Free to just walk away?


In 2001 in Yuba City, Calif., a deputy sheriff pulled over a car, later contending he did so because he thought it might have an expired registration sticker.

He was wrong, but the officer recognized a front-seat passenger, Bruce Brendlin, and arrested him as a parole violator.

Searching Brendlin, the officer also found items that can be used to manufacture methamphetamine. Brendlin was later convicted of a drug crime.

On appeal, Brendlin contended he had been stopped and searched without probable cause in violation of the Fourth Amendment, and a state appeals court reversed his conviction. But the California Supreme Court restored the conviction in June 2006, ruling 4-3 that Brendlin was "not seized as a constitutional matter" when the driver was pulled over. The passenger had given tacit consent to be searched by staying in the car, the court ruled.

Mind you, the court did not rule the police officer had probable cause to search Brendlin. Instead, it ruled Brendlin volunteered to be searched by staying, when he could instead have simply opened his passenger door and walked away into the nearest melon field.

The U.S. Supreme Court took up Brendlin's case Monday, with the majority of justices voicing some common-sense skepticism about this view of the way our modern law officers handle traffic stops.

"Policemen don't like people jumping out of the car," said Justice Antonin Scalia. "If I were ... a passenger ... I would certainly not feel free to immediately open the door and start walking away."

Asked Justice David H. Souter: "Don't you think that a reasonable passenger ... would assume the officer is in control and that, in the absence of some affirmative indication that the passenger can go, that he's supposed to sit there?"

A state lawyer defending the California court's ruling insisted passengers in stopped cars are free to leave. He also described the interaction between police and passengers as "consensual encounters."

When a police car flashes its colored lights, the officer is ordering the driver to pull over, said Clifford Zall, a deputy state attorney general. "When the driver submits to that show of authority, the driver is seized. The passenger is not seized."

"I think that's a quite surprising proposition," Justice Anthony M. Kennedy told Mr. Zall.

Mr. Zall replied that state officials "have talked to the California Highway Patrol, who make over a million stops a year in California, and they treat passengers as free to leave."

Oh, please. Mr. Zall should try it sometime. Rather than allow an unknown passenger who has not been frisked to circle around and come up on a lone officer's blind side while he interrogates the driver, most officers can be expected to advise anyone trying to exit the car -- in a loud, commanding voice -- "Where are you going? Who told you to move? Get back in that car and sit tight."

The courts already play lawyerly games when they allow officers to argue in court that a motorist "voluntarily" opened his or her trunk for a search when the officer said in a loud, commanding voice, "Would you open the trunk, please."

In a year when the Nevada Legislature appears poised to authorize police to pull us over, shine a flashlight in the back seat and start asking questions based on no worse offense than a simple failure to fasten our seat belts (see editorial below), Nevadans had better hope the high court restores some limits on police search powers in the case known as Brendlin v. California.

 

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