommodate the vehicle's submission
to police authority."

"There is no need to torture the definition of a seizure to protect
the security of passengers," he wrote.

Chief Justice Ronald M. George and Justices Joyce Kennard and Ming
Chin joined in the opinion.

In a dissent, Justice Carol A. Corrigan, joined by Justices Kathryn
Mickle Werdegar and Carlos R. Moreno, criticized the majority's
ruling as providing "no sound basis in reason or policy."

Noting that eight federal circuit courts of appeal and 21 state's
appellate courts have adopted the view that passengers are detained
during traffic stops, Corrigan concluded that the "commonsense
approach" would be to hold that passengers are seized from the time
an officer pulls the car over until he tells the passengers they are
free to leave or releases all occupants of the vehicle after
completing the traffic stop.

In a companion case, the justices unanimously held that police
lawfully stopped a vehicle that was missing a front license plate but
displayed what appeared to be a current temporary operating permit.

The cases are People v. Brendline, 06 S.O.S. 3354, and People v.
Saunders, 06 S.O.S. 3362.