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Supreme Court Grants Cert in Brendlin v. California:
Wow, that was fast. Today the Supreme Court granted cert in Brendlin v. California, the Fourth Amendment traffic stop case that I blogged about two weeks ago.

  The timing of the grant is particularly interesting to me. The Court requested a response on Monday January 8th, and California filed its brief in opposition (BIO) on that Friday, just four days later. The Court distributed the case for today's conference and announced the grant this afternoon, just 11 days after requesting a response. If anyone has the BIO, can you send it to me? I'm curious if California conceded that it was a good grant.

  My prediction for the ultimate outcome: Brendlin will win unanimously, for the reasons mentioned in my earlier post and in the comment thread.

  In terms of the briefing, I'll be very interested to see what the SG's Office will do. Will they file an amicus brief on behalf of the state? They do that in most Fourth Amendment cases coming out of state courts, but this one is very odd; California's position is pretty hard to support, and DOJ probably has no problem with the contrary rule. Every federal circuit to have addressed the issue (6 or 7 circuits, I think) has ruled that stopping the car seizes the passenger. And this rule is fine for the government because under Whren, any traffic violation fully justifies the stop and resulting seizure. This means that the Brendlin issue only helps the government in the very rare case when an officer can't even come up with a traffic violation or other reasonable suspicion to justify the stop. I wonder, will the SG's office decide to stay out of this one? Stay tuned.

  UPDATE: In the comment thread, NYT Supreme Court reporter Linda Greenhouse fills us in on the state's argument:
  I have a non-electronic copy of California's BIO in Brendlin. The state did not acquiesce. Its summary of "reasons for denying the petition" is as follows: "The petition should be denied because, even if this court were to conclude that petitioner was seized within the meaning of the 4th Amendment by virtue of the traffic stop, the evidence obtained was not subject to suppression; thus resolution of the question presented in the petition would not lead to a change in the judgment." The state's point is that "there was no sufficient connection between that detention and the evidence obtained from his person and the vehicle." . . . "Although police would not have discovered the warrant for petitioner's arrest but for the contact following the traffic stop, the challenged evidence was the product of petitioner's arrest and not of that detention. As there is no claim the arrest was unlawful, the evidence is not connected to any illegality. The evidence was not subject to suppression."
  I can see why this argument didn't keep the Court away. The intermediate appellate court had in fact suppressed the evidence as an unlawful fruit, explicitly rejecting the state's argument now made in the BIO. See People v. Brendlin, 8 Cal.Rptr.3d 882 (Cal. App. 2004). Perhaps it's possible for California to relitigate this issue below if the U.S. Supreme Court reverses on the "seizure" question — I don't know the answer to that as a matter of state procedure — but such speculation seems a weak basis for arguing that this case presents a bad vehicle to resolve the issue.
Curious:
Maybe this was covered in one of the 48 comments in the first post, but what if the stop IS a legal one - then wouldn't fairness dictate that the passenger not be seized legally (and thus searchable, let's say). Why should a passenger be on the hook because a driver is going to fast?
1.19.2007 6:13pm
anonVCfan:
1. How closely related is this to the case you were working on?

2. I don't have my WL password handy, but the Westlaw database (sct-petition, I think) has been pretty good about collecting all of the Supreme Court briefs at the petition stage and posting them relatively promptly.
1.19.2007 11:39pm
M. Simon (mail) (www):
The funny thing is that if you look at the history of the IVth (the excesses of the Brits in seach and seizure) you will find it has a lot to do with government over reaching in trying to stop smuggling.

Origins of the IVth Amendment
1.19.2007 11:50pm
Linda Greenhouse (mail):
I have a non-electronic copy of California's BIO in Brendlin. The state did not acquiesce. Its summary of "reasons for denying the petition" is as follows: "The petition should be denied because, even if this court were to conclude that petitioner was seized within the meaning of the 4th Amendment by virtue of the traffic stop, the evidence obtained was not subject to suppression; thus resolution of the question presented in the petition would not lead to a change in the judgment." The state's point is that "there was no sufficient connection between that detention and the evidence obtained from his person and the vehicle." . . . "Although police would not have discovered the warrant for petitioner's arrest but for the contact following the traffic stop, the challenged evidence was the product of petitioner's arrest and not of that detention. As there is no claim the arrest was unlawful, the evidence is not connected to any illegality. The evidence was not subject to suppression."
1.21.2007 10:33am
Pio (mail):
I find it sad that its so rare that "an officer can't even come up with a traffic violation" when he feels the urge to stop somebody. When traffic regulations are so many and so petty that everyone is in violation of them, it makes the fourth amendment nothing more than a formality, especially when an officer can always just claim you were "weaving" or some similar bullshit. Outside of one's home, the fourth amendment is basically a joke, and even there its not much of a guarantee.
1.21.2007 2:12pm