By LINDA GREENHOUSE  April 24, 2007 Washington Post

WASHINGTON, April 23 — Most people sitting in the passenger seat of a car that has been stopped by a police officer do not feel free to open the door and leave. Neither do most members of the Supreme Court, or so the justices’ comments indicated during an argument Monday on the constitutional rights of passengers in that familiar but uncomfortable situation.
The question of whether a “reasonable? passenger would feel free to leave was significant because that perception is a principal part of the court’s test for whether a “seizure? has taken place within the meaning of the Fourth Amendment, which prohibits unreasonable searches and seizures.
If a reasonable person would not feel constrained, then he or she has not been “seized? and has no basis for complaining that the police have violated the Fourth Amendment. The converse is also true: a person who reasonably feels detained by the police is entitled to challenge the validity of the police action and perhaps to keep illegally seized evidence out of court.
The surprisingly vexing question of the rights of passengers was brought to the Supreme Court by a California man who was a passenger in a car that a police officer stopped, ostensibly to investigate a possibly expired registration. The stop was later found to be improper because, earlier in the day, when the car was parked, the same officer had checked and learned that it was properly registered.
The officer recognized the passenger, Bruce E. Brendlin, as a former convict who was wanted for violating his parole. The officer arrested Mr. Brendlin and, searching both him and the car, found methamphetamine supplies.
Mr. Brendlin eventually pleaded guilty to a narcotics charge but appealed on the ground that the evidence should be suppressed. The California Supreme Court ruled that because only the driver, and not Mr. Brendlin, had been seized by the stop, Mr. Brendlin had no basis for challenging anything that flowed from it.
Elizabeth M. Campbell, Mr. Brendlin’s lawyer, told the justices that when a police officer makes a traffic stop, “he seizes not only the driver of the car but also the car and every person and everything in that car.?
There might be an exception, she acknowledged in answer to a question from Justice Samuel A. Alito Jr., who asked whether a passenger would be seized if the officer, “before even approaching the car, got on the loudspeaker and said: ‘Driver remain in the car. Passenger, you’re free to go.’ ?
That hypothetical passenger would not be seized, Ms. Campbell said. But typically, she said, “a forward motion stopped by government means, intentionally applied, is a seizure.? Mr. Brendlin was entitled to challenge the search and to have the incriminating evidence excluded, she said.
The court was looking for a general rule to govern the typical passenger case; future cases will turn not on the facts of a particular case but whether there was a seizure as a matter of Fourth Amendment law. Most state courts have ruled that passengers in a typical traffic stop are seized.
Deputy Attorney General Clifford E. Zall of California argued that the driver, but not the passenger, is seized because it is the driver who submits to the officer’s authority by stopping the car. When Mr. Zall referred to “the pervasiveness and commonplace nature of a routine traffic stop,? Justice David H. Souter interrupted him in an incredulous tone. “Have you ever been subject to a traffic stop?? Justice Souter asked.
“Tell the truth now,? Justice Antonin Scalia interjected.
“Yes, yes I have,? Mr. Zall replied.
“O.K.,? Justice Souter said. “The heart rate went up. The blood pressure went up.?
A majority of the justices indicated their belief that the passenger as well as the driver was seized.
Such a conclusion may not be of much help, however, to Mr. Brendlin in his appeal, Brendlin v. California. No. 06-8120, because of an atypical aspect of his case. Many of the justices appeared to think that his arrest as a parole violator, on an existing warrant, was valid, and provided independent justification for the search. Mr. Brendlin could therefore lose his battle while winning the war for others.

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