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."