Posted by Orin Kerr:
CFR in People v. Brendlin?:
http://volokh.com/archives/archive_2006_12_31-2007_01_06.shtml#1167875679
Perhaps the most cert-worthy issue in Fourth Amendment law right now
is whether the passenger of an automobile is "seized" when a police
officer orders the car to pull over. In a remarkable opinion issued
this past June, [1]People v. Brendlin, a closely-divided Supreme Court
of California held that the passenger is not seized: the Court ruled
that stopping the car seized the driver, as it acts on him, but not
the passenger, who just so happens to be in the car. Thus, in the
Brendlin case, the fruits of an unlawful stop of the car Brendlin was
in were used against him on the theory that he was not himself
"seized" by the stop.
I think it's fair to say that Brendlin is one of the least
persuasive Fourth Amendment decisions I have read in a long time. A
seizure occurs when a person or thing is stopped, by whatever
intentional means, and it doesn't matter whether the thing is a
driver, a passenger, or a box in the trunk. Fortunately, the Brendlin
case is itself highly certworthy: It created a huge and and ugly
split, as it's contrary to a bunch of federal circuits (including the
Ninth) and many state Supreme Courts have held. A few state courts
have adopted the Brendlin approach, but they were from low-population
states; in contrast, when the entire California state criminal justice
systems adopts a rule involving cars, a split really matters. It's
particularly ugly because the 9th Circuit has a different rule; this
means that officials can pick whether to go into federal or state
court based on which has the more favorable rule.
A cert petition was filed in the case on November 28th. Remarkably,
the state of California waived its opportunity to file a brief in
opposition. According to [2]the docket page, the case has been
distributed for the January 12 conference. I would expect the Court to
"call for a response," essentially ordering California to respond so
the Court can take a more-informed look at whether the case is
cert-worthy. Stay tuned. (For the record, I have discussed this case
with Brendlin's counsel, and have offered my assistance in the case; I
haven't actually worked on the case, however.)
References
1. http://scoc.typepad.com/scocblog/files/Brendlin.pdf
2. http://www.supremecourtus.gov/docket/06-8120.htm
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