Lead Opinion
Opinion
Whеn a peace officer directs the driver of a vehicle to pull over for a traffic stop but, in effecting the stop, gives no indication that the passenger of the vehicle is the focus of the officer’s investigation or show of authority, is the passenger subjected to a “seizure” within the meaning of the Fourth Amendment? This is a question that has divided courts inside and outside this state. We find that the passenger, whose progress is momentarily stopped as a practical matter, is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer’s investigation or show of authority. We therefore reverse the judgment of the Court of Appeal, which (1) held that the passenger was automatically seized as a result of the traffic stop; (2) determined that the traffic stop was unlawful; and (3) suppressed the evidence of methamphetamine manufacturing found in the car and on defendant’s person as the fruit of the illegal seizure.
Background
Around 1:40 a.m. on November 27, 2001, Sutter County Sheriff’s Deputy
Deputy Brokenbrough approached the driver’s side of the Buick and asked the driver, Karen Simeroth, for her driver’s license. He also asked defendant, the passenger, to identify himself, since he recognized defendant as one of the Brendlin brothers, Scott or Bruce, and recalled that one of them had absconded from parole supervision. During the inquiry, Deputy Brokenbrough observed receptacles in the car containing substances used in the production of methamphetamine. In response to the deputy’s inquiry, defendant falsely identified himself as Bruce Brown. The deputy returned to his patrol vehicle and verified that Bruce Brendlin was a parolee at large and had an outstanding no-bail warrant for his arrest. During this period, defendant opened and then closed the passenger door of the Buick.
After requesting backup, Deputy Brokenbrough pointed his weapon at defendant, ordered him out of the car, and placed him under arrest for the рarole violation. The entire episode, from the time Deputy Brokenbrough asked Simeroth for her driver’s license to his discovery that defendant had an outstanding warrant, lasted a couple of minutes.
Police found an orange syringe cap on defendant’s person during a search incident to arrest. They found two hypodermic needles (one of which was missing a syringe cap), two baggies containing a total of 12.43 grams of marijuana, and a baggie containing 0.46 grams of methamphetamine on Simeroth’s person during a patsearch and a subsequent search incident to her arrest. Materials used in manufacturing methamphetamine were found in the backseat of the Buick.
After a hearing on defendant’s motion to suppress, the superior court held that defendant had not been seized within the meaning of the Fourth Amendment until Deputy Brokenbrough ordered him out of the car at gunpoint and placed him under arrest: “He was free to leave. And if he had opened the door and got out and taken a hike, then this officer would have had to decide whether he had something less than probable cause to detain him, and then he would have been detained. But he wasn’t detained because he never went anywhere; but he had a right to if he wanted to.” The court determined next that even if defendant had been seized at an earlier point, the traffic stop was lawful; even if the stop had been unlawful, defendant, as a passenger, lacked standing
The Court of Appeal reversed in a published opinion. It held that a traffic stop necessarily results in a detention (and, hence, a sеizure (People v. Glaser (1995)
We granted review, limited to (1) whether defendant, as a passenger in a vehicle subjected to a traffic stop, was seized within the meaning of the Fourth Amendment; and (2) whether reasonable suspicion exists that a car is unregistered when it exhibits an expired registration tab on its license plate but displays what appеars to be a valid temporary operating permit in its rear window.
Discussion
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. (People v. Ayala (2000)
Prior to the vehicle stop here, Deputy Brokenbrough notiсed that the registration tabs on the Buick’s license plate were expired. However, he also observed a current temporary operating permit in the car’s rear window and had received radio confirmation that an application for renewal of the vehicle’s registration was indeed in process. Conceding that “[a] vehicle with an application for renewal of expired registration would be expected to have a temporary operating permit,” the Attorney General no longer argues that Deputy Brokenbrough had articulable suspicion the Buick’s registration was invalid. The Attorney General argues instead that defendant has no entitlement to suppression of the evidence uncovered during the traffic stop because he, as a passenger, was not seized within the meaning of the Fourth Amendment until Deputy Brokenbrough ordered him out of the car at gunpоint and arrested him under the outstanding no-bail warrant, which provided lawful cause for the seizure. Defendant, on the other hand, argues that he was seized at the moment the driver submitted to the show of official authority and stopped the car, which preceded the deputy’s discovery of the outstanding warrant.
It is well settled that the driver of a vehicle that is the subject of a traffic stop is seized within the meaning of the Fourth Amendment. (Whren v. United States (1996)
This division of authority is reflected in the courts of our own state. Some courts agree with defendant that the interference with the passenger’s freedom of movement occasioned by the traffic stop constitutes a seizure. (People v. Bell (1996)
At the heart of this debate lies the definition of a seizure in the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” Justice Stewart’s opinion in United States v. Mendenhall (1980)
It is passing strange, then, that defendant focuses so little attention on the definition
Although defendant concedes that the high court has not decided whether a passenger is necessarily seized by virtue of a traffic stop, he asserts that dicta from the high court has “strongly hinted” in that direction. In Delaware v. Prouse (1979)
Defendant, like the courts embracing the majority view, also relies on the observation in Berkemer v. McCarty, supra,
A seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the person’s liberty (Terry v. Ohio (1968)
Deputy Brokenbrough’s flashing lights were directed at the driver, Karen Simeroth, and not at defendant. Indeed, the record does not indicate that Brokenbrough was even aware defendant was in the car prior to the vehicle stop. Once the car came to a stop, the deputy approached the driver’s side of the vehicle, without blocking defendant’s exit, brandishing a weapon at him, or making any intimidating movements towards him. In these circumstances, one cannot say that defendant was the subject of the deputy’s investigation or show of authority prior to the time the deputy ordered him out of the vehicle. (See United States v. Drayton, supra, 536 U.S. at pp. 203-204 [no
Rather, “[a]n officer causing a vehicle to pull over in transit is conducting an investigatory stop of the driver.” (People v. Jackson, supra,
More importantly, defendant, as the passenger, had no ability to submit to the deputy’s show of authority. As the Cartwright court noted, the passenger “is not a participant in the stop, but an observer.” (Cartwright, supra,
To be sure, the passenger must in most cases remain in the car until it stops, and to that extent (as the dissent points out) the passenger’s freedom is curtailed. But it is critical, for purposes of the Fourth Amendment analysis, to determine why the passenger’s freedom is curtailed. Although defendant points out that “it is simply not possible for a passenger to avoid being literally and physically detained under these circumstances, however momentarily,” this is so because, under the vast majority of circumstances, it is unsafe for the passenger to exit a moving vehicle. The passenger will also, in most cases, prefer to await the completion of the traffic stop and continue en route in the company of the driver. Neither fаctor, however, means that the passenger has been seized within the meaning of the Fourth Amendment. (Florida v. Bostick, supra,
Neither defendant nor the dissent ever explains why the same analysis should not apply to the detention of a moving vehicle containing a driver and passenger and the detention of a parked vehicle containing a driver and passenger—or, for that matter, the detention of a motorcycle or a bicycle with a driver and passenger. (Cf. United States v. Drayton, supra,
The distinction between a passenger whose progress is stopped because the driver is seized and a passenger who is himself or herself seized is consistent with the high court’s analysis in Maryland v. Wilson, supra,
The rule proposed by defendant and endorsed by the Court of Appeal and the dissent here, in which a seizure occurs whenever the defendant’s freedom of movement “is significantly curtailed by an officer’s act of making the driver stop the car,” would find a seizure in these circumstances of state-imposed delay. Indeed, the proposed rule would encompass even those motorists following the vehicle subject to the traffic stop who, by virtue of the original detention, are forced to slow down and perhaps even come to a halt in order to accommodate that vehicle’s submission to police authority. It would be inaccurate to say that these motorists, whose journey is interrupted by virtue of the traffic stop
Defendant’s proposed rule would also make unduly problematic the determination of when a seizure has ended. He asserts that “[w]hether a passenger remains detained thereafter may depend upon whether, under the circumstances, a reasonable person would feel free to leave while the officer deals with the driver.” But very rarely does the officer affirmatively express an investigative interest (or lack thereof) in the passengers of a detained vehicle. The officer’s interest in such circumstances, as defendant concеdes, is with the driver. This suggests that, under defendant’s approach, the alleged seizure of a passenger must terminate of its own accord, either by the passage of time or by the officer’s focus on the driver. If the seizure terminates simply by the passage of time, then the question arises of how many minutes the passengers must wait. If, on the other hand, the seizure terminates at the end of the traffic stop or as soon as the officer tells the passengers they are free to leave, then it follows that the passengers are also at liberty to go about their business if, at an even earlier stage, the passengers can reasonably draw that same inference about the focus of the officer’s investigation or show of authority. In this case, for example, defendant reasonably would have surmised that Deputy Brokenbrough was focused on the driver when the traffic stop was initiated. Because defendant knew he wаs free to ignore the police presence and go about his business at that stage, even if he was unable as a practical matter to leave the scene until the car came to a halt, he could not have been seized merely by the initiation of the traffic stop.
The dissent would find that passengers generally, and defendant in particular, are seized from the inception of every traffic stop, but the dissent’s reasoning is faulty. Although the dissent concedes that a passenger may not be the subject of the police investigation, at least in the initial phase of the traffic stop, it contends that a seizure nonetheless occurs because “the officer has the authority, as a matter of law, to
The dissent also asserts that the failure to deem a passenger automatically seized in every traffic stop will lead to anomalous consequences in that the driver, who has been seized, will be able to suppress the fruits of an unlawful seizure, but the passenger, who has not been seized, may not be able to obtain such relief. If this is an anomaly, it is hardly unique, inasmuch as the potential for unequal treatment has existed under similar circumstances ever since the high court abolished automatic standing. In Rakas v. Illinois, supra,
Thus, the Fourth Amendment does not concern itself with “treating] driver and passenger alike” in all circumstances (dis. opn., post, at p. 1127), nor does assuring equity between drivers and passengers justify expanding the reach of the exclusionary rule beyond what the Fourth Amendment requires. (See Alderman v. United States (1969)
We emphasize that passengers who are in vehicles subjected to unjustified traffic stops are not without constitutional protection. Once the vehicle has been stopped, the passenger may not be detained thereafter without reasonable suspicion the passenger is involved in criminal activity. (People v. Souza, supra, 9 Cal.4th at p. 230; cf. Maryland v. Wilson, supra,
We therefore hold that because the deputy effected a traffic stop of Simeroth’s vehicle without any indication that defendant, the vehicle’s passenger, was the subject of his investigation or show of authority, defendant was not seized when Simeroth submitted to the deputy’s show of authority and brought the vehicle to a stop. Because defendant claims only that the traffic stop itself constituted a seizure, we need not consider whether defendant was seized when Deputy Brokenbrough asked him to identify himself or whether, assuming such conduct constituted a seizure, it was justified by the deputy’s reasonable suspicion that he was a parolee at large.
Disposition
The judgment of the Court of Appeal is reversed.
George, C. J., Kennard, J., and Chin, J., concurred.
Notes
The United States Supreme Court has largely abandoned use of the word “standing” in its Fourth Amendment analysis. (See Minnesota v. Carter (1998)
State courts and the lower federal courts are divided as to the appropriate standard of review of a finding that a seizure has or has not occurred. Many courts hold that this is a question of law or a mixed question of law and fact subject to de novo review. (U.S. v. Smith (1st Cir. 2005)
Defendant concedes that, as a mere passenger, his Fourth Amendment rights were not violated by the search of his codefendant’s vehicle. (Rakas v. Illinois, supra, 439 U.S. at pp. 133, 148; accord, People v. Valdez, supra,
The dissent asserts that the requirement of submission “simply does not apply in these circumstances” (dis. opn., post, at p. 1125), but, as the high court has made clear, a seizure “requires either physical force ... or, where that is absent, submission to the assertion of authority. [][]... ‘There can be no arrest without either touching or submission.’ ” (Hodari D., supra, 499 U.S. at pp. 626-627.)
Moreover, the dissent’s analysis would effectively diminish protections for passengers. If, as the dissent contends, a traffic stop inflexibly results in a seizure of the passengers until the officer explicitly says otherwise, then any passenger who nonetheless tried to proceed on his or her way could be arrested under Penal Code sectiоn 148 (and then subjected to a search incident to the arrest) for resisting or delaying the officer in the performance of his or her duties. (See, e.g., In re Muhammed C. (2002)
Dissenting Opinion
I respectfully dissent. Passengers in a vehicle pulled over for a traffic stop are not free to leave, in either a practical or a constitutional sense. Certаinly no one can safely leave the vehicle before it stops. Once it has pulled over, the officer has the authority, as a matter of law, to order that the passengers remain inside (People v. Castellon (1999)
The precedents cited by the majority support this conclusion, or are distinguishable. Under the Mendenhall test, a person is detained if, under the circumstances, “a reasonable person would have believed that he was not free to leave.” (United States v. Mendenhall (1980)
The situation was quite different in Bostick. There, the defendant was a passenger sitting on a parked bus. When the officers boarded he was going nowhere. His freedom of movement was not curtailed by anything the officers said or did. (Florida v. Bostick, supra, 501 U.S. at pp. 431-432, 436.) Further, the Bostick court did not hold that there was no seizure. It simply rejected the state court’s conclusion that officers may not ask bus passengers for consent to search. (Id. at p. 437.) As
California v. Hodari D. (1991)
A passenger may not be the subject of a police investigation, at least in the initial phase of the traffic stop.
Vehicle passengers are in a different situation. They stop when the car stops. If the driver pulls over in response to an officer’s show of authority, the passengers’ freedom of movement is curtailed to the same extent as the driver’s. As the majority notes, “a police officer may as a matter of course order not just the driver to exit the vehicle during a traffic stop, but the passengers as well.” (Maj. opn., ante, at p. 1120; see Maryland v. Wilson, supra,
The Wilson court observed that “[o]n the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers.” (Maryland v. Wilson, supra, 519 U.S at p. 413.) The court decided the intrusion on passengers’ liberty is nevertheless justified, partly because “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle.” (Id. at pp. 413-414.) By stopping the vehicle, the officer has exerted authority over everyone in it. Because the liberty interest of passengers is stronger than that of drivers, they too should be afforded the protections of the Fourth Amendment.
To conclude that passengers are free to leave the scene until an officer actually exercises the authority granted by Wilson (maj. opn., ante, at p. 1122), overlooks the fact that the officer has already interfered with the passengers’ freedom of movement. It is not, as the majority suggests, the mere potential that an officer might order a passenger out of the car that results in a detention. It is also the prior actual application of the officer’s authority in pulling the vehicle over. The stop gives rise to the officer’s legitimate power under Wilson and Castellón to control the passengers’ movements without any particularized justification. That official control differentiates passengers detained during a traffic stop from other citizens who are only incidentally impeded by an exercise оf state authority. (See maj. opn., ante, at pp. 1120-1121.)
The majority’s approach leads to anomalous consequences. For example, when an officer pulls over a car, the driver and passengers may all be considered to be in constructive possession of contraband found in the vehicle. Under the majority’s rule, however, the driver would be protected by the Fourth Amendment but the passengers would not, even though the Supreme Court has described the passengers’ liberty interest as stronger than the driver’s. The majority also bars passengers from challenging the traffic stop if the officer arrests them before exerting any authority under Wilson, but would permit passengers to challenge the stop if the grounds for arrest were discovered after the officer gave directions controlling their movements. It is true, as the majority observes, that Fourth Amendment jurisprudence is not free of anomaly. (Maj. opn., ante, at p. 1122.) However, when given the opportunity, we should eschew incongruity. Surely consistency is preferable to anomaly.
The majority contends such a per se rule is inconsistent with Fourth Amendment jurisprudence requiring consideration of all the circumstances of the individual case in determing whether there has been a “seizure.” (Maj. opn., ante, at p. 1121, fn. 4.) However, the Wilson court made an express exception to the usual practice of avoiding bright-line rules in the Fourth Amendment context when it decided that passengers, like drivers, may routinely be ordered to leave the vehicle during a traffic stop. (Maryland v. Wilson, supra, 519 U.S at p. 413, fn. 1.) The per se rule of Wilson justifies the rule proposed here. Because, as a matter of law, passengers’ freedom of movement is subject to the control of the officer during a traffic stop, passengers should be permitted as a matter of law to challenge the legality of the stop. No conflict with the body of Fourth Amendment law arises from this commonsense approach. Further, the analysis takes into account the most relevant circumstance; the passengers’ freedom has been limited by the officer’s exercise of authority.
The majority expresses cоncern about unduly expanding the reach of the exclusionary rule. (Maj. opn., ante, at p. 1122.) However, no evidence discovered during the course of a legally justified traffic stop would be affected if we held that passengers are seized along with drivers. The majority acknowledges that most jurisdictions have accepted that rule, and the weight of authority on this point is indeed substantial. Eight of the federal circuit courts of appeal hold that passengers are detained during a traffic stop.
Werdegar, J., and Moreno, J., concurred.
Appellant’s petition for a rehearing was denied August 30, 2006. Werdegar, J., Moreno, J., and Corrigan, J., were of the opinion that the petition should be granted.
In some cases, of course, the officer initiates a traffic stop to investigate a passenger. (See, e.g., In re William J. (1985)
The majority reasons that if passengers are detained during a traffic stop for Fourth Amendmеnt purposes, they would be subject to prosecution for fleeing from a proper investigative detention (Pen. Code, § 148) if they attempt to leave the scene. (Maj. opn., ante, at p. 1121, fn. 4.) However, that liability would arise only after a passenger became the subject of the officer’s investigation. For this purpose, the rule proposed by the majority functions well. Penal Code section 148 would apply to passengers who flee in circumstances that would indicate they were the subject of the officer’s investigation.
While the United States Supreme Court has yet to address whether passengers may be ordered to remain in a vehicle during a traffic stop, the reasoning of the Castellón and Moorefield courts on this point is sound. The same considerations of officer safety that justify the rule authorizing the removal of passengers from a vehicle support allowing the officer to keep the passengers inside. (People v. Castellon, supra, 76 Cal.App.4th at pp. 1374—1375; U.S. v. Moorefield, supra,
I would disapprove Castellon, however, insofar as it held that passengers are not detained from the inception of a traffic stop. (People v. Castellon, supra, 76 Cal.App.4th at pp. 1373-1374.)
See U.S. v. Woodrum (1st Cir. 2000)
See State v. Gomez (2000)
See People v. Jackson (Colo. 2002)
The Delaware courts appear to acknowledge that the majority opinion’s view is technically correct, but nevertheless permit passengers to challenge the basis for a traffic stop. (Jarvis v. State (Del. 1991)
In State v. Affsprung, supra, 87 P.3d at pages 1092-1094, the New Mexico Court of Appeals assumed a passenger was not detained at the same time as a driver, and conducted a fact-specific analysis, without referring to an earlier New Mexico case holding that passengers may challenge the grounds for a traffic stop (State v. Creech, supra,