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Reaction to the Oral Argument in Brendlin v. California:
I just returned from attending the oral argument at the Supreme Court this morning in Brendlin v. California. I thought it was a very engaging argument. The lawyers were very good, and the Justices asked a terrific set of questions. Here are a few reactions to the hour-long argument.

  A great deal of time was spent considering how the fruit of the poisionous tree doctrine should apply given the specific facts of Brendlin's case. Assuming that Brendlin was wrongly seized by the stop, was the arrest nonetheless legal because the warrant out for Brendlin's arrest was an intervening cause? A number of Justices seemed to think so, including Justice Kennedy. This is a very interesting question, but I don't think the Court will (or should) address it because it is not actually before them. As I've noted in an earlier post, the California intermediate appellate court ruled that the arrest was a fruit of the unlawful stop. The California Supreme Court denied discretionary review on this question. The U.S. Supreme Court granted cert on the narrow question that is the same question the California Supreme Court reviewed: When a traffic stop occurs, is the passenger seized? How the fruit of the poisonous tree doctrine applies is an interesting question, but I think it's beyond the scope of the question presented in this case.

  On the merits of whether a passenger was seized in a traffic stop, most of the Justices seemed to agree that he was. Kennedy, Souter, and Stevens indicated that they thought so; Breyer also said that it was his instinct, but he didn't know if he should be following his instinct or something else like an empirical study. (The test is whether a reasonable person would feel free to leave, and Breyer acknowledged that he has no idea how people feel in such settings. "What do people think?," he asked. "How do we find out?")

  The only serious pushback on this idea that I could identify came from Justice Scalia. Justice Scalia seemed to think that a reasonable passenger would never actually leave a car during a traffic stop — Scalia acknowledged that he certainly wouldn't — but that this is only because it's not prudent to leave rather than because a person would feel like he's not legally free to leave. By this reasoning, passengers of stopped cars think they are legally free to leave, but they chose not to excercise their rights out of respect for the officer and the officer's need to control the scene. However, I don't remember other Justices picking up Scalia's point. Alito and Roberts asked a number of questions, but didn't indicate their own views as directly as did some of the other Justices.
elChato (mail):
When I was prosecuting, we had a case where the passengers walked away during a traffic stop. The police told them to come back and they refused, and so the police tried to "arrest" them, which started a fight that the police were losing (until they called in backup). In my state you can resist an unlawful arrest, and we saw no justification for arresting them, so we dropped the charges, which hardly endeared us to the cops but what can you do. It just seemed, and seems, right to me- why couldn't you just get out and walk away, assuming it's not creating a traffic hazard for you or other vehicles?
4.23.2007 2:56pm
abb3w:
why couldn't you just get out and walk away, assuming it's not creating a traffic hazard for you or other vehicles?

Because, from both my and your experience, the officer attempts to treat the stopped person as seized; if you do, the cop will order you to stay in the car. That such seizure may be unjustified in law does not change that a de facto seizure is commonly presumed by all parties present.
4.23.2007 3:23pm
elChato (mail):
abb3w, I know that it happened in that particular case, but I hardly think that sufficient for courts to hold, as a matter of law, that passengers are seized in traffic stops- giving that authority to police because some indeterminate number of them assume they have it, seems a little backwards. A passenger with the will and means to get up and walk away from the vehicle should be perfectly free to do so, in my opinion.
4.23.2007 3:42pm
Anderson (mail) (www):
Scalia misses the point -- if the passenger walks away, where's he gonna go? The fact that he was riding with somebody strongly suggests that he is miles from his car, if he has a car. Imagine the side of the interstate, etc.

Whether that plays into the seizure analysis, I dinna ken.
4.23.2007 3:52pm
anonVCfan:
I had the same thought as Anderson. What if the stop is in the middle of nowhere? It's usually sufficiently inconvenient to walk away from these things that the police could plausibly argue that walking away from one of these stops independently gives them reasonable suspicion to accost these people.
4.23.2007 3:55pm
Viscus (mail) (www):
I have to agree with elChato and Scalia on this one. Police have no right to seize a passenger just because they are investigating an alleged traffic violation by the driver.

In practice, of course, passengers will rarely exercise their right to walk away. Walking is often inconvenient compared to driving, after all. On the other hand, if you are being driven to a job interview that is just right across the street from where the driver was pulled over... Being able to leave is an important right that would be desirable to exercise in certain situations.
4.23.2007 3:56pm
Redman:
Sad comment on how out of touch the members of the U S Supreme Court are. I doubt that 1 in a 100 passengers in that situation think they are legally free to walk off.
4.23.2007 4:03pm
OrinKerr:
El Chato, Viscus,

Do you feel the same way after reading Maryland v. Wilson?
4.23.2007 4:03pm
Viscus (mail) (www):

It's usually sufficiently inconvenient to walk away from these things that the police could plausibly argue that walking away from one of these stops independently gives them reasonable suspicion to accost these people.


It depends on where they are pulled over. I don't think your argument that this gives cops reasonable suspicion is right. It assumes that the passenger has nothing better to do than sit there why some traffic cop checks license and registration -- and if they are a total ass -- decides to give the driver a lecture. If your friend is pulled over in the city, and you have an important meeting that is nearby or are about to meet your date in a nearby restaurant, it is perfectly reasonable for you to not allow a cop lacking probable cause to think that you did anything wrong to ruin your career/date.

Police can sometimes take a long time to process traffic stops. It is often thus perfectly rational for a passenger to consider walking to their destination or procuring alternative transportation (i.e. a cab) if they have somewhere important to go.
4.23.2007 4:05pm
elChato (mail):
Prof. Kerr, I do feel the same- Wilson says the police can order passengers to exit the vehicle rather than remain inside during a stop, for reasons of officer safety. If a passenger elects to take the further step of simply walking away, it seems the concerns animating the Wilson holding are diminished. I do however acknowledge the tension between my view and Wilson, which does seem receptive to police control over passengers.
4.23.2007 4:12pm
Viscus (mail) (www):
Orin,

Yes. Ordering a passenger to exit a vehicle is very different than detaining him or her. Since the police have seized and taken control of the vehicle, ordering someone out of the vehicle is merely an expression of that control. If the police have Terry suspicion, obviously, a pat down would be justified. But any involuntary detention beyond that necessary for a pat down -- and then only if Terry suspicion exists -- should be impermissable, in the context of a routine traffic stop.
4.23.2007 4:14pm
Tyson (mail):
El Chato, Viscus, are you guys serious? In my part of the world, if you open a car door during a traffic stop, the police unholster their weapons and become very agitated. If you were to actually get out of the car, it becomes an almost certainty that you'll be wearing some new bracelets for a while. I should note that I live in a midwest college community, not the 'hood, so it's not like we have a high incidence of violent traffic stops.
4.23.2007 4:23pm
AF:
elChato and Viscus, you seem to be addressing a different question than the one presented in Brendlin. You think police do not and should not have the right to detain passengers. Maybe so; but that doesn't mean a reasonable passenger would think he or she is free to leave.

elChato's anecdote illustrates this point perfectly. Even though you dropped the charges (which must have taken some guts!), it would have been quite reasonable for someone in the passenger's position to think he was not free to leave, given that when he tried to leave the police arrested him.
4.23.2007 4:31pm
Dave N (mail):
Despite some state rules to the contrary, I suspect that many police officers want the passengers to stay in the vehicle due to "officer safety" issues. Most police officers that I know want to maintain control of a situation, which includes knowing where all known parties (including passengers) are at.
4.23.2007 4:33pm
Jerry Wolff (mail):
Submission to a show of authority can create a Fourth Amendment seizure under current caselaw, so the order to exit/remain seated followed by submission to that authority equals seizure. The ultimate decision still should turn on whether, given a valid traffic stop, the officer's actions and statements/orders to the passenger are deemed reasonable under the Fourth Amendment? I believe that the Court will head toward answering the question in the affirmative, almost along Wilson style lines.
4.23.2007 4:45pm
Abe Delnore:
I'd be inclined to say that the passengers are clearly not seized and know they are free to go if a traffic stop went like this:
1. Police officer gets driver's attention and causes him to pull over.
2. Police officer announces to everyone why he has stopped the vehicle, that he is citing the driver for this particular violation, and that any passengers are free to go.
3. Police officer runs tags and dl and does more paperwork.
4. Police officer issues citation and tells driver to be more careful in future.

Of course, as everyone knows, what really happens is as follows:
1. Police officer gets driver's attention and causes him to pull over.
2. Police officer runs tags and does preliminary paperwork while passengers and drivers try to guess why stop was made. ("No, I wasn't speeding. Well, like five over, tops. I must have a tail light out.")
3. Police officer finally appears outside driver's window and asks a number of questions including "Do you know why I pulled you over?" before stating why stop was made.
4. Police officer runs dl and does more paperwork.
5. Police officer issues citation and tells driver to be more careful in future.

In my experience, waiting for the officer to inform the driver why the stop was made is the most time-consuming part of the stop. It would also be a dumb time to try to walk away, since for all the passengers know, the officer thinks the vehicle was involved in some sort of violent crime or was reported stolen. They don't know whether the officer believes he has probable cause or not. In fact, they probably understand that the officer is trying to determine whether or not he has probable cause. Until the passengers know the officer knows he does not have anything beyond the traffic offense, they're certainly going to stay put.
4.23.2007 4:47pm
Guest44 (mail) (www):
In Arlington, VA, I was pulled over by a cop for ignoring a badly placed sign. While the cop was checking my license and writing the ticket, I asked my passenger to get out and take some photographs of the sign and the street. The cop ordered her in the car before she could even get out.

Like Tyson above, I think that's pretty typical.
4.23.2007 4:49pm
Chicago:
I'm with Tyson. If I were the passenger, I would be afraid that my leaving the car would provoke the officer (out of legitimate fear for his own safety) to draw his weapon and order me back into the car -- or, at the very least, the latter. If the only test is whether I would have believed that I was *legally* free to leave, perhaps this doesn't matter; but if it doesn't matter, it's an awfully fine line to draw.
4.23.2007 4:50pm
Viscus (mail) (www):
That police abuse their authority by exercising powers they do not have doesn't establish the rights of citizens.

AF

that doesn't mean a reasonable passenger would think he or she is free to leave.


A reasonable person not aware of their rights might think a lot of things. For example, a reasonable person might think they have to let police inside their house without a warrant if they ask to look around out of mere curiosity or a sudden hunch. When we are talking about reasonable people, we are talking about reasonable people somewhat aware of their rights.

Dave N:

many police officers want the passengers to stay in the vehicle


Many police officers probably also like to be able to interrogate people without giving them Miranda warnings and would probably like to exercise certain powers without having to worry about probable cause. The police want to abuse their authority, does not imply they have a right to do so.

Abe Delnore:

It would also be a dumb time to try to walk away, since for all the passengers know, the officer thinks the vehicle was involved in some sort of violent crime or was reported stolen. They don't know whether the officer believes he has probable cause or not.


First, I think most passengers, who have committed no crime, have reason to know with a high level of certainty that police do not have probable cause to detain them. If you aren't a criminal, you don't have to wait for the cop to finish whatever processing they are doing to know this. Second, one should be able to test whether they are detained or not by attempting to leave, and then complying if the officer's orders if they have a problem with it. Police who unlawfully detain citizens should be disciplined.

Guest44:
In my view, the cop had no more right to issue orders to your girlfriend, than he did a random pedestrian who happened to be walking past on the sidewalk near where you were pulled over. The police officer did not have any reason to think that your girlfriend committed a traffic offense or any other crime. He had no reason to think she was a threat. He deserves to be disciplined.
4.23.2007 5:05pm
Viscus (mail) (www):
Chicago,


I would be afraid that my leaving the car would provoke the officer (out of legitimate fear for his own safety) to draw his weapon


I think we should go by the reasonable police officer standard, not the excessively paranoid police officer standard. To draw on a passenger who makes no sudden or suspicious movements is unreasonable. Futhermore, with respect to what is reasonable in a citizen, I think it is reasonable to expect reasonable behavior by police (which is usual and typical) rather than extreme paranoid behavior that calls into question the officer's mental fitness for duty. A reasonable passenger would not think that a reasonable police officer would seize them without cause.

A police officer who pulls someone over for a routine traffic offense does have a reasonable fear of for his own safety merely because a passenger exits the vehicle in a normal manner, absent sudden movements, strange behavior, or reasonable and particularized suspicion directed at the passenger.
4.23.2007 5:16pm
Viscus (mail) (www):
Amend the last sentence in the above post so it reads:

"A police officer who pulls someone over for a routine traffic offense does not have a reasonable fear of for his own safety merely because a passenger exits the vehicle in a normal manner, absent sudden movements, strange behavior, or reasonable and particularized suspicion directed at the passenger."
4.23.2007 5:19pm
passerby (mail):
I think it is reasonable to expect reasonable behavior by police (which is usual and typical) rather than extreme paranoid behavior that calls into question the officer's mental fitness for duty.


You clearly don't live in Brooklyn.
4.23.2007 5:28pm
Justice Fuller:
I was once pulled over for a traffic violation with several passengers in the car. When one of the passengers asked if they could leave, the officer said, "Everybody stay in the car!" No one thought to ask what the source of the officer's authority was.
4.23.2007 5:35pm
DeezRightWingNutz:
I was riding in a car pulled over for speeding a couple of hundred yards away from a DFW terminal. I didn't think twice about asking the cop if I could leave, since I had a flight to catch (hence the speeding). He didn't have a problem with it.

Now, I don't know what I would have done if the cop had said that I had to stay, but I'm guessing I would have, even though I would have, in all likelihood, missed my flight. I assumed he didn't have any legal reason he could keep me, but I also figured it wouldn't be in my best interestes of those of the driver to "disobey." Does that mean I was seized?
4.23.2007 5:42pm
Prufrock765 (mail):
All this makes me wonder what the arresting officer in Brendlin said during the suppression hearing about his normal practice regarding vehicle passengers during routine traffic stops.
4.23.2007 5:58pm
Dave Wangen (mail):

A reasonable person not aware of their rights might think a lot of things. For example, a reasonable person might think they have to let police inside their house without a warrant if they ask to look around out of mere curiosity or a sudden hunch. When we are talking about reasonable people, we are talking about reasonable people somewhat aware of their rights.


And a reasonable person aware of their rights knows that they don't have to incriminate themselves, right? So that whole "Miranda rule" thing, we don't really need that.

That is the effect of your argument here, after all.
4.23.2007 6:30pm
strategichamlet (mail):
I have no training in the law, but I am pretty shocked that this is a question. If you aren't driving the car then you are not involved in any legal violation that would precipitate the traffic stop, so under what legal concept can they detain you? Probable cause by association seems pretty awkward.

Two legal situations that might shed light on things though (if I knew the answers):
1.) If you are walking down the street, see a cop, and immediately start running in the other direction can they persue/detain you even if they have no idea who you are or why you are running?
2.) If you are in someone else's home when the police arrive with a search warrant for the home can they detain/search you? If this depends on the details of the warrant what's the nominal default if they suspect that there is physical evidence of a crime the homeowner may have comitted?
4.23.2007 6:38pm
Abe Delnore:

A police officer who pulls someone over for a routine traffic offense does not have a reasonable fear of for his own safety merely because a passenger exits the vehicle in a normal manner, absent sudden movements, strange behavior, or reasonable and particularized suspicion directed at the passenger.


That would make a great bumper sticker.
4.23.2007 6:40pm
ohwilleke:
One of the better quotes from Justice Scalia:

I never pass a police car. I don't care how slow I'm going. I never pass a police car.


He calls that mere "prudence", but as an individual who has been pulled over for passing a police car going 40 mph on a 65 mph interstate highway (the cop speeded up, drove in front of my car, slowed down, and then set off his lights allegedly for signaling for only 90 feet instead of 100 feet that I was returning to his lane after a 64 mph passing manuever, and for having fuzzy dice on my rear view mirror), I think that Scalia is wrong when he says that you aren't arrested in that situation.

The Justices are all remarkably realistic, on the whole, about the realities of being in a traffic stop. Consider Justice Kennedy(aka the vote that matters):

You're representing the State and California and you want to establish the proposition that any time there is a traffic stop in the State of California or I guess anywhere in the United States all the pasengers are free to immediately leave, absent some further countermanding officer — order by the officer. I think that's a quite surprising proposition. Now we don't have empirical studies and so forth, but at some point the Court takes judicial notice and I think indiciations from the bench are we just don't think passengers, A, are or, B, should feel free to leave when there's a traffic stop. I just think you have no social or empirical documentation for that position.
4.23.2007 6:51pm
MJG:
What about states (like Ohio, I think) where it is actually illegal to get out and walk on a highway? This would necessarily create a rule where passengers are seized on highways but not on suburban roads.

The state's proposition that he would have had a "reasonable belief" in his "freedom to leave" unless the officer actually directed intention to him--purportedly as part of Brower v. Inyo's "intentional" requirement--is weak. Under this logic, had there been a passenger in Brower also killed by the deadman's roadblock, presumably they would not have been seized because the State would have only directed its intent at the driver.

Anyway, a finding that Brendlin was not seized would basically give free authority to police to pre-text so long as they target the passenger. They wouldn't even need a traffic violation to pull you over. Just ignore the driver and go after the passenger, search him, etc.
4.23.2007 7:21pm
gab:

DeezRightWingNutz said:



I was riding in a car pulled over for speeding a couple of hundred yards away from a DFW terminal. I didn't think twice about asking the cop if I could leave, since I had a flight to catch (hence the speeding). He didn't have a problem with it.


The question then is, had you not felt yourself "seized," why ask the cop if you could leave? Why not just walk away? Also, what if the cop had had "a problem with it?" Would you then have disregarded his "problem" and just walked away?
4.23.2007 7:34pm
David M. Nieporent (www):
A reasonable person not aware of their rights might think a lot of things. For example, a reasonable person might think they have to let police inside their house without a warrant if they ask to look around out of mere curiosity or a sudden hunch. When we are talking about reasonable people, we are talking about reasonable people somewhat aware of their rights.
Leaving aside whether your modification of the definition of "reasonable person" is valid, you're confused about the issue. The iussue is not whether a reasonable person would think he had the legal right to leave. The issue is whether a reasonable person would think he had the ability to leave.

If a police officer walks up to a random person on a sidewalk and slaps cuffs on him based on a whim, that's clearly an unjustified and illegal act on the officer's part. But the fact that it's unjustified and illegal in no way means the cuffed person wasn't seized. It means he was unjustifiably and illegally seized.
4.23.2007 8:19pm
ELBonline (mail):
I am somewhat baffled and amazed (not in a good way) at some of the commentary here. Deciding whether a passenger legal status during a traffic stop is "seized" or not may be relevant to subsequent criminal proceedings, but I fail to see how telling a passenger he can't get out of the car during a traffic stop is a great impingement on his liberty. If you ask and he or she says yes, great. If no, then stay seated. Of all the possible abuses by the state I can find to worry about (say, breaking into the wrong house with a bogus warrant), this has to be pretty far down the list.

Car stops can be very dangerous for officers, and yes they need to maintain tight control of the situation, especially when it is one officer with a carload of people. Asserting that such officers are "excessively paranoid" reflects a lack of appreciation for the real world and/or disregard for the officer's life. Frankly, I can't come up with any civil words to express how foolish an idea this is.



A police officer who pulls someone over for a routine traffic offense does not have a reasonable fear of for his own safety merely because a passenger exits the vehicle in a normal manner, absent sudden movements, strange behavior, or reasonable and particularized suspicion directed at the passenger.


Hogwash. Getting out of a vehicle during a traffic stop without checking with the cop is a "sudden movement" and "strange behavior" all by itself.

Any unexpected/undirected move by any of the occupants of the car may or may not signal the beginning of an attack -- is this person getting out to confront me? is he distracting me so his buddy can reach under the seat for a weapon? -- and the officer does not get long to make the right decision.

(And if the passenger with benign intent gets run over by passing traffic, I'm sure our ever watchful trial attorneys would be happy to investigate the state's liability via lawsuit, since the cop "permitted" the passenger to go play in the traffic).

So does the passenger not feel free to leave? Sure, I think most people (which apparently does not include a few commenters here) realize that moving around during a traffic stop is not helpful to the situation, regardless of their awareness of the Constitution and all the relevant Supreme Court decisions. I have to suspect that the urges displayed above to get out and walk around while the cop is doing his thing have less to do with preserving civil liberties and more to do with an innate dislike of cops and authority regardless of their reasonableness and justification.

We expect cops to be respectful and polite to generally law-abiding, if overly hasty, and sometimes obnoxious, citizens, while also being able to instantly defeat a deadly threat to their lives. Tough line to walk, and I don't think it is unreasonable or unconstitutional to expect passengers to stay seated, keep their hands in view, and be as polite to the officer as they want the officer to be to them. Following the golden rule in this situation would be a good idea.

Do some cops act like asses? Sure. Do some abuse authority? Sure. Does this justify restricting the ability of police to tell you to sit your butt down during a traffic stop? No.


Eric
4.23.2007 10:49pm
Bryan DB:
Scalia's always been on drugs regarding cars; you can tell that he regularly is driven to work by a chauffeur. Not ony is he in outer space in thinking a passenger is free to get out of a car at a traffic stop, he's the same guy who pooh-poohed the idea of a right to privacy in a car because "nobody keeps personal items in their car." Is he kidding?
4.24.2007 12:01am
David M. Nieporent (www):
Any unexpected/undirected move by any of the occupants of the car may or may not signal the beginning of an attack -- is this person getting out to confront me? is he distracting me so his buddy can reach under the seat for a weapon? -- and the officer does not get long to make the right decision.
This is true with pedestrians walking down the street as well. Any person may be getting ready to confront a cop, or may be trying to distract the cop so his friend can attack him. Does this mean that a police officer who sees someone littering, and stops him to give a citation, can detain the entire group of people he's walking with?
4.24.2007 12:18am
Oren (mail):

In my part of the world, if you open a car door during a traffic stop, the police unholster their weapons and become very agitated.


Seconded that. Furthermore, while I'm usually a die-hard 4A advocate, it strikes me as a reasonable precaution for the officer to order all passengers in the car to remain in the car for a brief duration while he ascertains the situation. That is to say, I would sanction the brief seizure of the people in the automobile incident to the stop within reasonable limits. Specifically, the sensible passenger ought to wait and ask the officer. That's all
4.24.2007 10:09am
John Coffey (mail):
Having been a passenger in a few traffic stops over the years, I've asked the officer a couple times if I'm free to go. In all cases I was told, "No" and then immediately asked for my ID. My ID was returned when the driver's ID was returned, not before.

Whatever legal term is used to describe my situation at the time (detained, seized, arrested, put on ice, cooling my heels) as a "reasonable person" I felt I was not free to go until released by the officer and my ID returned.

I wonder of Scalia, Breyer, et. al. have ever been a passenger in a traffic stop? Imagine what the officer would have to go through if one of the Justices was a passenger in a traffic stop this week.

- John
4.24.2007 3:34pm
Kelvin McCabe:
To the non-lawyer and his questions: Flight from police can be reasonable suspicion for a stop and frisk, and depending on the area(high crime or high intensity drug area) can lead to detention, frisk and handcuffs, based on flight alone.

Second, people in a home where a search warrant is executed can be detained even though they dont live there and have no connection to the reason the cops are there.

How those questions are relevant to the routine traffic stop i dont know, but as a general proposition, i think its fair to conclude that most people dont feel free to leave
a car that is pulled over until a cop tells them they are free to leave. And this is the relevant test: now what the cop subjectively felt, or what an objective view of the situation would entail to a casual observer, but whether a reasonable person in the passenger's shoes during the stop would feel free to simply walk away. If the answer is no, a seizure, however brief and inconsequential, has occurred.

A separate question is whether, after granting a seizure has occurred, the scope of the seizure is "reasonable". In Illinois, at least, the temporary seizure of a passenger and a warrant check on that person's I.D. during a lawful traffic stop of the driver is considered okay. Something about it being minimally intrusive, and not taking too much time, etc..etc... However, if the cop asks for I.D. and then starts asking detailed questions of the passenger about where he was coming from, where he was going and whether he has drugs on him, etc... may not be reasonable. That goes to the scope of the detention under Terry v. Ohio, however, and not to the original detention of the passenger being a seizure.
4.24.2007 6:42pm
just_lurking (mail):
>>> Hogwash. Getting out of a vehicle during a traffic stop without checking with the cop is a "sudden movement" and "strange behavior" all by itself. >>>

Exactly. That's why passengers are seized. Even if there are valid safety considerations for the law enforcement officer involved, the passenger is still seized regardless of the officer's motive.

>>> Imagine what the officer would have to go through if one of the Justices was a passenger in a traffic stop this week. >>>

HA! Too funny!
4.24.2007 7:05pm
JonC:

Imagine what the officer would have to go through if one of the Justices was a passenger in a traffic stop this week.


Just for fun: William Rehnquist was actually pulled over and ticketed for speeding in 1986.
4.24.2007 9:47pm
whit:
"certainty that police do not have probable cause to detain them"

for the 100th time. police do not need PROBABLE CAUSE to detain people. the standard is "reasonable suspicion."

i agree that in a garden variety trafic stop, the passenger is free to leave. it would be stupid to do this BEFORE the officer approached the vehicle, since (as one person pointed out) you don't know why the officer stopped the vehicle. waiting 10 seconds for the cop to walk up, then telling him you are going to leave - works for me.

and i have had several traffic stops where the passenger did just that - asked to leave. i told them "go ahead".

because that's the law (since they were wearing their seatbelt and it wasn't a terry stop).

i don't think that cops should have an obligation to inform people of their right to leave the stop. it's up to a citizen to know their rights, not a cop to advise people... well apart from miranda, and that's due to case law obviously...

also, the situation is different on a freeway. in that case, i would not let a person get out of the car and walk around, since those are limited access, pedestrian traffic is prohibited, etc. just as i wouldn't just leave a passenger on the side of the road, if i arrested the driver.

and kelvin... interestingly in my jurisdiction, even asking for the passenger's NAME is a de facto seizure. per case law. let alone asking for ID. but this is ONLY (for now) with passengers in traffic stops.

it is not considered a seizure if i ask joe blow his name during a 'social contact' (a citizen contact where no seizure is made, and no reasonable suspicion necessary. it's just a conversation), or ask him for id, as long as i write the info down and immediately return the ID to him. if i hold on to it, that is a seizure.

i had one guy who i asked his name (on a social contact), and he said "i'd rather not say." i asked him why. he then told me "because i have a warrant for my arrest".

he instantly went from a social contact, and free to leave, to an arrest - since telling an officer you have a warrant IS probable cause (he went straight from nothing to probable cause and did not even pass reasonable suspicion to get there).

why do people do this? cause they are stupid. it's the same reason a guy with 2 arrest warrants, convicted felon, with a loaded firearm in the vehicle, and 1/2 an ounce of cocaine would RACE his vehicle at 90 in a 35 zone right by me.

you would think that a person who was carrying a firearm illegally, 1/2 an ounce of cocaine, with warrants, and a suspended license, would drive CAUTIOUSLY.

but we don't (usually) catch the smart ones.
4.25.2007 1:26am
Viscus (mail) (www):
whit,

Good to see that you sound like a reasonable police officer. It should be noted that whether the standard is "reasonable suspicion" (also known as Terry suspicion) is a matter of how long you detain them. You are only allowed to detain someone for as long as reasonable necessary to ensure your safety or prevent a crime from occuring.

For the driver, Terry suspicion allows you to detain them for the duration of the traffic stop. The rationale behind this would not apply to the passenger however. If you had reason to fear for your safety, of course you could do a pat down on the passenger (just like with anyone else). But it would be unreasonable to detain the passenger for the duration of a traffic stop, especially if you are going to spend 15-30 minutes (or more).

So, yes, you can detain a passenger for a reasonal period (reasonable being short) if you have "reasonable suspicion" (just like you could detain anyone else). But you could not detain them for the duration of the traffic stop without probable cause, once you have had the opportunity to investigate your reasonable suspicion with a pat down.

Of course, you are right that reasonable suspicion is all that you need to detain the driver for the entire duration of the traffic stop. But it is doubtful that this is the correct standard for the passenger -- who should be treated like any other member of the public.
4.25.2007 2:39am
whit:
viscus, that is correct. it is true that an "unreasonably" long terry seizure (or even a traffic stop seizure, which isn't terry, since there is no reasonable suspicion of a CRIME (since civil infractions are not crimes) can result in a de facto arrest situation

what people keep (wrongly) stating is that SEIZUREs in general require probable cause. as we recognize, seizures DO NOT. ARRESTs do. ARRESTs are a special kind of seizure.

most cops make many more seizures than arrests, which is logical, since seizures do not require probable cause.

technically speaking, with the driver, it is not TERRY suspicion,when you are investigating a civil infraction (speeding, etc.).

you are wrong that you could not detain the passenger for the length of the traffic stop without probable cause. it depends on HOW LONG THE TRAFFIC STOP WAS.

there is no bright line for when a seizure becomes a de facto arrest. it depends on the circ's

generally speaking, a 5-10 minute detention is usually viewed as a reasonable length of time for a seizure. detentions over 1/2 hour are much more likely to be viewed as a de facto arrest.

of course, the passenger is treated like any other member of the public, except in my state, he has MORE protection than a normal person (so to speak), since i can't ask him for ID or his name without it being a seizure, whereas i can ask ANYBODY (not in a traffic stop) for their name and not seize them (case law in WA state).

i also take issue with this statement
"You are only allowed to detain someone for as long as reasonable necessary to ensure your safety or prevent a crime from occuring. "

not true. again, the standard is reasonable. courts have held (and i have done this numerous times) that it is reasonable to detain for INVESTIGATION (not merely safety or prevention) as long as the length is "reasonable" etc.

for example...

if i am detaining somebody pursuant to a field showup, that is reasonable to hold them long enough to wait for the witness to be driven to my scene to view the suspect and see if they can identify them in a one on one, or not.

that is not for safety or to prevent a crime. it's an investigative detention and entirely lawful assuming one has reasonable suspicison. example would be a woman reports being robbed by a white male with a jean jacket at johnson st. and 3 minutes later you see a white male with a jean jacket within the distance of johnson st. that would make sense based on the time of the crime (iow, he's not 20 miles away) :)

you can detain him (reasonable suspicion) even though you do not have probable cause. you have reasonable suspicion. and it would be reasonable to detain him for (among other reasons) the purpose of bringing the witness to your location for a show up. that's an INVESTIGATIVE reason, not for safety or prevention.

also, since the terry was for a violent crime (robbery), this would be a classic example where a pat frisk (note: FRISK not SEARCH) would be groovy, and arguably a felony stop (proned out at gunpoint) due to the nature of the crime.

it would not be justifiable if the man was wanted for a shoplift, but would be for robbery.

that is where the reasonableness standard comes in as well. in terry, the amount of force used must be consistent with the crime suspected (reasonable suspicion of) for the stop to not be viewed as a de facto arrest.
4.25.2007 11:50am
whit:
note: here's a case where a stop was "reasonable" even though there was no reasonable suspicion OF A CRIME. again, the issue with seizures is "reasonable". reasonable suspicion of a crime is ENOUGH, but it is NOT necessary, as the below example shows...

in WA state, roadblocks btw (that are legal in most states and viewed as "reasonable" even without particularized suspicion are NOT reasonable. but stopping for hunting inspection, even without ANY suspicion of a crime is... go figger...

here's a case where there is NO PC and NO reasonable suspicion of a crime. and the stop IS reasonable

-----
WDFW OFFICER'S STOP OF PICKUP TRUCK CONTAINING WARMLY DRESSED DRIVER AND PASSENGER AS TRUCK WAS EXITING ONE-LANE DIRT ROAD ON OPENING DAY OF ELK SEASON HELD REASONABLE UNDER RCW 77.15.080(1) AS A JUSTIFIED WDFW OFFICER STOP TO CHECK POSSIBLE HUNTERS

Schlegel v. DOL, ___ Wn. App. ___, 153 P.3d 244 (Div. III, 2007)

Facts and Proceedings below: (Excerpted from Court of Appeals opinion)

On October 30, 2004, the opening day of elk hunting season, Officer Fulton stopped Mr. Schlegel and a passenger in a truck exiting the L.T. Murray Wildlife Area on Hutchins road (a one-lane, dirt road near an entrance gate). Officer Fulton described Hutchins road as a not well maintained "hunting road." Officer Fulton testified he was contacting vehicles "[t]o check for wildlife, check for licenses." Officer Fulton believed he had "articulable facts" under RCW 77.15.080 to stop some vehicles.

Officer Fulton did not "contact everybody [he] saw." Officer Fulton was stopping solely those vehicles containing people he believed "were engaged in hunting." Officer Fulton saw the occupants of Mr. Schlegel's vehicle were "dressed in hunting clothing." Officer Fulton described the hunting clothing as "warm type clothing" and "consistent with what hunters type-typically wear." Officer Fulton testified Mr. Schlegel "was driving a vehicle consistent with elk hunters in that area." Officer Fulton stepped into the road and signaled Mr. Schlegel to stop.

Officer Fulton spoke first with the passenger who said "he and the driver had been elk hunting." "They both had elk rifles sitting in the cab of the truck with them." When Officer Fulton contacted Mr. Schlegel to verify his hunting license and tag, he smelled alcohol on Mr. Schlegel's breath. Mr. Schlegel was referred to the Washington State Patrol for investigation of DUI and arrested.

Mr. Schlegel challenged the basis of the stop in a hearing for the administrative suspension of his driver's license. In findings of fact and conclusions of law, the hearing officer concluded the officer was authorized by RCW 77.15.080(1) to stop Mr. Schlegel and ordered that the administrative action to suspend his driver's license be sustained.

Mr. Schlegel successfully appealed to the superior court, where the court held the stop constituted an unlawful roadblock.

At his DUI trial, Mr. Schlegel unsuccessfully requested to suppress the evidence. The court concluded:

[T]he checkpoint was established on the opening day of the general elk-hunting season and placed on an isolated road where hunting activity was to be expected. Only those vehicles that appeared consistent with "hunting activity" were stopped. The contact was brief in the governmental interest of enforcement of laws for the preservation of wildlife.

Mr. Schlegel was subsequently convicted. He appealed to the superior court. He then moved for res judicata application of the superior court's licensing decision to the appeal of the district court's suppression ruling. The motion was granted and his DUI charge was dismissed with prejudice.

[Record citations omitted]

ISSUE AND RULING: Upon observing the pickup truck that was occupied by two warmly dressed men and that was about to exit a one-lane dirt road on the opening day of elk season in an area where elk hunting might occur, was the WDFW officer justified in stopping the truck, based on RCW 77.15.080(1), which provides that: "Based upon articulable facts that a person is engaged in fishing, harvesting, or hunting activities, fish and wildlife officers have the authority to temporarily stop the person and check for valid license, tags, permits, stamps, or catch record cards"? (ANSWER: Yes, rules a 2-1 majority)

Result: Reversal of Kittitas County Superior Court decisions 1) that reversed a DOL license suspension decision, and 2) that reversed a Kittitas County District Court DUI conviction.

Status: Mr. Schlegel has petitioned for discretionary review by the Washington Supreme Court; his petition likely will not be acted on by the Supreme Court before late fall of 2007.

ANALYSIS: (Excerpted from Court of Appeals majority opinion)

The issue is whether, under these facts, the district court and DOL erred in concluding Officer Fulton legally stopped Mr. Schlegel under RCW 77.15.080. Mr. Schlegel contends the stop was unconstitutional because it constituted an illegal roadblock under City of Seattle v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1988) and, thus, the derived evidence should have been excluded.

We first examine the statutory grounds that the DOL hearing officer and district court found to justify the stop. "Where an issue may be resolved on statutory grounds, the court will avoid deciding the issue on constitutional grounds."

RCW 77.15.080(1) provides:

Based upon articulable facts that a person is engaged in fishing, harvesting, or hunting activities, fish and wildlife officers have the authority to temporarily stop the person and check for valid licenses, tags, permits, stamps, or catch record cards.

For the wildlife officer's authority to be valid, the officer must have "articulable facts" that a person is engaged in hunting activities. RCW 77.15.080(1). Articulable means "a substantial possibility."

Hunting is defined as "an effort to kill [or] injure" a "wild animal or wild bird." RCW 77.08.010(7). Washington authority has generally held that hunting involves more than the actual shooting of an animal. "Hunters begin to 'hunt big game' not when they actually encounter big game, but rather when they make an effort to kill or injure big game in an area where such animals may reasonably be expected." In Goodell v. Northwestern Mutual Accident Association, 130 Wash. 55 (1924), the court held that an insured decedent was "engaged in hunting" as a joint enterprise when he rowed a boat while his companion was shooting. We now turn to the unchallenged facts, verities on appeal.

First, Officer Fulton observed Mr. Schlegel's vehicle on the opening day of elk hunting season inside an elk hunting area. The truck's occupants wore hunting clothing, clothes of a type that hunters typically wear. Mr. Schlegel was driving a vehicle consistent with the type that hunters use on a poorly maintained dirt hunting road when Officer Fulton first observed him. Based on his observations, a substantial possibility existed that he was engaged in hunting. Thus, articulable facts justified an initial, brief inquiry stop.

Second, while Officer Fulton approached the vehicle, he saw the occupants possessed elk rifles in the truck-cab. Thus, Officer Fulton's initial suspicions justifiably increased justifying time for further inquiry.

Third, Officer Fulton was immediately told by the passenger that the pair had been elk hunting, confirming his articulable suspicions and justifying contact with Mr. Schlegel, the driver. At this point, other facts were collected that ultimately led to the loss of Mr. Schlegel's license and his DUI conviction that are not now contested.

The DOL hearing examiner and the district court judge found the above facts, mainly from the testimony of Officer Fulton. A review court looks to the record to determine if the facts are supported by the record. They are. Thus, the question becomes whether the facts, as found, support the legal conclusions. They do. Therefore, the superior court erred in disregarding the unchallenged fact-finding accomplished by the DOL hearing examiner and the district court judge. Articulable facts existed indicating Mr. Schlegel was engaged in hunting activities when first observed by Officer Fulton, permitting a brief investigatory stop under authority of law, RCW 77.15.080(1). Hence, we decline to engage in a constitutional analysis.

In sum, hunting is a highly regulated activity. RCW 77.15.080 applied to the facts found by the DOL hearing examiner and the district court judge show the wildlife officer's authority to stop Mr. Schlegel. The district court and DOL correctly interpreted and applied RCW 77.15.080 when considering Mr. Schlegel's roadblock challenge. Further, the record shows Officer Fulton did not stop every passing vehicle, but restricted his brief investigatory stops to situations where he had articulable facts that the passersby were engaged in hunting activities. Therefore, this is not a roadblock case like Mesiani.

Reversed. We affirm the hearing officer and district court.

[Some citations omitted]

DISSENT: Judge Schultheis strenuously dissents, arguing in vain that 1) the facts do not support the majority's result even under its analysis (two men dressed warmly in 20 degree weather are not necessarily on a hunting expedition); 2) the particular statute as compared to RCW 77.12.620 (checkpoint stations), does not authorize stopping vehicles because people do not actually hunt from their vehicles; and 3) the majority should have addressed the constitutionality of RCW 77.15.080(1) and should have ruled it unconstitutional under article 1, section 7 of the Washington constitution.

LED EDITORIAL NOTE: Subsection 1 of RCW 77.15.080, which was the focus of this case, grants authority to "fish and wildlife officers" but does not, as do a number of other statutes in Title 77 RCW, mention "ex officio wildlife officers." This means that "ex officio fish and wildlife officers" such as city, county and state agency law enforcement officers do not have authority under subsection 1.
4.25.2007 12:04pm
whit:
here's one more case that discusses TERRY issues (seizure on reasonable suspicion) as well as passenger issues (which are more restricted under WA's constitution than the federal one

note: read it

it says "SEIZURE NOT ARREST"

as i said, not all seizures are arrest. and they don't require PC. arrests do



TERRY SEIZURE OF RECKLESS DRIVING SUSPECT HELD JUSTIFIED BY REASONABLE SUSPICION; ALSO, MIRANDA WARNINGS HELD NOT REQUIRED IN TERRY STOP QUESTIONING

State v. N.M.K., 129 Wn. App. 155 (Div. I, 2005)

Facts and Proceedings below: (Excerpted from Court of Appeals opinion)

In September 2003, Rodger Miller, a resident of Jewell Street in Enumclaw, Washington observed N.M.K. driving a black Honda over a sidewalk and the front lawn of a home on Jewell Street. Minutes later, another Jewell Street resident, Rocky Johnson, also saw N.M.K. driving at a high rate of speed around Jewell Street.

Miller and Johnson reported the incident to police, and an officer arrived at the scene to interview them. After the interviews, Officer Osterdahl located a black Honda that matched the description given to the interviewing officer by Miller and Johnson parked at a nearby McDonalds. Officer Osterdahl parked behind the Honda, leaving a way for the car to exit. Two young men were standing next to the vehicle, N.M.K. was in the passenger seat, and another young man was in the backseat.

Officer Osterdahl asked the two people in the vehicle if they would step out of the vehicle. They did. The officer advised them of the complaints by Miller and Johnson. Officer Osterdahl asked each for his legal name and date of birth. N.M.K. stated his full name and date of birth. He also admitted that he did not have a drivers license and had been driving the Honda on Jewell Street. Officer Osterdahl arrested him.

The State charged N.M.K. with reckless driving and driving without a valid operators license. During the fact-finding hearing, the juvenile court held a CrR 3.5 hearing to determine the admissibility of N.M.K.s statements to Officer Osterdahl prior to arrest. The court determined N.M.K.s statements were admissible.

. . .

Thereafter, the court found N.M.K. guilty of driving without a valid operators license and reckless driving.

ISSUES AND RULINGS: 1) In directing N.M.K. and the other car occupants to get out of the car, the officer seized them. Did the officer have reasonable suspicion justifying the seizure? (ANSWER: Yes); 2) Miranda warnings are required prior to any questioning where police have seized a person in a manner that is the functional equivalent of a custodial arrest. Was N.M.K. subjected to such a seizure, and were Miranda warnings therefore required prior to the questioning that occurred here? (ANSWER: No, the seizure was not the functional equivalent of arrest).

Result: Affirmance of King County Superior Court (juvenile court) convictions of N.M.K. for driving without a valid operator's license and for reckless driving.

ANALYSIS: (Excerpted from Court of Appeals opinion)

1) Seizure -- reasonable suspicion

N.M.K. first argues that he was illegally seized by Officer Osterdahl because the officer did not have reasonable suspicion to stop and ask him, as a passenger in the car, to identify himself. According to N.M.K., because the seizure was not valid, the admissions that followed must be suppressed. We hold there was no seizure at that point in the encounter between the two. Thus, suppression of the statements was not required on this ground.

N.M.K. relies on State v. Rankin, 151 Wn.2d 689 (2004) Aug 04 LED:07, contending that the officer's request for identification violated article I, section 7 of the Washington Constitution that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." In Rankin, passengers were stopped, searched, and found with drugs. There, the officer requested and retained identification or driver's licenses from the passengers. The court pointed out that the police officers had no independent basis for requesting identification from the passengers in each case and that requesting and holding the passengers' identification constituted a seizure. The evidence obtained post-seizure was ruled inadmissible.

However, "not every encounter between a police officer and a citizen is an intrusion requiring an objective justification." Under article I, section 7, passengers are unconstitutionally detained when an officer requests identification "unless other circumstances give the police independent cause to question [the] passengers."

Here, other circumstances gave Officer Osterdahl independent cause to ask N.M.K. to identify himself. Officer Osterdahl knew that a black Honda had been seen speeding on Jewell Street. N.M.K. was seated in a car that matched the description of the car involved in the reckless driving incident. The car was parked in a parking lot near Jewell Street. No one was in the driver's seat of the parked car. Officer Osterdahl stopped, but did not place N.M.K. and the other three men in custody while he investigated the incident. Officer Osterdahl had a reasonable, articulable suspicion to ask N.M.K. to identify himself.

Because there was an independent cause to question N.M.K., his state constitutional rights were not violated when Officer Osterdahl asked him to identify himself.

2) Seizure not arrest -- Miranda warnings not required

N.M.K. also appears to argue that his statements to Officer Osterdahl should have been suppressed because he was not read his Miranda rights before being questioned. We disagree.

In order to trigger Miranda protections, "[a] suspect must be in custody or 'otherwise deprived of his freedom of action in a significant way sub[ . sub] ' " The question is not whether a reasonable person would believe that he was free to leave but rather whether he would believe that "he was in police custody of the degree associated with formal arrest." This determination is made by objectively looking at the actions of the law enforcement officer. Incriminating statements and admissions that are not in response to an officer's questions are "freely admissible."

Here, it is clear that N.M.K. was not seized. Nothing in the words or actions of Officer Osterdahl indicated that N.M.K. was in custody. He did not handcuff N.M.K., nor did he tell him he could not leave the scene. There was no arrest until after the confession. In short, Miranda warnings were not required as N.M.K.s freedom of action was not curtailed to a degree associated with formal arrest.

[Footnotes, some citations omitted]

LED EDITORIAL COMMENT: While the Court of Appeals' decision here discusses State v. Rankin, 151 Wn.2d 689 (2004) Aug 04 LED:07, we believe that the Rankin case is not applicable because N.M.K. was not a non-violator passenger in a vehicle stopped for a routine traffic stop. More close to on point is State v. Mote, 129 Wn. App. 276 (Div. I, 2005) Nov 05 LED:10, where the Court of Appeals held that occupants in a parked vehicle not stopped for a traffic violation are not seized when an officer asks them to voluntarily produce identifying documents or ID information. Here, however, the officer seized the two occupants of the parked car when he directed them to step out of the car. But the seizure was justified by reasonable suspicion, as the N.M.K. Court explains.
4.25.2007 12:22pm