Brendlin's Consequential Treasure Trove
By Michael Jay Wrubel
After a Terry stop, can the seizure still devolve into a consensual encounter without the seized detainee being given advance permission to leave?
In a relatively short opinion handed down in June 2007, the Supreme Court held in Brendlin v. California1 that when a vehicle is pulled over for a traffic stop, the driver and any passengers in the vehicle are seized. Most criminal defense practitioners hailed the decision as a surprising extension of simple logic by our conservative High Court. Perhaps the most surprising aspect of the ruling was the fact that the decision was unanimous.
Ever since Delaware v. Prouse,2 when the Court initially held that drivers pulled over to the side of the road in traffic stops were temporarily seized for Fourth Amendment purposes, questions have remained as to whether passengers could assert that their Fourth Amendment rights had been violated when an illegal traffic stop led to the discovery of evidence used to prosecute them for criminal activities. As of 2006, all of the states except three had held that regardless of whether a defendant had a legitimate expectation of privacy in the contents of the automobile, so as to challenge successfully the search thereof, as a passenger the defendant could challenge the stopping of the vehicle since his or her personal liberty and freedom were intruded upon by that act.3 Earlier this year, after the California Supreme Court had joined this small minority, the U.S. Supreme Court accepted certiorari to decide whether a traffic stop subjects a passenger, as well as the driver, to Fourth Amendment seizure.4
Even though the substance of the matters discussed in this article was never briefed in the recent Brendlin opinion, it is likely that the long-term impact of the case will be far greater than simply confirming as settled law that passengers do indeed have Fourth Amendment rights when traveling in vehicles. More specifically, although not in the form of a holding, the dicta contained within the Brendlin opinion should have the inevitable effect of stripping away the fallacious logic that for years has supported the myth that judges, with little fear of reversal, could repeatedly rule that after having been seized, an objectively reasonable person would believe that he or she was free to leave the scene of a completed traffic stop without advance permission to do so. Over the past 24 years there have been four cases involving traffic stops decided by the Supreme Court where, in order to reach the holdings, the justices found it necessary to describe the nature of the environment which inevitably accompanies these types of intrusions.5 Cumulatively, the Court's observations lead to only one conclusion. No reasonable person would ever disengage himself or herself from a traffic stop without first obtaining advance permission.6
In 1983 the Court in Michigan v. Long held that a protective search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible during an investigative detention if the police officer reasonably believes that the suspect is dangerous and may gain immediate control of weapons.7 In the course of reaching that holding the court noted that "a Terry [traffic stop] investigation, such as the one that occurred here, involves a police investigation 'at close range' when the officer remains particularly vulnerable...."8
The following year in Berkemer v. McCarty, the court held that individuals seized during a traffic stop are not entitled to the protections of Miranda until they have been subjected to the functional equivalent of formal arrest.9 Prior to reaching this holding Justice Marshall observed that, "[c]ertainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so."10 Thirteen years later in Maryland v. Wilson,11 the Court held that during a traffic stop an officer has the right to order a passenger to exit the vehicle for the officer's safety without violating the Fourth Amendment. Before reaching this holding, Chief Justice Rehnquist drew upon the Court's prior language in Pennsylvania v. Mimms12 and reiterated that "[w]e thought it 'too plain for argument' that this justification - officer safety - was 'both legitimate and weighty.'"13 Thereafter, he noted that the Court's opinion in Michigan v. Summers,14 a case involving the many perils which officers potentially encounter when executing search warrants within homes, "offered guidance by analogy" in describing the many perils which officers potentially encounter during traffic stops.15 Accordingly, he noted that in Summers the court said:
Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.16
Chief Justice Rehnquist's analogy inferred that the law must reasonably support the officers in routinely exercising unquestioned command of their traffic stops in order for law enforcement officers to successfully protect themselves from the numerous potential dangers associated with traffic stops. This inference is supported by "the recognition in Terry that it is unreasonable to prevent the police from taking reasonable steps to protect their safety."17
This year the Brendlin Court again found it necessary to describe the nature of the environment which accompanies a traffic stop in order to provide fair support for its holding. Justice Souter began by noting that "[i]t is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety."18 He then summarized the Court's prior observations by explaining that "[w]hat we have said in these opinions probably reflects a societal expectation of 'unquestioned police command' at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission."19 This language has profound impact upon the issue of whether a completed traffic stop can ever devolve into a consensual encounter without first advising the person previously subjected to unquestioned command that he or she is free to leave. A societal expectation of unquestioned command during traffic stops compels the observation that these stops inherently include unquestioned subjugation by those temporarily detained. Thus, it follows that this experience of unquestioned subjugation by a reasonable person renders the statement that this same reasonable person would feel free to leave the scene of the completed traffic stop or to terminate the personal encounter in any way other than being given advance permission to do so, to be sophistry.20
In the years leading up to Brendlin, one half of the circuit courts of appeal had concluded that it was possible for completed traffic stops to devolve into consensual encounters without the seized suspects first being advised that they were free to leave.21 The Supreme Court provided support for these intermediate appellate decisions in Ohio v. Robinette,22 wherein it inferentially recognized the theoretical possibility of a consensual search following a completed traffic stop when the previously seized suspect had not been informed that he was free to leave.
The primary reason the U.S. Supreme Court accepted jurisdiction of the Robinette case was because the Ohio Supreme Court,23 while interpreting federal law, had established a bright-line rule requiring that
citizens stopped for traffic offenses be clearly informed by the detaining officer when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by the phrase "at this time you legally are free to go" or by words of similar import.
Although the Ohio Supreme court attempted to justify its ruling on independent state grounds, the High Court found this attempt to be ambiguous.24 As Justice Ginsburg observed in her concurring opinion, "I question whether the Ohio court thought of the strict rule it announced as a rule for the governance of police conduct not only in Miami County, Ohio, but also in Miami, Florida."25
The High Court's objection to the state ruling was attributable to the Court's insistence that Fourth Amendment issues be decided based upon "reasonableness," which "in turn is measured in objective terms by examining the totality of the circumstances."26 For that reason, in Michigan v. Chesternut27 the Court chastised counsel for both parties after they had independently attempted to fashion a bright line rule that
failed to heed this Court's clear direction that any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account 'all of the circumstances surrounding the incident' in each individual case. (Internal quotations omitted.)
Although the High Court rejected Ohio's bright-line rule, Justice Ginsburg noted that "[t]oday's opinion reversing the decision of the Ohio Supreme Court does'nt pass judgment on the wisdom of the first-tell-then-ask rule."28
By demanding in Robinette that the focus of consent searches remain on the objective totality of the circumstances, the Supreme Court recognized that following a completed traffic stop where permission to leave had not been affirmatively granted, a consent to search could still be legally authorized if the taint of the original illegality is somehow removed prior to consent being obtained. This possibility cannot be ignored even after the dicta of Brendlin. Nevertheless, Brendlin's dicta makes it much more likely that an alleged consent to search will be ruled unlawful when the evidence reveals that the defendant had not been advised that he had permission to leave and there is insufficient proof that the taint of the "lack of permission to leave" illegality had been removed.
Free to Leave?
The question remains, to what degree will Brendlin effect other types of Terry seizures initially founded upon reasonable suspicion? As noted in Terry v. Ohio,29 "[s]treet encounters between citizens and police officers are incredibly rich in diversity." These encounters not only take place on the streets, but also in public places such as airports. In settings other than traffic stops, after suspects have been seized based upon reasonable suspicion of criminal activity, should the courts follow Brendlin's lead and conclude that no reasonable person would believe that they were free to leave these completed stops without advance permission to do so?
Florida v. Royer30 strongly supports this line of reasoning. In Royer the court stated:
Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . .
The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. If there is no detention - no seizure within the meaning of the Fourth Amendment - then no constitutional rights have been infringed. (Internal citations omitted.)31
Royer also noted that "[t]his much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop."32 Thus, once an officer has seized an individual for one purpose, he is not free to continue the detention, even for a moment, to investigate other inchoate hunches.33 If he does so without first granting the suspect permission to leave, a strong argument can be made with the assistance of Brendlin that the officer has unlawfully taken advantage of the prior seizure.34
When making an argument of this nature, the practitioner should assert that the High Court's policy of reasonably protecting the safety of law enforcement officers in the performance of their duties remains equally applicable to almost any type of Terry seizure. Ultimately, the question to be answered in this post 9/11 era is whether it is reasonable to expect that officers routinely exercise unquestioned command of the situation when conducting their non-traffic Terry stops based upon reasonable suspicion of criminal activity. If the officers at any time have reasonable suspicion to believe that suspects are armed, then clearly the answer to this question must be yes. However, what if the officers are not able to articulate facts which constitute reasonable suspicion that suspects are armed?
In Wilson, Justice Stevens noted in his dissent that "[m]ost traffic stops involve otherwise law-abiding citizens who have committed minor traffic offenses."35 Unlike traffic stops, where initially the greatest reasonably suspected transgression is a minor traffic offense, during a non-traffic Terry stop the law-abiding nature of the citizen will be directly called into question while the detaining officer will have "articulable suspicion that [his suspect] has committed or is about to commit a crime."36 That crime will be a misdemeanor, a serious violent felony such as a homicide or anything in between. Accordingly, one undeniable aspect of all non-traffic Terry stops is that often genuine danger lurks in the presence of the confronted, unknown criminal suspect.
The Supreme Court has not required individualized articulable suspicion for self-protective actions of officers in all situations. Long and Terry recognized that "a Terry investigation ... involves a police investigation 'at close range' when the officer remains particularly vulnerable...."37 Mimms and Wilson resulted in the Court emphasizing that "[w]e thought it 'too plain for argument' that this justification - officer safety - was 'both legitimate and weighty.'"38 While Summers and Wilson were cases in which even though "no special danger to the police [wa]s suggested by the evidence in th[e] record," the Court expanded the powers of all officers by advising them and the world at large that the officers were expected to "routinely exercise unquestioned command of the situation" during the execution of all search warrants and traffic stops.39
When Terry was decided the Court took note of the fact that in 1966 "there were 23,851 assaults on police officers, 9,113 of which resulted in injuries to the policemen."40 By 2005, the number of assaults had increased to 57,546 of which 15,763 resulted in injuries.41 It is evident that both the High Court's policy of encouraging reasonable self-protective law enforcement conduct and the recent statistics of assaults on officers support the conclusion that as a matter of common sense and "reasonableness" - the touchstone of the Fourth Amendment42 - it is in the best self-protective interests of all officers that they routinely exercise unquestioned command of the situation when conducting all of their Terry stops. Accordingly, the time has come to encourage the judiciary to distance itself from the myth that an objectively reasonable person would have believed that he or she was free to leave the scene of any Terry stop without obtaining advance permission to do so.
One last caution for the practitioner when litigating matters of this nature. Since Chesternut requires Fourth Amendment issues to be decided objectively, "the subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted."43 Otherwise, the defendant's subjective perceptions with respect to whether he thought he was free to leave are irrelevant to the reasonable person's perception of whether objectively, based upon the totality of circumstances, the defendant was free to leave.44 Accordingly, other than with respect to the aforementioned Chesternut exception, the practitioner should remain vigilant during a motion to suppress to object if questions are asked regarding whether the officer or the defendant thought the defendant was free to leave. The failure to lodge this objection can have dire consequences even though appellate judges are supposedly trained to have intellectual discipline when deciding matters of this nature. For example, after the defendant's traffic stop was completed in Sanchez-Pena, he was asked to proceed "to a closed checkpoint approximately 30 miles north; Sanchez said that was fine."45 The court found no seizure following the traffic stop partially because Sanchez had testified that he "felt free to go at the conclusion of the traffic stop."46
1. 551 U.S. ____, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
2. 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979).
3. See California v. Brendlin, 45 Cal. Rptr. 3d 50, 136 P.3d 845 (2006); People v. Jackson, 39 P.3d 1174, 1184-1186 (Colo. 2002) (en banc); State v. Mendez, 137 Wash. 2d 208, 222-223, 970 P.2d 722, 729 (1999) (en banc).
4. Brendlin v. California, 549 U.S. ____, 127 S. Ct. 1145, 166 L. Ed. 2d 910 (2007).
5. Brendlin, 551 U.S. at ____, Maryland v. Wilson, 519 U.S. 408, 410; 117 S. Ct. 882, 884, 137 L. Ed. 2d 41 (1997), Berkemer v. McCarty, 468 U.S. 420 at n.25, 436; 104 S. Ct. 3138, 3148, 82 L. Ed. 2d 317 (1984), and Michigan v. Long, 463 U.S. 1032, 1049; 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201 (1983).
6. Brendlin, 551 U.S. at ____, Wilson, 519 U.S. at 410, Berkemer, 468 U.S. at 436 n.25, and Long, 463 U.S. at 1049.
7. Long, 463 U.S. at 1049.
8. Id. at 1052.
9. Berkemer, 468 U.S. at 440.
10. Berkemer, 468 U.S. at 436 n.25.
11. 519 U.S. at 415.
12. 434 U.S. 106, 110, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331 (1977).
13. Wilson, 519 U.S. at 412.
14. 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981).
15. Wilson, 519 U.S. at 414.
16. Wilson, 519 U.S. at 414 (quoting Summers, 452 U.S. at 702-703).
17. Long, 463 U.S. at 1032 n.16.
18. Brendlin, 551 U.S. at ___.
19. Id. at ___.
20. Brendlin, 551 U.S. at ____ citing Wilson, 519 U.S. at 414.
21. See United States v. Wilson, 413 F.3d 382, 386, 387 (3d Cir. 2005); United States v. Sanchez-Pena, 336 F.3d 431, 442 (5th Cir. 2003); United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999); United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997); United States v. Lattimore, 413 F.3d 382, 387, 388 (4th Cir. 1996); and United States v. White, 81 F.3d 775, 778 (8th Cir. 1996).
22. 519 U.S. 33; 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996).
23. 73 Ohio St. 3d 650, 651, 653 N.E.2d 695, 696 (1995).
24. 519 U.S. at 36, 37.
25. Robinette, 519 U.S. at 43.
26. Id. at 39.
27. 486 U.S. 567, 572; 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565 (1988).
28. Robinette, 519 U.S. at 42.
29. 392 U.S. 1, 13, 88 S. Ct. 1868, 1875, 20 L. Ed. 2d 889 (1968).
30. 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
31. Id. at 1324.
32. Id. at 1325.
33. Id. at 1325, 1326.
34. Brendlin, 551 U.S. at ___.
35. Wilson, 519 U. S. at 417.
36. Royer, 460 U.S. at 498.
37. Long, 463 U.S. at 1052; and Terry, 392 U.S. at 24.
38. Mimms, 434 U.S. at 110, and Wilson, 519 U.S. at 412.
39. Summers, 452 U.S. at 702-703 and Wilson, 519 U.S. at 414.
40. Terry, 392 U.S. at 24 n.21.
41. See "Law Enforcement Officers Killed and Assaulted 2005" prepared by the Dept. of Justice.
42. Wilson, 519 U.S. at 411.
43. Chesternut, 486 U.S. at 576 n.7.
44. United States v. Mendenhall, 446 U.S. 544, 554; 100 S. Ct. 1870, 1877; 64 L. Ed. 2d 497 (1980).
45. Sanchez-Pena, 336 F.3d at 435.
46. Id. at 443.