Is the passenger “detained” for the purposes of the 4th Amendment when a car is stopped? Brendlin

When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger.

A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, “ ‘by means of physical force or show of authority,’ ” terminates or restrains his freedom of movement, Florida v. Bostick, 501 U. S. 429, 434 (1991) (quoting Terry v. Ohio, 392 U. S. 1, 19, n. 16 (1968)), “through means intentionally applied,” Brower v. County of Inyo, 489 U. S. 593, 597 (1989) (emphasis in original).

When the actions of the police do not show an unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not. The test was devised by Justice Stewart in United States v. Mendenhall, 446 U. S. 544 (1980), who wrote that a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” id., at 554 (principal opinion). Later on, the Court adopted Justice Stewart’s touchstone, see, e.g., Hodari D., supra, at 627; Michigan v. Chesternut, 486 U. S. 567, 573 (1988); INS v. Delgado, 466 U. S. 210, 215 (1984), but added that when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter,” Bostick, supra, at 435–436; see also United States v. Drayton, 536 U. S. 194, 202 (2002).

The State concedes that the police had no adequate justification to pull the car over, see n. 2, supra, but argues that the passenger was not seized and thus cannot claim that the evidence was tainted by an unconstitutional stop. We resolve this question by asking whether a reasonable person in Brendlin’s position when the car stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra, at 436. We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.

OTHERWISE: Holding that the passenger in a private car is not (without more) seized in a traffic stop would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal.

Brendlin v. California, 551 U.S. 249 (2007),

Anton Vialtsin, Esq.
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