The Supreme Court unanimously decided Brendlin v. California, 2007 U.S. LEXIS 7897 (June 18, 2007), today, just as predicted here when cert was granted: a passenger in a car illegally stopped has standing to challenge the stop. It could not reasonably have come out any other way. Indeed, the only strange thing about the case is the fact that the California Supreme Court got it so wrong.

From the Syllabus:

After officers stopped a car to check its registration without reason to believe it was being operated unlawfully, one of them recognized petitioner Brendlin, a passenger in the car. Upon verifying that Brendlin was a parole violator, the officers formally arrested him and searched him, the driver, and the car, finding, among other things, methamphetamine paraphernalia. Charged with possession and manufacture of that substance, Brendlin moved to suppress the evidence obtained in searching his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop, which was an unconstitutional seizure of his person. The trial court denied the motion, but the California Court of Appeal reversed, holding that Brendlin was seized by the traffic stop, which was unlawful. Reversing, the State Supreme Court held that suppression was unwarranted because a passenger is not seized as a constitutional matter absent additional circumstances that would indicate to a reasonable person that he was the subject of the officer’s investigation or show of authority.

Held: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality. Pp. 4-13.

(a) A person is seized and thus entitled to challenge the government’s action when officers, by physical force or a show of authority, terminate or restrain the person’s freedom of movement through means intentionally applied. Florida v. Bostick, 501 U. S. 429, 434; Brower v. County of Inyo, 489 U. S. 593, 597. There is no seizure without that person’s actual submission. See, e.g., California v. Hodari D., 499 U. S. 621, 626, n. 2. When police actions do not show an unambiguous intent to restrain or when an individual’s submission takes the form of passive acquiescence, the test for telling when a seizure occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. E.g., United States v. Mendenhall, 446 U. S. 544, 554 (principal opinion). But when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, supra, at 435-436. Pp. 4-6.

(b) Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra, at 436. Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails a passenger’s travel just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U. S. 543, 554. An officer who orders a particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect the officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. It is also reasonable for passengers to expect that an officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. See, e.g., Maryland v. Wilson, 519 U. S. 408, 414-415. The Court’s conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question. Pp. 6-9.

(c) The State Supreme Court’s contrary conclusion reflects three premises with which this Court respectfully disagrees. First, the view that the police only intended to investigate the car’s driver and did not direct a show of authority toward Brendlin impermissibly shifts the issue from the intent of the police as objectively manifested to the motive of the police for taking the intentional action to stop the car. Applying the objective Mendenhall test resolves any ambiguity by showing that a reasonable passenger would understand that he was subject to the police display of authority. Second, the state court’s assumption that Brendlin, as the passenger, had no ability to submit to the police show of authority because only the driver was in control of the moving car is unavailing. Brendlin had no effective way to signal submission while the car was moving, but once it came to a stop he could, and apparently did, submit by staying inside. Third, there is no basis for the state court’s fear that adopting the rule this Court applies would encompass even those motorists whose movement has been impeded due to the traffic stop of another car. An occupant of a car who knows he is stuck in traffic because another car has been pulled over by police would not perceive the show of authority as directed at him or his car. Pp. 9-13.

(d) The state courts are left to consider in the first instance whether suppression turns on any other issue. P. 13.

38 Cal. 4th 1107, 136 P. 3d 845, vacated and remanded.

The petitioner's brief is here and the State of California's brief is here.

From my previous post: "The California Supreme Court decision is People v. Brendlin, 38 Cal. 4th 1107, 45 Cal. Rptr. 3d 50, 136 P.3d 845 (June 29, 2006). Lexis Overview: 'Because a deputy effected a traffic stop without any indication that defendant, the passenger, was the subject of his investigation or show of authority, defendant was not seized for Fourth Amendment purposes when the driver submitted to the deputy's authority and stopped the vehicle; thus, defendant was not entitled to suppress evidence of drugs.' [The free link to the California Supreme Court opinion is now dead.]"

Police officers aiding a court ordered receiver in his actions toward plaintiff's property acted reasonably and with qualified immunity. The court notes that the facts here are the "mirror image" of Soldal. Downeast Ventures v. Washington County, 2007 U.S. Dist. LEXIS 43461 (D. Me. June 13, 2007)*:

In any event, assuming that the facts of Soldal were actionable under the Fourth Amendment, those facts are the mirror-image of what is presented in the summary judgment record of this case. In Soldal the sheriff's deputies prevented the plaintiff from interfering with the removal of his mobile home from a park even though they knew that the owner of the park had not complied with Illinois law and that no judgment of eviction had ever issued. Id. at 57. Here, the County Defendants knew that the Receiver was a court-appointed officer with the authority to demand possession of property held by third parties. Although the Receiver's authority was not unlimited, it was nevertheless established by court order that he was empowered to demand possession of contested property. Because there is no evidence that the County Defendants knowingly participated in any abuse of the Receiver's power and authority, the summary judgment record is insufficient, as a matter of law, to support a finding that the County Defendants violated Downeast's Fourth Amendment rights.

Search warrants and affidavits are discoverable under F. R. Crim. P. 16. United States v. Moss, 2005 U.S. Dist. LEXIS 45231 (W.D. Tenn. June 13, 2005):

Courts have recognized that search warrants and affidavits are not exempted by Fed. R. Crim. P. 16. See United States v. Politi, 334 F. Supp. 1318, 1320 (S.D.N.Y. 1971) (noting that the Government agreed that search warrants and affidavits should be produced). As such, to the extent that Defendants seek the production of search warrants or affidavits related to United States Customs agents' seizures of international shipments, the Court finds that the Government shall produce these documents per the Magistrate Judge's May 5, 2005 Order.

Defendant was free to leave the airport until the officers directed him not to leave the taxi stand area. He was being followed, and that was not a seizure. "It does not matter whether the officers intended to allow Nielsen to leave the airport, so long as they did not communicate this intention to him. ... Moreover, Nielsen asked at the taxi stand whether he was then being detained, indicating his understanding that he was not detained before that." United States v. Nielsen, 2007 U.S. App. LEXIS 14225 (9th Cir. June 12, 2007)* (unpublished).