# People v. Brendlin

> California Supreme Court · June 29, 2006 · 45 Cal. Rptr. 3d 50

URL: https://www.frixlaw.com/law-library/cases/9785860

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. BRUCE EDWARD BRENDLIN, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 29, 2006
- **Citations:** 45 Cal. Rptr. 3d 50; 38 Cal. 4th 1107; 2006 Daily Journal DAR 8559; 136 P.3d 845; 2006 Cal. Daily Op. Serv. 5815; 2006 Cal. LEXIS 7925
- **Precedential status:** Published
- **Opinion:** Dissent by Corrigan
- **Judges:** Baxter, Corrigan
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Brendlin v. California, 551 U.S. 249 (2007).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9785860

## How later opinions describe it (automated extraction)

- finding that submission did not occur because the “defendant, as the passenger, had no ability to submit to the deputy’s show of authority”

## Opinion text

CORRIGAN, J., Dissenting.
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 [ 91 Cal.Rptr.2d 204 ]), or get out of the vehicle (Maryland v. Wilson (1997) 519 U.S. 408, 410 [ 137 L.Ed.2d 41 , 117 S.Ct. 882 ]). This authority is soundly based on the need to protect the officer’s *1124 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 [ 64 L.Ed.2d 497 , 100 S.Ct. 1870 ].) 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 [ 140 L.Ed.2d 1043 , 118 S.Ct. 1708 ].) The passenger is detained for a reason that is not “independent of police conduct.” (Florida v. Bostick (1991) 501 U.S. 429, 436 [ 115 L.Ed.2d 389 , 111 S.Ct. 2382 ].) 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 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. ( 501 U.S. 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 [ 113 L.Ed.2d 690 , 111 S.Ct. 1547 ] 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.
*1125 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 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. 1120; 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; U.S. v. Moorefield (3rd Cir. 1997) 111 F.3d 10, 12-13 .) 3 This per se rule, based on the need to ensure officer 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. (U.S. v. Kimball (1st Cir. 1994) 25 F.3d 1, 5 .)
*1126 The Wilson court observed that “[o]n the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers.” (Maryland v. Wilson, supra, 519 U.S at p. 413.) The court decided the intrusion on passengers’ liberty is nevertheless justified, partly because “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle.” (Id. at pp. 413-414.) By stopping the vehicle, the officer has exerted authority over everyone in it. Because the liberty interest of passengers is stronger than that of drivers, they too should be afforded the protections of the Fourth Amendment.
To conclude that passengers are free to leave the scene until an officer actually exercises the authority granted by Wilson (maj. opn., ante, at p. 1122), overlooks the fact that the officer has already interfered with the passengers’ freedom of movement. It is not, as the majority suggests, the mere potential that an officer might order a passenger out of the car that results in a detention. It is also the prior actual application of the officer’s authority in pulling the vehicle over. The stop gives rise to the officer’s legitimate power under Wilson and Castellón to control the passengers’ movements without any particularized justification. That official control differentiates passengers detained during a traffic stop from other citizens who are only incidentally impeded by an exercise of state authority. (See maj. opn., ante, at pp. 1120-1121.)
The majority’s approach leads to anomalous consequences. For example, when an officer pulls over a car, the driver and passengers may all be considered to be in constructive possession of contraband found in the vehicle. Under the majority’s rule, however, the driver would be protected by the Fourth Amendment but the passengers would not, even though the Supreme Court has described the passengers’ liberty interest as stronger than the driver’s. The majority also bars passengers from challenging the traffic stop if the officer arrests them before exerting any authority under Wilson , but would permit passengers to challenge the stop if the grounds for arrest were discovered after the officer gave directions controlling their movements. It is true, as the majority observes, that Fourth Amendment jurisprudence is not free of anomaly. (Maj. opn., ante, at p. 1122.) However, when given the opportunity, we should eschew incongruity. Surely consistency is preferable to anomaly.
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. 1121.) It provides a clear and *1127 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. 1121, fn. 4.) However, the Wilson court made an express exception to the usual practice of avoiding bright-line rules in the Fourth Amendment context when it decided that passengers, like drivers, may routinely be ordered to leave the vehicle during a traffic stop. (Maryland v. Wilson, supra, 519 U.S at p. 413, fn. 1.) The per se rule of Wilson justifies the rule proposed here. Because, as a matter of law, passengers’ freedom of movement is subject to the control of the officer during a traffic stop, passengers should be permitted as a matter of law to challenge the legality of the stop. No conflict with the body of Fourth Amendment law arises from this commonsense approach. Further, the analysis takes into account the most relevant circumstance; the passengers’ freedom has been limited by the officer’s exercise of authority.
The majority expresses concern about unduly expanding the reach of the exclusionary rule. (Maj. opn., ante, at p. 1122.) However, no evidence discovered during the course of a legally justified traffic stop would be affected if we held that passengers are seized along with drivers. The majority acknowledges that most jurisdictions have accepted that rule, and the weight of authority on this point is indeed substantial. Eight of the federal circuit courts of appeal hold that passengers are detained during a traffic stop. 4 There are no cases on point from the other four circuits. Twenty-one state courts have adopted the same view. 5 The majority refers to only two states where its *1128 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 jurisdictions that have considered the question. California too should grant passengers the same Fourth Amendment rights as drivers during traffic stops.
Werdegar, J., and Moreno, J., concurred.
Appellant’s petition for a rehearing was denied August 30, 2006. Werdegar, J., Moreno, J., and Corrigan, J., were of the opinion that the petition should be granted.
In some cases, of course, the officer initiates a traffic stop to investigate a passenger. (See, e.g., In re William J. (1985) 171 Cal.App.3d 72, 77 [ 217 Cal.Rptr. 163 ].) 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.
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 p. 1121, fn. 4.) However, that liability would arise only after a passenger became the subject of the officer’s investigation. For this purpose, the rule proposed by the majority functions well. Penal Code section 148 would apply to passengers who flee in circumstances that would indicate they were the subject of the officer’s investigation.
While the United States Supreme Court has yet to address whether passengers may be ordered to remain in a vehicle during a traffic stop, the reasoning of the Castellón and Moorefield courts on this point is sound. The same considerations of officer safety that justify the rule authorizing the removal of passengers from a vehicle support allowing the officer to keep the passengers inside. (People v. Castellon, supra, 76 Cal.App.4th at pp. 1374—1375; U.S. v. Moorefield, supra, 111 F.3d at p. 13 ; see also State v. Shearin (2005) 170 N.C.App. 222 [ 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.
I would disapprove Castellon , however, insofar as it held that passengers are not detained from the inception of a traffic stop. (People v. Castellon, supra, 76 Cal.App.4th at pp. 1373-1374.)
See U.S. v. Woodrum (1st Cir. 2000) 202 F.3d 1, 5 (characterizing the rule as “doctrinal bedrock”); U.S. v. Rusher (4th Cir. 1992) 966 F.2d 868 , 874, footnote 4; U.S. v. Grant (5th Cir. 2003) 349 F.3d 192, 196 ; U.S. v. Perez (6th Cir. 2003) 440 F.3d 363, 369 ; U.S. v. Powell (7th Cir. 1991) 929 F.2d 1190, 1195 ; U.S. v. Green (8th Cir. 2001) 275 F.3d 694, 699 ; U.S. v. Twilley (9th Cir. 2000) 222 F.3d 1092, 1095 ; U.S. v. Eylicio-Montoya (10th Cir. 1995) 70 F.3d 1158, 1162-1164 .
See State v. Gomez (2000) 198 Ariz. 61 [ 6 P.3d 765, 766 ]; State v. Bowers (1998) 334 Ark. 447 [ 976 S.W.2d 379, 381 ]; State v. Hernandez (Fla.Dist.Ct.App. 1998) 718 So.2d 833, 836 ; State v. Cooper (2003) 260 Ga.App. 333 [ 579 S.E.2d 754, 756 ]; State v. Haworth (1994) 106 Idaho 405 [ 679 P.2d 1123, 1124 ]; People v. Bunch (2003) 207 Ill.2d 7 [ 277 Ill.Dec. 658 , 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 (1993) 252 Kan. 989 [ 851 P.2d 352, 360-362 ]; In re Albert S. (1995) 106 Md.App. 376 [ 664 A.2d 476, 480-481 ]; State v. Harms (1989) 233 Neb. 882 [ 449 N.W.2d 1, 4-5 ]; State v. Scott (1994) 110 Nev. 622 [ 877 P.2d 503, 508 ]; State v. Creech (Ct.App. 1991) 111 N.M. 490 [ 806 P.2d 1080, 1082 ] (but see State v. Affsprung (Ct.App. 2004) 2004 NMCA 38 [ 135 N.M. 306 , 87 P.3d 1088, 1092-1094 ]); People v. Smith (1984) 106 *1128 A.D.2d 525 [ 483 N.Y.S.2d 62,63 ]; State v. Carter (1994) 69 Ohio St.3d 57 [ 1994 Ohio 343 , 630 N.E.2d 355, 360 ]; State v. Scott (1982) 59 Ore.App. 220 [ 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 (2004) 2004 SD 33 [ 678 N.W.2d 176, 181 ]; Kothe v. State (Tex.Crim.App. 2004) 152 S.W.3d 54, 61 ; State v. Harris (1996) 206 Wis.2d 243 [ 557 N.W.2d 245, 251 ]; Parkhurst v. State (Wyo. 1981) 628 P.2d 1369, 1374 (relying on state constitution); State v. Ottesen (Utah Ct.App. 1996) 920 P.2d 183, 185 .
See People v. Jackson (Colo. 2002) 39 P.3d 1174, 1184-1186 ; State v. Mendez (1999) 137 Wn.2d 208 [ 970 P.2d 722 , 729]; maj. opn., ante, at page 1115.
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.Super.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 ).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785860. Public record. Not legal advice.