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IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - - - x
BRUCE EDWARD BRENDLIN, :
Petitioner :
v. : No. 06-8120
CALIFORNIA. :
- - - - - - - - - - - - - - - - - x
Washington, D.C.
Monday, April 23, 2007
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 11:03 a.m.
APPEARANCES:
ELIZABETH M. CAMPBELL, ESQ., Sacramento, Cal; on behalf
of the Petitioner.
CLIFFORD E. ZALL, ESQ., Deputy Attorney General,
Sacramento, Cal; on behalf of the Respondent.
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P R O C E E D I N G S
(11:03 a.m.)
CHIEF JUSTICE ROBERTS: We'll hear argument
next in 06-8120, Brendlin versus California.
Ms. Campbell.
ORAL ARGUMENT OF ELIZABETH M. CAMPBELL, ESQ.
ON BEHALF OF THE PETITIONER
MS. CAMPBELL: Mr. Chief Justice, and may it
pleast the Court:
When an officer makes a traffic stop,
activates his flashing lights, he seizes not only the
driver of the car but also the car and every person and
everything in that car. This unremarkable conclusion is
what Petitioner asks this Court to rule on, rule today.
This simple rule is not only firmly rooted in this
Court's precedence, it also protects police officers and
the liberty interests of everyone traveling on a public
State highway.
CHIEF JUSTICE ROBERTS: Well, it wouldn't
apply in a taxicab, right? I mean, the cab is driving
erratically, the officer pulls it over. If I'm a
passenger in the cab, I think I can get out and catch
another cab, right?
MS. CAMPBELL: Whether or not you can get
out and catch another cab is sort of a separate issue,
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issue is that your freedom of movement has been
curtailed by government action.
JUSTICE SOUTER: Well, are you saying then
that in a case in which the bus is stopped, the car is
stopped and so on, the role for the test about whether a
reasonable person would regard himself as free to leave
is a test to determine when the, when the seizure ends,
as distinct from when the seizure begins?
MS. CAMPBELL: Exactly, Your Honor.
JUSTICE SOUTER: There's no other role for
that test.
MS. CAMPBELL: Exactly, Your Honor. And I
believe that's the rule we apply with respect to
drivers. We don't normally formulate it that was
because usually there's a directive from the officer
saying okay, you're free to leave, there's a clear point
where the seizure ends. But --
JUSTICE SOUTER: Yeah, but you're taking the
position that whenever you are in a vehicle that is
stopped, you are seized?
MS. CAMPBELL: Exactly. Yes, Your Honor.
JUSTICE ALITO: In this case, is it correct
to view this as -- to view it this way: As soon as the
officer approached the car, as I understand it, he
recognized the Defendant as a potential parole violator.
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MS. CAMPBELL: Yes.
JUSTICE ALITO: And there would be
reasonable suspicion then from that moment on, for at
least a brief detention of the individual to determine
whether in fact there was a warrant for the individual.
So all we're talking about, the only period of potential
seizure that we have to worry about is up to the moment
when the officer sees Mr. Brendlin.
MS. CAMPBELL: In terms of determining when
Mr. Brendlin was seized, yes. The -- there --
JUSTICE ALITO: In other words, any seizure
after that point would be supported by reasonable
suspicion?
MS. CAMPBELL: Well, except in this case of
course, it would be fruit of the poisonous tree, since
the State has continued --
JUSTICE KENNEDY: Well, that's the question.
Do you concede that this arrest was lawful?
MS. CAMPBELL: The arrest itself -- the
arrest itself is still a product of the exploitation.
JUSTICE KENNEDY: Do you concede that the
arrest was lawful? The officer was obligated to arrest
this person, knowing what he did, was he not?
MS. CAMPBELL: Yes. We concede that the --
MS. CAMPBELL: Yes.
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JUSTICE KENNEDY: Do you have any case in
which we exclude the evidence seized incident to an
arrest when the arrest is lawful?
MS. CAMPBELL: Well, Your Honor, I don't
have a case that has these specifics in it. This is a
new --
JUSTICE KENNEDY: I didn't think you did,
and that's my concern. I assumed that this officer was
required to arrest the person, and we can have
hypotheticals, he sees somebody wanted for multiple
murders and so forth. But I'm just not aware of
authority which says that when the arrest is lawful and
the search is incident to that arrest, that the evidence
is excluded. What's your best -- what's your closest
case you can give me on that?
MS. CAMPBELL: Well actually, I would turn
to the cases that talk about searches incident to arrest
and also, go back to the rationale for the intended --
JUSTICE KENNEDY: Can I have one please?
MS. CAMPBELL: Well actually, let's look at
Thornton and --
JUSTICE KENNEDY: Thornton, I'm not familiar
with immediately. I'll look it up.
MS. CAMPBELL: Thornton and Knowles are two
cases that this Court has decided relatively recently
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where you talk about the rationale for searches incident
to arrest. They're not cases that I would have
considered to be directly on point for the seizure issue
in this case, but in Knowles the Court held that you
can't search a car incident to arrest on a minor traffic
stop because --
JUSTICE KENNEDY: No, no. This was the
search of a person incident to an arrest, and I really
jumped a little bit ahead of the questions that Justice
Alito was proposing. There may have been a moment in
which the officer did not have the authority to act and
he did, but it seems to me that once he has this
knowledge, there is now an intervening cause and the
arrest is proper, and the search as well.
MS. CAMPBELL: If I can divide this into two
issues. First we have the issue of the arrest itself,
and I am aware of no mechanism by which Mr. Brendlin
would be entitled to suppress the arrest itself, to not
be arrested on the parole warrant, or to get out of jail
free, so to speak. That is a separate issue, however,
than discussing whether or not the evidence that comes
out of this auto search which is a direct product of the
illegal stop should be admissible. And --
JUSTICE SCALIA: Well, it's a direct product
of the arrest, and if the arrest is legal, then it seems
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to me the search incident to the arrest is legal. And
are you acknowledging that the arrest is legal, that
whatever the exclusionary rule does, it does not require
you -- when you've engaged in an unlawful seizure and
you find an ax murderer sitting there in the car, you
don't have to say sorry, I shouldn't have stopped the
car. You can arrest the person, right?
MS. CAMPBELL: And --
JUSTICE SCALIA: So the arrest is legal. If
the arrest is legal, then the search incident to it must
be legal.
MS. CAMPBELL: Well, I think we have to
look, as I said, at the purpose -- the rationales for
allowing a search incident to arrest are the need to
disarm the suspect or take him into custody, and the
need to preserve evidence for trial. In this specific
case he's arrested on a parole warrant. I can't imagine
what evidence in that car would be needed to be
preserved in order to proceed on the parole warrant.
JUSTICE KENNEDY: What authority do you have
that the operation of the exclusionary rule depends on
the offense for which he was arrested?
MS. CAMPBELL: Well, the search incident to
an arrest is an exception to -- to the exclusionary
rule.
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JUSTICE KENNEDY: Do you have any authority
for the proposition you just offered?
MS. CAMPBELL: The proposition --
JUSTICE KENNEDY: The search incident to an
arrest leads to an exclusion in one case and not in
another case, depending on the charge on which he was
arrested?
MS. CAMPBELL: Well, if what we are talking
about is whether or not the exclusionary rule should
apply, we look to the purposes of the exclusionary rule
which is to deter unlawful police conduct. If we allow
officers to make a stop on a hunch that someone has a,
has a, has a warrant or whatever, we have essentially
reduced the deterrent effect of the exclusionary rule as
it applies to traffic stops, as it has historically
applied to traffic stops.
This is, this is not a new proposition that
if you stop a car and -- if you saw something in plain
view after an illegal stop, it wouldn't be -- it would
still be excluded.
JUSTICE SOUTER: Well, but why -- why
doesn't plain view kick in just as readily, once it is
conceded as it has to be, that at the point that he was
making the arrest, the officer was acting lawfully? And
if he was acting lawfully when he made the arrest, why
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doesn't he get the benefit of the plain view doctrine to
the extent that he saw any evidence before him at that
point?
And I take it the plain view exception would
at least cover the, I forget what it was, but the
materials that were in the, in the passenger well of the
passenger car, that -- that were known to be used as a
source of, of ingredients for making methamphetamine?
MS. CAMPBELL: Well, I believe you
misunderstood me. I wouldn't say that the plain view
doctrine would allow admission of that evidence. If the
stop is illegal then anything the officer seized --
JUSTICE SOUTER: No, I realize. But we've
got -- we've got a choice here, I mean, I think Justice
Kennedy's questions brought this out. We've got a
choice here of two ways to look at the State action at
the moment of -- of the arrest. One way to look at it
would be to say it was a product of an unlawful stop.
Another way to look at it would be to say it was an act
of executing a validly issued warrant. And you concede
that they at least could lawfully have executed the
arrest, they didn't have the arrest warrant but there
was an arrest warrant issued for them and they could
lawfully execute that warrant and arrest him at that
point.
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Let's assume that those are our two choices.
On choice number one the State, the police officer, is
acting someplace where he shouldn't have been. On
choice number two, the parole violator, your client, is
in a place where he shouldn't have been because he
should have been arrested and he should have been back
behind bars at that point.
If we have a choice between those two ways
of looking at the case, why don't we for any purpose,
give the casting vote to the lawfulness of the arrest,
to the warrant which was issued by a neutral and
detached magistrate at some point? And if we do that,
then why isn't not only a search incident to an arrest,
but the seizure of materials which were in plain view at
the moment of that arrest, subject to a -- an
admissibility rule?
MS. CAMPBELL: Well, first, Your Honor, a
slight correction. I don't believe that there is any
evidence that this was an issue issued by an detached
magistrate because what we call in California a Powell
warrant under California Penal Code Section 3000(v)(a)
JUSTICE SOUTER: Okay. But it was, it was a
warrant that was lawful for Fourth Amendment purposes,
is that conceded?
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MS. CAMPBELL: Yes. Yes.
JUSTICE SOUTER: Okay.
MS. CAMPBELL: Issued by the Board of Prison
Terms.
JUSTICE SOUTER: All right.
MS. CAMPBELL: But in terms of why we don't
do this, it's the reason we exclude evidence in general
when it's unlawfull seized, when it is the direct result
of a -- of a stop that is illegal from its inception.
JUSTICE SOUTER: Well, all right, but you're
simply saying we give, we put the greatest emphasis on
act A, stopping the car rather than act B, lawfully
arresting, regardless of the legality of stopping the
car.
MS. CAMPBELL: Well -- well actually we have
a test for this. It's the Brown test; it's the Wong sun
test, and the people have the burden. The test is if
the, even there is attenuation, which I -- which is what
the people are arguing, the warrant in this case is,
that's not the end of the inquiry. We also look at the
flagrancy of the officer's misconduct, and we look at
the temporal proximity to the initial illegality. And
in this case that attenuating circumstance is simply not
JUSTICE SOUTER: But do we, do we have do we
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have in any of the cases -- I, frankly I don't recall.
I remember Brown but I don't think there was anything in
Brown comparable to the lawful authority to arrest
independent of the stop. And -- and that's what makes
this case unusual. And -- and if we emphasize the
lawfulness of the arrest, quite independent of the
circumstances of the stop, and we also bear in mind that
the point of the exclusionary rule is -- is to deter
police conduct, and you've got another priority here,
the driver, who can invoke the exclusionary rule and
deter police misconduct.
I don't see where the interest would lie in,
or where the justification would lie, in our saying
we've got to put, as it were all the eggs in the basket
of the unlawful stop, as opposed to the basket of the
lawful arrest.
MS. CAMPBELL: Well, Your Honor, I think,
actually I'm not sure that the driver in this case is
going to have a remedy. If we look at the steps in this
case, first we have this officer who makes an illegal
stop. He continues that detention in order to run
warrant checks on both parties; he finds probable cause
to arrest Mr. Brendlin; he searches the car incident to
the arrest, even though the Belton rationale search
incident to arrest perhaps is a bit shaky in the case,
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because Mr. Brendlin is in the back of the car, and it's
a parole warrant. But at that point the officer also
searches the driver, and if the evidence is, or if the
taint is attenuated, as to Mr. Brendlin, and this is a
lawful search incident to his arrest, I don't really
understand how the driver is going to have a remedy as
well. And in fact --
JUSTICE KENNEDY: Well, do we have an -- an
argument that something was seized from the driver that
should not have been seized from his person?
MS. CAMPBELL: The driver is not a party to
the appeal, but she was convicted, and -- and -- and --
JUSTICE KENNEDY: Well, but I mean, that's
not before us.
MS. CAMPBELL: No, it's not.
JUSTICE KENNEDY: We're talking about
evidence seized from the defendant.
MS. CAMPBELL: No, Your Honor. I was
responding to the question doesn't the driver have a
remedy? You know, isn't that enough to provide
deterrence? But if we allow a warrant by one person of
the car to attenuate the search, search of the car, then
as I read this Court's precedents, the search is
attenuated, the taint is --
JUSTICE BREYER: The California Supreme
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Court as far as I could tell was thinking that it turns,
if you stop somebody, you stop somebody, if you make him
think he isn't free to go.
So you seem to me to give a lot of cases
where he would feel free to go, and you're saying still
that that's a stop. Well, I mean, suppose the policeman
comes along and he sees three people in a car and there
is Jack the Ripper driving. So he says okay, I'm
stopping the car. Now he says the other three people,
I'm not interested in you; my pal and partner here is in
a second squad car; he will take you wherever you want
to go. Have they been stopped?
MS. CAMPBELL: Have they been stopped by the
initial seizure?
JUSTICE BREYER: No.
MS. CAMPBELL: The initial stop of the car,
yes.
JUSTICE BREYER: Okay. Well, I don't think
you're going to find authority for that in the law. At
least not in this Court. I mean, I'd like to know what
it is. Maybe you are. I think that would be very
interesting.
MS. CAMPBELL: Well, I think the Brower
decision --
JUSTICE BREYER: Brower --
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MS. CAMPBELL: The Brower opinion has a very
JUSTICE BREYER: What, what were the facts
there?
MS. CAMPBELL: Well, in Brower there was a
roadblock --
JUSTICE BREYER: There was a roadblock.
MS. CAMPBELL: The car crashed into it. But
the, the crucial question, the crucial issue was was
means intentionally applied by the Government.
JUSTICE SCALIA: What if the car -- you
know, the car doesn't come to a complete stop. The same
facts that Justice Breyer just gave you. It's creeping
along at, you know, a foot a minute. And then he says
to these other people, you can jump out and go wherever
you like, or you know, or go back to, to my partner's
car. Then they wouldn't have been stopped; is that
right?
MS. CAMPBELL: I think then we'd have a
totality of the circumstances test and whether someone
feels free to leave and jump out of a moving car. But I
-- I --
JUSTICE SCALIA: So you're putting all the
eggs into the basket that the, the car came to a
complete stop and therefore they have been seized. And
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what is crucial for the seizure is the elimination on
motion on the part of the car.
MS. CAMPBELL: That's how --
JUSTICE SCALIA: Any elimination of motion
in a vehicle in which you are the passenger constitutes,
at the request of the authorities, constitutes a
seizure?
MS. CAMPBELL: If it is by means
intentionally implied, yes. I think that's, that's how
Hodari --
JUSTICE SCALIA: But not if you're still
rolling a little bit, a foot a minute.
(Laughter.)
MS. CAMPBELL: Well, then it would be
totality of the circumstances test.
JUSTICE SOUTER: It seems to me that you're,
you're blending two tests together, and tell me if I'm
wrong. One test is there is no question that if the
police get control over people, those people are not
free to go.
MS. CAMPBELL: Yes.
JUSTICE SOUTER: And those are the motion
cases. The most extreme example being the -- the
roadblock. Hodari D, did they -- you know, they were
trying to catch him but did they actually get to the
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point of a seizure for Fourth Amendment purposes?
Then you got another category of cases in
which there is no question that someone is stopped, that
a police officer can exercise control, and that control
if so exercised is certainly going to be seizure for
Fourth Amendment purposes. But we don't know whether
the officer really is exercising control, so we ask the
question would a reasonable person in the position of
the individual stopped have believed that he was free to
go?
Aren't those two quite distinct tests? The
first test assumes the answer to the question in the
second test. The second test assumes the answer to the
first test, i.e., they're stopped, subject to control.
Aren't they two independent tests?
MS. CAMPBELL: I agree with you that they
are two independent tests, and as I went through this
Court's precedents I frankly could not find a single
case in which a person had been in motion and stopped
and came to a stop, the physical stopping of motion, in
which this Court did not find that a seizure had
occurred.
JUSTICE SOUTER: Okay. So you were engaging
in shorthand? You, you accept the analytical
distinction but you say look, in the real world once you
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stop, we -- we know how the person would have felt?
MS. CAMPBELL: Well --
JUSTICE SOUTER: A reasonable person would
have felt.
MS. CAMPBELL: I think that what we have
here, is -- as I said it's really the way we look at it
with drivers as well. There is a bright line. The car
comes to a stop as a result of this display of
authority, you are seized. From that point on when you
would, when a reasonable person would feel --
JUSTICE SOUTER: No, but aren't -- you are
saying, I thought by agreeing with you what you were
saying was once the car is stopped, a reasonable person
under those circumstances would not have felt free to
leave.
MS. CAMPBELL: I think that's true.
JUSTICE SOUTER: Okay.
MS. CAMPBELL: I think a reasonable person
would not feel free to leave.
JUSTICE ALITO: What if the officer went,
before even approaching the car got on the loudspeaker
and said: "Driver remain in the car; passenger, you're
free to go"?
MS. CAMPBELL: I think under the totality of
the circumstances any court would have a hard time
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saying the passenger is not free to leave then, unless
there is some other intervening, some other factor.
CHIEF JUSTICE ROBERTS: But you would state
he is still seized because the car is stopped.
MS. CAMPBELL: He is seized by the stop,
absolutely.
JUSTICE SOUTER: Well, then you're -- you're
blending the two tests together again.
MS. CAMPBELL: Well, the two different --
JUSTICE SOUTER: You have either got to
accept their analytical distinction or not.
MS. CAMPBELL: I do accept their analytical
distinction, Your Honor. I think it's just -- it's
actually two different fact, two different points in
time. There's the, there's the seizure that occurs when
the car stops; and then there is the continuing seizure
during the course of the traffic stop which for the
driver has a fairly clear ending point; for a passenger
it's going to depend on the facts.
JUSTICE ALITO: What's the difference
between that situation where the police officer says on
the loudspeaker passenger remain, driver you're free to
go, and the example that the State has in their brief,
in which a car is stopped and as a result of the way
it's stopped on a narrow road, the other cars behind
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that car are for some other period of time prevented
from going forward? What's the difference between those
two situations?
MS. CAMPBELL: That difference is actually
addressed directly in Brower. Brower addresses that
exact hypothetical. It says a passerby who is
inconvenienced by another stop. There you have
Government, a Government-caused termination of movement
but it's, but there is no intentionally, means
intentionally applied.
JUSTICE BREYER: So what it says here,
getting out their quote from it, is it says it does not
occur whenever there is a governmentally caused
termination in individual's freedom of movement, nor
even where there is a governmentally caused and
governmentally desired termination of an individual's
freedom of movement. That only when there is a
termination of freedom of movement through means
intentionally applied.
Now, the only way I can -- I mean I say the
difference between desired is that they didn't want to
stop him. They are not interested in stopping him.
That's not our desire to stop him. Our desire is to
stop the driver.
So if you don't have the desire and if there
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is no real restriction of any significance, is there a
stop? I mean I would say Brower, they cited on their
side, for that language.
MS. CAMPBELL: Your Honor, where you're
looking at -- we have to look at the objectively
observable facts, which in this case are the flashing
lights. We don't -- I mean the passenger has no
particular way of knowing what the officer's intent is,
which I think is why this Court has consistently held
that the officer's object intent in -- in -- is
irrelevant to the equation.
JUSTICE BREYER: Well, the passenger, you
also have to have two things. One they don't
intentionally want to stop him. Two, he doesn't think
his movement is restricted. Where both of those things
are true, then no stop. That's why the people who, say,
are on the railroad car and they stop the whole train,
that the railroad says don't worry, not an
inconvenience: We'll have another train for new 10 or
15 minutes; just get out, except for car one where there
is Jack the Ripper -- you know, those other people are
not stopped.
Now that's their argument. What's your
response?
MS. CAMPBELL: Well, my response is the same
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as it has been. The passenger is certainly stopped when
the car comes to a halt. We discuss in our brief that
there are reasons why a passenger could, why the car
could be stopped, as far as the passenger knows, and
particularly in this case where we have -- whereas it
was an unreasonable stop, there was no traffic
violation, neither the passenger nor the driver has any
reason to know why they are being stopped, and --
CHIEF JUSTICE ROBERTS: Well, does that make
a difference? Let's say, you know, the car drives
through a red light and the police lights come on. The
passenger surmises that it's because they ran a red
light. So that's a different case? You would say it's
not seized if he reasonably, objectively, reasonably
assumes it's because of what the driver did.
MS. CAMPBELL: No, Your Honor. I would
still say that the passenger is seized when the car
comes to a stop.
CHIEF JUSTICE ROBERTS: So then why are we
pointing out that they didn't know? It makes no
difference under your view of the case.
MS. CAMPBELL: Well, I don't think it makes
a difference one way or the other. I was responding to
the suggestion that the passenger should somehow be
aware of the officer's intent and know when he sees
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flashing lights that it means the driver -- I don't
think that that's a proper inquiry to determine whether
or not --
CHIEF JUSTICE ROBERTS: Well then, if all
that matters is the physical stop, what do you do about
the cases that were talked about earlier where the other
cars have to stop because of the way -- that's a
physical stop and yet our cases indicate you're not
seized in those situations.
MS. CAMPBELL: That's a physical stop, but
it's not -- it's not the -- the means intentionally
applied portion of the test doesn't work or it doesn't
satisfy it.
JUSTICE ALITO: Well, how do you explain the
justification for stopping if there is the seizure, for
stopping the innocent passenger because the driver has
committed a traffic violation? If that's a seizure of
the passenger, then it's a seizure without reasonable
suspicion of probable cause, right?
MS. CAMPBELL: No. I would say that that's
a reasonable, a reasonable stop. That's the risk --
when you get into the car as a passenger, you take a
risk that you may be subject to a reasonable search or
reasonable detention. But the Fourth Amendment doesn't
provide any protection for anyone against reasonable
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detentions and that would be a reasonable detention.
Was there a question?
JUSTICE SCALIA: What about a shutdown of an
airport? You know, there is word that somebody has been
seen walking in with a bag of explosives or it looks
like a bag of explosives, so they stop all planes on the
tarmac, shut down all exits to the airport until they
can ascertain what this bag is. Everybody in the
airport and everybody in those planes has been seized
for Fourth Amendment purposes?
MS. CAMPBELL: No, Your Honor. Some of
those people in the airport would be in the same
position as the passengers in Bostick and Drayton, where
they weren't going anywhere in the first place, and --
JUSTICE SCALIA: Okay, just the people who
were trying to leave the airport. They had just arrived
and they were going to go out to catch a cab and go
home. They have been seized.
MS. CAMPBELL: I would say some of those
people would be in the position of the passer-by, the
passers-by identified in Brower. Possibly some of them
would be seized, but it sounds to me like it would be a
reasonable seizure and wouldn't necessarily --I mean a
reasonable seizure, there's no Fourth Amendment
protection against a --
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JUSTICE SCALIA: Well, it turns out that
there wasn't a bag of explosives and that no reasonable
person would have thought. This was a knitting bag and
some foolish cop thought it was a bag of explosives.
That would have made it unreasonable. So everybody in
the airport who is on the way home has been seized and
has a cause of action.
MS. CAMPBELL: Given the extreme leeway
given in airports, if it's so bad that there wasn't
reasonable suspicion to shut it down, I'd say that's
probably a reasonable result for shutting down entire
airports for no reason whatsoever. But under the fact
that you posited, it sounds like it would be exigent
-sent circumstances or something else that would make
that a reasonable suspicion.
Going back to our, to the test that
Petitioner asks this Court to adopt, the most important
thing I can say about this test is not only does it
reflect what I think is the real life expectation. It
also protects officer safety by providing a measure of
predictability for both passengers and drivers and as
well for officers.
And I'd like to reserve the rest of my time.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Mr. Zall.
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ORAL ARGUMENT OF CLIFFORD E. ZALL
ON BEHALF OF RESPONDENT
MR. ZALL: Mr. Chief Justice and may it
please the Court:
I'd like to respond if I could to Justice
Souter's point earlier. The State sees this as having
two distinct components in a situation where a passenger
is subject to a, in a vehicle that's subjected to a
routine traffic stop. First, you have the stopping of
the vehicle, the physical stopping of the vehicle. In
our view that does not result in a seizure of a
passenger. It's a show of authority much like Hodari D
discussed, which is directed at the driver. The driver
is the operator of the vehicle. When the driver submits
to that show of authority, under this Court's precedents
the driver is seized. The passenger is not seized.
JUSTICE SCALIA: Even, even when the reason
the driver is stopped is that a police officer whose car
was alongside, he looks over there and he sees that it
is some notorious felon who is in the back seat, and the
only reason he stops the car is so arrest that felon?
You would still say that, that the show of authority is
only directed at the driver and hence it is only the
driver that's seized?
MR. ZALL: Justice Scalia, the way I'd
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answer that question is to say yes at the outset,
because the driver is in control of the vehicle. By
necessity, the show of authority to stop if it's done in
a routine manner, as was done here, is directed at the
driver. Therefore --
JUSTICE SCALIA: That's the right answer. I
think you're being consistent. You have to say that.
You have to say that.
MR. ZALL: Thank you.
JUSTICE SOUTER: Well, consistent with that
answer, consistent with that answer, what we're
concerned with in these cases is not, in cases like
this, is not literally the moment of the stop, but the
moment of the stop plus one. And in cases like this
the -- I take it you concede the question is would the
passenger, would a reasonable passenger in, in that
situation feel free to leave. And in the absence of a
hypothetical like Justice Alito's in which the
loudspeaker says, all I want is the driver, passenger is
free to go, and so on, absent something like that, what
is the argument that the, that a reasonable person in
the passenger seat would feel free to open the door and
traipse off?
MR. ZALL: Justice Souter, I think the, the
pervasiveness and the commonplace nature of a routine
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traffic stop gives --
JUSTICE SOUTER: Have you ever been stopped?
Have you ever been subject to a traffic stop?
JUSTICE SCALIA: Tell the truth now.
(Laughter.)
MR. ZALL: Yes. Yes, I have.
JUSTICE SCALIA: Okay.
(Laughter.)
JUSTICE SOUTER: Okay. The heart rate went
up. The blood pressure went up. But --
MR. ZALL: But I was the driver, I was the
driver.
JUSTICE SOUTER: Don't you think that a
reasonable passenger at that point would assume that the
officer is in control and that, in the absence of some
affirmative indication that the passenger can go, that
he's supposed to sit there until this thing gets over
with? Isn't that the reasonable response of a
passenger?
MR. ZALL: No, Justice Souter, I don't think
so. I think again, because the, the traffic stop is
such a common occurrence and in the overwhelming
majority of cases involving a routine traffic stop, it's
an investigatory stop of the driver. And I think it's
reasonable for the passenger and the driver to see it
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that way, I would submit that if I am a passenger in a
car and I'm riding with somebody and they, and one
patrol car signals for the driver to pull over, I think
the natural reaction is the driver says, what did I do,
and the passenger says, what did you do? I mean, I
think that's the natural reaction.
JUSTICE GINSBURG: The fact that the action
JUSTICE SCALIA: Well, but the policeman
usually tells the drive and anybody else in the car:
Stay in the car. Policemen don't like people jumping
out of the car. They don't know why they're jumping out
of the car. And I would certainly if I were a passenger
not feel free to immediately open the door and start
walking away, and if I did I would expect the policeman
to tell me: Get back in the car. Isn't that, isn't
that the normal procedure, to keep the occupants in the
car until the policeman investigates?
MR. ZALL: Well, I think, Justice Scalia, I
think if the officer did tell you to stay in the car --
JUSTICE SCALIA: Well, even if he didn't
tell me. I would have expected him to tell me. I
wouldn't even open the door because I know he would tell
me. I know that I'm not free to leave the car
immediately until he investigates the stop.
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MR. ZALL: Well, I, I'm not sure that I
agree with that.
CHIEF JUSTICE ROBERTS: What if there's a
suitcase in the back seat? Just the driver, the
driver's pulled over, and then somebody comes walking
down the sidewalk, the driver's friend, he opens the car
door, takes the suitcase and starts walking away?
Wouldn't the policeman say, put that back, because he
thought he had seized not just the driver but everything
in the car, too?
MR. ZALL: Well, again, Mr. Chief Justice, I
think that if, if the officer -- our position is that if
the officer does something to the passenger to indicate
CHIEF JUSTICE ROBERTS: I'm talking about
the suitcase. You wouldn't, you wouldn't reasonably
think someone could just take something out of the car
that's been stopped by the officer and walk off with it,
right? Everything, all the contents of the car, are
seized as well as the driver, right?
MR. ZALL: I'm not sure that a passenger,
though, is like a suitcase. I mean, a suitcase can't go
anywhere unless somebody does something.
JUSTICE KENNEDY: You're representing the
State of California and you want to establish the
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proposition that any time there is a traffic stop in the
State of California or I guess anywhere in the United
States all the passengers are free to immediately leave,
absent some further countermanding officer -- order by
the officer. I think that's a quite surprising
proposition. Now, we don't have empirical studies and
so forth, but at some point the Court takes judicial
notice and I think indications from the bench are we
just don't think passengers, A, are or, B, should feel
free to leave when there's a traffic stop. I just think
you have no social or empirical documentation for that
position.
MR. ZALL: Well, though it's not cited in
our brief, Justice Kennedy, we have talked with the
California Highway Patrol who make over a million stops
a year in California and they treat passengers as free
to leave.
JUSTICE BREYER: But I mean, the question --
so I want to know how to decide this case. I understand
what your position is. But I think the normal instinct
of everybody is not about boats, taxis, airports and all
these other examples, but this case. And I, I would say
if you want to go on instinct I wouldn't think of
getting out of a car when I'm the passenger and the
policeman has stopped. But maybe I'm wrong. So when
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you asked a million policemen, how many instances did
they tell you about where they stopped the car and all
the passengers jumped out and walked away? Was there
one? Was there one.
MR. ZALL: Well, I mean -- but I think that
prudent behavior -- just because it's prudent to do
something doesn't make it a seizure.
JUSTICE SCALIA: Right. I never pass a
police car. I don't care how slow I'm going. I never
pass a police car. I don't consider myself arrested
just because that's the prudent thing to do, and it may
well be a similar situation when you're sitting in a car
that's been stopped by a traffic policeman.
MR. ZALL: I mean, I think, I think again
that --
JUSTICE GINSBURG: Mr. Zall, let's say we
have just an intelligent reasonable person reads the
newspaper and says: Oh, they handed down a decision
today that said the police can order me to get out of
the car, the police can order me to stay in the car.
How could such a person feel free to leave knowing that
it is the law that that person can be told, get out, or
if he tries to get out, stay in?
MR. ZALL: Well, Justice Ginsburg, I'd say
that, you know, in the Court's seizure jurisprudence
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there is this notion of a consensual encounter. I think
when an officer approaches a citizen on the street there
is always the apparent authority. The apparent
authority of the police is always present. The police
always have the factual upper hand, if you were, and at
the traffic stop is no different. I mean -- and yet,
this Court has repeatedly said that when the police
approach a citizen, ask for his identification, ask for
his cooperation, even if the police follow him in a
squad car, that that's a consensual encounter.
JUSTICE BREYER: Does it matter if they're
on the Santa Monica Freeway?
MR. ZALL: I don't think so.
JUSTICE BREYER: I mean it would be pretty
dangerous to get out.
MR. ZALL: Well, but that would be a reason
why you don't get out. But it doesn't have anything
necessarily to do with the police coercion. I don't, I
don't think -- most of us wouldn't get out. But that
doesn't make it a seizure, just like most of us would
cooperate with the police when the police approach us on
the street. But I don't think -- if anything, I think
the traffic stop is less ambiguous. It's clearer that
the police are not interested in me if I'm a passenger.
JUSTICE STEVENS: May I ask this question?
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Suppose after the stop the passenger in the back seat
starts to get out and the officer says: Stay in the
car. Is he then seized?
MR. ZALL: Yes. Yes, because now the police
have directed action at him and in that situation a
reasonable person --
JUSTICE STEVENS: Doesn't it mean that the
authority to cause the person to stay in the car existed
throughout the stop?
MR. ZALL: The authority? Yes, but I mean,
I think the police always have some degree of authority
over us in any encounter.
JUSTICE STEVENS: Let me ask you this. On a
casual street in downtown, if they say, I'd like to stop
and talk to you, you don't have to stop. There's no
authority to make them stop. But there is authority for
the passenger in the back seat of the car.
MR. ZALL: Well, it depends, Justice
Stevens. I think, is there legal authority? I mean, I
think police always have the factual authority and I
think that's the way the reasonable person looks at
things. I don't think the reasonable person --
JUSTICE STEVENS: Is there a difference
between legal authority and factual authority?
MR. ZALL: I don't think in this context
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there is. I mean, certainly in --
JUSTICE STEVENS: If there's no difference
then there's legal authority.
MR. ZALL: I'm sorry, Justice Stevens?
JUSTICE STEVENS: If there's no difference
then there's legal authority, which would mean the
person is subject, is in custody of the officer.
MR. ZALL: No, I don't think so, any more so
than Mr. Drayton was in the Drayton case, where his
compatriot was arrested and the police continued to
engage him, and this Court found that that was a
consensual --
JUSTICE BREYER: How are we supposed to -- I
think it's quite interesting. How do you suggest we
decide this/ I don't mean the result, but I'll go, I'll
say yes, you've done your survey of the policemen, a
million policemen think they're not restricting the
movement of the passenger. Very few passengers jump out
of the car, but that may be because they're worried
about being run over. So you say, well, in fact they're
restricted, but they don't think they're being
restricted by the police, or do they? And here we have
no idea, at least I have no idea. I really don't know
what the majority think and yet it would seem totally
relevant. How would we find out?
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MR. ZALL: Well, Justice Breyer, I mean, I
think that in this Court's -- to be consistent with this
Court's consensual encounter jurisprudence, with
Rodriguez, with Royer, with Drayton, with Bostick --
JUSTICE STEVENS: But those are encounters
in an airport where there are pedestrians; there's no
authority to make the person stay, where here I think
you've conceded that there is legal authority to require
the person to stay where he was.
MR. ZALL: Yes, yes, I do, Justice Stevens.
But I think the point is that if --
JUSTICE STEVENS: And if it wasn't a seizure
what's the source of the legal authority?
MR. ZALL: Well, again, I think, though,
that it's a question of seizable versus seized. I don't
think just because the police have some authority that
that makes you seized. I mean, if the police see a
citizen jaywalking that person is not arrested because
the police have the authority to make, to arrest him.
So again I think, I think that the seizure
occurs when the police exercise some authority over you.
I just think the traffic stop is less ambiguous. It's
clear that the traffic stop is to deal with the driver,
whereas in the street encounter --
CHIEF JUSTICE ROBERTS: If it's not, if the
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opposite is true, then it is a seizure even though they
stop the car?
MR. ZALL: Then, Mr. Chief Justice, I would
say that it's a seizure that at the outset, again per
Justice Scalia's hypothetical, that the, the driver only
is seized at the outset, but then once the police make
it clear that their interest is with the passenger then
the passenger would not feel free to leave, and then the
passenger would be seized.
CHIEF JUSTICE ROBERTS: Even if they make
that, even if they make that interest clear prior to the
stop?
MR. ZALL: Yes, I think it would sort of
happen instantaneously.
CHIEF JUSTICE ROBERTS: No. They pull up
next to them and they see that Brendlin is the passenger
and they yell over: Pull over, Brendlin.
MR. ZALL: So they direct their action, they
direct their attention at the passenger at the outset.
Yes, then I would say the driver is seized by the stop,
and then right immediately the passenger, the reasonable
passenger, would not feel free to leave and then he
would also be seized at that point. But again, I harken
back to the Court's consensual encounter jurisprudence.
It seems to me that again the straight encounter is more
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anxiety-forming for the citizen because the police have
directed their attention at you.
JUSTICE GINSBURG: It may be that you can
walk away, you're not in an enclosed space. Suppose the
passenger knows when the police approaches: Oh my
goodness, I didn't buckle up. Would that passenger be
the object of the police authority from the start?
MR. ZALL: Well, in your hypothetical,
Justice Ginsburg, the passenger would not be an innocent
passenger and the Court's test presupposes an innocent
person. So we can't really ask the question from the
perspective of the seatbelt violator.
JUSTICE GINSBURG: So it could be, it could
be sometimes the attention is directed at the driver,
but that's not always the case.
MR. ZALL: Again, I -- as Justice Souter
indicated, I think you have to, you have to break it up.
At the outset, the show of authority is by nature of
the, of the vehicle, is directed at the driver. After
the vehicle comes to a stop, the police could manifest
some interest in the passenger and then that changes
things.
JUSTICE KENNEDY: But on your earlier answer
to Justice Ginsburg, there's no authority in this Court
to say that whether you deem yourself stopped or not
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depends on whether think you're innocent. There's zero
authority for that, right?
MR. ZALL: That's correct.
JUSTICE KENNEDY: Correct me if I'm wrong.
MR. ZALL: No, that's correct. That's
correct. The perspective must be -- we must look at it
from the innocent passenger and whether the innocent
passenger would as a result merely of the stop of the
car feel free to leave.
JUSTICE KENNEDY: Going back to Justice
Stevens' question, the passenger knows the minute the
red light goes on that the police can either tell them
to get out or tell him to stay in. He knows at that
very moment. That seems to me to substantially limit
his freedom of action and indicates that --
MR. ZALL: Well, again I think factually
citizens when they encounter police always know -- I
mean, the policeman in any encounter is armed, is
typically armed, and has apparent authority over you.
And yet this Court has repeatedly held that that in and
of itself, although it may cause some anxiety on the
part of citizen --
JUSTICE STEVENS: Yes, but isn't your case
he doesn't in fact have the authority, he has apparent
authority, but in this case he has actual authority, not
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just apparent authority?
MR. ZALL: But Justice Stevens, again I
don't think that the reasonable innocent passenger is --
this Court has never said it's the reasonable innocent
passenger that knows the Supreme Court's Fourth
Amendment jurisprudence by heart. I mean --
JUSTICE SCALIA: You're saying he doesn't
have actual authority. If I understand you, you're
saying he has no authority to stop an innocent passenger
from walking away. Aren't you saying that? Unless
there's some reason to hold a person in the car, he has
no authority to stop him from walking away.
MR. ZALL: I think that is the current state
of the law. Yes, that is the current state of this
Court's jurisprudence.
JUSTICE SCALIA: What if I feel, even though
that's the current state of the law, I wouldn't think of
opening the door and walking away without asking the
policeman, do you mind if I open the door and walk away?
Does that suggest that I think I've been seized?
MR. ZALL: No, I don't think so, Justice
Scalia. That just suggests that you're prudent when
you're dealing with an armed officer.
CHIEF JUSTICE ROBERTS: It's not the police
who have authority over the passenger; it's the driver.
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The driver's exercising authority. Just because the
police say to pull over, the driver can take off and the
passenger isn't seized at that point.
MR. ZALL: Absolutely, Mr. Chief Justice. I
think again, though, that the stop and then the after
the stop are discrete.
JUSTICE BREYER: So now perhaps I'm having
so much difficulty, and maybe others are, because you've
actually reached a question of law where facts matter.
That is, the law points us to the direction of what
would a person reasonably think in general in such
circumstances, and we can look at five million cases,
but we don't know. So what do we do if we don't know?
I can follow my instinct. My instinct is he would feel
he wasn't free because the red light's flashing. That's
just one person's instinct. Or I could say, let's look
for some studies. They could have asked people about
this, and there are none. Or I could say, well, you're
the State of California, you're the ones able to get the
studies; you could tell some of those professors, you
know, to stop thinking about whatever they're thinking
about and go ask a few practical questions, but you
didn't.
What should I do? Hold that against you?
Look for more studies? Follow my instinct?
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MR. ZALL: I think, Justice Breyer, again I
would keep coming back to the Court's consensual
encounter jurisprudence. I think you could ask some of
the same questions about in the Drayton case, in the
Bostick case, in the Royer case. But if you accept
those at consensual, then I'm not sure that this is any
less consensual here.
JUSTICE SCALIA: Maybe we can just pass
until the studies are done?
(Laughter.)
JUSTICE SOUTER: Mr. Zall, assume, and I
realize you don't assume, but assume for the sake of
argument, that, that there is a seizure here. What's
the significance of the arrest warrant, or -- yes, I
guess there was a warrant as I understand it, although
it was not on the person of the officer who stopped the
car. Is that correct?
MR. ZALL: That's correct.
JUSTICE SOUTER: Okay. What's the
significance of that for the outcome of this case?
MR. ZALL: Well, I think that even were this
Court to rule that the passenger were subject to a
seizure, that the presence of the arrest warrant
attenuates any taint and therefore the evidence was --
was not suppressible.
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JUSTICE KENNEDY: Well, maybe our questions
took your colleague representing the Petitioner beyond
the question presented. The question presented is only
whether the passenger felt seized. If we agree with the
Petitioner, do we send the case back?
MR. ZALL: I wouldn't, I wouldn't think
there would be a need to send the case back. I mean, I
think --
JUSTICE KENNEDY: Well, why, if we have
serious doubts whether or not the evidence is
suppressible? All we've been asked in the question is,
is whether the passenger is detained.
MR. ZALL: I concede that that's true.
JUSTICE KENNEDY: While the questions
indicate that even if the passenger is detained, who
cares, it's a lawful arrest.
MR. ZALL: Well, I think that because it's
fairly clear that the arrest would, would remove the
taint from the seizure, that there would be little
reason to send the case back to the California Supreme
Court.
JUSTICE BREYER: Well, that question hasn't
been argued here.
MR. ZALL: Well, I think it's subsumed in
the question presented and I think it was raised in our
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opposition and the parties have briefed it.
CHIEF JUSTICE ROBERTS: Well, but there's --
you know, our Brown case establishes a multifactor test
for determining when the illegal seizure has been
attenuated and the Court hasn't applied that, the
California Supreme Court hasn't gone through that test
in this case.
MR. ZALL: That is correct, but again I
think because the warrant is such a clear intervening
circumstance that has nothing to do, you couldn't in any
way say it's an exploitation of the, of the illegal
stop.
JUSTICE SOUTER: But don't we have two
problems if we go to that stage? The first one is we
would be applying a test that was not applied by the
court we're reviewing. And number two, correct me if
I'm wrong, but the, the -- assuming you win, as it were,
on the general point about the significance of the, of
the arrest warrant, there are still going to be
questions about the suppression of the evidence because
there are going to be questions about whether the
legality of the arrest on that theory suffices to
justify the seizure of the evidence. You recall the
colloquy I had with opposing counsel about the
possibility of applying a plain view test here.
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Aren't those issues that should all be
decided in the first instance in the State courts?
MR. ZALL: Certainly you could take that
position, Justice Souter. But it seems to me that
again, that it's relatively straightforward. The arrest
was valid. I mean, unquestionably the arrest was valid.
If the arrest was valid, I'm not sure that there are any
cases --
JUSTICE GINSBURG: But the question that's
presented is kind of a standing question. It's who can
complain when the police stop a car? You say the
driver. The question that's been presented in this case
is, can the passenger also complain, and that's the only
thing that we're dealing with. So the -- the arrest
warrant may pose a disqualification for this particular
passenger, but that would be a second question. The
question that is tendered to us and that was answered by
the California Supreme Court is when the car is stopped
by the police who can complain.
MR. ZALL: Absolutely, Justice Ginsburg, I
agree. And one further point I'd like to make on that
is, would be to draw a parallel between a parked car
situation, in which the lower courts have uniformly held
that no seizure results when the police turn on their
lights and approach a parked car, and even when they rap
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on the window to get the attention of the occupants
there is no seizure.
CHIEF JUSTICE ROBERTS: No seizure of a
passenger or a driver?
MR. ZALL: Of anybody. Lower courts have
uniformly held that, and yet that seems to be a more
ambiguous situation and a situation in which the
occupants' natural reaction would be to turn to each
other and say: What's going on here? Whereas again in
the traffic stop I think it's, it is probably the most
likely place that a citizen encounters a policeman, much
more so than a, an officer approaching me at an airport
and saying, can I see your identification, or
approaching me on a street corner, or, as in Chesternut,
following me as I'm walking home in his squad car.
Those seem to me to be more anxiety-creating and yet the
Court has held that those are consensual encounters.
And in the parked car, there's ambiguity
about what the police want, whereas in the routine
traffic stop there isn't that ambiguity, so there's no
reason why the passenger shouldn't feel free to leave.
Now, it might be prudent, as Justice Scalia indicated,
to say, I'm leaving. But that doesn't make it a
seizure, that you should act prudently. I think you
should always act prudently when you're dealing with the
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police.
JUSTICE ALITO: What is this period of time
that we are talking about when Mr. Brendlin might or
might not have felt that he was free to leave? As I
understand the facts, the officer recognized him as one
of the two Brendlin brothers immediately upon
approaching the car. Isn't that right.
MR. ZALL: That's -- that right, Your Honor.
But again I think, so I think it's just the mere
presence. It would just be from the time that he got
out of his parked, of his car after he parked it, and
then with his lights on approached the car and then
looks in and sees Mr. Brendlin. So that's the period of
time that Petitioner would have to establish that a
reasonable person would not feel free to leave.
And the -- and the comparison with the
parked car and the other consensual encounter cases of
this Court in my view indicate that there is nothing
that's been done to the passenger. I mean, the arrest
of one person as this Court said in Drayton does not
mean that everyone around him is detained so it doesn't
seem to the State that anything has been done to the
passenger. He just was unlucky enough to be in this car
when the driver was stopped for a traffic violation.
And that seems to me fairly unambiguous and we don't
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feel like a reasonable passenger would not feel free to
leave in that situation.
JUSTICE KENNEDY: Well, it may be that we
would say because of the exclusionary rule dynamic, we
have very little interest in applying the exclusionary
rule to this but I'm not so sure that we should bend the
concept of seizure and say that the passenger hasn't
been seized.
Perhaps we should be very liberal insofar as
applying the exclusionary rule and in this case it seems
to me there is lawful arrest which is intervening cause
anyway. But I don't know that we should distort the law
of seizure.
MR. ZALL: Justice Kennedy, I wouldn't think
you're distorting the law of seizure by saying the
passenger isn't seized. Nothing is done to the
passenger. He happens to be in this stopped vehicle,
but the police have directed no action toward him and so
I'm not sure that you would be torturing the definition
at all.
JUSTICE STEVENS: Suppose 10 or 20 years ago
we had this case and we decided your way and decided
passengers are not seized, and then subsequently we had
the question of whether an officer could order a
passenger out of the car. What would be held then?
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Would we have said we can't because he is not seized?
Or would you say yes, he was seized. I meant if we
decided in your case there is no seizure, would we then
have later on, do you think said, notwithstanding the
absence of a seizure the officer could order the person
out of the car?
MR. ZALL: Yeah. Because I think -- because
I think the weighty interest in officer safety would
still allow the officer to have some degree of control
over the situation. But again seizable does not mean
seized. The fact that the officer could seize the
passenger doesn't mean that the passenger is seized.
JUSTICE STEVENS: But in most situations
where an officer meets a person, unless there is a crime
scene or something like that, he can't order them to
cross the street or go someplace else, can he? He can't
issue any order to a citizen.
MR. ZALL: But again --
JUSTICE STEVENS: But he can issue orders to
passengers even though they are not seized.
MR. ZALL: But Justice Stevens, I think
that's because of, the Court recognized in Mimms and in
Wilson that there is something inherently dangerous
about the traffic stop situation, and there may be
weapons in the car that the officer can't see, and so
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that's why this Court found in Wilson that you could
order the --
JUSTICE KENNEDY: Yes, but in that case
there was a blanket rule. The officer didn't have to
have a specific reason. And that it seems to me
indicates that that's because the person as a general
rule knows that he or she is seized. If the officer had
to give a specific reason requiring the person to stand
outside as the dissent said, then you might have had a
point. But I don't think that's what the Court held.
MR. ZALL: I don't think, Justice Kennedy,
that the Court ever indicated that the passenger was
seized in Wilson prior to the order out. I know there
was a dissent that indicated that the passenger wasn't
seized and the majority never indicated that they
disagreed with that point. I think that what happened
in Wilson is that the Court just felt that -- may I --
CHIEF JUSTICE ROBERTS: Finish your
sentence. Sure.
MR. ZALL: -- the Court just felt that the
weighty interest in officer safety justified the order
out, regardless of whether the passenger was seized at
the outset.
CHIEF JUSTICE ROBERTS: Thank you Counsel.
Miss Campbell, you have five minutes
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remaining.
REBUTTAL ARGUMENT OF ELIZABETH M. CAMPBELL,
ON BEHALF OF PETITIONER
MS. CAMPBELL: Thank you. Just to respond
to that last question very briefly, I agree with Justice
Kennedy that Wilson could not have been decided the way
that it was decided had there not been an underlying
assumption that the passenger is seized, because Wilson
does not require any reasonable suspicion that the
person is posing a danger to the driver.
I'd also like to respond to the State's
argument that the passenger in this case simply got
unlucky and he was in a car with someone, that he
happened to be in a car with someone who was stopped for
a traffic offense. This passenger wasn't merely
unlucky; his Fourth Amendment rights were violated by an
unreasonable stop that was unreasonable from its
inception. Not only did the officer have no reason to
make the stop; he had actually called in and verified
and gotten affirmative evidence confirming that there
was no reason for the stop. So it --
CHIEF JUSTICE ROBERTS: So that -- so that,
still then, it's just begging the question of whether or
not his Fourth Amendment rights were violated. You're
making a good case that the driver's Fourth Amendment
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rights were violated, but why isn't the passenger, as
your friend said, just in the unlucky circumstance to
have been in a car whose the driver's Fourth Amendment
rights were violated?
MS. CAMPBELL: Because Your Honor, this
Court has -- this Court held in Delaware versus Prouse,
the Court recognized the passengers as well as drivers
have a liberty interest in free travel on the highways,
and because if we look at every case this Court has
decided in the last 20 or 30 years regarding when a
seizure occurs, the case of a passenger in an auto test
-- in an auto stop meets the test. Under Hodari D we
need a show of authority or physical control; in this
case we have both. We have the driver response to the
officer's show of authority and as a result the
passenger is, is subject to physical control, as a
direct line.
JUSTICE SCALIA: What have we done in a
case, and maybe we haven't had it, but what have we done
in a case where there is a warrantless entry in
violation of the Fourth Amendment of somebody's
apartment, and there is a suitcase in there that does
not belong to the owner of the apartment? My impression
is that, that the owner of that suitcase has not been
subjected to an unreasonable search and seizure; is that
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correct?
MS. CAMPBELL: If the person has no
expectation of privacy in that suitcase that is correct,
Your Honor. But this Court has recognized in Delaware
vs. Prouse that a passenger does have a privacy liberty
interest in free travel. So it's a different situation.
Once again, going back to the Brower case,
the, there was some question about whether or not the,
the seizure of a bystander would be, would be a seizure
under the rule proposed by, by Petitioner in this case.
Brower talks about an entirely accidental seizure.
JUSTICE KENNEDY: Well, but there was only
one, there was just the driver in the Brower case.
MS. CAMPBELL: Yes, Your Honor.
JUSTICE KENNEDY: There was no passenger as
I recall.
MS. CAMPBELL: No. But - but under the rule
proposed by the State if there had been a passenger that
passenger would not have been seized. But if we look at
how this Court --
JUSTICE KENNEDY: Well, but I mean in the
case it's just not directly on point. That's what we
are arguing about.
MS. CAMPBELL: Yes, Your Honor. But if we
look at the case next in line case, the County of
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Sacramento versus Lewis case, there was a passenger in
that case who was struck by the officer in the pursuit,
and although the Court found no seizure it didn't base
that on the fact that the person was a passenger, but on
the fact that it was an accidental application of force.
JUSTICE KENNEDY: So that's just another
case that doesn't help us.
MS. CAMPBELL: I think it certainly informs
the discussion, Your Honor.
JUSTICE GINSBURG: But what of the question
that was raised about well, a passenger is locked in for
the moment, but so are all the cars that are backed up
behind the car that's been stopped? What's the
difference between the passenger --
MS. CAMPBELL: In that case, Your Honor,
there hasn't been an intentional impeding of those
people's free, free movement by the officer. The
officer has intentionally stopped this vehicle. And I
-- I don't think it's really, it's really far-fetched to
argue that it's reasonably foreseeable that automobiles
often have passengers in them, and there is certainly a
large body of statutory law at least in California that
shows that the car can be stopped for reasons related to
the passenger.
So it's, it's a different situation. We are
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not looking at an accidental seizure. We are looking at
an intentional seizure of the car.
Just to address for a moment whether or not
remand is appropriate in this case, just to clarify the
procedural posture. The intermediate appellate court in
California did rule this, that the evidence seized in
this case was the fruit of the poisonous tree and should
be suppressed. The California Supreme Court did not
grant review on that issue and it was not, it's not
included in the question presented. Just for
clarification. But if the --
CHIEF JUSTICE ROBERTS: The California
Supreme Court didn't have to reach that issue because it
found there was no seizure.
MS. CAMPBELL: No. The court did not -- did
not actually request briefing on the issue either.
Thank you.
CHIEF JUSTICE ROBERTS: Thank you, Counsel.
The case is submitted.
(Whereupon, at 12:04 p.m., the case in the
above-titled matter was submitted.)
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10 23:19 50:2111:03 1:13 3:212 04 57 20
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