*1 S123133. June [No. 2006.] PEOPLE,
THE Plaintiff and Respondent, BRENDLIN,
BRUCE EDWARD Defendant and Appellant.
Cоunsel Court, and James F. Supreme under Elizabeth Campbell, appointment Johnson, for Defendant the Court of Appeal, under appointment Appellant. General, Medeiros, General, Manuel M. State Solicitor
Bill Lockyer, Attorney General, Graves, Anderson, Jo Attorney Mary Chief Assistant Robert R. McLean, General, A. Janet E. Michael -Neeley, John G. Attorney Assistant General, Zall, Plaintiff and Attorneys E. Canzoneri and Clifford Deputy Respondent.
Opinion BAXTER, J. officer directs driver of a vehicle to peace pull When but, over traffic no indication that the effecting stop, gives of the vehicle is the focus of the officer’s or show of investigation is the to a “seizure” authority, subjected within Fourth is a Amendment? This that has divided courts inside and question outside this We state. find whose momentarily passenger, progress matter, as a is not seized stopped practical as constitutional matter in absence of additional circumstances that would indicate to a reasonable that he she person was or peace officer’s investigation show of We therefore reverse the authority. Court of judgment Appeal, which (1) held that the was seized as result of automatically unlawful; determined that the traffic stop; evidence suppressed found in the methamphetamine manufacturing car and on defendant’s as fruit seizure. illegal
Background 27, 2001, Around 1:40 a.m. November Sutter County Sheriff’s Deputy Robert Charles Brokenbrough effected a Buick brown 1993 Regal with on Franklin registration tabs Avenue in expired Yuba City. Prior the stop, Deputy Brokenbrough confirmed the car’s through dispatch registration had expired two months earlier but that an “in application was process” renew registration. Although Deputy Brokenbrough observed that a with temporary operating permit the number “11” (indicating *5 window, date at the of expiration November) end had to the rear taped he could not determine from his vantage whether matched point permit the vehicle and decided to the Buick to further. investigate
Deputy Brokenbrough driver’s side of the Buick and approached asked driver, Simeroth, defendant, Karen for her driver’s license. He also asked himself, to passenger, identify since he as one recognized defendant brothers, Bruce, Brendlin Scott or and recalled one of them had absconded from parole supervision. During inquiry, Deputy Brokenbrough observed in the car receptacles containing substances used in the of metham- production In phetamine. response defendant identified deputy’s inquiry, falsely himself as Bruce Brown. The returned to his and deputy verified patrol that Bruce Brendlin was a and parolee large had an no-bail outstanding warrant for his arrest. this During defendant and period, then closed opened door of the Buick.
After requesting his backup, Deputy Brokenbrough pointed weapon defendant, car, ordered him out of the and him undеr arrest for the placed time Brokenbrough The entire from the Deputy violation. episode, parole had an to his that defendant discovery for her driver’s license asked Simeroth warrant, a lasted of minutes. outstanding couple a search an on defendant’s orange syringe
Police found cap (one needles of which was found two They hypodermic incident arrest. grams a total 12.43 baggies containing two syringe missing cap), on 0.46 grams methamphetamine and baggie containing marijuana, to her search incident and person during patsearch subsequent Simeroth’s were found in in manufacturing methamphetamine arrest. Materials used backseat the Buick. held defendant’s motion to suppress, superior
After a hearing of the Fourth had not been seized within that defendant of the car at ordered him out Brokenbrough Amendment until Deputy he had “He was free to leave. And if him under arrest: gunpoint placed hike, have taken a then this officer would the door and out and got opened cause to detain he less than something had to decide whether had probable him, he detained because he would have been detained. But wasn’t and then to if he wanted to.” The court right he but he had a anywhere; never went if had been seized at earlier point, determined next that even defendant unlawful, defendant, lawful; as a even if the had been seized from the Buick. items standing1 lacked suppress passenger, guilty of motion to defendant Following suppress, pleaded the denial his 11379.6, Code, (a)) (Health subd. & Saf. manufacturing methamphetamine § Code, 667.5, (Pen. term enhancement prison § and admitted prior four (b)). prison. subd. He was sentenced to years It that a traffic in a held opinion. The Court of reversed Appeal published hence, a v. Glaser (and, (People in a detention seizure results stop necessarily 729])) of both the 902 P.2d (1995) 11 Cal.4th Cal.Rptr.2d People analysis holdings driver and the passengers, rejeсting 204]; Cal.Rptr.2d 1373-1374 Castellon Cal.App.4th 1367-1369 Cartwright People Cal.App.4th 343-344 Fisher Cal.App.4th *6 1 “standing” in use of the word its largely Court has abandoned Supreme The United States 83, Carter (See (1998) Minnesota v. analysis. [142 87-88 Fourth Amendment 373, 469].) altering inquiry: whether so the nature of S.Ct. “It did without 119 defendant, else, expectation privacy place in the had reasonable rather than someone a 225,254, Ayala (2000) (People Cal.Rptr.2d 3 23 Cal.4th fn. [96 seized.” v. searched or items 682, longer analyze high and no this 3].) court’s formulation We have embraced the 1 P.3d 73, 121, (Ibid.; (2004) fn. 24 People v. 32 Cal.4th standing. Valdez issue as one of substantive 271, 296].) 82 Cal.Rptr.3d P.3d [8
1113 The Court of further that the was Cal.Rptr.2d found Appeal 57]. unlawful in that who knew that vehicle’s Deputy Brokenbrough, applica- tion to renew its had who seen registration process temporary window, in the rear “at “the had most hunch” that permit temporary and, to in the window the car operating permit might belong displayed thus, it was being as vehicle.” The court unlawfully operated unregistered rulеd that the evidence seized from well defendant as as from the Buick should have been suppressed. review, defendant, (1)
We granted limited to whether in a as passenger to a traffic subjected was seized within the of the Fourth Amendment; and (2) whether that a reasonable exists car is suspicion when it unregistered exhibits an tab on expired registration its license plate but what to be valid rear displays appears in its temporary operating permit window.
Discussion
“In
on a
ruling
motion to
the trial
court must find
historical
suppress,
facts,
law,
select the rule of
to the
it
facts
order to
apply
determine
whether the law as
has been
applied
(2000)
violated.
v.
24
(People Ayala
243,
532,
Cal.4th
279
6 P.3d
We
Cal.Rptr.2d
review
court’s
[99
resolution of the factual
under the deferential
inquiry
substantial evidence
standard. The
on whether the
ruling
law
is a
applicable
facts
applies
mixed
of law and
question
fact
subject
(Ibid.)”
review.
independent
494,
v.
(People
(2004)
575,
Ramos
34 Cаl.4th
505
101 P.3d
[21
478].)2 In
whether the
evaluating
fruits of
search or seizure should have
we consider
suppressed,
only
Fourth Amendment’s
prohibition
2 State courts and the lower federal courts are divided
the appropriate
as to
standard of
finding
review of a
that a seizure
or has
Many
not occurred.
courts hold that this
(U.S.
question
question
of law
a mixed
Smith
subject
of law and fact
de
novo review.
v.
(1st
25, 31,
2005)
4;
Cir.
id.
(dis.
J.)
F.3d
fn.
at p.
opn.
Lynch,
36 & fn.
[citing
cases
Second,
Sixth,
Third,
Tenth,
Eighth,
Circuits];
from
LaDuke
and District of Columbia
v.
(9th
1318,1327;
Nelson
1985)
accord,
Cir.
State v. Kachanian (Ct.App.
1995)
762 F.2d
78 Haw.
931, 938];
(Minn.
90,
State v. Harris
1999)
98;
P.2d
State v. Jason L.
[896
590 N.W.2d
(2000)
856, 863];
v.
(Utah
1991)
2000 NMSC 18
N.M.
2 P.3d
State Carter
Ct.App.
[129
3;
fn. McGee v.
(1997)
812 P.2d
Com.
State Va.App.
S.E.2d
108, 111];
Thorn
State
unreasonable searches and 759, 476].) of a motion 117 P.3d “The proponent 1141 Amendment of that his own Fourth establishing has burden suppress (Rakas v. Illinois search or seizure.” challenged were violated rights 128, 131, 387, 1 U.S. L.Ed.2d 99 S.Ct. 439 here, noticed that the Brokenbrough Prior to vehicle Deputy However, also he expired. tabs on the Buick’s license were plate registration window and car’s rear temporary operating observed a current permit for renewal of application had received radio confirmation an vehicle with Conceding vehicle’s was indeed registration process. “[a] would be to have for renewal of registration expected application expired longer argues General no Attorney temporary operating permit,” had articulable Buick’s Brokenbrough registration suspicion Deputy has no entitle- General instead that defendant argues invalid. The Attorney because uncovered the traffic ment to the evidence suppression he, of the Fourth meaning as a was not seized within passenger, out the car at ordered him Brokenbrough Amendment until Deputy warrant, which outstanding and arrested him under the no-bail gunpoint hand, Defendant, argues on the other lawful cause for seizure. provided of official the driver submitted to show that he was seized at moment car, of the discovery the deputy’s which authority preceded stopped warrant.3 outstanding
It that the driver of vehicle that is the is well settled (Whren v. of the Fourth Amendment. is seized within 89, S.Ct. 116 United States 809-810 [135 however, Court, 1769].) Neither court nor the United States Supreme this the show of results decided whether driver’s submission yet courts, A several federal including in seizure of the passenger. majority courts, se rule that the have embraced a per circuit courts and some state the official show at moment the driver submits to is seized 1095; 2000) v. (9th 222 F.3d Twilley v. Cir. authority. (E.g., U.S. 1163-1164; U.S. v. Kimball (10th 1995) Cir. 70 F.3d Eylicio-Montoya 5;1, F.3d (1st 1994) (5th 1993) Cir. 6 Cir. U.S. v. Roberson F.3d 1190, 1195; 1091; (7th 1991) F.2d State v. U.S. v. Cir. Powell Hernandez 833, 836; 1998) v. Bunch 207 Ill.2d 718 So.2d People (Fla.Dist.Ct.App. 1024, 1029]; (Iowa N.E.2d State Eis Ill.Dec. 224, 226; (1994) Ohio St.3d 57 Ohio State Carter N.W.2d that, rights were passenger, his Fourth Amendment Defendant concedes as mere Illinois, (Rakas U.S. at search of his codefendant’s vehicle. violated Valdez, accord, He instead that Cal.4th at claims required it was the fruit incriminating found in the car is because evidence suppression his person. an unlawful seizure of
1115 355, 360]; 831, 1998) State Josey 630 N.E.2d v. 981 S.W.2d (Tex.Crim.App. 837-838; Pave, 11.3(e), see 6 La Search Seizure ed. (4th 2004) also § 194-195, courts, cases].) fn. 277 Other that [citing reasoning passen- a ger to a traffic investigation stopped practical but not virtue by show official hold purposes authority, is not seized for Fourth Amendment People v. purposes. (E.g., (Colo. 1174, 1184-1186; (1999) Jackson 39 P.3d State v. 137 Mendez Fave, 722, 729]; Seizure, Wn.2d 208 P.2d 6 see also La Search and [970 193, 11.3(e), cases].) 272 p. [citing § This division of authority is reflected in courts of our own Some state. agree courts with defendant interference with the free passenger’s dom of movement occasioned the traffic by constitutes seizure. 754, (1996) v.Bell (People 115]; 43 765 v. Cal.App.4th Cal.Rptr.2d People [51 498, (1990) Hunt 225 505 v. Cal.App.3d Grant Cal.Rptr. People [275 1451, (1990) 217 587].) 1457-1458 Other courts Cal.App.3d Cal.Rptr. [266 with the agree Attorney General the driver must submit to the although instructions, officer’s is free disregard go business, about his or her and that the incidental restriction of the passenger’s Castellon, freedom of movement is therefore a seizure. v. (People 1374; 76 v. Cal.App.4th People 72 Cartwright, supra, Cal.App.4th Fisher, 1369 v. (Cartwright); People supra, 38 Cal.App.4th 381, (1992) 7 384 Cal.App.4th Gonzalez [8 At the heart of this debate lies the definition of a seizure in the Fourth Amendment’s prohibition “unreasonable searches seizures.” Justice 544, Stewart’s in United opinion (1980) States v. Mendenhall 446 U.S. 554 497, 1870], L.Ed.2d 100 S.Ct. which has [64 the court in adopted by 567, subsequent (e.g., (1988) cases Michigan Chesternut 1975]), L.Ed.2d 108 S.Ct. that “a states has been ‘seized’ person if, within the of the Fourth Amendment all only view of incident, circumstances surrounding reаsonable would have believed that he (Fn. omitted.) was not free to leave.” The high made clear that this test subsequently necessary, “states but not a sufficient, condition for seizure.” (California Hodari D. U.S. is, (Hodari L.Ed.2d D.).) 111 S.Ct. That there must also be 1547] an actual into whether taking custody, force or application physical (Id. submission to the assertion of authority. court has also cautioned undue against an focus on the fact that action caused government “ some restriction on individual’s ‘a freedom of movement: Fourth Amendment seizure does not occur whenever there is a govemmentally , caused of an termination individual’s freedom movement . . . nor even there whenever caused and govemmentally desired govemmentally , termination of an individual’s freedom of movement . . . only but when there is governmental termination of freedom of through movement means ” U.S. Sacramento Lewis intentionally applied.’ (County of v. County Inyo Brower 1708], L.Ed.2d S.Ct. quoting 1378].) Finally, S.Ct. 596-597 *9 to leave the not feel free the court has reminded us that where individual a on a bus of the conduct—such as for reasons independent police “whether, is taking that is scheduled to depart shortly—the proper inquiry encounter, the all the surrounding police into account of the circumstances was at to a reasonable that he conduct would ‘have communicated person ” (Florida v. and about his business.’ the liberty ignore presence go accord, 429, 389, 111 S.Ct. Bostick (1991) 501 U.S. L.Ed.2d 85, 667, 93 P.3d v. Celis (2004) 33 Cal.4th then, little on the is that defendant focuses so attention It passing strange, the (like Court below and Appeal definition of a seizure. Defendant the of that view) the instead advances an argument other cases embracing majority (1) from United States Court rests on two other foundations: dicta Supreme decisions; freedom of movement fact that a traffic curtails the the stop the as the driver. as well not decided whether a that the court has high defendant сoncedes
Although he that virtue of a traffic asserts dicta is seized necessarily Delaware that has hinted” in direction. In from the court high “strongly 648, 660, 1391], for Prouse L.Ed.2d 99 S.Ct. 440 U.S. 653 [59 its that an automobile and “stopping detaining court observed example, Amend a ‘seizure’ within the meaning constitute occupants [the Fourth] ment[], resulting is limited and the even though stop purpose McCarty Berkemer v. (See (1984) 468 U.S. detention brief.” also quite Prouse.) In Colorado 3138], 436-437 L.Ed.2d 104 S.Ct. quoting 42], 1, 4, 101 S.Ct. Bannister U.S. footnote 3 of vehicle stopping can be no court reiterated that question “[t]here within the meaning its constitute a ‘seizure’ occupants detention of here, Amendment,” Prouse. There is debate though, no the Fourth citing issue, rather, is who (or what) a traffic results in a seizure. whether as Bannister and Berkemer involved the driver of has been seized. Inasmuch Berkemer, (Bannister, supra, U.S. the vehicle supra, court, Prouse, state 423) of the supreme according opinion (Prouse, 440 U.S. of the vehicle involved the owner аnd “operator” the status of illuminating 1), none of these cases particularly mere passenger. view, Defendant, also relies on the like courts embracing majority “a McCarty, in Berkemer v. page observation of the driver and the ‘freedom of action’ curtails the significantly if detained vehicle.” It is passengers, any, recognize, important however, that Berkemer’s whether observation made in context of motorist detained to a custody was in pursuant purposes (468 Amendment. U.S. at Whether is in person custody Fifth Fifth Amendment distinct from whether purposes inquiry (U.S. seized has been within of the Fourth Amendment. Sullivan (4th 1998) Cir. 138 F.3d ‘custody’ implicates [“The Miranda rule is from distinct a seizure Fourth conceptually implicating U.S. v. Smith Amendment”]; (7th Cir. determi- 3 F.3d 1097 [the nation of under Fifth “a custody Amendment different requires completely Indeed, from Amendment].) that under the Fourth analysis” as the high “ ‘a emphasized, govemmentally caused termination of an individual’s ” *10 freedom of movement’ does not establish that a seizure under necessarily Lewis, the Fourth Amendment has occurred. (County Sacramento v. supra, of 523 at 844.) U.S. A p. detention of an police orderly a wheelchair- pushing bound individual or a detention of a parent child in a stroller pushing well curtail the the incidentally freedom action of who are also, The dependent those adults. detention of the or will orderly to parent post, use the dissent’s (dis. phrasing, “interrupt journey” opn., [the] 1124) of the wheelchair or it p. the stroller. But is absurd to that say either been thereby has seized within the the Fourth passenger Amendment.
The cases the embracing view also assert that majority principled “[n]o basis exists for between the distinguishing rights of privacy in a drivers vehicle. the moving When are is stopped they equally Eis, (State seized; supra, v. their freedom movement is affected.” equally Bell, v. People supra, 348 N.W.2d at see also 43 p. Cal.App.4th 763.) In p. the reality, though, is not to the passenger subject same restraints as the driver. The is driver to remain at the scene until obliged the completion too, of the officer’s investigation. but only stopped “[T]he Jackson, supra, (People v. coincidentally.” P.3d at further p. 39 Absent (see Maryland v. Wilson direction from the officer the effecting 408, 882]) U.S. 410 L.Ed.2d 117 S.Ct. or some indication that is the the officer’s or show of investigation authority, free his or ignore about her police presence go business. wait Alternatively, passenger may choose to until the investiga- case, tion of driver is In either “it is this of choice completed. element driver’s, that distinguishes circumstance from the for the passenger’s (Jackson, supra, driver seized and is not go.” therefore free to 1185.) The fact p. that defendant’s freedom of momentarily movement was curtailed thus was does determine whether he seized. To answer that we must return to the court’s definition of a question high “seizure.” force application occurs when the police, by physical
A seizure Ohio (Terry v. liberty or show of seek restrain authority, person’s 1868]; County L.Ed.2d 88 S.Ct. 392 U.S. Lewis, 844); conduct commu U.S. at the supra, p. Sacramento is not free to decline innocent that the person nicates to a reasonable person Bostick, (Florida v. otherwise terminate the encounter the officer’s or request 436); actually authority U.S. at and the submits supra, D., “independent” for reasons not (Hodari 499 U.S. at supra, Bostick, 436). (Florida v. 501 U.S. at of authority official show is some test circumstances of this to particular Admittedly, application Chesternut, (See art Michigan times more an than a science. court has high “is As necessarily test imprecise”].) 573 [the are in the Fourth “for the most se rules part per inappropriate
emphasized, consideration of ‘all necessitates a Amendment context. inquiry proper ” (United Drayton encounter.’ States surrounding circumstances accord, 122 S.Ct. 569, 885 P.2d (1994) Cal.4th Souza he, case, passenger, this has not shown as In defendant he submitted it. actually show of subject of deputy’s driver, at the Karen were directed lights Deputy Brokenbrough’s flashing Indeed, Simeroth, indicate that the record does not and not at defendant. *11 the vehicle was in the car to prior was even aware defendant Brokenbrough the side the driver’s Once the car came to deputy approached stop, him, vehicle, exit, at brandishing defendant’s blocking weapon the without circumstances, him. In these movements towards any intimidating or making of the or investigation that defendant was the say subject deputy’s one cannot out the vehicle. the the ordered him of show of to time authority deputy prior at 203-204 seizure (See States Drayton, supra, pp. United [no boarded the bus and began questioning passengers].) occurred when officers Rather, to in transit is over causing officer pull “[a]n Jackson, supra, of the driver.” (People conducting investigatory stop and control is added.) authority P.3d at italics disрlay p. “[T]he (Id. driver, 1185.) we are all the at “While p. directed not at passenger.” seeing police a driver feeling experiences upon familiar with sinking mirror, we when are of us sense doom impending in the rearview few lights 1374-1375; (Cartwright, supra, Cal.App.4th in the seat.” passenger concedes, Jackson, Thus, 1185.) as dissent supra, p. see also at least investigation, of a not be the may police passenger “[a] 1125.) (Dis. post, opn., initial phase stop.” defendant, to submit to had no passenger, ability as More importantly, noted, the Cartwright passenger show of As authority. the deputy’s (Cartwright, “is not a in the but an observer.” participant 1375.) is the the one the officer is only seeking Not driver Cal.App.4th who, restrain, car, the driver one can only by but submit stopping to the be may officer’s assertion of The passenger authority. asleep otherwise may disagree unaware the officer’s The with presence. passenger the driver’s decision to to the even submit оfficer’s and object but to no effect. “The no in the say vociferously, passenger simply (Id. matter.” at p. sure,
To be must in cases remain in the car until it most passenger out) (as and to extent the dissent freedom is stops, points passenger’s critical, curtailed. But it is Fourth of the Amendment purposes analysis, why determine freedom curtailed. Although defendant passenger’s out “it is not points to avoid simply possible passenger being circumstances, under literally detained these however momen physically because, circumstances, is so tarily,” this under the vast majority it is unsafe also, for the to exit a vehicle. The will moving cases, most to await the the traffic prefer completion of continue en factor, however, route in the of the driver. Neither company means that the passenger has seized within the Fourth Amendment. Bostick, (Florida v. 501 U.S. at freedom of [“Bostick’s conduct—i.e., movement was restricted a factor by independent police by generally United States v. Drayton, his bus”]; being on a see supra, 536 U.S. at arrest of one person does mean that [“The everyone around him has been seized “liberty” contem police”].) seizure—i.e., “when, plated high court’s definition of a into ‘taking encounter, account all of the circumstances surrounding conduct would “have communicated to a reasonable that he was not at ’ ” liberty (Kaupp ignore about his police presence go business” Texas 1843], 123 S.Ct. italics physical capacity added)—refers not to whether the individual has the *12 whether, leave the but scene the the individual had assuming physical so, to do he or she feel capacity would free to or otherwise to conduct depart Bostick, his or her affairs as the though police (See were not present. 501 U.S. at “Bostick’s movements were . . ‘confined’ . says [that whether the nothing about or not at was police coercive”].) conduct issue all, After an individual manifest an with may unwillingness engage the area, not police only by the but and departing by also staying declining put answer or otherwise a seizure questions ignoring inquiries. Similarly, police can occur even the individual has the to leave the though physical capacity scene.
Neither defendant the nor dissent ever the same explains why analysis moving should not to the detention of a vehicle a containing driver and apply parked and the of passenger detention a a containing driver and matter, a or the detention of a with motorcycle bicycle passenger—or, (Cf. States U.S. Drayton, supra, a driver and United passenger. not a bus than on the street “does on the encounter took rather place [that citizens into an questioning illegal its own transform standard of police rules long from the and as as the of seizure”].) Absent some directive police, do is free to what driver obeyed, passenger the road are otherwise cannot—i.e., from the and motorcycle bicycle exit the vehicle or dismount (Cf. (8th encounter with the officer. U.S. Slater Cir. thereby terminate the while took field 2005) 411 F.3d was not seized driver [passenger case, tests].) his awareness In this defendant indicated example, sobriety and door. of the available then by closing, options opening, The a because the stopped distinction between whose progress who is himself or herself seized is consistent driver is seized and a passenger Wilson, Maryland with the court’s high analysis as a matter of addressed issue whether a officer which the separate a but the course the driver to exit the vehicle just order in officer light as well. The court found that of interest high passengers not an unreasonable out of the vehicle was safety, ordering seizure, could be held for the but declined to decide whether the passenger (Id. did, however, of The high entire duration one between driver acknowledge passengers: distinction important cause to the driver has committed minor “There is believe that probable offense, there is no such reason to or detain the passengers. vehicular but stop matter, of are virtue But as a practical already stopped by 413-414, added.) (Id. at italics Justice Stevens’s of the vehicle.” stop distinction between with agreed majority’s implied dissenting opinion seized as constitutional being as a matter and being practical stopped by on a freedom movement occasioned passenger’s matter: intrusion of the lawful detention the traffic “was a necessary by-product the car seized at the time yet driver. But the had not over, or other than caused construction jam by more any pulled individual constitutes a not directed state-imposed delay particular Stevens, (Id. (dis. J.).) seizure of that person.” opn. the Court by defendant endorsed by Appeal rule proposed hеre, occurs whenever the defendant’s freedom
the dissent in which seizure act making “is curtailed officer’s of movement significantly car,” a seizure in these circumstances state- driver would find Indeed, would even those encompass rule delay. imposed proposed who, virtue of the the traffic the vehicle motorists following *13 detention, even come to halt forced to slow down and perhaps are original It authority. accommodate to police that vehicle’s submission in order to motorists, interrupted whose journey would be inaccurate to that these say not submit actually but who do virtue of the traffic of another vehicle by to the are the of authority, show of seized within the Fourth police defendant, Amendment. The same is true of a such as who likewise passenger suffers a curtailment of his freedom but not submit to the show actually does of police authority.4
Defendant’s rule would the also make deter- propоsed unduly problematic mination of when a seizure has ended. He asserts “[w]hether whether, remains detained thereafter the under circum- depend upon stances, a reasonable would free to leave while the officer feel deals with the driver.” But does the officer very rarely affirmatively express (or thereof) interest lack in investigative the of a detained vehicle. passengers circumstances, concedes, interest in officer’s such as defendant is with that, the driver. This under suggests defendant’s the seizure approach, alleged accord, of a must terminate of its own either the of time passage or officer’s focus on the driver. If the seizure terminates simply by time, passage then the arises of how minutes question many passengers If, hand, must wait. on the other seizure at end terminates of the traffic or leave, as soon as the officer tells the are free to it they then passengers are also if, follows that the рassengers about their liberty go business an even earlier stage, the can reasonably draw that same inference about the focus of the officer’s or show investigation In this authority. case, for example, defendant would have reasonably surmised Deputy was focused Brokenbrough driver when the traffic was initiated. Because defendant knew he was free to ignore police presence go about his business at that even if he was unable stage, as a matter practical halt, leave the scene until the came car to a he could have been seized merely by initiation of the traffic stop. 4 The dissent asserts that requirement “simply apply submission does not in these opn., post, (dis. 1125), but, clear, high circumstances” as the made a seizure or, absent, either force ... “requires physical where that is submission to the assertion ” D., (Hodari authority. ‘There can touching be no arrest without or [][]... either submission.’ 626-627.) Moreover, If, analysis the dissent’s would effectively protections passengers. diminish as contends, the dissent stop inflexibly in a seizure results until otherwise, officer explicitly says any passenger proceed then who nonetheless or tried on his way (and her could be arrested subjected under Penal Code section 148 then to a search arrest) incident resisting delaying to the in performance the officer of his or her (See, In re C. Muhammed e.g., duties. Cal.App.4th Cal.Rptr.2d 1329 [116 Quiroga Cal.App.4th We it think more officer, established, up sensible to it leave to the once vehicle stop cause for the has been And, decide high who should be seized and when. light “clear court’s direction that any assessment as to implicating whether conduct amounts to a seizure the Fourth ‘ ’ take surrounding Amendment must into account “all of the circumstances incident” Chesternut, (Michigan 572), each individual case” 486 U.S. at it is also more appropriate totality determining to examine before circumstаnces whether has been seized a traffic
1122 in that and defendant passengers generally, particu-
The dissent would find
lar,
but the dissent’s
every
stop,
are seized from the
of
traffic
inception
that a
not
may
the dissent concedes
reasoning
faulty. Although
passenger
is
at least in the initial
phase
be the
of the police investigation,
“the
a seizure
occurs because
officer
it contends that
nonetheless
law,
...
as a
of
to order
out
matter
that
authority,
get
has
(Dis.
italics
once the vehicle
over.
pulls
opn., post,
of
vehicle”
is
added.)
not
has such
which
authority,
recognized
We do
doubt
officer
Wilson,
410, nor
we
519
do
Maryland
in
U.S.
supra,
page
explicitly
invokes that
actually
is seized once the officer
dispute
But the dissent offers no
authority
order the
out
the car.
to
of
might
that the mere
an officer
potential
its critical
authority
assumption
itself constitutes
seizure.
invoke such
automatically
that the failure to deem а passenger
The dissent also asserts
in
in
will
to anomalous
seized
lead
every
consequences
seized,
driver,
will
the fruits of an unlawful
has been
be able
suppress
who
seized,
seizure,
be able
obtain
but the
who has not
not
passenger,
this is an
it is
inasmuch as
unique,
such relief. If
anomaly,
hardly
circumstances ever
treatment has existed under similar
for unequal
potential
Illinois,
In Rakas v.
standing.
supra,
since the
court abolished automatic
high
court held that mere
U.S.
high
passengers—unlike
439
example,
legitimate
or
vehicle—had no
expectation
privacy
drivers
owners
accord,
(Id.
148-149;
a vehicle search.
People
violated
Valdez,
122.) The
remarked that a
high
32 Cal.4th at
also
supra,
(Rakas,
be
a house search
challenge
casual visitor would
unable
similarly
142; accord,
202-203
People Ooley
supra, at p.
Cal.App.3d
Ayala,
see also
Cal.4th
Cal.Rptr.
premises]),
or
has no
business
guest
expectation
privacy
social
[invitee
do
wоuld be able to
so.
the owner
other residents
although
Thus,
does not concern itself with “treating]
the Fourth Amendment
1127),
(dis.
all
at p.
circumstances
opn., post,
driver
alike”
between drivers and
assuring
passengers justify expanding
nor does
equity
rule
what the Fourth Amendment
exclusionary
beyond
the reach of the
v. United States
(See Alderman
requires.
is no
to exclude evidence
necessity
against cost for the rule it exacts substantial social exclusionary applied Amendment Relevant and reliable evidence of Fourth rights. vindication ” re (In trial and the for truth at is deflected.’ from the trier fact search kept 744], P.2d Cal.Rptr. Lance W. Cal.3d 882 [210 Illinois, “the Accordingly, U.S. at Rakas v. quoting its require application rule does exclusionary deterrent purpose *15 when unlawfully seized evidence is offered a defendant whose own against W, (Lance rights have not been the unlawful seizure.” compromisеd are We who in vehicles emphasize passengers subjected unjustified traffic are without Once the constitutional stops protection. vehicle the not be detained thereafter passenger may stopped, without reasonable is involved in criminal suspicion activity. Souza, Wilson, (People supra, Maryland Cal.4th at cf. 519 U.S. at order the of a [police may driver passengers “lawfully Furthermore, vehicle].) to exit car neither stopped” nor the passenger’s in the vehicle be searched without belongings lawfully (New York v. Belton cause to arrest acquired (1981) an 453 U.S. justify 2860]) L.Ed.2d Houghton S.Ct. or a search (Wyoming 526 U.S. 1297]). L.Ed.2d A 119 S.Ct. a car subjected unjustified also be able to stop may civil suit prosecute County against (See under the rubric of due substantive process. Lewis, Sacramento v. 844—845.) U.S. at is thus There no need to torture the definition of a seizure to protect security passengers.
We therefore hold that because the a traffic deputy effеcted defendant, Simeroth’s vehicle without any indication that the vehicle’s pas senger, was of his or investigation show of defendant authority, was not seized when Simeroth submitted show of deputy’s authority brought vehicle to a defendant Because claims that the only seizure, itself constituted we need not whether consider defend ant was seized when asked him to Deputy Brokenbrough himself or identify whether, seizure, assuming such conduct constituted a it was justified by deputy’s reasonable that he suspicion was a at large. parolee
Disposition The judgment the Court of is reversed. Appeal J., Kennard, J., Chin, J., C. George, concurred.
CORRIGAN, J., dissent. in a Dissenting. vehicle I respectfully Passengers leave, over for a traffic are not pulled free to in either a or practical constitutional sense. no Certainly one can leave the vehicle before it safely over, law, Once it has stops. pulled officer has as matter of authority, to order v. Castellоn remain (People inside 204]), 1374—1375 or Cal.App.4th out get (Maryland v. Wilson 117 S.Ct. 882]). This based on the need to soundly officer’s protect however, is the passengers, One of its safety. necessary consequences, freedom are of further deprived been forced their having interrupt journey, thus have been detained and movement. Accordingly, for Fourth Amendment purposes. “seized” conclusion, are this cited precedents majority support if, test, is detained under Under the Mendenhall
distinguishable. circumstances, that he was not free “a would have believed reasonable person *16 (United (1980) 446 U.S. L.Ed.2d leave.” States v. Mendenhall to a effects 1870].) officer a stop, 100 S.Ct. When a police the intentional act by has been restrained freedom of movement passenger’s (1998) 523 U.S. (County v. Lewis agent. of a Sacramento government 1708].) is detained for 118 S.Ct. L.Ed.2d (Florida Bostick conduct.” reason is not police “independent Indeed, U.S. L.Ed.2d S.Ct. passen- is because precisely freedom of movement abruptly interrupted ger’s officer’s conduct. There, in Bostick. the defendant was
The situation was different quite he on a When the officers boarded was going bus. sitting parked not curtailed officers by anything nowhere. His freedom of movement was Bostick, 431-432, 436.) U.S. at (Florida or did. pp. said Further, no It not was seizure. simply the Bostick court did hold there not ask bus may passengers court’s conclusion that officers state rejected (Id. out Justice 437.) consent to search. As O’Connor p. pointed have would allowed Fourth Amendment jurisprudence well-settled majority, terminal, to in the for his consent search the officers to ask Bostick street, 434.) to The mere fact consent (501 or in an airport. not on a bus was sought dispositive. search parked 690, 111 S.Ct. U.S. 621 v. Hodari D. California for a required does hold that submission to governmental 1547] aon standing other men were young detention to take Hodari and place. as he ran drove Hodari discarded cоntraband and fled when police by. street the evidence on ground an The Court of Appeal suppressed from officer. (Id. at toward him. running when he the officer that Hodari was detained saw reversed, that when ruling Court 622-623.) The United States Supreme (Id. no seizure occurs. of authority, does not show yield suspect However, D. the Hodari 626.) not the same as submission. Flight clearly of passengers like situation anything had no occasion to consider court during
A not passenger may be the of a at least in the police investigation, initial of the traffic phase are detained for a different stop.1 Passengers equally important purpose: ensure the of the officer. The actual safety Hodari D. submission discussed requirement does not simply circumstances, in these apply which distinct present entirely practical legal considerations.2 Individuals on the street submit officer’s authority stopping remaining to the officer’s An place responsе directions. individual who sees a and runs policeman away demonstrably submitted to police authority.
Vehicle
are in a
passengers
different
situation.
when the car
They stop
If the
stops.
driver
over in
to an
pulls
officer’s show of
response
authority,
passengers’
freedom of movement
is curtailed to the same extent as the
notes,
driver’s. As the majority
“a
officer
as a matter
may
of course
order not just
the driver
to exit
the vehicle
a traffic
but
ante,
Wilson,
as
Maryland
well.” (Maj.
opn.,
see
519 U.S. at
The officer
also order the
stay
Castellon,
in the car. (People
*17
supra,
1374-1375;
Cal.App.4th
pp.
U.S. v.
(3rd
1997)
rule,
Cir.
12-13.)3
111 F.3d
This
se
per
Moorefield
based on the need to ensure officer safety,
no
requires
showing
reasonable
Wilson,
(Maryland v.
supra,
suspicion.
U.S at
412.)
Driver
p.
alike
are
to the
“subjected
demands
and control of the police
(U.S.
v.
Kimball
officer”
the
during
(1st
1994)
Cir.
5.)
25 F.3d
cases,
course,
In some
the officer
(See,
initiates a traffic stop
invеstigate passenger.
a
e.g.,
In re
cases,
WilliamJ.
171 Cal.App.3d
Cal.Rptr.
77 [217
In those
the
vehicle’s occupants
Nevertheless,
will often be unaware of the reason
the stop.
the rule
adopted in the majority opinion requires
suspect
the
to realize that he or she is the focus of the
investigation
officer’s
for the Fourth Amendment to apply.
majority
reasons
passengers
that if
during
are detained
stop
a traffic
for Fourth
Amendment purposes, they
subject
would be
prosecution
fleeing
from a proper
Code,
investigative
(Pen.
detention
ante,
they
if
attempt
(Maj.
§
to leave the scene.
opn.,
However,
4.)
p.at
liability
that
would
only
arise
after a passenger
subject
became the
of the
investigation.
officer’s
purpose,
For this
proposed by
the rule
majority
functions
well. Penal Code section
apply
148 would
to passengers who flee in circumstances that would
they
indicate
were
investigation.
the officer’s
3 While the United
Supreme
States
yet
Court has
passengers may
address whether
be
ordered to
during
remain in a vehicle
a
reasoning
traffic
of the Castellón and
courts
point
on this
is sound. The same
safety
justify
considerations of officer
Moorefield
authorizing
the rule
passengers
removal of
support allowing
from a vehicle
the officer to
Castellon,
keep
passengers
(People
1374—1375;
inside.
supra,
Cal.App.4th
at pp.
Moorefield, supra,
U.S. v.
111 F.3d at
see also State v. Shearin
N.C.App.
cases];
Wilson,
S.E.2d
[citing
Maryland
cf.
supra,
377-378]
519 U.S at
A
rule permitting passengers to leave the vehicle and wander around outside the officer’s field of
during
vision
would
dangerous
be a
one indeed.
Castellon, however,
I would disapprove
insofar as it held that passengers are not detained
Castellon,
from the inception of a traffic stop. (People
To conclude ante, Wilson (maj. opn., authority granted exercises actually with the interfered that the officer has 1122), already overlooks fact not, suggests, It is as the majority of movement. freedom passengers’ car that out of the order might that an officer mere potential officer’s also the actual application in a detention. It is prior results the officer’s rise to gives over. The stop pulling Castellón control under Wilson passengers’ legitimate power official control That any justification. movements without particularized citizens who from other detained differentiates passengers (See maj. authority. an exercise of state incidentally are only impeded ante, 1120-1121.) at pp. opn., For example, leads to anomalous consequences.
The majority’s approach car, all be the driver when an officer over pulls *18 found in of contraband be constructive considered to possession however, rule, by would be protected the driver Under the majority’s vehicle. not, though even would Amendment but passengers the Fourth than as stronger interest liberty described the passengers’ Court has Supreme the traffic challenging bars from The also majority passengers the driver’s. Wilson, under but authority before exerting any if the officer arrests them for arrest were if the grounds to challenge would passengers permit It is their movements. controlling the officer directions gave after discovered observes, is true, Amendment jurisprudence that Fourth as the majority ante, However, when 1122.) given at p. free of anomaly. (Maj. opn., is consistency Surely preferable eschew incongruity. we should opportunity, to anomaly. over the time a car is pulled are from “seized”
I would hold passengers they them telling either liberty, on their the officer ends restraint until vehicle after completing releasing occupants are free to leave or by determin- concern with the majority’s satisfies the traffic This stop. approach ante, clear and 1121.) It provides at ends. (Maj. opn., when seizure ing rule, and no additional enforcement. It easily burdens law aрplied imposes is consistent with the officers broad latitude to policy granting police control the movements of It driver and during treats passengers stops. alike, their protecting clarifying rights obligations.
The majority contends such se rule is inconsistent with Fourth per Amendment consideration of all the circumstances of jurisprudence requiring the individual case in whether there has been a “seizure.” determing (Maj. ante, However, Wilson court made 4.) fn. opn., express to the usual exception rules in the Fourth practice avoiding bright-line drivers, Amendment context when it decided that like passengers, be ordered to leave the vehicle (Maryland routinely a traffic during stop. Wilson, Wilson 1.) 519 U.S se rule of per justifies Because, law, rule here. as a matter of proposed freedom of passengers’ movement to the control of the officer a traffic during should be passengers as a matter of permitted law to challenge legality Nо conflict with the Fourth Amendment law body arises from this Further, commonsense approach. takes into account the most analysis circumstance; relevant freedom has been limited passengers’ officer’s exercise of authority.
The majority
concern about
expresses
the reach of the
unduly expanding
ante,
However,
rule.
exclusionary
(Maj. opn.,
no evidence
discovered
the course of
during
legally justified
would be
affected if we held that
are seized
with
along
drivers. The majority
acknowledges
rule,
most jurisdictions have
and the
accepted
weight
on this
indeed substantial.
point
the federal circuit
Eight
courts of
hold that
are detained
appeal
a traffic
There
stop.4
are no cases on
from the
point
other four circuits.
state courts
Twenty-one
have
the same
adopted
view.5 The
majority refers
two states where its
only
(1st
2000)
See U.S. v.
(characterizing
Woodrum
Cir.
202 F.3d
the rule as “doctrinal
bedrock”);
(4th
1992)
868, 874,
4;
U.S. v.
(5th
Rushеr
Cir.
F.2d
footnote U.S. v. Grant
Cir.
2003)
196;
(6th
363, 369;
2003)
F.3d
(7th
U.S. v.
Cir.
440 F.3d
U.S. v. Powell
Perez
1991)
1190, 1195;
694, 699;
(8th
2001)
Cir.
Twilley
929 F.2d
U.S. Green
Cir.
275 F.3d
(9th
2000)
Cir.
Eylicio-Montoya (10th
222 F.3d
U.S. v.
Cir.
70 F.3d
1162-1164.
See State v.
Ariz. 61
P.3d
State v. Bowers
334 Ark.
Gomez
*19
379, 381];
836;
833,
1998)
447
S.W.2d
(Fla.Dist.Ct.App.
[976
State v.
718 So.2d
Hernandez
(2003)
754,
Cooper
756];
Ga.App.
(1994)
State v.
260
333
S.E.2d
State
[579
v. Haworth
106
1123, 1124];
658,
(2003)
Idaho 405
People
P.2d
v.
[679
Bunch
207 Ill.2d
Ill.Dec.
[277
7
796
1024,1029];
586, 588;
McKnight
1993)
(Iowa
N.E.2d
(Ind.Ct.App.
v. State
612 N.E.2d
State v. Eis
224, 226;
1984)
352,
(1993)
360-362];
348 N.W.2d
Hodges
State v.
analysis permitting enforcement, were to law one would the practice traffic stops crippling expect Wisconsin, state, to one reconsidered less followed. At least widely be (State Harris, supra, and view. 557 N.W.2d its former rejected minority 248, in reason or 251.) The no sound basis provides majority opinion from followed all other the rule depart nearly jurisdictions policy California the same grant passengers have considered too should question. Fourth Amendment as drivers rights stops. J., Moreno, J., concurred.
Werdegаr, 30, J., Werdegar, was denied 2006. rehearing August Appellant’s petition Moreno, J., J., be that the should were Corrigan, opinion petition granted. 62,63]; (1994) Ohio St.3d 57 Ohio 630 A.D.2d 525 N.Y.S.2d State v. Carter 69 [1994 355, 360]; 987], 4 P.2d and footnote Ore.App. N.E.2d State v. Scott statute, passenger’s expectation not (relying noting protected but that Fourth Amendment 2004 SD N.W.2d suspicion); be without reasonable State Wilson stopped 61; 2004) (1996) 206 (Tex.Crim.App. State v. Harris Kothe v. State S.W.3d 245, 251]; 1981) (Wyo. Parkhurst P.2d
Wis.2d 243 N.W.2d v. State (Utah 1996) constitution); Ct.App. Ottesen 920 P.2d 185. (relying on state State v. 1184-1186; 2002) (Colo. People v. P.3d State v. See Jackson Mendez ante, 722, 729]; maj. opn., page P.2d 1115. Wn.2d 208 [970 technically appear acknowledge majority opinion’s view is The Delaware courts (Jarvis correct, for a permit challenge the basis but nevertheless 119, 123, 38, 41, 2002) (Del. (Del.Super.Ct. Harris v. 806 A.2d 600 A.2d fn. State State 1092-1094, Appeals pages the New Mexico Court Affsprung, 87 P.3d at In State v. driver, as a conducted detained at same time assumed a holding referring to an Mexico case analysis, without earlier New fact-specific Creech, 1082). (State 806 P.2d at challenge grounds for a traffic