Further thoughts on Brendlin and whether a motorist is free to leave

In the past, I have occasionally ranted in comments that some appellate courts lack common sense in their determination that a motorist is free to leave after having been pulled over. Prosecutors have argued this with some success, considering that appellate courts with their heads in the sand (or elsewhere) have bought into the argument that a detention became consensual at some point even though the police car still had its lights on and the officer was standing around. Coercion is implicit, and no reasonable person could feel free to leave. The rub comes when the motorist is told that he is free to leave and the officer reinitiates questioning. The motorist is already stopped. Is the reinitiation of questioning a part of the original detention or not? To argue that it is not is, to me anyway, pure sophistry. How can a motorist feel free to leave? At best, the officer has sent grossly conflicting signals. “You may go, but one more thing….” This is a continuation of the detention under any reasonable person’s view. If this means that appellate courts that buy into the prosecution argument that it is consent are “unreasonable,” so be it. They are.

Yesterday’s holding in Brendlin v. California, 2007 U.S. LEXIS 7897 (June 18, 2007), previously posted here, adds weight to my argument, 2007 U.S. Lexis 7897, *16-18:

A traffic stop necessarily curtails the travel a passenger has chosen 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 (1976). An officer who orders one 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 a police 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 the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. Cf. Drayton, supra, at 197-199, 203-204 (finding no seizure when police officers boarded a stationary bus and asked passengers for permission to search for drugs).

It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U.S. 408 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id., at 414-415; cf. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that “‘[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.'” Wilson, supra, at 414 (quoting Michigan v. Summers, 452 U.S. 692, 702-703 (1981)). What we have said in these opinions probably reflects a societal expectation of “‘unquestioned [police] command'” at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson, supra, at 414.

It all boils down to using the last sentence in context. So, readers, the Supreme Court has given a way to put this appellate sophistry to an end. Brendlin should be applied to attempt to direct courts to hold that a highway stop is legally coercive in its nature, since the motorist was stopped under color of law, and to argue that a person can just drive off when the officer keeps talking is just contrary to all normal human experience. The fact the officer says the motorist can go and then keeps talking tells the motorist he cannot leave. It is implicit coercion, if not explicit.