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.