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When A Police Officer Makes a Traffic Stop, Are Passengers "Seized"?:
On Monday morning I plan to be at the Supreme Court to check out the oral argument in Brendlin v. California, which considers whether a traffic stop seizes passengers of the stopped vehicle in addition to its driver. I've blogged before that I think the answer is clearly "yes," and I wanted to add a few more thoughts on why. I plan to blog a few thoughts about the argument as well; I'll probably have them up on Monday afternoon or Monday night.

  In my view, the key principle that should decide Brendlin is that Fourth Amendment seizures are all about intentional control. A Fourth Amendment seizure occurs when a government actor takes steps to control the movement of "persons, houses, papers, and effects." The Court has usually framed the test somewhat differently depending on whether the item seized is a "person" versus "houses, papers, and effect." When the government seeks to control "houses, papers, and effects," the Court ordinarily applies the test that a seizure occurs "when there is some meaningful interference with an individual's possessory interest." United States v. Jacobsen. When the government seeks to control persons, the Court ordinarily applies the test that a seizure occurs when government action causes "a reasonable person . . . to believe that he or she is not free to leave." Florida v. Bostick.

  These two tests reflect the different ways that police ordinarily control persons as compared how police ordinarily control houses, papers, and effects. When officers enter a suspect's home and take away his papers, those papers are taken by direct force. Officers pick up the papers and remove them, and the government's control interferes directly with the individual's possessory interest. In contrast, government control over a person is often less direct. In some cases, the police may exert direct physical control over the person, such as by placing him in handcuffs. In many cases, however, the police exert control by threat. If an officer points a gun at a suspect and orders him to "freeze!," the person is seized when he complies with the officer's order. The moment that a reasonable person would not feel free to leave and does not leave is the moment that the officer controls the person. In sum, both tests for when a seizure occurs pinpoint the same moment in two different contexts. In both contexts, a seizure occurs when the government takes control of the person, house, paper, or effect.

  The Brendlin case is interesting because it involves control over a person in a context more typical of control of paper and effects. When an officer pulls over a car, he directs his authority at the driver because the driver has initial control of the vehicle. The passenger is simply along for the ride. This creates confusion under the usual test for seizing a person -- whether a reasonable person would feel free to leave — because the officer is causing a seizure by threat not actually directed at the passenger. However, the uncertainty is readily resolved by recognizing the ultimate goal of both tests for seizures: identifying the moment of government control. A passenger in a seized car is controlled just like the contents of a seized package; when government action takes control of "effects," it seizes those effects as well as any person who happens to be located inside. When an officer pulls over a vehicle, he does not simply control the driver: he controls the entire vehicle and all of its contents. All are seized under the Fourth Amendment.

  In its brief, California tries to argue that a passenger is not seized because the Fourth Amendment requires intentional government conduct, and a passenger is seized only incidentally. See Brower v. Inyo County. This argument doesn't work because when an officer stops a car, he intends to stop the car and all of its contents. As the Supreme Court acknowledged in Brower, "[a] seizure occurs even when an unintended person or thing is the object of the detention or taking." The officer may not intend to stop the passenger specifically, but the passenger is still seized because he was in the car that the officer intentionally brought to rest. That distinguishes the passenger of a stopped car from people in other cars that may be inconvenienced by the officer's stop (such as the car behind the stopped car, which may need to come to rest as well). Pulling over a car intentionally seizes the car, its passengers, and its contents, but it does not intentionally seize other cars.

  Of course, the duration of the seizure can depend on the circumstances. In some cirumstances, a reasonable passenger will feel able to leave soon after the car comes to a stop. For example, if you're a passenger in a taxicab and the driver is pulled over for speeding, you may feel free to leave once it's clear that the officer doesn't need you. On the other hand, if the officers stopping the car are looking for a robbery suspect, they might approach the car in a way that makes clear that you're not free to leave. In that case, the duration of the passenger's seizure will be considerably longer. But in every case, the passenger is seized, at least temporarily, when the officer exerts his controls the car and brings it to rest.

  Some folks may argue that the passenger isn't seized by the government because it's the driver's decision to stop that creates the seizure. If the driver decides to ignore the police, then no seizure occurs; perhaps the driver's decision to stop is the decision of a private actor not regulated by the Fourth Amendment. This argument is misguided, however, as it misunderstands the line between state actors and private actors under the Fourth Amendment. "If a private party acts as an instrument or agent of the Government," that private party becomes a state actor for Fourth Amendment purposes. Skinner v. Railway Labor Executives' Assn. The Fourth Amendment clearly applies when the government commandeers a private actor and orders that actor to commit a search or seizure. When an officer orders a driver to pull over and the driver complies, the officer has effectively commandeered the driver. The driver becomes a government actor for the limited purposes of the Fourth Amendment, so the passenger in the vehicle is seized by government action rather than by private action.

  One final thought for now. Back when cert was granted, I wondered what the SG's office might do in this case:
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.
  That's exactly what happened, as it turns out. The SG did not file a brief. This means that California will have the full half hour tomorrow to try to defend its position that Brendlin was not "seized."
mainfloorguy:
Prof. Kerr:

Is the driver really an agent for the government? In private law, agency relationships require (1) that the agent submit to the principal's control, (2) that the principal and agent consent, and (3) that the agent act primarily on behalf half of the principal. (There's more to say about each element, but I'm keeping it simple here.) In the traffic stop, I can see elements (1) and (2), but not element (3). Whether the driver decides either to pull over or to outrun the police, he is doing so primarily on his own behalf. Therefore, according to this, the driver has not become an agent of the state to effect a seizure on the passengers.

I concede that this is private law, and I don't know the extent to which it would inform decisions under the 4th Amendment. It might be irrelevant. But to the extent that the areas of law interconnect, it is worth consideration.

Aside from that, it seems to me that the passengers are not free to leave by virtue of the totality of circumstances. Bostick purported to rely on the totality of circumstances, which in my humble opinion is less than convincing to the cynical reader. But Bostick is precedent for a test. Under Bostick, can we say that the totality of circumstances for passengers in a car that has been pulled over by the police reasonably feel free to leave? I'm not only a cynic. I'm also a skeptic, so I tend to think that they are not.

Thanks.
4.23.2007 9:57am
Joel B. (mail):
If a private party acts as an instrument or agent of the Government," that private party becomes a state actor for Fourth Amendment purposes. Skinner v. Railway Labor Executives' Assn. The Fourth Amendment clearly applies when the government commandeers a private actor and orders that actor to commit a search or seizure. When an officer orders a driver to pull over and the driver complies, the officer has effectively commandeered the driver. The driver becomes a government actor for the limited purposes of the Fourth Amendment, so the passenger in the vehicle is seized by government action rather than by private action.

That seems like a huge stretch. To suggest that the officer has effectively commandeered the driver seems a little far-fetched, especially as the officer is the one probably looking to give the driver a ticket. Seeing as the driver's interest are likely antithetical to the officers it doesn't seem like there is a commandeering. But, what do I know.
4.23.2007 10:16am
Daniel San:
The government interest here may be great. With courts looking a bit more closely at "obstructed windshield" stops, there may be many stops in which the pretext does not create probable cause. Rolling meth labs almost always involve multiple people in the car and it would be very convenient to at least be able to prosecute the passengers.

This may become a matter calling for case-by-case analysis. Car stopped in the middle of the desert or on an overpass of an interstate: seizure. Car stopped in front of passenger's house: usually not a seizure. The context determines whether the passenger would reasonably feel free to leave.

I do agree with your analysis. As a passenger in a traffic stop, I don't think I would ordinarily feel free to leave until the officer made that clear.
4.23.2007 10:18am
Henri Le Compte (mail):
Is there no difference, then, between a search and a seizure? Because every search involves a seizure? That's not the way most people think. I don't imagine that the police searching my property is the same thing as them seizing it. That seems like an important distinction to keep.
4.23.2007 10:36am
OrinKerr:
Mainfloorguy, Joel B.,

It's really no stretch at all. The Fourth Amendment's test does not follow common law agency principles, and it does not track who subjectively wants to help the government.

Consider a simple example to see why. A police officer sees three members of a narcotics gang -- Larry, Moe, and Curley -- hanging out on a corner. The officer walks up to the members of the gang and pulls out his gun. He points the gun at Larry and orders Larry to rifle through Moe and Curley's pockets to look for drugs or else he'll "blow [Larry's] brains out." Larry finds cocaine in Moe's pocket and marijuana in Curley's pocket, and he hands it to the officer.

Was there a Fourth Amendment government search in this case? Or was there only a private search by Larry that the Fourth Amendment does not regulate? It seems obvious to me that there was a government search: the officer commandeered Larry, making his search through Moe and Curley's pockets a government search. It doesn't matter if Larry didn't want to help the officer; he was forced to help the officer, and that makes his conduct attributable to the government for Fourth Amendment purposes. The same applies in the case of a traffic stop.
4.23.2007 10:46am
tbaugh (mail):
Any thoughts on the significance of the fact that there was an arrest warrant out for Brendlin? In a "but for" sense his arrest flows from the stop, but the exclusionary rule is not applied on a "but for" causation basis. There are some cases around the country holding that the existence of the arrest warrant is an intervening factor, so that the arrest, and search incident arrest, are not "poison fruit" under Wong Sun, but the fruit of the warrant.

Could Brendlin not win the "seizure battle" but lose the case anyway?
4.23.2007 10:47am
dave h:
What if you're actually told, as a passenger, that you may not leave? While in California I was a passenger in a car that was stopped across the street from my apartment. As I had guests waiting for me, I asked if I could exit the car and go home, and was told no. Maybe that answer was specific to that police officer, but I think it's reasonable to guess that 99% of the time you'd get the same answer. A reasonable person doesn't just feel not free to leave because he wants to stay in the car and eventually get where he's going - he's not even allowed to exit the car and walk.
4.23.2007 11:02am
PS (mail):
The answer about whether it is a seizure may depend on where you are. Some jurisdictions do not allow officers to routinely stop passengers from leaving a routine traffic stop. People v. Dixon, 21 P.3d 440, 445-46 (Colo.Ct.App.2000); Dennis v. State, A.2d 1150, 1152 (1997), cert. denied, Maryland v. Dennis, 522 U.S. 928 (1997); Wilson v. State, 734 So.2d 1107, 1112 (Fla.Ct.App.1999) cert. denied, 529 U.S. 1124 (2000). Police where I live require all the passengers to stay in the car so there is a definite seizure of passengers on every stop. A discovery of an arrest warrant would be an attenuating factor that would make the search valid barring egregious police conduct.
4.23.2007 11:20am
XON:
The largest issue that I see is that there isn't a solid connection between being in the car when the driver is pulled over and being seized. (c.f., PS's points about state jurisdictions) If you're in the car, and it's -30 degrees, or the middle of a thunderstorm outside, absent affirmative command of the officer (or implicit statutory authorization, i.e., state law that says you're not free to leave for some reason), you're merely inconvenienced, not seized under 4th amendment law.

I suspect this will be a primary thrust of California's case.
4.23.2007 11:29am
Daniel San:
XON,
It seems to me that if the officer had created a situation in which I am far from home, with no transportation, and it is -30 degrees, then I am not free to leave in any practical sense. And I think the courts agree with that analysis. Yes, I could get out of the car and walk away, but, under the circumstances, that might be an action so bizarre as to create reasonable suspicion for further inquiry by the officer.
4.23.2007 11:38am
Realist Liberal:

Is there no difference, then, between a search and a seizure? Because every search involves a seizure? That's not the way most people think. I don't imagine that the police searching my property is the same thing as them seizing it. That seems like an important distinction to keep.


Every search of a person may involve a seizure but not every seizure involves a search. (I just finished writing an opposition to a motion to suppress in which that is exactly the case.) Also, different levels of justification are needed for different types of seizures (i.e. "stop and frisks" vs. a full arrest) and different types of searchs (frisks vs. search of a house).
4.23.2007 11:44am
abb3w:
I'll second Dave H's point. Here in Virginia, I was passenger in a car which failed to stop for a newly (less-than-two-hours) placed stop sign. The first safe place to pull in was the parking lot next to the building we were headed to. When I attempted to get out to begin removing the twelve boxes of books in the car, I was loudly ordered by the cop to "Stay in the vehicle."

It thus seems plausible that the normal intent of the officer is to seize control of driver, vehicle, and all contents, including other passengers. While two anecdotes do not make for a convincing statistical sample, it does indicate California's claim that the "incidental" seizure is not a seizure may float like an unwaxed sieve if evidence of how such stops are actually performed can be introduced.
4.23.2007 11:45am
Justin (mail):
This is going to be 9-0, if perhaps on limited grounds. The real question is whether an objectively reasonable passanger feels like he must submit to the officer. See the Ninth Circuit cas United States v. Winsor (forgot the citation). For at least some period of time, as Professor Kerr noted, that's going to have an affirmative answer in almost all traffic stops.
4.23.2007 12:02pm
Seamus (mail):
What if you're actually told, as a passenger, that you may not leave? While in California I was a passenger in a car that was stopped across the street from my apartment. As I had guests waiting for me, I asked if I could exit the car and go home, and was told no. Maybe that answer was specific to that police officer, but I think it's reasonable to guess that 99% of the time you'd get the same answer.

Also, in the Rodney King incident, even though King was the only person who the police had reason to believe had committed any crime, his passengers were detained. It would seem that there is some kind of presumption on the part of cops that any time a driver commits a traffic offense, it may be because he and his passengers are transporting drugs/getting away from a robbery/otherwise involved in criminal activity. The working assumption never seems to be that the passengers were all yelling, "Jesus Christ, Rodney, are you trying to get us all killed? Just pull the freaking car over!"
4.23.2007 12:06pm
whit:
the case law in WA state (under an independant grounds reading of OUR constitution) is clear.

on any traffic stop, any passenger is free to go assuming it is not a terry type stop or the passenger has not committed an infraction himself (like no seatbelt)

if i stop a car for speeding, and the passenger wants to leave, i have to let him

also, the courts have ruled that if i ask him his name or for ID, that i have seized him, and its unlawful
4.23.2007 12:56pm
whit:
seamus, the rodney king incident was not a mere traffic stop. it was a wholly different thing - it was a pursuit for pete's sake, with lots of reasons to detain EVERYBODY. it's what's referred to as "freeezing the scene" until stuff can get sorted out for everybody's safety.

it really has no relevance to a garden variety traffic stop.

if i get into a pursuit of a vehicle, EVERYBODY goes into handcuffs (at gunpoint) and that has never been a problem in any jurisdiction i have heard of. once stuff is sorted out, THEN you can unhandcuff them.

that is a totally different situation than a mere traffic stop. and totally irrelevant
4.23.2007 12:58pm
whit:
"I asked if I could exit the car and go home, and was told no. Maybe that answer was specific to that police officer, but I think it's reasonable to guess that 99% of the time you'd get the same answer"

why is that "reasonable to assume?"

cause it happened to you once, it is reasonable to assume it is the case 99% of the time?

in some jurisdictions, mine included, the case law is the exact opposite.

a big factor that many people fail to consider is how much more restricted search and seizure is in some states vs. others.
4.23.2007 1:12pm
XON:
Dan,

For purely the love of the rhetorical diversion from working, and not out of any desire to go diving down a tangent (in other words, with a big smile), I think the distinction isn't correclty being made.

I would assert that most courts couldn't conclude that the officer created the situation, since that would udnermine all sorts of 4th amendment and liability principles. My whole dismal appraisal of how this is going to turn out rests on the assumption that, for the same sort of tortured reasons the Court concluded that prosecutorial blackmail wasn't blackmail -- because, well, if they couldn't blackmail defendants, the whole criminal justice process (founded on blackmail) would grind to a halt -- to conclude for the defendant would diminish the amount of control ceded to the police in 'a potentially dangerous situation'.

So, basically, I think that cynicism will prevail.
4.23.2007 1:30pm
Christopher Cooke (mail):
I don't see how you can argue that the driver is seized, but not the passenger, unless the passenger knows that he or she is free to leave once the car is stopped.

I also question the wisdom of saying that the passenger is free to leave or assuming that is always the case. It is far better, for the safety of the officer, the passengers and drivers of other cars, for the passengers to remain in the vehicle until the traffic stop is concluded.

I doubt a police officer wants the passengers getting out of the car. Even if the officer did not feel threatened by such an action, a passenger departing a vehicle parked on the side of a highway could get hit by other cars, or could cause traffic accidents.
4.23.2007 2:02pm
Daniel San:
XON: So, basically, I think that cynicism will prevail.

There is certainly ample precedent for cynicism. The maddening part of trying to make predictions about the outcome of Suppression jurisprudence is that cynicism prevails, sometimes, and practical considerations prevail, sometimes, and formalism prevails, sometimes. And, of course, there are multiple frameworks for principled analysis and those frameworks are often incompatable.
4.23.2007 2:14pm
Seamus (mail):
seamus, the rodney king incident was not a mere traffic stop. it was a wholly different thing - it was a pursuit for pete's sake, with lots of reasons to detain EVERYBODY. it's what's referred to as "freeezing the scene" until stuff can get sorted out for everybody's safety.

It was a pursuit for a traffic violation. Regardless of how much King's driving may have been a threat to the public safety, there was no reason to think that the passengers were participants in that violation.
4.23.2007 2:52pm
abb3w:
:Christopher Cooke: Even if the officer did not feel threatened by such an action, a passenger departing a vehicle parked on the side of a highway could get hit by other cars, or could cause traffic accidents.

Not all traffic stops end on the side of busy highways. Some, as in the case I experienced, end up pulled over in a parking lot. Which, early on a Saturday morning in the college area in question, is far more likely to have a deer wander through than another car.

I'm also unconvinced that requiring passengers remain in the vehicle affects "the safety of the officer", although it doubtless helps his sense of control and his nerves. Perhaps you could elaborate on that?
4.23.2007 3:40pm
whit:
"It was a pursuit for a traffic violation. Regardless of how much King's driving may have been a threat to the public safety, there was no reason to think that the passengers were participants in that violation"

rubbish

it doesn't matter what the initial reason for the stop was for

what matters was that the (felony) crime of eluding then occurred, and the pursuit was thus for a FELONY and in a felony stop , especially , one makes a gunpoint apprehension of ALL the occupants of the car

that's basic officer safety and it is completely justifiable. it is also common procedure in every jurisdiction i am aware of.

great way to ignore the issue
4.23.2007 4:03pm
whit:
"I'm also unconvinced that requiring passengers remain in the vehicle affects "the safety of the officer", although it doubtless helps his sense of control and his nerves. Perhaps you could elaborate on that?"

with the understanding that in my jurisdiction, i CAN'T require the passenger (on a mere civil infraction traffic stop) to remain in the vehicle... the safety reasons are this

many simple traffic stops turn out to be a LOT more than merely the simple infraction. if the passenger is allowed to get out, then he can easily take a superior tactical position behind the officer for a deadly force or other situation.

many officers, regardless of the case law, are not going to let a passenger just walk from the car during a traffic stop. however, in some jurisdictions - they have to (constitutionally speaking), in others it is not so clear
4.23.2007 4:07pm
Hattio (mail):
whit,
You've elaborated on what common practice is, and why that makes an officer feel safer. But I still don't see a justification for an illegal action. Granted officers may feel safer, but that is always a balancing test. Officers feel safer doing no-knock entries into homes too. It may be that they are actually less safe. Regardless of whether they are safer or not, our law has demanded a balancing of the interests.
What you've said so far establishes that common practice and the officer's sense of safety would prefer that everybody remain in the car (and in the case of felony stops, be handcuffed). But, you've totally ignored the other side of the equation.
4.23.2007 4:14pm
whit:
i haven't ignored it at all

like i said, in MY jurisdiction, we can't require a non-violator passenger on a mere traffic stop (as opposed to terry stop) to remain in the car.

however...

i have had both prosecuting and defense attorneys say that if it was them, and they didn't feel comfortable with it, they would order the passegner to stay in the car.

of course, IF one does, the problem is there is no "or else". since it's an unlawful order (in my state), you could not enforce it and therein lies the problem

but arguing (as some have), that it's hard to see how its SAFER for the officer to require everybody stay in the car (and/or remove people one at a time etc.), is simply ridiculous.


as for the felony stop thang, there IS no other side of the equation. case law is clear. i've done scores of these in several states

it is absolutely justified to remove all occupants at gunpoint and detain/handcuff them during a felony stop

that's not even debatable. do you have some case law that says otherwise? i've never seen such a thing.
4.23.2007 4:21pm
Dave Wangen (mail):

like i said, in MY jurisdiction, we can't require a non-violator passenger on a mere traffic stop (as opposed to terry stop) to remain in the car.


That's great. Now, how many actual, in-real-life passengers do you think actually know that and realize they can bugger off any time they want? Do you really tell them "I'm going to run these plates, you all can leave if you want to"?

Speaking from your experience, how many passengers have you actually seen leave the car after a stop?

How many officers have you actually seen get in trouble for it if they _do_ violate this rule?
4.23.2007 6:25pm
Hattio (mail):
Well, if your evidence is that the driver committed a felony, I don't think you would have any reason to arrest any other citizen. You say you've done scores of these in several states, but I can't tell what you're talking about. Have you defended 1983 actions against the officers for a violation of their constitutional rights? If so the standard is not whether it's const. but whether any reasonable police officer would think it's constitutional. If you are litigating whether or not contraband found on a passenger should be suppressed, you are going to get into all sorts of issues regarding the reasonableness of the officers suspicions, the passengers actions etc. In short, I think it would be a pretty unusual case which only looked at whether or not it was "absolutely justified" to remove all occupants at gunpoint and handcuff them.
Would you consider it "absolutely justified" to remove all occupants of a car and handcuff them if the officer recognized a passenger as someone for whome there was an arrest warrant out? If not, why the difference?
4.23.2007 6:34pm
David M. Nieporent (www):
of course, IF one does, the problem is there is no "or else". since it's an unlawful order (in my state), you could not enforce it and therein lies the problem
What problem? We all know what would happen. The cop would say "Stay in the car," the person starts to get out, the cop screams at him to stop. If by some chance the person doesn't stop -- unlikely that someone would feel free to disregard such an order, regardless of what the courts say that the law is -- the cop goes over to him and arrests him for "disturbing the peace" or the like, and then tacks on a bunch of other charges like "resisting arrest."

And then assuming the passenger can afford a lawyer, the prosecutor drops the charges later on. And the cop doesn't get punished, because of course cops never get punished, unless they happen to kill someone in such cirumstances as to make it impossible for politicians to ignore it.
4.23.2007 6:38pm
Seamus (mail):
what matters was that the (felony) crime of eluding then occurred, and the pursuit was thus for a FELONY and in a felony stop , especially , one makes a gunpoint apprehension of ALL the occupants of the car

Can you cite the provision of Washington law that makes it a felony to evade the police? The closest I can find is RCW 9A.76.020, regarding obstruction of a police officer, which is not a felony, but a "gross misdemeanor."

Even if evading the police were a felony (and I assume it is a crime of some sort), how does the fact that a person driving a car is evading the police constitute reasonable cause to believe that the passengers are also committing that offense? (The question assumes they are merely passive passengers, of course, and aren't doing things like throwing tacks out the window into the path of the tires of the pursuing cop cars.)
4.23.2007 6:44pm
Seamus (mail):
Well, I found the provision of the Revised Code of Washington (section 9A.76.020) which makes attempting to evade a police vehicle a class C felony. But the text of the statute makes it pretty clear that the only person who can be guilty as a principal is the driver: "Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony." (Emphasis added.)

So my question remains: how does the fact that the driver is apparently in violation of this provision constitute probable cause to believe that the passengers are also felons? Is it because it's assumed that they are aiding and abetting his violation, perhaps by egging him on? If that's the case, then my initial surmise would appear to be correct, that the cops' "working assumption never seems to be that the passengers were all yelling, 'Jesus Christ, Rodney, are you trying to get us all killed? Just pull the freaking car over!'"
4.23.2007 6:59pm
gasman (mail):
I'd like to hear from some police on their perception of the issue. Say you pull someone over for simple speeding, you've run the plates and the car or its owner is not wanted. How would you, the officer, respond if the passengers slowly exited, with their hands in plain view, said 'have a nice day officer' and started walking away? How are police trained to deal with this situation?
If police training, and routine police behavior, is to require all bystanders (vehicle occupants not involved in the simple infraction) to remain present then they have been seized.
4.23.2007 7:52pm
whit:
1) i have seen probably at least a dozen occupants leave the car during the traffic stop

2), no there is NO or else. if i have no right to detain a passenger, and i tell him not to leave, and he refuses, and i use any force, i get my #$(#$ SUED OFF and lose. \

3) eluding is a felony. as it is in every other jurisdiction i have ever worked in (and every single state i am aware of) (cite of RCW follows)

ok, again. this is really simple. it is the case in 3 different states i have worked in, and i have done dozens of felony followups etc. on eluding, etc.

the FACT is that the operative word here is "reasonable". the 4th prohibits UNreasonable seizures.

please show me ONE example, where a cop pursued a vehicle, and detained all parties present after the vehicle finally stopped, and this was deemed UNreasonable.

the facts are simply that courts (rightly) view it as REASONABLE to detain ALL parties present in a car when it has ELUDED the police. often, the people (apart from the driver) are subsequently released. in other cases, they aren't. but this is established procedure and is entirely constitutional. if you are claiming it ISN'T then please provide the case law where a judge (even a 9th circuit court one lol) said that detaining the people in an eluding vehicle is unreasonable.

this is BASIC law enforcement 101.

RCW 46.61.024 Attempting to elude police vehicle--Defense--License revocation.
(1) Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens.
4.23.2007 8:05pm
whit:
"I'd like to hear from some police on their perception of the issue. Say you pull someone over for simple speeding, you've run the plates and the car or its owner is not wanted. How would you, the officer, respond if the passengers slowly exited, with their hands in plain view, said 'have a nice day officer' and started walking away? How are police trained to deal with this situation? "

again, in MY jurisdiction, i'd tell them "have a nice day" as i have done before.

it's that simple. under my state constitution (as interpreted by my state supreme court) i CANNOT detain a passenger unless i have some reason to, APART from a civil infraction (speeding, etc.) committed by the driver.

assuming it wasn't a terry stop, he was wearing his seatbelt, etc. he is FREE TO GO.

and "have a nice day. "
4.23.2007 8:11pm
whit:
"So my question remains: how does the fact that the driver is apparently in violation of this provision constitute probable cause to believe that the passengers are also felons"

it doesn't. and you don't need particularized PROBABLE CAUSE to point a gun at somebody and place them into handcuffs.

you need PROBABLE CAUSE to make a custodial arrest. over and over again, hundreds of times a day, cops DETAIN everybody in an eluding vehicle, and as long as the detention is brief, it's OK . again, show me case law that it isn't GIVEN the eluding.

hint: it is

your assumption is false: namely that i need probable cause that you committed a crime in order to place you in handcuffs (briefly)

i don't.

this is how "felony stops" work. every single day. do ANY of you actually work as trial attorneys. i've testified in dozens of cases of this ilk. i have never once had a defense attorney make a motion saying that detaining the passenger in an eluding vehicle was somehow wrong. it's not
4.23.2007 8:21pm
John A. Fleming (mail):
I'm no conlaw person, so I can only talk about what I think common sense law should be, not what it is in any jurisdiction:

Whether the passengers are seized should depend on the nature of the stop. If it's a simple traffic infraction (moving or not), passenger identities are immaterial. And so the law must not consider them seized.

And that's the way most officers handle it. A visual inspection to check for any obvious law-breaking, and no coercive curiousity about the identities of the passengers. The passengers shouldn't have any obligation to identify themselves to the officers, and neither should the driver be coerced to identify the passengers. The officer nevertheless will often ask, and the driver often volunteers some innocuous passenger information as a courtesy.

So, I would expect that for a traffic violation, the law should not disallow passengers to get out and seek alternate transport, as a result of their free association with an unreliable driver. As a courtesy, the passenger ought to inform the officer before taking this action.

If it's a traffic stop for some other reason (stolen property, fugitive/kidnap seeking, etc), the identities of the passengers are material, and so the law should be clear that they are seized.
4.23.2007 8:32pm
whit:
even in my jurisdiction, where i am not allowed TO detain them (order them to stay etc.) i am not under any obligation to tell them they are free to leave fwiw.

im waiting for the courts to make that rule :)
4.23.2007 8:42pm
Harvey Mosley (mail):
IANAL but it seems to me there are two questions. The first question is do the passengers think they have to stay? The next is the seizure justified? It seems to me some commenters are debating one question, while others are debating the other question.
Personally, I know an officer needs probable cause to detain me, but I wouldn't always assert that right at the time of detention to the point of confrontation. Most times, I would resort to the courts for redress. (Sorry for the clumsy sentence structure, I couldn't find a better way to word it.)
4.23.2007 9:18pm
whit:
"Personally, I know an officer needs probable cause to detain me, "

false

he needs probable cause to make a custodial arrest.

he does NOT need probable cause to DETAIN you

jeeeeeeeeeeeez
4.23.2007 9:25pm
whit:
"Personally, I know an officer needs probable cause to detain me, but I wouldn't always assert that right at the time of detention to the point of confrontation"

you can't assert a right you don't have (well, you can, but you won't get very far)

cops do NOT need probable cause to detain people.

they need probable cause to make CUSTODIAL ARRESTS.

sometimes, an exceptionally long detention, or one where the force is excessive can turn a detention INTO the functional equivalent of a custodial arrest (which is bad for the officer) but the VAST majority of detentions do not rise to the level of arrest, or probable cause

i probably average 4-5 detentions of some sort EVERY shift.

a small %age of those result in arrests.
4.23.2007 9:29pm
Bruce Hayden (mail) (www):
I doubt if it is truly a question of whether the passengers believe that they have to stay, but rather whether they have a fairly strong reason to believe that. Of course, if they ask if they can leave, and are told they can't, then that is some sort of seizure. But the question here as I understand it is whether absent that, if they don't leave, are they seized?

Of course, the problem is that we all know how berzerk the cops get when someone tries to exit a car without their permission these days. I tried it once as a driver shortly after the procedural change here in CO many years ago, and it was not pleasant. I was just trying to be helpful, but it was seen as threatening, and since then, I just quietly sit and listen to (calming) music while the cops do their thing.

But I suspect that this is going to come down that if the cops don't say to the passengers, stay in the car, then they aren't seized. In other words, this is more akin to the DUI stop when they ask you to get out of your car. If you do, fine, it is considered voluntary. But if you don't, but instead ask if you can leave, and are told you can't, you are then considered seized (esp. if you are being told this because you refused the roadside sobriety test). As long as you don't put it to the test, and question whether you can leave, then the fact that you don't is likely to be considered voluntary.
4.23.2007 9:40pm
Seamus (mail):
"Personally, I know an officer needs probable cause to detain me, "

false

he needs probable cause to make a custodial arrest.

he does NOT need probable cause to DETAIN you

jeeeeeeeeeeeez


"It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest." Terry v. Ohio, 392 U.S. 1, 26 (1968). The Supreme Court here seems to have taken it for granted that probable cause is required for arrest, period, without drawing any distinction between "custodial" and other kinds of arrest.

I hate to do whit's work for him, but maybe the detention of passengers in a car that has attempted to elude a police vehicle is that it's actually a Terry stop; i.e., the cop is making sure that the passengers (who obviously have been associating with a seriously bad actor--the driver--and thus may be bad actors themselves) aren't carrying weapons that could threaten the policeman's safety. Once he's determined that they aren't, then he needs to let them go. That explanation seems plausible--and is ten times better than whit's argument of "that's just what cops do all the time, so it must be legal, and it's up to you to show me how it's not."
4.23.2007 9:47pm
whit:
again, WRONG

the driver in the DUI is SEIZED prior to any act of stepping out of the car (or refusing to do so)

when the cop turns on the blue lights (in some jurisdictions), he is seized.

in others, the seizure does not technically begin until he acqueisces to the request (demand) to stop.

but in either case, he is ALREADY seized.

why is this hard to understand?

seizures do not require probable cause, they do not equal "custodial arrest" (which DOES require probable cause) etc.

here's some other factoids. handcuffs do not necessarily equal a custodial arrest. often, they do, but in many cases (like a felony stop where passengers are briefly detained in handcuffs) they don't/

as for the passengers, there is no PRACTICAL way to seize a car/driver without (at least initially) seizing the passenger. cause he's riding in the car.

in some jurisdictions, on a mere civil infraction traffic stop, the passenger MUST be allowed to leave, as i said, if he requests, unless there is particularized suspicion in regards to him either of a civil infraction (seatbelt, etc.) or a crime
4.23.2007 9:49pm
whit:
my argument is not "it's ok cause cops do it all the time"

my argument is that it is a reasonable SEIZURE, which does not require probable cause, as has been the case for god knows how long, but at LEAST since terry v. ohio which established the "reasonable suspicion" standard.

again, it is people in this thread that are making the extraordinary (and false) claim that all seizures require probable cause, etc.

which is patently absurd. after having made literally hundreds of arrests, and thousands of seizures, and NEVER having any of my acts called into question under the standard that people here keep spouting (cops need probable cause to seize me etc.) the burden is on the (wrong) asserters to support themselves.

your point is basically correct, but it is really pretty simple.

cops do not need probable cause to seize people

the 4th amendment says all seizures must be REASONABLE

it is reasonable to seize EVERY SINGLE PERSON IN A VEHICLE WHEREIN THE DRIVER HAS ELUDED (or attempted to elude ) police.

like all seizures, the detention must be brief enough so as to not equal a custodial arrest, but clearly handcuffs can and are used. handcuffs do not necessarily equal custodial arrest.

if probable cause develops , then a custodial arrest is made. otherwise, the person is let go

this is const. law 101. every frigging rookie cop knows this and any prosecutor or defense attorney who has ever spent a minute in court.
4.23.2007 9:57pm
Seamus (mail):
it is reasonable to seize EVERY SINGLE PERSON IN A VEHICLE WHEREIN THE DRIVER HAS ELUDED (or attempted to elude ) police.

It would be nice if whit could explain (without shouting) *why* it is reasonable to seize every single person in a vehicle whose driver has attempted to elude the police, given that they weren't the ones doing the eluding.

It would also be nice if his answer were something other than that he's "made literally hundreds of arrests, and thousands of seizures, and NEVER ha[d] any of [his] acts called into question under the standard that people here keep spouting," which, despite his disavowals, is really just another way of saying that "it's ok cause cops do it all the time."
4.24.2007 11:26am
whit:
in brief, seamus - it comes down to this (i had to read all this case law crap when I was in the academy(s) etc.)

for a seizure to be 'reasonable' one of the things to look at is - is the use of force and method of detention reasonable for the crime suspected, circumstances, experience of the officer as to knowledge of the dangerousness of the subjects, etc.

quite frequently, people who ELUDE POLICE, are doing so because they are concealing (trying to) other much more serious crimes - unreported/reported stolen vehicle, robbery, warrants, etc.

it is impossible (in most cases) to know if the passengers in the car are "in on it" (whatever "it" may be that is causing the driver to elude), and it is considered reasonable (by every court i am aware of in the nation and i've been a cop in 3 states, and trained in several others including ride-alongs), to do a 'felony stop' (firearms drawn and people placed into handcuffs) until

1) the scene can be secured
2) the vehicle cleared of any potential threats
3) etc.

again, what is paramount when determining whether a seizure is reasonable is all the facts and circumstances surrounding it. they do not (despite all the claims to the contrary) require probable cause. they must merely be "reasonable", such as reasonable suspicion of a crime, etc.

it IS viewed as reasonable to detain the passengers in an eluding vehicle, based on the reasons above.

as a contrary example, it would not be reasonable to handcuff and take out at gunpoint, the passengers of a vehicle wherein the driver was suspended or dui, or to do a felony stop on somebody for DUI, or to prone out a shoplifter at gunpoint, etc.

what is also key to remember is that if excessive (for the situation) force is used on a seizure, it makes it a de facto custodial arrest, and thus a whole host of other factors come into play.

again, this is how it is viewed in every jurisdiction i have worked in, and as far as i know - nationwide (as my ridealongs in several other states support).

it is not merely cops "getting away with it".
4.24.2007 7:08pm
whit:
in brief, seamus - it comes down to this (i had to read all this case law crap when I was in the academy(s) etc.)

for a seizure to be 'reasonable' one of the things to look at is - is the use of force and method of detention reasonable for the crime suspected, circumstances, experience of the officer as to knowledge of the dangerousness of the subjects, etc.

quite frequently, people who ELUDE POLICE, are doing so because they are concealing (trying to) other much more serious crimes - unreported/reported stolen vehicle, robbery, warrants, etc.

it is impossible (in most cases) to know if the passengers in the car are "in on it" (whatever "it" may be that is causing the driver to elude), and it is considered reasonable (by every court i am aware of in the nation and i've been a cop in 3 states, and trained in several others including ride-alongs), to do a 'felony stop' (firearms drawn and people placed into handcuffs) until

1) the scene can be secured
2) the vehicle cleared of any potential threats
3) etc.

again, what is paramount when determining whether a seizure is reasonable is all the facts and circumstances surrounding it. they do not (despite all the claims to the contrary) require probable cause. they must merely be "reasonable", such as reasonable suspicion of a crime, etc.

it IS viewed as reasonable to detain the passengers in an eluding vehicle, based on the reasons above.

as a contrary example, it would not be reasonable to handcuff and take out at gunpoint, the passengers of a vehicle wherein the driver was suspended or dui, or to do a felony stop on somebody for DUI, or to prone out a shoplifter at gunpoint, etc.

what is also key to remember is that if excessive (for the situation) force is used on a seizure, it makes it a de facto custodial arrest, and thus a whole host of other factors come into play.

again, this is how it is viewed in every jurisdiction i have worked in, and as far as i know - nationwide (as my ridealongs in several other states support).

it is not merely cops "getting away with it".
4.24.2007 7:08pm
whit:
in brief, seamus - it comes down to this (i had to read all this case law crap when I was in the academy(s) etc.)

for a seizure to be 'reasonable' one of the things to look at is - is the use of force and method of detention reasonable for the crime suspected, circumstances, experience of the officer as to knowledge of the dangerousness of the subjects, etc.

quite frequently, people who ELUDE POLICE, are doing so because they are concealing (trying to) other much more serious crimes - unreported/reported stolen vehicle, robbery, warrants, etc.

it is impossible (in most cases) to know if the passengers in the car are "in on it" (whatever "it" may be that is causing the driver to elude), and it is considered reasonable (by every court i am aware of in the nation and i've been a cop in 3 states, and trained in several others including ride-alongs), to do a 'felony stop' (firearms drawn and people placed into handcuffs) until

1) the scene can be secured
2) the vehicle cleared of any potential threats
3) etc.

again, what is paramount when determining whether a seizure is reasonable is all the facts and circumstances surrounding it. they do not (despite all the claims to the contrary) require probable cause. they must merely be "reasonable", such as reasonable suspicion of a crime, etc.

it IS viewed as reasonable to detain the passengers in an eluding vehicle, based on the reasons above.

as a contrary example, it would not be reasonable to handcuff and take out at gunpoint, the passengers of a vehicle wherein the driver was suspended or dui, or to do a felony stop on somebody for DUI, or to prone out a shoplifter at gunpoint, etc.

what is also key to remember is that if excessive (for the situation) force is used on a seizure, it makes it a de facto custodial arrest, and thus a whole host of other factors come into play.

again, this is how it is viewed in every jurisdiction i have worked in, and as far as i know - nationwide (as my ridealongs in several other states support).

it is not merely cops "getting away with it".
4.24.2007 7:08pm
whit:
in brief, seamus - it comes down to this (i had to read all this case law crap when I was in the academy(s) etc.)

for a seizure to be 'reasonable' one of the things to look at is - is the use of force and method of detention reasonable for the crime suspected, circumstances, experience of the officer as to knowledge of the dangerousness of the subjects, etc.

quite frequently, people who ELUDE POLICE, are doing so because they are concealing (trying to) other much more serious crimes - unreported/reported stolen vehicle, robbery, warrants, etc.

it is impossible (in most cases) to know if the passengers in the car are "in on it" (whatever "it" may be that is causing the driver to elude), and it is considered reasonable (by every court i am aware of in the nation and i've been a cop in 3 states, and trained in several others including ride-alongs), to do a 'felony stop' (firearms drawn and people placed into handcuffs) until

1) the scene can be secured
2) the vehicle cleared of any potential threats
3) etc.

again, what is paramount when determining whether a seizure is reasonable is all the facts and circumstances surrounding it. they do not (despite all the claims to the contrary) require probable cause. they must merely be "reasonable", such as reasonable suspicion of a crime, etc.

it IS viewed as reasonable to detain the passengers in an eluding vehicle, based on the reasons above.

as a contrary example, it would not be reasonable to handcuff and take out at gunpoint, the passengers of a vehicle wherein the driver was suspended or dui, or to do a felony stop on somebody for DUI, or to prone out a shoplifter at gunpoint, etc.

what is also key to remember is that if excessive (for the situation) force is used on a seizure, it makes it a de facto custodial arrest, and thus a whole host of other factors come into play.

again, this is how it is viewed in every jurisdiction i have worked in, and as far as i know - nationwide (as my ridealongs in several other states support).

it is not merely cops "getting away with it".
4.24.2007 7:08pm
whit:
sorry for the dept. of redundancy dept. posting.

darn sticky keyboard... or something
4.24.2007 7:22pm
Christopher Cooke (mail):
For a brief investigatory detention, the police need only a reasonable articulable suspicion that the detained person may have committed a crime. So, Whit is right, probable cause is not required (per Terry v. Ohio).

I agree with Whit: I think the police feel much more comfortable if people in the car STAY in the car during a traffic stop. To assume the fiction, that passengers feel free to go, is unreasonable and would encourage them to get out of the car.
4.25.2007 1:26am