Filed 6/29/06 (This opn. should precede companion case of P. v. Saunders, also filed 6/29/06.)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S123133
v.
) Ct.App.
3
C040754
BRUCE EDWARD BRENDLIN,
Sacramento
County
Defendant and Appellant.
Super. Ct. No. CRF012703
____________________ _______________ )
When 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.
1
BACKGROUND
Around 1:40 a.m. on November 27, 2001, Sutter County Sheriff’s Deputy
Robert Charles Brokenbrough effected a traffic stop of a brown 1993 Buick Regal
with expired registration tabs on Franklin Avenue in Yuba City. Prior to the stop,
Deputy Brokenbrough confirmed through dispatch that the car’s registration had
expired two months earlier but that an application was “in process” to renew the
registration. Although Deputy Brokenbrough observed that a temporary operating
permit with the number “11” (indicating an expiration date at the end of
November) had been taped to the rear window, he could not determine from his
vantage point whether the permit matched the vehicle and decided to stop the
Buick to investigate further.
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 parole
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.
2
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 back seat 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 standing1 to suppress the items
seized from the Buick.
Following the denial of his motion to suppress, defendant pleaded guilty to
manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) and
1
The United States Supreme Court has largely abandoned use of the word
“standing” in its Fourth Amendment analysis. (See Minnesota v. Carter (1998)
525 U.S. 83, 87-88.) “It did so without altering the nature of the inquiry: whether
the defendant, rather than someone else, had a reasonable expectation of privacy in
the place searched or the items seized.” (People v. Ayala (2000) 23 Cal.4th 225,
254, fn. 3.) We have embraced the high court’s formulation and no longer analyze
this substantive issue as one of standing. (Ibid.; People v. Valdez (2004) 32
Cal.4th 73, 121, fn. 24.)
3
admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). He was
sentenced to four years in prison.
The Court of Appeal reversed in a published opinion. It held that a traffic
stop necessarily results in a detention (and, hence, a seizure (People v. Glaser
(1995) 11 Cal.4th 354, 363)) of both the driver and the passengers, rejecting the
analysis and holdings of People v. Castellon (1999) 76 Cal.App.4th 1369, 1373-
1374; People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367-1369; and People
v. Fisher (1995) 38 Cal.App.4th 338, 343-344. The Court of Appeal further found
that the stop was unlawful in that Deputy Brokenbrough, who knew that the
vehicle’s application to renew its registration was in process and who had seen the
temporary permit in the rear window, had “at most a hunch” that “the temporary
operating permit displayed in the window might not belong to the car and, thus, it
was being unlawfully operated as an unregistered vehicle.” The court ruled that
the evidence seized from defendant as well as from the Buick should have been
suppressed.
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
appears 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) 24 Cal.4th 243, 279
[99 Cal.Rptr.2d 532, 6 P.3d 193].) We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether
the applicable law applies to the facts is a mixed question of law and fact that is
4
subject to independent review. (Ibid.)” (People v. Ramos (2004) 34 Cal.4th 494,
505.)2 In evaluating whether the fruits of a search or seizure should have been
suppressed, we consider only the Fourth Amendment’s prohibition on
unreasonable searches and seizures. (People v. Carter (2005) 36 Cal.4th 1114,
1141.) “The proponent of a motion to suppress has the burden of establishing that
his own Fourth Amendment rights were violated by the challenged search or
seizure.” (Rakas v. Illinois (1978) 439 U.S. 128, 131, fn. 1.)
Prior to the vehicle stop here, Deputy Brokenbrough noticed 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
2
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) 423 F.3d 25, 31, fn. 4; id. at p. 36 &
fn. 9 (dis. opn. of Lynch, J.) [citing cases from the Second, Third, Sixth, Eight,
Tenth, and District of Columbia Circuits]; LaDuke v. Nelson (9th Cir. 1985) 762
F.2d 1318, 1327; accord, State v. Kachanian (Hawai’i Ct.App. 1995) 896 P.2d
931, 938; State v. Harris, (Minn. 1999) 590 N.W.2d 90, 98; State v. Jason L.
(N.M. 2000) 2 P.3d 856, 863; State v. Carter (Utah Ct.App. 1991) 812 P.2d 460,
465, fn. 3; McGee v. Com. (Va.Ct.App. 1997) 487 S.E.2d 259, 261; State v. Thorn
(Wn. 1996) 917 P.2d 108, 111; State v. Garcia (Wis.Ct.App. 1995) 535 N.W.2d
124, 126.) Other courts hold that this is a question of fact subject to review for
substantial evidence or clear error. (U.S. v. Mask (5th Cir. 2003) 330 F.3d 330,
335; U.S. v. Wilson (4th Cir. 1991) 953 F.2d 116, 121; U.S. v. Teslim (7th Cir.
1989) 869 F.2d 316, 321; accord, Lindsay v. State (Alaska Ct.App. 1985) 698 P.2d
659, 661; State v. Hill (Conn. 1996) 675 A.2d 866, 871; State v. Raker
(Fla.Dist.Ct.App. 2004) 883 So.2d 887, 888-889.) Because the parties here do not
address the issue—and because our decision would be the same under either
standard—we find it unnecessary to resolve the conflict. (See U.S. v. Boone (5th
Cir. 1995) 67 F.3d 76, 77, fn. 1.)
5
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 gunpoint 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.3
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) 517 U.S. 806, 809-810.) Neither this court nor the United States
Supreme Court, however, has yet decided whether the driver’s submission to the
show of authority results in a seizure of the passenger. A majority of courts,
including several federal circuit courts and some state courts, have embraced a per
se rule that the passenger is seized at the moment the driver submits to the official
show of authority. (E.g., U.S. v. Twilley (9th Cir. 2000) 222 F.3d 1092, 1095; U.S.
v. Eylicio-Montoya (10th Cir. 1995) 70 F.3d 1158, 1163-1164; U.S. v. Kimball (1st
Cir. 1994) 25 F.3d 1, 5; U.S. v. Roberson (5th Cir. 1993) 6 F.3d 1088, 1091; U.S.
3
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, 32
Cal.4th at p. 122.) He claims instead that suppression of the incriminating
evidence found in the car is required because it was the fruit of an unlawful
seizure of his person.
6
v. Powell (7th Cir. 1991) 929 F.2d 1190, 1195; State v. Hernandez
(Fla.Dist.Ct.App. 1998) 718 So.2d 833, 836; People v. Bunch (Ill. 2003) 796
N.E.2d 1024, 1029; State v. Eis (Iowa 1984) 348 N.W.2d 224, 226; State v. Carter
(Ohio 1994) 630 N.E.2d 355, 360; Josey v. State (Tex.Crim.App. 1998) 981
S.W.2d 831, 837-838; see also 6 La Fave, Search and Seizure (4th ed. 2004)
§ 11.3(e), pp. 194-195, fn. 277 [citing cases].) Other courts, reasoning that the
passenger in a vehicle subject to a traffic investigation is stopped for practical
purposes but not by virtue of the show of official authority, hold that the passenger
is not seized for Fourth Amendment purposes. (E.g., People v. Jackson (Colo.
2002) 39 P.3d 1174, 1184-1186; State v. Mendez (Wn. 1999) 970 P.2d 722, 729;
see also 6 La Fave, Search and Seizure, supra, § 11.3(e), p. 193, fn. 272 [citing
cases].)
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) 43 Cal.App.4th 754, 765; People v. Hunt (1990) 225 Cal.App.3d 498, 505;
People v. Grant (1990) 217 Cal.App.3d 1451, 1457-1458.) Other courts agree
with the Attorney General that although the driver must submit to the officer’s
instructions, the passenger is free to disregard the police and go about his or her
business, and that the incidental restriction of the passenger’s freedom of
movement is therefore not a seizure. (People v. Castellon, supra, 76 Cal.App.4th
at p. 1374; People v. Cartwright, supra, 72 Cal.App.4th at p. 1369 (Cartwright);
People v. Fisher, supra, 38 Cal.App.4th at p. 344; People v. Gonzalez (1992) 7
Cal.App.4th 381, 384.)
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) 446 U.S. 544, 554, which
7
has been adopted by the court in subsequent cases (e.g., Michigan v. Chesternut
(1988) 486 U.S. 567, 573), states that “a person has been ‘seized’ within the
meaning of the Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not
free to leave.” (Fn. omitted.) The high court subsequently made clear that this test
“states a necessary, but not a sufficient, condition for seizure.” (California v.
Hodari D. (1991) 499 U.S. 621, 628 (Hodari D.).) That is, there must also be an
actual taking into custody, whether by the application of physical force or by
submission to the assertion of authority. (Id. at p. 626.) The court has also
cautioned against an undue focus on the fact that government action caused some
restriction on an individual’s freedom of movement: “ ‘a Fourth Amendment
seizure does not occur whenever there is a governmentally caused termination of
an individual’s freedom of movement . . . , nor even whenever there is a
governmentally caused and desired termination of an individual’s freedom of
movement . . . , but only when there is a governmental termination of freedom of
movement through means intentionally applied.’ ” (County of Sacramento v.
Lewis (1998) 523 U.S. 833, 844, quoting Brower v. County of Inyo (1989) 489
U.S. 593, 596-597.) Finally, the court has reminded us that where the individual
may not feel free to leave for reasons independent of the police conduct—such as
a passenger on a bus that is scheduled to depart shortly—the proper inquiry is
“whether, taking into account all of the circumstances surrounding the encounter,
the police conduct would ‘have communicated to a reasonable person that he was
not at liberty to ignore the police presence and go about his business.’ ” (Florida
v. Bostick (1991) 501 U.S. 429, 437; accord, People v. Celis (2004) 33 Cal.4th
667, 673.)
It is passing strange, then, that defendant focuses so little attention on the
definition of a seizure. Defendant (like the Court of Appeal below and the other
8
cases embracing the majority view) instead advances an argument that rests on
two other foundations: (1) dicta from United States Supreme Court decisions; and
(2) the fact that a traffic stop curtails the freedom of movement of the passenger as
well as the driver.
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) 440 U.S. 648, 653, for example, the court observed that “stopping an
automobile and detaining its occupants constitute a ‘seizure’ within the meaning
of [the Fourth] Amendment[], even though the purpose of the stop is limited and
the resulting detention quite brief.” (See also Berkemer v. McCarty (1984) 468
U.S. 420, 436-437 [quoting Prouse].) In Colorado v. Bannister (1980) 449 U.S. 1,
4, footnote 3, the court reiterated that “[t]here can be no question that the stopping
of a vehicle and the detention of its occupants constitute a ‘seizure’ within the
meaning of the Fourth Amendment,” citing Prouse. There is no debate here,
though, whether a traffic stop results in a seizure. The issue, rather, is who (or
what) has been seized. Inasmuch as Bannister and Berkemer involved the driver
of the vehicle (Bannister, supra, 449 U.S. at p. 4; Berkemer, supra, 468 U.S. at p.
423) and Prouse, according to the opinion of the state supreme court, involved the
owner and “operator” of the vehicle (Prouse, supra, 440 U.S. at p. 650, fn. 1),
none of these cases is particularly illuminating on the status of a mere passenger.
Defendant, like the courts embracing the majority view, also relies on the
observation in Berkemer v. McCarty, supra, 468 U.S. at page 436, that “a traffic
stop significantly curtails the ‘freedom of action’ of the driver and the passengers,
if any, of the detained vehicle.” It is important to recognize, however, that
Berkemer’s observation was made in the context of whether a motorist detained
pursuant to a traffic stop was in custody for purposes of the Fifth Amendment.
9
(Id. at p. 435.) Whether a person is in custody for purposes of the Fifth
Amendment is an inquiry distinct from whether a person has been seized within
the meaning of the Fourth Amendment. (U.S. v. Sullivan (4th Cir. 1998) 138 F.3d
126, 131 [“The ‘custody’ that implicates the Miranda rule is conceptually distinct
from a seizure implicating the Fourth Amendment”]; U.S. v. Smith (7th Cir. 1993)
3 F.3d 1088, 1097 [the determination of custody under the Fifth Amendment
requires “a completely different analysis” from that under the Fourth
Amendment].) Indeed, as the high court has emphasized, “ ‘a governmentally
caused termination of an individual’s freedom of movement’ ” does not
necessarily establish that a seizure under the Fourth Amendment has occurred.
(County of Sacramento v. Lewis, supra, 523 U.S. at p. 844.) A police detention of
an orderly pushing a wheelchair-bound individual or a detention of a parent
pushing a child in a stroller may well incidentally curtail the freedom of action of
the passengers who are dependent on those adults. The detention of the orderly or
parent will also, to use the dissent’s phrasing, “interrupt [the] journey” (dis. opn.,
post, at p. 1) of the wheelchair or the stroller. But it is absurd to say that either
passenger has thereby been seized within the meaning of the Fourth Amendment.
The cases embracing the majority view also assert that “[n]o principled
basis exists for distinguishing between the privacy rights of passengers and drivers
in a moving vehicle. When the vehicle is stopped they are equally seized; their
freedom of movement is equally affected.” (State v. Eis, supra, 348 N.W.2d at p.
226; see also People v. Bell, supra, 43 Cal.App.4th at p. 763.) In reality, though,
the passenger is not subject to the same restraints as the driver. The driver is
obliged to remain at the scene until the completion of the officer’s investigation.
“[T]he passenger is stopped too, but only coincidentally.” (People v. Jackson,
supra, 39 P.3d at p. 1185.) Absent further direction from the officer effecting the
stop (see Maryland v. Wilson (1997) 519 U.S. 408, 410) or some indication that
10
the passenger is the subject of the officer’s investigation or show of authority, the
passenger is free to ignore the police presence and go about his or her business.
Alternatively, the passenger may choose to wait until the investigation of the
driver is completed. In either case, “it is this element of choice that distinguishes
the passenger’s circumstance from the driver’s, for the driver has been seized and
is therefore not free to go.” (Jackson, supra, at p. 1185.) The fact that defendant’s
freedom of movement was momentarily curtailed by the traffic stop thus does not
determine whether he was seized. To answer that question we must return to the
high court’s definition of a “seizure.”
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) 392
U.S. 1, 19, fn. 16; County of Sacramento v. Lewis, supra, 523 U.S. at p. 844); the
police conduct communicated to a reasonable innocent person that the person was
not free to decline the officer’s request or otherwise terminate the encounter
(Florida v. Bostick, supra, 501 U.S. at p. 436); and the person actually submitted
to that authority (Hodari D., supra, 499 U.S. at p. 626) for reasons not
“independent” of the official show of authority (Florida v. Bostick, supra, 501
U.S. at p. 436). Admittedly, the application of this test to particular circumstances
is sometimes more an art than a science. (See Michigan v. Chesternut, supra, 486
U.S. at p. 573 [the test “is necessarily imprecise”].) As the high court has
emphasized, “for the most part per se rules are inappropriate in the Fourth
Amendment context. The proper inquiry necessitates a consideration of ‘all the
circumstances surrounding the encounter.’ ” (United States v. Drayton (2002) 536
U.S. 194, 201; accord, People v. Souza (1994) 9 Cal.4th 224, 235.) In this case,
defendant has not shown that he, as the passenger, was the subject of the deputy’s
show of authority or that he actually submitted to it.
11
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 seizure occurred when
officers boarded the bus and began questioning passengers].)
Rather, “[a]n officer causing a vehicle to pull over in transit is conducting
an investigatory stop of the driver.” (People v. Jackson, supra, 39 P.3d at p. 1182,
italics added.) “[T]he display of authority and control is directed at the driver, not
the passenger.” (Id. at p. 1185.) “While we are all familiar with the sinking
feeling a driver experiences upon seeing police lights in the rearview mirror, few
of us sense impending doom when we are in the passenger seat.” (Cartwright,
supra, 72 Cal.App.4th at pp. 1374-1375; see also People v. Jackson, supra, at p.
1185.) Thus, as the dissent concedes, “[a] passenger may not be the subject of a
police investigation, at least in the initial phase of the traffic stop.” (Dis. opn.,
post, at p. 2.)
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, 72 Cal.App.4th
at p. 1375.) Not only is the driver the one the officer is seeking to restrain, but the
driver is the only one who, by stopping the car, can submit to the officer’s
assertion of authority. The passenger may be asleep or otherwise unaware of the
officer’s presence. The passenger may disagree with the driver’s decision to
12
submit to the officer’s authority and may even object vociferously, but to no
effect. “The passenger simply has no say in the matter.” (Id. at p. 1367.)
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 factor,
however, means that the passenger has been seized within the meaning of the
Fourth Amendment. (Florida v. Bostick, supra, 501 U.S. at p. 436 [“Bostick’s
freedom of movement was restricted by a factor independent of police conduct—
i.e., by his being a passenger on a bus”]; see generally United States v. Drayton,
supra, 536 U.S. at p. 206 [“The arrest of one person does not mean that everyone
around him has been seized by police”].) The “liberty” contemplated by the high
court’s definition of a seizure—i.e., “when, ‘taking into account all of the
circumstances surrounding the encounter, the police conduct would “have
communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business” ’ ” (Kaupp v. Texas (2003) 538 U.S. 626, 629
italics added)—refers not to whether the individual has the physical capacity to
leave the scene but to whether, assuming the individual had the physical capacity
to do so, he or she would feel free to depart or otherwise to conduct his or her
affairs as though the police were not present. (See Bostick, supra, 501 U.S. at p.
436 [that “Bostick’s movements were ‘confined’ . . . says nothing about whether
or not the police conduct at issue was coercive”].) After all, an individual may
13
manifest an unwillingness to engage with the police not only by departing the area,
but also by staying put and declining to answer questions or otherwise ignoring
police inquiries. Similarly, a seizure can occur even though the individual has the
physical capacity to leave the scene.
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, 536 U.S. at p. 204
[that the encounter took place on a bus rather than on the street “does not on its
own transform standard police questioning of citizens into an illegal seizure”].)
Absent some directive from the police, and as long as the rules of the road are
otherwise obeyed, the passenger is free to do what the driver cannot—i.e., exit the
vehicle or dismount from the motorcycle or bicycle and thereby terminate the
encounter with the officer. (Cf. U.S. v. Slater (8th Cir. 2005) 411 F.3d 1003, 1005
[passenger was not seized while driver took field sobriety tests].) In this case, for
example, defendant indicated his awareness of the available options by opening,
and then closing, the passenger door.
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, 519 U.S. 408, which
addressed the separate issue whether 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. The high court found that in light of the interest in officer safety, ordering
the passenger out of the vehicle was not an unreasonable seizure, but declined to
decide whether the passenger could be held for the entire duration of the stop. (Id.
at p. 415, fn. 3.) The high court did, however, acknowledge one important
14
distinction between the driver and the passengers: “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. But as a practical matter, the
passengers are already stopped by virtue of the stop of the vehicle.” (Id. at pp.
413-414, italics added.) Justice Stevens’s dissenting opinion agreed with the
majority’s implied distinction between being stopped as a practical matter and
being seized as a constitutional matter: the intrusion on a passenger’s freedom of
movement occasioned by the traffic stop “was a necessary by-product of the
lawful detention of the driver. But the passengers had not yet been seized at the
time the car was pulled over, any more than a traffic jam caused by construction or
other state-imposed delay not directed at a particular individual constitutes a
seizure of that person.” (Id. at p. 420 (dis. opn. of Stevens, J.).)
The rule proposed by the 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 of
another vehicle but who do not actually submit to the show of police authority, are
seized within the meaning of the Fourth Amendment. The same is true of a
15
passenger such as defendant, who likewise suffers a curtailment of his freedom but
does not actually submit to the show of police authority.4
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 concedes, 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
4
The dissent asserts that the requirement of submission “simply does not
apply in these circumstances” (dis. opn., post, at p. 3), 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 section 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 Muhammad C. (2002) 95 Cal.App.4th 1325, 1329; People v. Quiroga (1993)
16 Cal.App.4th 961, 967.) We think it more sensible to leave it up to the officer,
once cause for the vehicle stop has been established, to decide who should be
seized and when. And, in light of the high court’s “clear direction that an
assessment as to whether police conduct amounts to a seizure implicating the
Fourth Amendment must take into account ‘ “all of the circumstances surrounding
the incident” ’ in each individual case” (Michigan v. Chesternut, supra, 486 U.S.
at p. 572), it is also more appropriate to examine the totality of the circumstances
before determining whether the passenger has been seized during a traffic stop.
16
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 was 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 order that the passengers . . . get out of the vehicle” once the
vehicle pulls over. (Dis. opn., post, at p. 1, italics added.) We do not doubt the
officer has such authority, which is recognized explicitly in Maryland v. Wilson,
supra, 519 U.S. at page 410, nor do we dispute that the passenger is seized once
the officer actually invokes that authority to order the passenger out of the car.
But the dissent offers no authority for its critical assumption that the mere
potential an officer might invoke such authority itself constitutes a seizure.
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
17
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, 439 U.S. 128, for
example, the high court held that mere passengers—unlike drivers or owners of
the vehicle—had no legitimate expectation of privacy that was violated by a
vehicle search. (Id. at pp. 148-149; accord, People v. Valdez, supra, 32 Cal.4th at
p. 122). The high court has also remarked that a casual visitor would similarly be
unable to challenge a house search (Rakas, supra, at p. 142; accord, People v.
Ooley (1985) 169 Cal.App.3d 197, 202-203; see also People v. Ayala, supra, 23
Cal.4th at p. 255 [invitee or social guest has no expectation of privacy in business
premises]), although the owner or other residents would be able to do so.
Thus, the Fourth Amendment does not concern itself with “treat[ing] driver
and passenger alike” in all circumstances (dis. opn., post, at p. 5), 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) 394 U.S. 165, 174 [“There is no necessity to exclude
evidence against one defendant in order to protect the rights of another”].) “ ‘Each
time the exclusionary rule is applied it exacts a substantial social cost for the
vindication of Fourth Amendment rights. Relevant and reliable evidence is kept
from the trier of fact and the search for truth at trial is deflected.’ ” (In re Lance
W. (1985) 37 Cal.3d 873, 882, quoting Rakas v. Illinois, supra, 439 U.S. at p.
137.) Accordingly, “the deterrent purpose of the exclusionary rule does not
require its application when unlawfully seized evidence is offered against a
defendant whose own rights have not been compromised by the unlawful seizure.”
(Lance W., at p. 882.)
We emphasize that passengers who are in vehicles subjected to unjustified
traffic stops are not without constitutional protection. Once the vehicle has been
18
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, 519 U.S. at p. 410 [police may
order the driver and passengers of a “lawfully stopped” car to exit the vehicle].)
Furthermore, neither the passenger nor the passenger’s belongings in the vehicle
may be searched without lawfully acquired cause to justify an arrest (New York v.
Belton (1981) 453 U.S. 454) or a search (Wyoming v. Houghton (1999) 526 U.S.
295). A passenger in a car subjected to an unjustified stop may also be able to
prosecute a civil suit against the police under the rubric of substantive due process.
(See County of Sacramento v. Lewis, supra, 523 U.S. at pp. 844-845.) There is
thus no need to torture the definition of a seizure to protect the security of
passengers.
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.
19
DISPOSITION
The judgment of the Court of Appeal is reversed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
CHIN, J.
20
DISSENTING OPINION BY CORRIGAN, J.
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. Certainly 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) 76 Cal.App.4th 1369, 1374-1375), or get out of
the vehicle (Maryland v. Wilson (1997) 519 U.S. 408, 410). This authority is
soundly based on the need to protect the officer’s safety. One of its necessary
consequences, however, is that the passengers, having been forced to interrupt
their journey, are deprived of further freedom of movement. Accordingly, the
passengers have been detained and thus “seized” for Fourth Amendment purposes.
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) 446 U.S. 544, 554.) When a police
officer effects a traffic stop, a passenger’s freedom of movement has been
restrained by the intentional act of a government agent. (County of Sacramento v.
Lewis (1998) 523 U.S. 833, 844.) The passenger is detained for a reason that is
not “independent of police conduct.” (Florida v. Bostick (1991) 501 U.S. 429,
436.) Indeed, the passenger’s freedom of movement is abruptly interrupted
precisely because of the officer’s conduct.
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
1
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 Justice O’Connor pointed out for the majority, well-settled
Fourth Amendment jurisprudence would have allowed the officers to ask Bostick
for his consent to search in the terminal, on the street, or in an airport. (Id. at p.
434.) The mere fact that consent to search was sought on a parked bus was not
dispositive.
California v. Hodari D. (1991) 499 U.S. 621 does hold that submission to
governmental authority is required for a detention to take place. Hodari and other
young men were standing on a street and fled when police drove by. Hodari
discarded contraband as he ran from an officer. The Court of Appeal suppressed
the evidence on the ground that Hodari was detained when he saw the officer
running toward him. (Id. at pp. 622-623.) The United States Supreme Court
reversed, ruling that when a suspect does not yield to a show of authority, no
seizure occurs. (Id. at p. 626.) Flight is clearly not the same as submission.
However, the Hodari D. court had no occasion to consider anything like the
situation of passengers during a traffic stop.
A passenger may not be the subject of a police investigation, at least in the
initial phase of the traffic stop.1 Passengers are detained for a different and
equally important purpose: to ensure the safety of the officer. The actual
submission requirement discussed by the Hodari D. court simply does not apply in
these circumstances, which present entirely distinct practical and legal
1 In some cases, of course, the officer initiates a traffic stop to investigate a
passenger. (See, e.g., In re William J. (1985) 171 Cal.App.3d 72, 77.) In those
cases, the vehicle’s occupants will often be unaware of the reason for the stop.
Nevertheless, the rule adopted in the majority opinion requires the suspect to
realize that he or she is the focus of the officer’s investigation for the Fourth
Amendment to apply.
2
considerations.2 Individuals on the street submit to an officer’s authority by
stopping or remaining in place in response to the officer’s directions. An
individual who sees a policeman and runs away has demonstrably not submitted to
police authority.
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. 14; see Maryland v. Wilson, supra, 519 U.S. at p. 410.) The
officer may also order the passengers to stay in the car. (People v. Castellon,
supra, 76 Cal.App.4th at pp. 1374-1375; United States v. Moorefield (3rd Cir.
1997) 111 F.3d 10, 12-13.)3 This per se rule, based on the need to ensure officer
2 The majority reasons that if passengers are detained during a traffic stop
for Fourth Amendment 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 pp. 15-16, 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.
3 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 Castellon 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; United
States v. Moorefield, supra, 111 F.3d at p. 13; see also State v. Shearin
(N.C.Ct.App. 2005) 612 S.E.2d 371, 377-378 [citing cases]; cf. Maryland v.
Wilson, supra, 519 U.S at p. 413.) A rule permitting passengers to leave the
vehicle and wander around outside the officer’s field of vision during a traffic stop
would be a dangerous one indeed.
(footnote continued on next page)
3
safety, requires no showing of reasonable suspicion. (Maryland v. Wilson, supra,
519 U.S at p. 412.) Driver and passenger alike are “subjected to the demands and
control of the police officer” during the stop. (United States v. Kimball (1st Cir.
1994) 25 F.3d 1, 5.)
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 p. 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. 17),
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
Castellon to control the passengers’ movements without any particularized
justification. That official control differentiates passengers detained during a
(footnote continued from previous page)
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.)
4
traffic stop from other citizens who are only incidentally impeded by an exercise
of state authority. (See maj. opn., ante, at p. 15.)
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. 18.)
However, when given the opportunity, we should eschew incongruity. Surely
consistency is preferable to anomaly.
I would hold that passengers are “seized” from the time a car is pulled over
until the officer ends the restraint on their liberty, either by telling them they are
free to leave or by releasing the occupants of the vehicle after completing the
traffic stop. This approach satisfies the majority’s concern with determining when
a seizure ends. (Maj. opn., ante, at p. 16.) It provides a clear and easily applied
rule, and imposes no additional burdens on law enforcement. It is consistent with
the policy of granting police officers broad latitude to control the movements of
passengers during traffic stops. It treats driver and passenger alike, protecting and
clarifying their rights and obligations.
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. 16, 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
5
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 concern about unduly expanding the reach of the
exclusionary rule. (Maj. opn., ante, at p. 18.) 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.4 There are no cases on point from
the other four circuits. Twenty-one state courts have adopted the same view.5 The
4 See United States v. Woodrum (1st Cir. 2000) 202 F.3d 1, 5
(characterizing the rule as “doctrinal bedrock”); United States v. Rusher (4th Cir.
1992) 966 F.2d 868, 874, footnote 4; United States v. Grant (5th Cir. 2003) 349
F.3d 192, 196; United States v. Perez (6th Cir. 2003) 440 F.3d 363, 369; United
States v. Powell (7th Cir. 1991) 929 F.2d 1190, 1195; United States v. Green (8th
Cir. 2001) 275 F.3d 694, 699; United States v. Twilley (9th Cir. 2000) 222 F.3d
1092, 1095; United States v. Eylicio-Montoya (10th Cir. 1995) 70 F.3d 1158,
1162-1164.
5 See State v. Gomez (Ariz.Ct.App. 2000) 6 P.3d 765, 766; State v. Bowers
(Ark. 1998) 976 S.W.2d 379, 381; State v. Hernandez (Fla.Dist.Ct.App. 1998) 718
So.2d 833, 836; State v. Cooper (Ga.Ct.App. 2003) 579 S.E.2d 754, 756; State v.
Haworth (Idaho 1994) 679 P.2d 1123, 1124; People v. Bunch (Ill. 2003) 796
N.E.2d 1024, 1029; McKnight v. State (Ind. Ct.App. 1993) 612 N.E.2d 586, 588;
State v. Eis (Iowa 1984) 348 N.W.2d 224, 226; State v. Hodges (Kan. 1993) 851
P.2d 352, 360-362; In re Albert S. (Md.Ct.Spec.App. 1995) 664 A.2d 476, 480-
(footnote continued on next page)
6
majority refers to only two states where its analysis is followed.6 If the results of
permitting passengers to challenge traffic stops were crippling to law enforcement,
one would expect the practice to be less widely followed. At least one state,
Wisconsin, has reconsidered and rejected its former minority view. (State v.
Harris, supra, 557 N.W.2d at pp. 248, 251.) The majority opinion provides no
sound basis in reason or policy to depart from the rule followed in nearly all other
(footnote continued from previous page)
481; State v. Harms (Neb. 1989) 449 N.W.2d 1, 4-5; State v. Scott (Nev. 1994)
877 P.2d 503, 508; State v. Creech (N.M.Ct.App. 1991) 806 P.2d 1080, 1082 (but
see State v. Affsprung (N.M.Ct.App. 2004) 87 P.3d 1088, 1092-1094); People v.
Smith (App.Div. 1984) 483 N.Y.S.2d 62, 63; State v. Carter (Ohio 1994) 630
N.E.2d 355, 360; State v. Scott (Or.Ct.App. 1982) 650 P.2d 985, 987, and footnote
4 (relying on statute, but noting that Fourth Amendment protected passenger’s
expectation not to be stopped without reasonable suspicion); State v. Wilson (S.D.
2004) 678 N.W.2d 176, 181; Kothe v. State (Tex.Crim.App. 2004) 152 S.W.3d 54,
61; State v. Harris (Wis. 1996) 557 N.W.2d 245, 251; Parkhurst v. State (Wyo.
1981) 628 P.2d 1369, 1374 (relying on state constitution); State v. Otteson (Utah
Ct.App. 1996) 920 P.2d 183, 185.
6 See People v. Jackson (Colo. 2002) 39 P.3d 1174, 1184-1186; State v.
Mendez (Wn. 1999) 970 P.2d 722, 729; maj. opn., ante, at page 7.
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) 600 A.2d 38, 41, fn. 1; Harris
v. State (Del.Supr.Ct. 2002) 806 A.2d 119, 123, fn. 9.)
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, 806 P.2d at p. 1082).
7
jurisdictions that have considered the question. California too should grant
passengers the same Fourth Amendment rights as drivers during traffic stops.
CORRIGAN, J.
I CONCUR:
WERDEGAR, J.
MORENO, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Brendlin
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 115 Cal.App.4th 206
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S123133Date Filed: June 29, 2006
__________________________________________________________________________________
Court:
SuperiorCounty: Sutter
Judge: Christopher R. Chandler
__________________________________________________________________________________
Attorneys for Appellant:
Elizabeth Campbell, under appointment by the Supreme Court, and James F. Johnson, under appointmentby the Court of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, ChiefAssistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean, Janet E.
Neeley, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Elizabeth CampbellCentral California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792
Clifford E. Zall
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-250
(916) 324-5281
Opinion Information
| Date: | Docket Number: |
| Thu, 06/29/2006 | S123133 |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by Clifford E. Zall Office of the Attorney General P.O. Box 944255 1300 "I" Street Sacramento, CA |
| 2 | Brendlin, Bruce Edward (Defendant and Appellant) 1324 Hobart Drive, #3 Marysville, CA 95901 Represented by Elizabeth M. Campbell Attorney at Law 1215 "K" Street, 17th Floor Sacramento, CA |
| Disposition | |
| Jun 29 2006 | Opinion: Reversed |
| Dockets | |
| Mar 5 2004 | Petition for review filed In Sacramento by counsel for Respondent {The People}. |
| Mar 8 2004 | Record requested |
| Mar 23 2004 | Received Court of Appeal record one doghouse |
| Apr 14 2004 | Petition for review granted (criminal case) Votes: George, Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Apr 20 2004 | Request for extension of time filed (in Sacramento) by respondent (People) for a 28-day extension to and including June 11, 2004 to file the opening brief on the merits. |
| Apr 26 2004 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including June 11, 2004. |
| May 12 2004 | Issues ordered limited The issues to be briefed and argued in this case are the following: (1) Was defendant, as a passenger in a vehicle subjected to a traffic stop, thereby "detained" for purposes of the Fourth Amendment, thus allowing him to contest the legality of the stop? (2) Could the vehicle be stopped on reasonable suspicion that it was being operated while unregistered, in violation of the Vehicle Code, when it exhibited an expired license plate registration tag, but also displayed what appeared from a distance to be a current temporary registration permit? |
| May 17 2004 | Received: |
| May 19 2004 | Request for extension of time filed to July 9, 2004, to file respondent's opening brief on the merits. (Second request filed in Sacramento) |
| May 25 2004 | Extension of time granted On applicationof respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including July 9, 2004. No further extensions of time are contemplated. |
| May 27 2004 | Counsel appointment order filed Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Jul 9 2004 | Opening brief on the merits filed (in Sacramento) by respondent |
| Aug 9 2004 | Request for extension of time filed (in Sacramento) for an e.o.t. to 9-8-2004, to file appellant's answer brief/merits. 30-day extension granted as requested. No further extensions of time are contemplated. |
| Aug 13 2004 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 8, 2004. No further extensions of time are contemplated. |
| Sep 8 2004 | Answer brief on the merits filed (in Sacramento) by appellant (Brendlin) |
| Sep 21 2004 | Request for extension of time filed by respondent ( the People) to file the reply brief on the merits. asking to Oct.18, 2004 |
| Sep 28 2004 | Extension of time granted to 10-18-04 for resp to file the reply brief on the merits. No further extensions of time are contemplated. |
| Oct 13 2004 | Reply brief filed (case fully briefed) by resp |
| Jan 12 2005 | Compensation awarded counsel Atty Campbell |
| Mar 8 2006 | Case ordered on calendar Wednesday, April 5, 2006, at 9:00 a.m., in Los Angeles |
| Apr 5 2006 | Cause argued and submitted |
| Jun 29 2006 | Opinion filed: Judgment reversed Judgment of the Court of Appeal. Opinion by Baxter, J. -- joined by George, C.J., Kennard, Chin, JJ. Dissenting Opinion by Corrigan, J. -- joined by Werdegar and Moreno, JJ. |
| Jul 11 2006 | Rehearing petition filed Bruce Brendlin, appellant, by Elizabeth Campbell, Staff Attorney, Central California Appellant Program. |
| Jul 12 2006 | Time extended to consider modification or rehearing to and including September 27, 2006, or the date upon which reheairng is either granted or denied, whichever occurs first. |
| Jul 17 2006 | Received: Application to file amicus curiae brief of Matthew Gordon Lamont [appellant in pending case No. S131308, People v Lamont] in support of petition for rehearing (Brendlin's) ( brief separate ] |
| Jul 24 2006 | Application denied The application of Matthew Gordon Lamont for leave to file amicus curiae brief in support of appellant's petition for rehearing is hereby denied. [ Original returned to Attorney Edward A. Hoffman with a copy of the order. ] |
| Jul 24 2006 | Received: |
| Aug 30 2006 | Rehearing denied Werdegar, Moreno, and Corrigan, JJ., are of the opinion the petition should be granted. |
| Aug 30 2006 | Remittitur issued (criminal case) |
| Sep 7 2006 | Received: Receipt for remittitur from Third Appellate District, signed for by Theresa Devine, Deputy Clerk. |
| Nov 30 2006 | Received: Copy of Petition for Writ of Certiorari filed in the Supreme Court of the United States |
| Dec 8 2006 | Received: U.S.S.C. letter dated 12-4-2006, writ of certiorari filed 11-28-2006, placed on the docket 12-4-2006 as No. 06-8120. |
| Jan 29 2007 | Received: Supreme Court of the United States letter dated January 19, 2007, motion of petitioner for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. |
| Jan 31 2007 | Received: From Central C.A.P. a copy of request for appointment of counsel in the Supreme Court of the United States case No. 06-8120. |
| Feb 14 2007 | Received: letter from the Clerk of the United States Supreme dated February 9, 2007, requesting that the entire record be transmitted to their court. |
| Feb 15 2007 | Note: Record sent to United States Supreme Court pursuant to letter from the Clerk dated February 9, 2007. I doghouse sent via UPS overnight. |
| Jun 22 2007 | Filed: Letter from the Supreme Court of the United States, dated June 18, 2007. Re: Bruce Edward Brendlin v California, No. 06-8120. " The enclosed opinion of this Court was announced today in the above stated case. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing." William K. Suter, Clerk by Denise McNerney, Merits Case Clerk (202) 479-3032 |
| Jun 27 2007 | Received: from Ninth Circuit, U.S. Court of Appeals, a copy of the Supreme Court of the United States letter dated June 18, 2007. |
| Jul 22 2007 | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - |
| Jul 23 2007 | Filed: Letter dated 7-13-2007 from Donald E. De Nicola, Deputy State Solicitor (respondent) requesting that a schedule be set for the filing of further briefing on a dispositive question left unresolved by this Court and by the United States Supreme Court. |
| Jul 23 2007 | Remanded by U.S. Supreme Court Letter dated July 20, 2007, from the Supreme Court of the United States filed. Certified copy of the mandate, a certified copy of the judgment, and a copy of the opinion enclosed. |
| Jul 23 2007 | Filed: Letter dated July 20, 2007 by Elizabeth Campbell, Central California Appellate Program, in response to letter submitted by respondent on July 13, 2007. |
| Jul 31 2007 | Note: Received record back from the United State Supreme Court (1 doghouse) |
| Aug 15 2007 | Retained after U.S.S.C. remand; briefing ordered Respondent's request to file supplemental briefing and to set a briefing schedule is granted. The parties are directed to brief the following two issues: (1) Does the exclusionary rule of the Fourth Amendment require suppression of the fruits of the search that followed the unlawful detention here, where the deputy, prior to the search, verified that Brendlin was a parole violator with an outstanding no-bail warrant for his arrest? (2) Did the search here violate In re Jaime P. (2006) 40 Cal.4th 206 or People v. Sanders (2003) 31 Cal.4th 318? Respondent is directed to serve and file a brief on the merits on or before September 14, 2007. Additional briefing is to be served and filed in a timely fashion. (See Cal. Rules of Court, rule 8.520.) Kennard, J., is of the opinion the matter should be transferred to the court of appeal for further proceedings. |
| Aug 27 2007 | Request for extension of time filed to and including September 28, 2007, to file respondent's supplemental brief on the merits. |
| Aug 31 2007 | Filed: Request to Vacate Appointment and Recommendation for Appointment of Attorney by Gary McCurdy, Assistant Director, Central California Appellate Program |
| Sep 4 2007 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Supplemental Brief is extended to and including September 28, 2007. |
| Sep 6 2007 | Counsel appointment order filed The order filed on May 27, 2004, appointing the Central California Appellate Program to represent appellant is hereby vacated. Upon request of appellant for appointment of counsel, Elizabeth Campbell is hereby appointed to represent appellant on the appeal now pending in this court, effective September 6, 2007. |
| Sep 28 2007 | Received: Oversized (6,067 words) Respondent's Supplemental Opening Brief on the Merits by Clifford E. Zall, Deputy Attorney General (Received in Sacramento -- document is over the 2,800 word limit (CRC 8.520(d)) |
| Oct 4 2007 | Supplemental brief filed Respondent's Supplemental Opening Brief on the Merits by Clifford E. Zall, Deputy Attorney General (Filed with permission) |
| Oct 26 2007 | Request for extension of time filed to and including December 5, 2007, to file appellant's supplemental answer brief. |
| Oct 31 2007 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Supplemental Answer Brief is extended to and including December 5, 2007. |
| Dec 5 2007 | Received: Appellant's Oversized (11,139 words) Supplemental Answer Brief by Elizabeth Campbell, Supreme Court appointed counsel |
| Dec 7 2007 | Order filed The application of appellant for permission to file Appellant's Supplemental Answer Brief containing 11,139 words that exceeds the 2,800 word limit prescribed by California Rules of Court rule 8.520(d) by 8,339 words is hereby GRANTED. |
| Dec 7 2007 | Supplemental brief filed Appellant's Supplemental Answer Brief (Filed with permission) |
| Dec 19 2007 | Compensation awarded counsel Atty Campbell |
| Dec 21 2007 | Request for extension of time filed to January 26, 2008, within which to file respondent's supplemental reply brief (due December 27, 2007) by Clifford C. Zall, Deputy A. G. (Filed in Sacramento) |
| Jan 2 2008 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the Respondent's Supplemental Reply Brief is extended to and including January 26, 2008. |
| Jan 24 2008 | Supplemental brief filed Respondent's Supplemental Reply Brief by Clifford E. Zall, Deputy Attorney General (Filed in Sacramento) |
| May 6 2008 | Change of contact information filed for: Elizabeth Campbell, counsel for appellant |
| Jul 1 2008 | Change of contact information filed for: Attorney Elizabeth Campbell at 1215 K Street, 17th Floor, Sacramento, CA 95814. Phone number and e-mail contact information remains the same. |
| Jul 30 2008 | Case ordered on calendar to be argued Wednesday, September 3, 2008, at 1:30 p.m., in San Francisco |
| Aug 1 2008 | Filed: Letter from Elizabeth Campbell, requesting that the case be argued first instead of third within the September 3, 2008, 1:30 p.m. oral argument session. |
| Aug 7 2008 | Note: "First amended" September 2008 oral argument calendar filed on this date. People v. Brendlin is now scheduled to be argued first within the September 3, 2008, 1:30 p.m session. |
| Aug 14 2008 | Filed: appearance sheet for respondent, the People. |
| Sep 3 2008 | Cause argued and submitted |
| Nov 21 2008 | Notice of forthcoming opinion posted |
| Nov 24 2008 | Opinion filed: Judgment reversed of the Court of Appeal. Opinion by Baxter, J. -- joined by George, C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Dec 26 2008 | Remittitur issued (criminal case) |
| Jan 8 2009 | Received: Receipt for remittitur. |
| Feb 23 2009 | Received: service copy of the petition for writ of certiorari filed in the U.S.S.C. |
| Mar 2 2009 | Received: Letter from the Supreme Court of the United States dated February 25, 2009. The petition for writ of certiorari in the above-entitled case was filed on February 20, 2009 and placed on the docket February 25, 2009 as No. 08-8916. |
| Apr 20 2009 | Certiorari denied by U.S. Supreme Court |
| May 11 2009 | Counsel fee request received Atty Campbell |
| May 21 2009 | Compensation awarded counsel George, C.J., was absent and did not participate. Atty Campbell |
| Briefs | |
| Jul 9 2004 | Opening brief on the merits filed |
| Sep 8 2004 | Answer brief on the merits filed |
| Oct 13 2004 | Reply brief filed (case fully briefed) |
