CFR in Brendlin v. California?:
Perhaps the most cert-worthy issue in Fourth Amendment law right now is whether the passenger of an automobile is "seized" when a police officer orders the car to pull over. In a remarkable opinion issued this past June, People v. Brendlin, a closely-divided Supreme Court of California held that the passenger is not seized by a stop of the car. The Court ruled that stopping the car seized the driver, as it acts on him, but not the passenger, who just so happens to be in the car. Thus, in the Brendlin case, the fruits of an admittedly unlawful stop of the car Brendlin was in were used against him on the theory that he was not himself "seized" by the unlawful stop.

  Brendlin is one of the nuttiest Fourth Amendment decisions I have read in a long time. Its rule makes no sense at all. A seizure occurs when a person or thing is stopped, by whatever intentional means, and it simply doesn't matter whether the thing is a driver, a passenger, or a box in the trunk. Seizing an item always seizes its contents; you can't pick some contents inside that were seized and others that weren't. On a practical level, police officers can't just pull over cars illegally and then start trying to get evidence on passengers by asking them questions or trying to get their consent. In such cases, the passengers are just as seized (and illegally so) as the drivers.

  Fortunately, the Brendlin case is deliciously certworthy. The decision created a huge and ugly split, as it's contrary to what federal circuits (including the Ninth) and many state Supreme Courts have held. A few state courts adopted the Brendlin approach a long time ago, but the fact that they were courts from low-population states (like Idaho and Montana) made the split less pressing before. When the entire California state criminal justice systems adopts a different rule involving cars, however, a split really matters. It's a particularly ugly split because the 9th Circuit has a different rule, and most criminal cases involving auto stops are drug cases with concurrent federal/state jurisdiction. This means that if federal officials violate the Fourth Amendment as construed in federal court, they can just pass off the case to the states.

  A cert petition was filed in the case on November 28th. Remarkably, the state of California waived its opportunity to file a brief in opposition. According to the docket page, the case has been distributed for the January 12 conference. I would expect the Court to "call for a response," essentially ordering California to respond so the Court can take a better-informed look before it decides whether to grant the petition. Stay tuned. (For the record, I have discussed this case with Brendlin's counsel, and have offered my assistance in the case; I haven't actually worked on the case, however.)