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Talking Points

Question:
Does the Fourth Amendment protect the passengers in a car from unreasonable search and seizure during a traffic stop and give the passengers the right to challenge the stop?

Brendlin

California

1. During a traffic stop, is the passenger considered seized, just as the driver is considered seized?

Affirmative. Yes.

Common sense should dictate the result in this case. Although the police might only have intended to pull over and investigate the driver, the stop and the seizing of the driver means that any passengers are also seized. Therefore, if the seizure of the driver was illegal, the seizure of the passenger is illegal, as well.

Negative. No.

Even though the driver’s vehicle was stopped by the police, the defendant, as a passenger, was not seized. Seizure only follows the individual who is the subject of a police action. When an automobile is involved, the laws of physics require that not only the driver, but also any passengers, are physically stopped, but a physical stop is not the same as a legal seizure. The object of the police action, i.e., the driver, was the only person legally seized.

2. Is the passenger detained and not free to leave during a traffic stop, just as the driver is detained?

Affirmative. Yes.

Practical considerations, and not theoretical speculations, should govern in this case. Whatever the letter of the law might say, the defendant was not free to leave the scene of the traffic stop just because the police initially were focusing on the driver and not the passenger. The moment the defendant attempted to leave the car, the police – in self defense – probably would have ordered him to stop. Therefore, no reasonable person, including the defendant, would have felt free to leave.

Negative. No.

The police pulled over the vehicle to determine whether the driver was driving with expired tags. Their intent was to seize the driver and not the passenger. The police receive training on search and seizure law. Therefore, they would know that the passenger in a vehicle is free to leave when the driver is pulled over unless, of course, the passenger is implicated in a crime or is considered a danger to the police or others. Moreover, if the defendant had attempted to leave and the police stopped him, then he would have been able to claim the seizure was illegal. But until that happened, he had not been seized at all.

3. If passengers are considered seized in a traffic stop, wouldn’t this result in unintended, negative consequences?

Affirmative. Yes.

Significant consequences would have resulted if the Court had accepted the California Supreme Court’s interpretation of the law. For instance, whenever the police stop a bus or a taxi, they could investigate its passengers with impunity. The passengers would have no recourse against the police, even if the police lacked justification in the initial traffic stop. The police could begin pulling over buses and taxis randomly in order to try to spot and arrest an occasional criminal who might happen to be in those vehicles.

Negative. No.

There is a difference between a social passenger and a commercial passenger. Commercial passengers should be afforded more protections because they do not have a presumed close relationship with the driver. It is easy to see and investigate social passengers. It would be harder, and there would be less justification for doing so, in certain commercial contexts such as on a bus. Moreover, although mistaken, the police initiated this stop because they suspected that the driver had expired tags. There is no suggestion that totally random stops of any vehicles for the sole purpose of conducting a fishing expedition to find and arrest criminals would be constitutional.