Articles

THE FEDERAL CORNER
March 2007

CERTIORARI FOR A SEARCH CASE

F. R. (Buck) Files, Jr.

Whenever the Supreme Court grants certiorari in a case with only a search issue, I become concerned about what the Court is going to do to the body of law upon which we rely on almost a day-to-day basis. Judges and prosecutors should have this same concern. It is for this reason that I would alert you that, on January 19, 2007, the Supreme Court granted a petition for writ of certiorari in Brendlin v. California, ___ S.Ct. __ 2007 WL 124735 (US).

In People v. Brendlin, 136 P.3d 845 (Cal. 2006), the Supreme Court of California affirmed the conviction of the defendant who pleaded guilty to manufacturing methamphetamine and then appealed from the Superior Court’s denial of his motion to suppress. Justice Baxter authored the opinion of the Court.

The Facts in Brendlin

Sutter County Sheriff’s Deputy Brokenbrough stopped a Buick automobile driven by Karen Simeroth after noting that her registration sticker had expired two months earlier. At a hearing on Brendlin’s motion to suppress, Brokenbrough testified that he had observed a temporary operating permit taped to the rear window of the Buick but could not determine from his vehicle whether the permit was for Ms. Simeroth’s vehicle.

When Brokenbrough approached her, he recognized the defendant as one of the Brendlin brothers but did not know whether he was Scott Brendlin or Bruce Brendlin. He recalled that one of them was a parole absconder. He asked Brendlin what his name was and the defendant falsely identified himself as Bruce Brown. During the conversation, Brokenbrough observed containers in the vehicle containing substances used in the production of methamphetamine.

Brokenbrough returned to his patrol vehicle and verified that Brendlin was a parolee at large and that there was an outstanding warrant for his arrest. During this period, Brendlin opened and then closed the passenger door of the vehicle. After requesting backup, Brokenbrough pointed his weapon at Brendlin, ordered him out of the car and placed him under arrest for the parole violation. During a pat down search and a later search incident to a lawful arrest, Brokenbrough found hypodermic needles, marijuana, and a baggie containing a small quantity of methamphetamine on Simeroth’s person and an orange syringe cap in Brendlin’s possession. Materials used in the manufacturing of methamphetamine were also found in the back seat of the Buick.

The Motion to Suppress

In the Superior Court of Sutter County, California, Brendlin filed his motion to suppress all of the evidence seized. After a hearing, Judge Christopher R. Chandler held

… that defendant had not been seized within the meaning of the Fourth Amendment until Deputy Brokenbrough ordered him out of the car at gunpoint and placed him under arrest. He was free to leave. And if he had opened the door and got out and taken a hike, then this officer would have had to decide whether he had something less than probable cause to detain him, and then he would have been detained. But he wasn't detained because he never went anywhere; but he had a right to if he wanted to.

Judge Chandler also held that even if defendant had been seized at an earlier point, the traffic stop was lawful; even if the stop had been unlawful, defendant, as a passenger, lacked standing to suppress the items seized from the Buick. After his motion to suppress was denied, Brendlin pleaded guilty to manufacturing methamphetamine, admitted to a prior prison term enhancement and was sentenced to four years in prison. He then appealed Judge Chandler’s denial of his motion to suppress.

The Court of Appeals

The Court of Appeals reversed the judgment of the Superior Court, holding that the traffic stop necessarily resulted in a detention and, hence, a seizure of both the driver and her passenger. The Court of Appeals also found that the stop was unlawful in that Brokenbrough, who knew that the vehicle’s application to renew its registration was in progress and who had seen the temporary permit in the rear window, had, “at most a hunch,” that “the temporary operating permit displayed in the window might not belong in the car and, thus, it was unlawfully operated as an unregistered vehicle.” The Court of Appeals ruled that the evidence seized from Brendlin as well as that seized from the Buick should have been suppressed.

The Supreme Court of California

From the point of view of those who practice in the courts of the Fifth Circuit, Judge Baxter did well in four paragraphs of his opinion:

• He gave a good introduction to the opinion:
  When a peace officer directs the driver of a vehicle to pull over for a traffic stop but, in effecting the stop, gives no indication that the passenger of the vehicle is the focus of the officer's investigation or show of authority, is the passenger subjected to a “seizure” within the meaning of the Fourth Amendment? This is a question that has divided courts inside and outside this state. We find that the passenger, whose progress is momentarily stopped as a practical matter, is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer's investigation or show of authority. We therefore reverse the judgment of the Court of Appeal, which (1) held that the passenger was automatically seized as a result of the traffic stop, (2) determined that the traffic stop was unlawful, and (3) suppressed the evidence of methamphetamine manufacturing found in the car and on defendant's person as the fruit of the illegal seizure.
• He set out why the Court had agreed to review the case:
  We granted review, limited to (1) whether defendant, as a passenger in a vehicle subjected to a traffic stop, was seized within the meaning of the Fourth Amendment; and (2) whether reasonable suspicion exists that a car is unregistered when it exhibits an expired registration tab on its license plate but displays what appears to be a valid temporary operating permit in its rear window.
• He did acknowledge that a traffic stop results in a seizure:
  There is no debate here, though, whether a traffic stop results in a seizure. The issue, rather, is who (or what) has been seized.
• Most importantly, he gave the Justices of the Supreme Court a reason for granting certiorari in this case:
  Neither this court nor the United States Supreme Court, however, has yet decided whether the driver's submission to the show of authority results in a seizure of the passenger. A majority of courts, including several federal circuit courts and some state courts, have embraced a per se rule that the passenger is seized at the moment the driver submits to the official show of authority.

Some of Judge Baxter’s paragraphs of the opinion, however, look more like incorrect answers to bar examination or specialization examination questions; e.g.,

…the passenger is not subject to the same restraints as the driver. The driver is obliged to remain at the scene until the completion of the officer's investigation. “[T]he passenger is stopped too, but only coincidentally.” (People v. Jackson, supra, 39 P.3d at p. 1185.) Absent further direction from the officer effecting the stop (see Maryland v. Wilson (1997) 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41) or some indication that the passenger is the subject of the officer's investigation or show of authority, the passenger is free to ignore the police presence and go about his or her business. Alternatively, the passenger may choose to wait until the investigation of the driver is completed. In either case, “it is this element of choice that distinguishes the passenger's circumstance from the driver's, for the driver has been seized and is therefore not free to go.” (Jackson, supra, at p. 1185.) The fact that defendant's freedom of movement was momentarily curtailed by the traffic stop thus does not determine whether he was seized.

***

Absent some directive from the police, and as long as the rules of the road are otherwise obeyed, the passenger is free to do what the driver cannot-i.e., exit the vehicle or dismount from the motorcycle or bicycle and thereby terminate the encounter with the officer.

[NOTE: I have known some officers who have probably put knots on people’s heads who simply “terminated their encounter with the officer.”]

***

We therefore hold that because the deputy effected a traffic stop of Simeroth's vehicle without any indication that defendant, the vehicle's passenger, was the subject of his investigation or show of authority, defendant was not seized when Simeroth submitted to the deputy's show of authority and brought the vehicle to a stop. Because defendant claims only that the traffic stop itself constituted a seizure, we need not consider whether defendant was seized when Deputy Brokenbrough asked him to identify himself or whether, assuming such conduct constituted a seizure, it was justified by the deputy's reasonable suspicion that he was a parolee at large.

In Brendlin’s Brief in Support of His Petition for Writ of Certiorari, his lawyers -- George Bond and Elizabeth Campbell -- gave the Supreme Court every reason to grant certiorari. They pointed out the following:

• The decision of the California Supreme Court is at odds with the holdings of the Supreme Court in other cases.
• Only a month after the California Supreme Court issued its opinion in Brendlin, a panel of the Third Circuit noted that every federal circuit to have considered the issue had concluded: “When a vehicle is illegally stopped by the police, no evidence found during the stop may be used by the government against any occupant of the vehicle unless the government can show that the taint of the illegal stop was purged.”
• Every federal circuit court which has considered the issue has disagreed with the position adopted by the California Supreme Court.
• Only the Supreme Courts of Colorado and Washington have resolved search issues involving passengers in a manner consistent with the Supreme Court of California’s decision in Brendlin .
• An issue which the Supreme Court has not yet directly addressed is:
  …whether a reasonable person would feel free to leave during a traffic stop of a car in which that person is a passenger, or whether a traffic stop in some restrains a passenger's liberty. Put another way, the issue of whether the passenger may challenge an unreasonable traffic stop comes down to the question of whether the passenger's Fourth Amendment rights have been implicated by that traffic stop.

The Rule in the Fifth Circuit

A panel of the Circuit (Chief Judge Politz, Reynaldo G. Garza and Jolly, Circuit Judges) earlier considered the issue in Brendlin in U.S. v. Roberson, 6F.3d 1088 (5th Cir. 1993). Writing for the Court, Chief Judge Politz held:

A motorist’s expectation of privacy yields to a routine traffic stop for such violations as speeding or, as in this case, changing lanes without signaling. Typically, a passenger without a possessory interest in an automobile lacks standing to complain of its search because his privacy expectation is not infringed. Whereas the search of an automobile does not implicate a passenger’s fourth amendment rights, a stop results in the seizure of the passenger and driver alike. Thus, a passenger of a stopped automobile does have standing to challenge the seizure as unconstitutional.

The Rule in Texas

The latest Texas case on this issue is Castro v. State, 202 S.W.3d 848 (Tex.App – Ft. Worth 2006). Justice Holman, writing for the Court, held:

…This court has recognized that generally a stop of a vehicle results in a seizure of the passenger and driver alike, and a person has standing to challenge the stop of a vehicle in which he was a passenger…Similarly, we hold in the case at bar that Appellant had standing to challenge the initial stop of the vehicle in which he was a passenger.

[NOTE: Justice Holman cited Judge Cochran’s opinion in Kothe v. State, 152 S.W.3rd 54 (TexCrApp 2004).]

Conclusion

Hopefully, the Supreme Court will resolve the conflict between California and the rest of the state courts (except for Colorado and Washington) and all of the federal courts and hold that a traffic stop results in the seizure of the passenger and the driver alike and that the passenger of a stopped vehicle does have standing to challenge a seizure as unconstitutional – and nothing else.