us supreme court: 06-8120

8/14/2019 US Supreme Court: 06-8120

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

BRUCE EDWARD BRENDLIN, :

Petitioner :

v. : No. 06-8120

CALIFORNIA. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Monday, April 23, 2007

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 11:03 a.m.

APPEARANCES:

ELIZABETH M. CAMPBELL, ESQ., Sacramento, Cal; on behalf

of the Petitioner.

CLIFFORD E. ZALL, ESQ., Deputy Attorney General,

Sacramento, Cal; on behalf of the Respondent.

1Alderson Reporting Company



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P R O C E E D I N G S

(11:03 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

next in 06-8120, Brendlin versus California.

Ms. Campbell.

ORAL ARGUMENT OF ELIZABETH M. CAMPBELL, ESQ.

ON BEHALF OF THE PETITIONER

MS. CAMPBELL: Mr. Chief Justice, and may it

pleast the Court:

When an officer makes a traffic stop,

activates his flashing lights, he seizes not only the

driver of the car but also the car and every person and

everything in that car. This unremarkable conclusion is

what Petitioner asks this Court to rule on, rule today.

This simple rule is not only firmly rooted in this

Court's precedence, it also protects police officers and

the liberty interests of everyone traveling on a public

State highway.

CHIEF JUSTICE ROBERTS: Well, it wouldn't

apply in a taxicab, right? I mean, the cab is driving

erratically, the officer pulls it over. If I'm a

passenger in the cab, I think I can get out and catch

another cab, right?

MS. CAMPBELL: Whether or not you can get

out and catch another cab is sort of a separate issue,




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issue is that your freedom of movement has been

curtailed by government action.

JUSTICE SOUTER: Well, are you saying then

that in a case in which the bus is stopped, the car is

stopped and so on, the role for the test about whether a

reasonable person would regard himself as free to leave

is a test to determine when the, when the seizure ends,

as distinct from when the seizure begins?

MS. CAMPBELL: Exactly, Your Honor.

JUSTICE SOUTER: There's no other role for

that test.

MS. CAMPBELL: Exactly, Your Honor. And I

believe that's the rule we apply with respect to

drivers. We don't normally formulate it that was

because usually there's a directive from the officer

saying okay, you're free to leave, there's a clear point

where the seizure ends. But --

JUSTICE SOUTER: Yeah, but you're taking the

position that whenever you are in a vehicle that is

stopped, you are seized?

MS. CAMPBELL: Exactly. Yes, Your Honor.

JUSTICE ALITO: In this case, is it correct

to view this as -- to view it this way: As soon as the

officer approached the car, as I understand it, he

recognized the Defendant as a potential parole violator.




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MS. CAMPBELL: Yes.

JUSTICE ALITO: And there would be

reasonable suspicion then from that moment on, for at

least a brief detention of the individual to determine

whether in fact there was a warrant for the individual.

So all we're talking about, the only period of potential

seizure that we have to worry about is up to the moment

when the officer sees Mr. Brendlin.

MS. CAMPBELL: In terms of determining when

Mr. Brendlin was seized, yes. The -- there --

JUSTICE ALITO: In other words, any seizure

after that point would be supported by reasonable

suspicion?

MS. CAMPBELL: Well, except in this case of

course, it would be fruit of the poisonous tree, since

the State has continued --

JUSTICE KENNEDY: Well, that's the question.

Do you concede that this arrest was lawful?

MS. CAMPBELL: The arrest itself -- the

arrest itself is still a product of the exploitation.

JUSTICE KENNEDY: Do you concede that the

arrest was lawful? The officer was obligated to arrest

this person, knowing what he did, was he not?

MS. CAMPBELL: Yes. We concede that the --

MS. CAMPBELL: Yes.




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JUSTICE KENNEDY: Do you have any case in

which we exclude the evidence seized incident to an

arrest when the arrest is lawful?

MS. CAMPBELL: Well, Your Honor, I don't

have a case that has these specifics in it. This is a

new --

JUSTICE KENNEDY: I didn't think you did,

and that's my concern. I assumed that this officer was

required to arrest the person, and we can have

hypotheticals, he sees somebody wanted for multiple

murders and so forth. But I'm just not aware of

authority which says that when the arrest is lawful and

the search is incident to that arrest, that the evidence

is excluded. What's your best -- what's your closest

case you can give me on that?

MS. CAMPBELL: Well actually, I would turn

to the cases that talk about searches incident to arrest

and also, go back to the rationale for the intended --

JUSTICE KENNEDY: Can I have one please?

MS. CAMPBELL: Well actually, let's look at

Thornton and --

JUSTICE KENNEDY: Thornton, I'm not familiar

with immediately. I'll look it up.

MS. CAMPBELL: Thornton and Knowles are two

cases that this Court has decided relatively recently




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where you talk about the rationale for searches incident

to arrest. They're not cases that I would have

considered to be directly on point for the seizure issue

in this case, but in Knowles the Court held that you

can't search a car incident to arrest on a minor traffic

stop because --

JUSTICE KENNEDY: No, no. This was the

search of a person incident to an arrest, and I really

jumped a little bit ahead of the questions that Justice

Alito was proposing. There may have been a moment in

which the officer did not have the authority to act and

he did, but it seems to me that once he has this

knowledge, there is now an intervening cause and the

arrest is proper, and the search as well.

MS. CAMPBELL: If I can divide this into two

issues. First we have the issue of the arrest itself,

and I am aware of no mechanism by which Mr. Brendlin

would be entitled to suppress the arrest itself, to not

be arrested on the parole warrant, or to get out of jail

free, so to speak. That is a separate issue, however,

than discussing whether or not the evidence that comes

out of this auto search which is a direct product of the

illegal stop should be admissible. And --

JUSTICE SCALIA: Well, it's a direct product

of the arrest, and if the arrest is legal, then it seems




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to me the search incident to the arrest is legal. And

are you acknowledging that the arrest is legal, that

whatever the exclusionary rule does, it does not require

you -- when you've engaged in an unlawful seizure and

you find an ax murderer sitting there in the car, you

don't have to say sorry, I shouldn't have stopped the

car. You can arrest the person, right?

MS. CAMPBELL: And --

JUSTICE SCALIA: So the arrest is legal. If

the arrest is legal, then the search incident to it must

be legal.

MS. CAMPBELL: Well, I think we have to

look, as I said, at the purpose -- the rationales for

allowing a search incident to arrest are the need to

disarm the suspect or take him into custody, and the

need to preserve evidence for trial. In this specific

case he's arrested on a parole warrant. I can't imagine

what evidence in that car would be needed to be

preserved in order to proceed on the parole warrant.

JUSTICE KENNEDY: What authority do you have

that the operation of the exclusionary rule depends on

the offense for which he was arrested?

MS. CAMPBELL: Well, the search incident to

an arrest is an exception to -- to the exclusionary

rule.




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JUSTICE KENNEDY: Do you have any authority

for the proposition you just offered?

MS. CAMPBELL: The proposition --

JUSTICE KENNEDY: The search incident to an

arrest leads to an exclusion in one case and not in

another case, depending on the charge on which he was

arrested?

MS. CAMPBELL: Well, if what we are talking

about is whether or not the exclusionary rule should

apply, we look to the purposes of the exclusionary rule

which is to deter unlawful police conduct. If we allow

officers to make a stop on a hunch that someone has a,

has a, has a warrant or whatever, we have essentially

reduced the deterrent effect of the exclusionary rule as

it applies to traffic stops, as it has historically

applied to traffic stops.

This is, this is not a new proposition that

if you stop a car and -- if you saw something in plain

view after an illegal stop, it wouldn't be -- it would

still be excluded.

JUSTICE SOUTER: Well, but why -- why

doesn't plain view kick in just as readily, once it is

conceded as it has to be, that at the point that he was

making the arrest, the officer was acting lawfully? And

if he was acting lawfully when he made the arrest, why

10

Alderson Reporting Company



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doesn't he get the benefit of the plain view doctrine to

the extent that he saw any evidence before him at that

point?

And I take it the plain view exception would

at least cover the, I forget what it was, but the

materials that were in the, in the passenger well of the

passenger car, that -- that were known to be used as a

source of, of ingredients for making methamphetamine?

MS. CAMPBELL: Well, I believe you

misunderstood me. I wouldn't say that the plain view

doctrine would allow admission of that evidence. If the

stop is illegal then anything the officer seized --

JUSTICE SOUTER: No, I realize. But we've

got -- we've got a choice here, I mean, I think Justice

Kennedy's questions brought this out. We've got a

choice here of two ways to look at the State action at

the moment of -- of the arrest. One way to look at it

would be to say it was a product of an unlawful stop.

Another way to look at it would be to say it was an act

of executing a validly issued warrant. And you concede

that they at least could lawfully have executed the

arrest, they didn't have the arrest warrant but there

was an arrest warrant issued for them and they could

lawfully execute that warrant and arrest him at that

point.

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Let's assume that those are our two choices.

On choice number one the State, the police officer, is

acting someplace where he shouldn't have been. On

choice number two, the parole violator, your client, is

in a place where he shouldn't have been because he

should have been arrested and he should have been back

behind bars at that point.

If we have a choice between those two ways

of looking at the case, why don't we for any purpose,

give the casting vote to the lawfulness of the arrest,

to the warrant which was issued by a neutral and

detached magistrate at some point? And if we do that,

then why isn't not only a search incident to an arrest,

but the seizure of materials which were in plain view at

the moment of that arrest, subject to a -- an

admissibility rule?

MS. CAMPBELL: Well, first, Your Honor, a

slight correction. I don't believe that there is any

evidence that this was an issue issued by an detached

magistrate because what we call in California a Powell

warrant under California Penal Code Section 3000(v)(a)

JUSTICE SOUTER: Okay. But it was, it was a

warrant that was lawful for Fourth Amendment purposes,

is that conceded?

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MS. CAMPBELL: Yes. Yes.

JUSTICE SOUTER: Okay.

MS. CAMPBELL: Issued by the Board of Prison

Terms.

JUSTICE SOUTER: All right.

MS. CAMPBELL: But in terms of why we don't

do this, it's the reason we exclude evidence in general

when it's unlawfull seized, when it is the direct result

of a -- of a stop that is illegal from its inception.

JUSTICE SOUTER: Well, all right, but you're

simply saying we give, we put the greatest emphasis on

act A, stopping the car rather than act B, lawfully

arresting, regardless of the legality of stopping the

car.

MS. CAMPBELL: Well -- well actually we have

a test for this. It's the Brown test; it's the Wong sun

test, and the people have the burden. The test is if

the, even there is attenuation, which I -- which is what

the people are arguing, the warrant in this case is,

that's not the end of the inquiry. We also look at the

flagrancy of the officer's misconduct, and we look at

the temporal proximity to the initial illegality. And

in this case that attenuating circumstance is simply not

JUSTICE SOUTER: But do we, do we have do we

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have in any of the cases -- I, frankly I don't recall.

I remember Brown but I don't think there was anything in

Brown comparable to the lawful authority to arrest

independent of the stop. And -- and that's what makes

this case unusual. And -- and if we emphasize the

lawfulness of the arrest, quite independent of the

circumstances of the stop, and we also bear in mind that

the point of the exclusionary rule is -- is to deter

police conduct, and you've got another priority here,

the driver, who can invoke the exclusionary rule and

deter police misconduct.

I don't see where the interest would lie in,

or where the justification would lie, in our saying

we've got to put, as it were all the eggs in the basket

of the unlawful stop, as opposed to the basket of the

lawful arrest.

MS. CAMPBELL: Well, Your Honor, I think,

actually I'm not sure that the driver in this case is

going to have a remedy. If we look at the steps in this

case, first we have this officer who makes an illegal

stop. He continues that detention in order to run

warrant checks on both parties; he finds probable cause

to arrest Mr. Brendlin; he searches the car incident to

the arrest, even though the Belton rationale search

incident to arrest perhaps is a bit shaky in the case,

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because Mr. Brendlin is in the back of the car, and it's

a parole warrant. But at that point the officer also

searches the driver, and if the evidence is, or if the

taint is attenuated, as to Mr. Brendlin, and this is a

lawful search incident to his arrest, I don't really

understand how the driver is going to have a remedy as

well. And in fact --

JUSTICE KENNEDY: Well, do we have an -- an

argument that something was seized from the driver that

should not have been seized from his person?

MS. CAMPBELL: The driver is not a party to

the appeal, but she was convicted, and -- and -- and --

JUSTICE KENNEDY: Well, but I mean, that's

not before us.

MS. CAMPBELL: No, it's not.

JUSTICE KENNEDY: We're talking about

evidence seized from the defendant.

MS. CAMPBELL: No, Your Honor. I was

responding to the question doesn't the driver have a

remedy? You know, isn't that enough to provide

deterrence? But if we allow a warrant by one person of

the car to attenuate the search, search of the car, then

as I read this Court's precedents, the search is

attenuated, the taint is --

JUSTICE BREYER: The California Supreme

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Court as far as I could tell was thinking that it turns,

if you stop somebody, you stop somebody, if you make him

think he isn't free to go.

So you seem to me to give a lot of cases

where he would feel free to go, and you're saying still

that that's a stop. Well, I mean, suppose the policeman

comes along and he sees three people in a car and there

is Jack the Ripper driving. So he says okay, I'm

stopping the car. Now he says the other three people,

I'm not interested in you; my pal and partner here is in

a second squad car; he will take you wherever you want

to go. Have they been stopped?

MS. CAMPBELL: Have they been stopped by the

initial seizure?

JUSTICE BREYER: No.

MS. CAMPBELL: The initial stop of the car,

yes.

JUSTICE BREYER: Okay. Well, I don't think

you're going to find authority for that in the law. At

least not in this Court. I mean, I'd like to know what

it is. Maybe you are. I think that would be very

interesting.

MS. CAMPBELL: Well, I think the Brower

decision --

JUSTICE BREYER: Brower --

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MS. CAMPBELL: The Brower opinion has a very

JUSTICE BREYER: What, what were the facts

there?

MS. CAMPBELL: Well, in Brower there was a

roadblock --

JUSTICE BREYER: There was a roadblock.

MS. CAMPBELL: The car crashed into it. But

the, the crucial question, the crucial issue was was

means intentionally applied by the Government.

JUSTICE SCALIA: What if the car -- you

know, the car doesn't come to a complete stop. The same

facts that Justice Breyer just gave you. It's creeping

along at, you know, a foot a minute. And then he says

to these other people, you can jump out and go wherever

you like, or you know, or go back to, to my partner's

car. Then they wouldn't have been stopped; is that

right?

MS. CAMPBELL: I think then we'd have a

totality of the circumstances test and whether someone

feels free to leave and jump out of a moving car. But I

-- I --

JUSTICE SCALIA: So you're putting all the

eggs into the basket that the, the car came to a

complete stop and therefore they have been seized. And

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what is crucial for the seizure is the elimination on

motion on the part of the car.

MS. CAMPBELL: That's how --

JUSTICE SCALIA: Any elimination of motion

in a vehicle in which you are the passenger constitutes,

at the request of the authorities, constitutes a

seizure?

MS. CAMPBELL: If it is by means

intentionally implied, yes. I think that's, that's how

Hodari --

JUSTICE SCALIA: But not if you're still

rolling a little bit, a foot a minute.

(Laughter.)

MS. CAMPBELL: Well, then it would be

totality of the circumstances test.

JUSTICE SOUTER: It seems to me that you're,

you're blending two tests together, and tell me if I'm

wrong. One test is there is no question that if the

police get control over people, those people are not

free to go.

MS. CAMPBELL: Yes.

JUSTICE SOUTER: And those are the motion

cases. The most extreme example being the -- the

roadblock. Hodari D, did they -- you know, they were

trying to catch him but did they actually get to the

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point of a seizure for Fourth Amendment purposes?

Then you got another category of cases in

which there is no question that someone is stopped, that

a police officer can exercise control, and that control

if so exercised is certainly going to be seizure for

Fourth Amendment purposes. But we don't know whether

the officer really is exercising control, so we ask the

question would a reasonable person in the position of

the individual stopped have believed that he was free to

go?

Aren't those two quite distinct tests? The

first test assumes the answer to the question in the

second test. The second test assumes the answer to the

first test, i.e., they're stopped, subject to control.

Aren't they two independent tests?

MS. CAMPBELL: I agree with you that they

are two independent tests, and as I went through this

Court's precedents I frankly could not find a single

case in which a person had been in motion and stopped

and came to a stop, the physical stopping of motion, in

which this Court did not find that a seizure had

occurred.

JUSTICE SOUTER: Okay. So you were engaging

in shorthand? You, you accept the analytical

distinction but you say look, in the real world once you

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stop, we -- we know how the person would have felt?

MS. CAMPBELL: Well --

JUSTICE SOUTER: A reasonable person would

have felt.

MS. CAMPBELL: I think that what we have

here, is -- as I said it's really the way we look at it

with drivers as well. There is a bright line. The car

comes to a stop as a result of this display of

authority, you are seized. From that point on when you

would, when a reasonable person would feel --

JUSTICE SOUTER: No, but aren't -- you are

saying, I thought by agreeing with you what you were

saying was once the car is stopped, a reasonable person

under those circumstances would not have felt free to

leave.

MS. CAMPBELL: I think that's true.

JUSTICE SOUTER: Okay.

MS. CAMPBELL: I think a reasonable person

would not feel free to leave.

JUSTICE ALITO: What if the officer went,

before even approaching the car got on the loudspeaker

and said: "Driver remain in the car; passenger, you're

free to go"?

MS. CAMPBELL: I think under the totality of

the circumstances any court would have a hard time

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saying the passenger is not free to leave then, unless

there is some other intervening, some other factor.

CHIEF JUSTICE ROBERTS: But you would state

he is still seized because the car is stopped.

MS. CAMPBELL: He is seized by the stop,

absolutely.

JUSTICE SOUTER: Well, then you're -- you're

blending the two tests together again.

MS. CAMPBELL: Well, the two different --

JUSTICE SOUTER: You have either got to

accept their analytical distinction or not.

MS. CAMPBELL: I do accept their analytical

distinction, Your Honor. I think it's just -- it's

actually two different fact, two different points in

time. There's the, there's the seizure that occurs when

the car stops; and then there is the continuing seizure

during the course of the traffic stop which for the

driver has a fairly clear ending point; for a passenger

it's going to depend on the facts.

JUSTICE ALITO: What's the difference

between that situation where the police officer says on

the loudspeaker passenger remain, driver you're free to

go, and the example that the State has in their brief,

in which a car is stopped and as a result of the way

it's stopped on a narrow road, the other cars behind

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that car are for some other period of time prevented

from going forward? What's the difference between those

two situations?

MS. CAMPBELL: That difference is actually

addressed directly in Brower. Brower addresses that

exact hypothetical. It says a passerby who is

inconvenienced by another stop. There you have

Government, a Government-caused termination of movement

but it's, but there is no intentionally, means

intentionally applied.

JUSTICE BREYER: So what it says here,

getting out their quote from it, is it says it does not

occur whenever there is a governmentally caused

termination in individual's freedom of movement, nor

even where there is a governmentally caused and

governmentally desired termination of an individual's

freedom of movement. That only when there is a

termination of freedom of movement through means

intentionally applied.

Now, the only way I can -- I mean I say the

difference between desired is that they didn't want to

stop him. They are not interested in stopping him.

That's not our desire to stop him. Our desire is to

stop the driver.

So if you don't have the desire and if there

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is no real restriction of any significance, is there a

stop? I mean I would say Brower, they cited on their

side, for that language.

MS. CAMPBELL: Your Honor, where you're

looking at -- we have to look at the objectively

observable facts, which in this case are the flashing

lights. We don't -- I mean the passenger has no

particular way of knowing what the officer's intent is,

which I think is why this Court has consistently held

that the officer's object intent in -- in -- is

irrelevant to the equation.

JUSTICE BREYER: Well, the passenger, you

also have to have two things. One they don't

intentionally want to stop him. Two, he doesn't think

his movement is restricted. Where both of those things

are true, then no stop. That's why the people who, say,

are on the railroad car and they stop the whole train,

that the railroad says don't worry, not an

inconvenience: We'll have another train for new 10 or

15 minutes; just get out, except for car one where there

is Jack the Ripper -- you know, those other people are

not stopped.

Now that's their argument. What's your

response?

MS. CAMPBELL: Well, my response is the same

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as it has been. The passenger is certainly stopped when

the car comes to a halt. We discuss in our brief that

there are reasons why a passenger could, why the car

could be stopped, as far as the passenger knows, and

particularly in this case where we have -- whereas it

was an unreasonable stop, there was no traffic

violation, neither the passenger nor the driver has any

reason to know why they are being stopped, and --

CHIEF JUSTICE ROBERTS: Well, does that make

a difference? Let's say, you know, the car drives

through a red light and the police lights come on. The

passenger surmises that it's because they ran a red

light. So that's a different case? You would say it's

not seized if he reasonably, objectively, reasonably

assumes it's because of what the driver did.

MS. CAMPBELL: No, Your Honor. I would

still say that the passenger is seized when the car

comes to a stop.

CHIEF JUSTICE ROBERTS: So then why are we

pointing out that they didn't know? It makes no

difference under your view of the case.

MS. CAMPBELL: Well, I don't think it makes

a difference one way or the other. I was responding to

the suggestion that the passenger should somehow be

aware of the officer's intent and know when he sees

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flashing lights that it means the driver -- I don't

think that that's a proper inquiry to determine whether

or not --

CHIEF JUSTICE ROBERTS: Well then, if all

that matters is the physical stop, what do you do about

the cases that were talked about earlier where the other

cars have to stop because of the way -- that's a

physical stop and yet our cases indicate you're not

seized in those situations.

MS. CAMPBELL: That's a physical stop, but

it's not -- it's not the -- the means intentionally

applied portion of the test doesn't work or it doesn't

satisfy it.

JUSTICE ALITO: Well, how do you explain the

justification for stopping if there is the seizure, for

stopping the innocent passenger because the driver has

committed a traffic violation? If that's a seizure of

the passenger, then it's a seizure without reasonable

suspicion of probable cause, right?

MS. CAMPBELL: No. I would say that that's

a reasonable, a reasonable stop. That's the risk --

when you get into the car as a passenger, you take a

risk that you may be subject to a reasonable search or

reasonable detention. But the Fourth Amendment doesn't

provide any protection for anyone against reasonable

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detentions and that would be a reasonable detention.

Was there a question?

JUSTICE SCALIA: What about a shutdown of an

airport? You know, there is word that somebody has been

seen walking in with a bag of explosives or it looks

like a bag of explosives, so they stop all planes on the

tarmac, shut down all exits to the airport until they

can ascertain what this bag is. Everybody in the

airport and everybody in those planes has been seized

for Fourth Amendment purposes?

MS. CAMPBELL: No, Your Honor. Some of

those people in the airport would be in the same

position as the passengers in Bostick and Drayton, where

they weren't going anywhere in the first place, and --

JUSTICE SCALIA: Okay, just the people who

were trying to leave the airport. They had just arrived

and they were going to go out to catch a cab and go

home. They have been seized.

MS. CAMPBELL: I would say some of those

people would be in the position of the passer-by, the

passers-by identified in Brower. Possibly some of them

would be seized, but it sounds to me like it would be a

reasonable seizure and wouldn't necessarily --I mean a

reasonable seizure, there's no Fourth Amendment

protection against a --

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JUSTICE SCALIA: Well, it turns out that

there wasn't a bag of explosives and that no reasonable

person would have thought. This was a knitting bag and

some foolish cop thought it was a bag of explosives.

That would have made it unreasonable. So everybody in

the airport who is on the way home has been seized and

has a cause of action.

MS. CAMPBELL: Given the extreme leeway

given in airports, if it's so bad that there wasn't

reasonable suspicion to shut it down, I'd say that's

probably a reasonable result for shutting down entire

airports for no reason whatsoever. But under the fact

that you posited, it sounds like it would be exigent

-sent circumstances or something else that would make

that a reasonable suspicion.

Going back to our, to the test that

Petitioner asks this Court to adopt, the most important

thing I can say about this test is not only does it

reflect what I think is the real life expectation. It

also protects officer safety by providing a measure of

predictability for both passengers and drivers and as

well for officers.

And I'd like to reserve the rest of my time.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Mr. Zall.

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ORAL ARGUMENT OF CLIFFORD E. ZALL

ON BEHALF OF RESPONDENT

MR. ZALL: Mr. Chief Justice and may it

please the Court:

I'd like to respond if I could to Justice

Souter's point earlier. The State sees this as having

two distinct components in a situation where a passenger

is subject to a, in a vehicle that's subjected to a

routine traffic stop. First, you have the stopping of

the vehicle, the physical stopping of the vehicle. In

our view that does not result in a seizure of a

passenger. It's a show of authority much like Hodari D

discussed, which is directed at the driver. The driver

is the operator of the vehicle. When the driver submits

to that show of authority, under this Court's precedents

the driver is seized. The passenger is not seized.

JUSTICE SCALIA: Even, even when the reason

the driver is stopped is that a police officer whose car

was alongside, he looks over there and he sees that it

is some notorious felon who is in the back seat, and the

only reason he stops the car is so arrest that felon?

You would still say that, that the show of authority is

only directed at the driver and hence it is only the

driver that's seized?

MR. ZALL: Justice Scalia, the way I'd

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answer that question is to say yes at the outset,

because the driver is in control of the vehicle. By

necessity, the show of authority to stop if it's done in

a routine manner, as was done here, is directed at the

driver. Therefore --

JUSTICE SCALIA: That's the right answer. I

think you're being consistent. You have to say that.

You have to say that.

MR. ZALL: Thank you.

JUSTICE SOUTER: Well, consistent with that

answer, consistent with that answer, what we're

concerned with in these cases is not, in cases like

this, is not literally the moment of the stop, but the

moment of the stop plus one. And in cases like this

the -- I take it you concede the question is would the

passenger, would a reasonable passenger in, in that

situation feel free to leave. And in the absence of a

hypothetical like Justice Alito's in which the

loudspeaker says, all I want is the driver, passenger is

free to go, and so on, absent something like that, what

is the argument that the, that a reasonable person in

the passenger seat would feel free to open the door and

traipse off?

MR. ZALL: Justice Souter, I think the, the

pervasiveness and the commonplace nature of a routine

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traffic stop gives --

JUSTICE SOUTER: Have you ever been stopped?

Have you ever been subject to a traffic stop?

JUSTICE SCALIA: Tell the truth now.

(Laughter.)

MR. ZALL: Yes. Yes, I have.

JUSTICE SCALIA: Okay.

(Laughter.)

JUSTICE SOUTER: Okay. The heart rate went

up. The blood pressure went up. But --

MR. ZALL: But I was the driver, I was the

driver.

JUSTICE SOUTER: Don't you think that a

reasonable passenger at that point would assume that 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 until this thing gets over

with? Isn't that the reasonable response of a

passenger?

MR. ZALL: No, Justice Souter, I don't think

so. I think again, because the, the traffic stop is

such a common occurrence and in the overwhelming

majority of cases involving a routine traffic stop, it's

an investigatory stop of the driver. And I think it's

reasonable for the passenger and the driver to see it

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that way, I would submit that if I am a passenger in a

car and I'm riding with somebody and they, and one

patrol car signals for the driver to pull over, I think

the natural reaction is the driver says, what did I do,

and the passenger says, what did you do? I mean, I

think that's the natural reaction.

JUSTICE GINSBURG: The fact that the action

JUSTICE SCALIA: Well, but the policeman

usually tells the drive and anybody else in the car:

Stay in the car. Policemen don't like people jumping

out of the car. They don't know why they're jumping out

of the car. And I would certainly if I were a passenger

not feel free to immediately open the door and start

walking away, and if I did I would expect the policeman

to tell me: Get back in the car. Isn't that, isn't

that the normal procedure, to keep the occupants in the

car until the policeman investigates?

MR. ZALL: Well, I think, Justice Scalia, I

think if the officer did tell you to stay in the car --

JUSTICE SCALIA: Well, even if he didn't

tell me. I would have expected him to tell me. I

wouldn't even open the door because I know he would tell

me. I know that I'm not free to leave the car

immediately until he investigates the stop.

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MR. ZALL: Well, I, I'm not sure that I

agree with that.

CHIEF JUSTICE ROBERTS: What if there's a

suitcase in the back seat? Just the driver, the

driver's pulled over, and then somebody comes walking

down the sidewalk, the driver's friend, he opens the car

door, takes the suitcase and starts walking away?

Wouldn't the policeman say, put that back, because he

thought he had seized not just the driver but everything

in the car, too?

MR. ZALL: Well, again, Mr. Chief Justice, I

think that if, if the officer -- our position is that if

the officer does something to the passenger to indicate

CHIEF JUSTICE ROBERTS: I'm talking about

the suitcase. You wouldn't, you wouldn't reasonably

think someone could just take something out of the car

that's been stopped by the officer and walk off with it,

right? Everything, all the contents of the car, are

seized as well as the driver, right?

MR. ZALL: I'm not sure that a passenger,

though, is like a suitcase. I mean, a suitcase can't go

anywhere unless somebody does something.

JUSTICE KENNEDY: You're representing the

State of California and you want to establish the

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proposition that any time there is a traffic stop in the

State of California or I guess anywhere in the United

States all the passengers are free to immediately leave,

absent some further countermanding officer -- order by

the officer. I think that's a quite surprising

proposition. Now, we don't have empirical studies and

so forth, but at some point the Court takes judicial

notice and I think indications from the bench are we

just don't think passengers, A, are or, B, should feel

free to leave when there's a traffic stop. I just think

you have no social or empirical documentation for that

position.

MR. ZALL: Well, though it's not cited in

our brief, Justice Kennedy, we have talked with the

California Highway Patrol who make over a million stops

a year in California and they treat passengers as free

to leave.

JUSTICE BREYER: But I mean, the question --

so I want to know how to decide this case. I understand

what your position is. But I think the normal instinct

of everybody is not about boats, taxis, airports and all

these other examples, but this case. And I, I would say

if you want to go on instinct I wouldn't think of

getting out of a car when I'm the passenger and the

policeman has stopped. But maybe I'm wrong. So when

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you asked a million policemen, how many instances did

they tell you about where they stopped the car and all

the passengers jumped out and walked away? Was there

one? Was there one.

MR. ZALL: Well, I mean -- but I think that

prudent behavior -- just because it's prudent to do

something doesn't make it a seizure.

JUSTICE SCALIA: Right. I never pass a

police car. I don't care how slow I'm going. I never

pass a police car. I don't consider myself arrested

just because that's the prudent thing to do, and it may

well be a similar situation when you're sitting in a car

that's been stopped by a traffic policeman.

MR. ZALL: I mean, I think, I think again

that --

JUSTICE GINSBURG: Mr. Zall, let's say we

have just an intelligent reasonable person reads the

newspaper and says: Oh, they handed down a decision

today that said the police can order me to get out of

the car, the police can order me to stay in the car.

How could such a person feel free to leave knowing that

it is the law that that person can be told, get out, or

if he tries to get out, stay in?

MR. ZALL: Well, Justice Ginsburg, I'd say

that, you know, in the Court's seizure jurisprudence

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there is this notion of a consensual encounter. I think

when an officer approaches a citizen on the street there

is always the apparent authority. The apparent

authority of the police is always present. The police

always have the factual upper hand, if you were, and at

the traffic stop is no different. I mean -- and yet,

this Court has repeatedly said that when the police

approach a citizen, ask for his identification, ask for

his cooperation, even if the police follow him in a

squad car, that that's a consensual encounter.

JUSTICE BREYER: Does it matter if they're

on the Santa Monica Freeway?

MR. ZALL: I don't think so.

JUSTICE BREYER: I mean it would be pretty

dangerous to get out.

MR. ZALL: Well, but that would be a reason

why you don't get out. But it doesn't have anything

necessarily to do with the police coercion. I don't, I

don't think -- most of us wouldn't get out. But that

doesn't make it a seizure, just like most of us would

cooperate with the police when the police approach us on

the street. But I don't think -- if anything, I think

the traffic stop is less ambiguous. It's clearer that

the police are not interested in me if I'm a passenger.

JUSTICE STEVENS: May I ask this question?

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Suppose after the stop the passenger in the back seat

starts to get out and the officer says: Stay in the

car. Is he then seized?

MR. ZALL: Yes. Yes, because now the police

have directed action at him and in that situation a

reasonable person --

JUSTICE STEVENS: Doesn't it mean that the

authority to cause the person to stay in the car existed

throughout the stop?

MR. ZALL: The authority? Yes, but I mean,

I think the police always have some degree of authority

over us in any encounter.

JUSTICE STEVENS: Let me ask you this. On a

casual street in downtown, if they say, I'd like to stop

and talk to you, you don't have to stop. There's no

authority to make them stop. But there is authority for

the passenger in the back seat of the car.

MR. ZALL: Well, it depends, Justice

Stevens. I think, is there legal authority? I mean, I

think police always have the factual authority and I

think that's the way the reasonable person looks at

things. I don't think the reasonable person --

JUSTICE STEVENS: Is there a difference

between legal authority and factual authority?

MR. ZALL: I don't think in this context

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there is. I mean, certainly in --

JUSTICE STEVENS: If there's no difference

then there's legal authority.

MR. ZALL: I'm sorry, Justice Stevens?

JUSTICE STEVENS: If there's no difference

then there's legal authority, which would mean the

person is subject, is in custody of the officer.

MR. ZALL: No, I don't think so, any more so

than Mr. Drayton was in the Drayton case, where his

compatriot was arrested and the police continued to

engage him, and this Court found that that was a

consensual --

JUSTICE BREYER: How are we supposed to -- I

think it's quite interesting. How do you suggest we

decide this/ I don't mean the result, but I'll go, I'll

say yes, you've done your survey of the policemen, a

million policemen think they're not restricting the

movement of the passenger. Very few passengers jump out

of the car, but that may be because they're worried

about being run over. So you say, well, in fact they're

restricted, but they don't think they're being

restricted by the police, or do they? And here we have

no idea, at least I have no idea. I really don't know

what the majority think and yet it would seem totally

relevant. How would we find out?

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MR. ZALL: Well, Justice Breyer, I mean, I

think that in this Court's -- to be consistent with this

Court's consensual encounter jurisprudence, with

Rodriguez, with Royer, with Drayton, with Bostick --

JUSTICE STEVENS: But those are encounters

in an airport where there are pedestrians; there's no

authority to make the person stay, where here I think

you've conceded that there is legal authority to require

the person to stay where he was.

MR. ZALL: Yes, yes, I do, Justice Stevens.

But I think the point is that if --

JUSTICE STEVENS: And if it wasn't a seizure

what's the source of the legal authority?

MR. ZALL: Well, again, I think, though,

that it's a question of seizable versus seized. I don't

think just because the police have some authority that

that makes you seized. I mean, if the police see a

citizen jaywalking that person is not arrested because

the police have the authority to make, to arrest him.

So again I think, I think that the seizure

occurs when the police exercise some authority over you.

I just think the traffic stop is less ambiguous. It's

clear that the traffic stop is to deal with the driver,

whereas in the street encounter --

CHIEF JUSTICE ROBERTS: If it's not, if the

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opposite is true, then it is a seizure even though they

stop the car?

MR. ZALL: Then, Mr. Chief Justice, I would

say that it's a seizure that at the outset, again per

Justice Scalia's hypothetical, that the, the driver only

is seized at the outset, but then once the police make

it clear that their interest is with the passenger then

the passenger would not feel free to leave, and then the

passenger would be seized.

CHIEF JUSTICE ROBERTS: Even if they make

that, even if they make that interest clear prior to the

stop?

MR. ZALL: Yes, I think it would sort of

happen instantaneously.

CHIEF JUSTICE ROBERTS: No. They pull up

next to them and they see that Brendlin is the passenger

and they yell over: Pull over, Brendlin.

MR. ZALL: So they direct their action, they

direct their attention at the passenger at the outset.

Yes, then I would say the driver is seized by the stop,

and then right immediately the passenger, the reasonable

passenger, would not feel free to leave and then he

would also be seized at that point. But again, I harken

back to the Court's consensual encounter jurisprudence.

It seems to me that again the straight encounter is more

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anxiety-forming for the citizen because the police have

directed their attention at you.

JUSTICE GINSBURG: It may be that you can

walk away, you're not in an enclosed space. Suppose the

passenger knows when the police approaches: Oh my

goodness, I didn't buckle up. Would that passenger be

the object of the police authority from the start?

MR. ZALL: Well, in your hypothetical,

Justice Ginsburg, the passenger would not be an innocent

passenger and the Court's test presupposes an innocent

person. So we can't really ask the question from the

perspective of the seatbelt violator.

JUSTICE GINSBURG: So it could be, it could

be sometimes the attention is directed at the driver,

but that's not always the case.

MR. ZALL: Again, I -- as Justice Souter

indicated, I think you have to, you have to break it up.

At the outset, the show of authority is by nature of

the, of the vehicle, is directed at the driver. After

the vehicle comes to a stop, the police could manifest

some interest in the passenger and then that changes

things.

JUSTICE KENNEDY: But on your earlier answer

to Justice Ginsburg, there's no authority in this Court

to say that whether you deem yourself stopped or not

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depends on whether think you're innocent. There's zero

authority for that, right?

MR. ZALL: That's correct.

JUSTICE KENNEDY: Correct me if I'm wrong.

MR. ZALL: No, that's correct. That's

correct. The perspective must be -- we must look at it

from the innocent passenger and whether the innocent

passenger would as a result merely of the stop of the

car feel free to leave.

JUSTICE KENNEDY: Going back to Justice

Stevens' question, the passenger knows the minute the

red light goes on that the police can either tell them

to get out or tell him to stay in. He knows at that

very moment. That seems to me to substantially limit

his freedom of action and indicates that --

MR. ZALL: Well, again I think factually

citizens when they encounter police always know -- I

mean, the policeman in any encounter is armed, is

typically armed, and has apparent authority over you.

And yet this Court has repeatedly held that that in and

of itself, although it may cause some anxiety on the

part of citizen --

JUSTICE STEVENS: Yes, but isn't your case

he doesn't in fact have the authority, he has apparent

authority, but in this case he has actual authority, not

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just apparent authority?

MR. ZALL: But Justice Stevens, again I

don't think that the reasonable innocent passenger is --

this Court has never said it's the reasonable innocent

passenger that knows the Supreme Court's Fourth

Amendment jurisprudence by heart. I mean --

JUSTICE SCALIA: You're saying he doesn't

have actual authority. If I understand you, you're

saying he has no authority to stop an innocent passenger

from walking away. Aren't you saying that? Unless

there's some reason to hold a person in the car, he has

no authority to stop him from walking away.

MR. ZALL: I think that is the current state

of the law. Yes, that is the current state of this

Court's jurisprudence.

JUSTICE SCALIA: What if I feel, even though

that's the current state of the law, I wouldn't think of

opening the door and walking away without asking the

policeman, do you mind if I open the door and walk away?

Does that suggest that I think I've been seized?

MR. ZALL: No, I don't think so, Justice

Scalia. That just suggests that you're prudent when

you're dealing with an armed officer.

CHIEF JUSTICE ROBERTS: It's not the police

who have authority over the passenger; it's the driver.

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The driver's exercising authority. Just because the

police say to pull over, the driver can take off and the

passenger isn't seized at that point.

MR. ZALL: Absolutely, Mr. Chief Justice. I

think again, though, that the stop and then the after

the stop are discrete.

JUSTICE BREYER: So now perhaps I'm having

so much difficulty, and maybe others are, because you've

actually reached a question of law where facts matter.

That is, the law points us to the direction of what

would a person reasonably think in general in such

circumstances, and we can look at five million cases,

but we don't know. So what do we do if we don't know?

I can follow my instinct. My instinct is he would feel

he wasn't free because the red light's flashing. That's

just one person's instinct. Or I could say, let's look

for some studies. They could have asked people about

this, and there are none. Or I could say, well, you're

the State of California, you're the ones able to get the

studies; you could tell some of those professors, you

know, to stop thinking about whatever they're thinking

about and go ask a few practical questions, but you

didn't.

What should I do? Hold that against you?

Look for more studies? Follow my instinct?

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MR. ZALL: I think, Justice Breyer, again I

would keep coming back to the Court's consensual

encounter jurisprudence. I think you could ask some of

the same questions about in the Drayton case, in the

Bostick case, in the Royer case. But if you accept

those at consensual, then I'm not sure that this is any

less consensual here.

JUSTICE SCALIA: Maybe we can just pass

until the studies are done?

(Laughter.)

JUSTICE SOUTER: Mr. Zall, assume, and I

realize you don't assume, but assume for the sake of

argument, that, that there is a seizure here. What's

the significance of the arrest warrant, or -- yes, I

guess there was a warrant as I understand it, although

it was not on the person of the officer who stopped the

car. Is that correct?

MR. ZALL: That's correct.

JUSTICE SOUTER: Okay. What's the

significance of that for the outcome of this case?

MR. ZALL: Well, I think that even were this

Court to rule that the passenger were subject to a

seizure, that the presence of the arrest warrant

attenuates any taint and therefore the evidence was --

was not suppressible.

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JUSTICE KENNEDY: Well, maybe our questions

took your colleague representing the Petitioner beyond

the question presented. The question presented is only

whether the passenger felt seized. If we agree with the

Petitioner, do we send the case back?

MR. ZALL: I wouldn't, I wouldn't think

there would be a need to send the case back. I mean, I

think --

JUSTICE KENNEDY: Well, why, if we have

serious doubts whether or not the evidence is

suppressible? All we've been asked in the question is,

is whether the passenger is detained.

MR. ZALL: I concede that that's true.

JUSTICE KENNEDY: While the questions

indicate that even if the passenger is detained, who

cares, it's a lawful arrest.

MR. ZALL: Well, I think that because it's

fairly clear that the arrest would, would remove the

taint from the seizure, that there would be little

reason to send the case back to the California Supreme

Court.

JUSTICE BREYER: Well, that question hasn't

been argued here.

MR. ZALL: Well, I think it's subsumed in

the question presented and I think it was raised in our

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opposition and the parties have briefed it.

CHIEF JUSTICE ROBERTS: Well, but there's --

you know, our Brown case establishes a multifactor test

for determining when the illegal seizure has been

attenuated and the Court hasn't applied that, the

California Supreme Court hasn't gone through that test

in this case.

MR. ZALL: That is correct, but again I

think because the warrant is such a clear intervening

circumstance that has nothing to do, you couldn't in any

way say it's an exploitation of the, of the illegal

stop.

JUSTICE SOUTER: But don't we have two

problems if we go to that stage? The first one is we

would be applying a test that was not applied by the

court we're reviewing. And number two, correct me if

I'm wrong, but the, the -- assuming you win, as it were,

on the general point about the significance of the, of

the arrest warrant, there are still going to be

questions about the suppression of the evidence because

there are going to be questions about whether the

legality of the arrest on that theory suffices to

justify the seizure of the evidence. You recall the

colloquy I had with opposing counsel about the

possibility of applying a plain view test here.

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Aren't those issues that should all be

decided in the first instance in the State courts?

MR. ZALL: Certainly you could take that

position, Justice Souter. But it seems to me that

again, that it's relatively straightforward. The arrest

was valid. I mean, unquestionably the arrest was valid.

If the arrest was valid, I'm not sure that there are any

cases --

JUSTICE GINSBURG: But the question that's

presented is kind of a standing question. It's who can

complain when the police stop a car? You say the

driver. The question that's been presented in this case

is, can the passenger also complain, and that's the only

thing that we're dealing with. So the -- the arrest

warrant may pose a disqualification for this particular

passenger, but that would be a second question. The

question that is tendered to us and that was answered by

the California Supreme Court is when the car is stopped

by the police who can complain.

MR. ZALL: Absolutely, Justice Ginsburg, I

agree. And one further point I'd like to make on that

is, would be to draw a parallel between a parked car

situation, in which the lower courts have uniformly held

that no seizure results when the police turn on their

lights and approach a parked car, and even when they rap

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on the window to get the attention of the occupants

there is no seizure.

CHIEF JUSTICE ROBERTS: No seizure of a

passenger or a driver?

MR. ZALL: Of anybody. Lower courts have

uniformly held that, and yet that seems to be a more

ambiguous situation and a situation in which the

occupants' natural reaction would be to turn to each

other and say: What's going on here? Whereas again in

the traffic stop I think it's, it is probably the most

likely place that a citizen encounters a policeman, much

more so than a, an officer approaching me at an airport

and saying, can I see your identification, or

approaching me on a street corner, or, as in Chesternut,

following me as I'm walking home in his squad car.

Those seem to me to be more anxiety-creating and yet the

Court has held that those are consensual encounters.

And in the parked car, there's ambiguity

about what the police want, whereas in the routine

traffic stop there isn't that ambiguity, so there's no

reason why the passenger shouldn't feel free to leave.

Now, it might be prudent, as Justice Scalia indicated,

to say, I'm leaving. But that doesn't make it a

seizure, that you should act prudently. I think you

should always act prudently when you're dealing with the

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police.

JUSTICE ALITO: What is this period of time

that we are talking about when Mr. Brendlin might or

might not have felt that he was free to leave? As I

understand the facts, the officer recognized him as one

of the two Brendlin brothers immediately upon

approaching the car. Isn't that right.

MR. ZALL: That's -- that right, Your Honor.

But again I think, so I think it's just the mere

presence. It would just be from the time that he got

out of his parked, of his car after he parked it, and

then with his lights on approached the car and then

looks in and sees Mr. Brendlin. So that's the period of

time that Petitioner would have to establish that a

reasonable person would not feel free to leave.

And the -- and the comparison with the

parked car and the other consensual encounter cases of

this Court in my view indicate that there is nothing

that's been done to the passenger. I mean, the arrest

of one person as this Court said in Drayton does not

mean that everyone around him is detained so it doesn't

seem to the State that anything has been done to the

passenger. He just was unlucky enough to be in this car

when the driver was stopped for a traffic violation.

And that seems to me fairly unambiguous and we don't

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feel like a reasonable passenger would not feel free to

leave in that situation.

JUSTICE KENNEDY: Well, it may be that we

would say because of the exclusionary rule dynamic, we

have very little interest in applying the exclusionary

rule to this but I'm not so sure that we should bend the

concept of seizure and say that the passenger hasn't

been seized.

Perhaps we should be very liberal insofar as

applying the exclusionary rule and in this case it seems

to me there is lawful arrest which is intervening cause

anyway. But I don't know that we should distort the law

of seizure.

MR. ZALL: Justice Kennedy, I wouldn't think

you're distorting the law of seizure by saying the

passenger isn't seized. Nothing is done to the

passenger. He happens to be in this stopped vehicle,

but the police have directed no action toward him and so

I'm not sure that you would be torturing the definition

at all.

JUSTICE STEVENS: Suppose 10 or 20 years ago

we had this case and we decided your way and decided

passengers are not seized, and then subsequently we had

the question of whether an officer could order a

passenger out of the car. What would be held then?

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Would we have said we can't because he is not seized?

Or would you say yes, he was seized. I meant if we

decided in your case there is no seizure, would we then

have later on, do you think said, notwithstanding the

absence of a seizure the officer could order the person

out of the car?

MR. ZALL: Yeah. Because I think -- because

I think the weighty interest in officer safety would

still allow the officer to have some degree of control

over the situation. But again seizable does not mean

seized. The fact that the officer could seize the

passenger doesn't mean that the passenger is seized.

JUSTICE STEVENS: But in most situations

where an officer meets a person, unless there is a crime

scene or something like that, he can't order them to

cross the street or go someplace else, can he? He can't

issue any order to a citizen.

MR. ZALL: But again --

JUSTICE STEVENS: But he can issue orders to

passengers even though they are not seized.

MR. ZALL: But Justice Stevens, I think

that's because of, the Court recognized in Mimms and in

Wilson that there is something inherently dangerous

about the traffic stop situation, and there may be

weapons in the car that the officer can't see, and so

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that's why this Court found in Wilson that you could

order the --

JUSTICE KENNEDY: Yes, but in that case

there was a blanket rule. The officer didn't have to

have a specific reason. And that it seems to me

indicates that that's because the person as a general

rule knows that he or she is seized. If the officer had

to give a specific reason requiring the person to stand

outside as the dissent said, then you might have had a

point. But I don't think that's what the Court held.

MR. ZALL: I don't think, Justice Kennedy,

that the Court ever indicated that the passenger was

seized in Wilson prior to the order out. I know there

was a dissent that indicated that the passenger wasn't

seized and the majority never indicated that they

disagreed with that point. I think that what happened

in Wilson is that the Court just felt that -- may I --

CHIEF JUSTICE ROBERTS: Finish your

sentence. Sure.

MR. ZALL: -- the Court just felt that the

weighty interest in officer safety justified the order

out, regardless of whether the passenger was seized at

the outset.

CHIEF JUSTICE ROBERTS: Thank you Counsel.

Miss Campbell, you have five minutes

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remaining.

REBUTTAL ARGUMENT OF ELIZABETH M. CAMPBELL,

ON BEHALF OF PETITIONER

MS. CAMPBELL: Thank you. Just to respond

to that last question very briefly, I agree with Justice

Kennedy that Wilson could not have been decided the way

that it was decided had there not been an underlying

assumption that the passenger is seized, because Wilson

does not require any reasonable suspicion that the

person is posing a danger to the driver.

I'd also like to respond to the State's

argument that the passenger in this case simply got

unlucky and he was in a car with someone, that he

happened to be in a car with someone who was stopped for

a traffic offense. This passenger wasn't merely

unlucky; his Fourth Amendment rights were violated by an

unreasonable stop that was unreasonable from its

inception. Not only did the officer have no reason to

make the stop; he had actually called in and verified

and gotten affirmative evidence confirming that there

was no reason for the stop. So it --

CHIEF JUSTICE ROBERTS: So that -- so that,

still then, it's just begging the question of whether or

not his Fourth Amendment rights were violated. You're

making a good case that the driver's Fourth Amendment

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rights were violated, but why isn't the passenger, as

your friend said, just in the unlucky circumstance to

have been in a car whose the driver's Fourth Amendment

rights were violated?

MS. CAMPBELL: Because Your Honor, this

Court has -- this Court held in Delaware versus Prouse,

the Court recognized the passengers as well as drivers

have a liberty interest in free travel on the highways,

and because if we look at every case this Court has

decided in the last 20 or 30 years regarding when a

seizure occurs, the case of a passenger in an auto test

-- in an auto stop meets the test. Under Hodari D we

need a show of authority or physical control; in this

case we have both. We have the driver response to the

officer's show of authority and as a result the

passenger is, is subject to physical control, as a

direct line.

JUSTICE SCALIA: What have we done in a

case, and maybe we haven't had it, but what have we done

in a case where there is a warrantless entry in

violation of the Fourth Amendment of somebody's

apartment, and there is a suitcase in there that does

not belong to the owner of the apartment? My impression

is that, that the owner of that suitcase has not been

subjected to an unreasonable search and seizure; is that

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correct?

MS. CAMPBELL: If the person has no

expectation of privacy in that suitcase that is correct,

Your Honor. But this Court has recognized in Delaware

vs. Prouse that a passenger does have a privacy liberty

interest in free travel. So it's a different situation.

Once again, going back to the Brower case,

the, there was some question about whether or not the,

the seizure of a bystander would be, would be a seizure

under the rule proposed by, by Petitioner in this case.

Brower talks about an entirely accidental seizure.

JUSTICE KENNEDY: Well, but there was only

one, there was just the driver in the Brower case.

MS. CAMPBELL: Yes, Your Honor.

JUSTICE KENNEDY: There was no passenger as

I recall.

MS. CAMPBELL: No. But - but under the rule

proposed by the State if there had been a passenger that

passenger would not have been seized. But if we look at

how this Court --

JUSTICE KENNEDY: Well, but I mean in the

case it's just not directly on point. That's what we

are arguing about.

MS. CAMPBELL: Yes, Your Honor. But if we

look at the case next in line case, the County of

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Sacramento versus Lewis case, there was a passenger in

that case who was struck by the officer in the pursuit,

and although the Court found no seizure it didn't base

that on the fact that the person was a passenger, but on

the fact that it was an accidental application of force.

JUSTICE KENNEDY: So that's just another

case that doesn't help us.

MS. CAMPBELL: I think it certainly informs

the discussion, Your Honor.

JUSTICE GINSBURG: But what of the question

that was raised about well, a passenger is locked in for

the moment, but so are all the cars that are backed up

behind the car that's been stopped? What's the

difference between the passenger --

MS. CAMPBELL: In that case, Your Honor,

there hasn't been an intentional impeding of those

people's free, free movement by the officer. The

officer has intentionally stopped this vehicle. And I

-- I don't think it's really, it's really far-fetched to

argue that it's reasonably foreseeable that automobiles

often have passengers in them, and there is certainly a

large body of statutory law at least in California that

shows that the car can be stopped for reasons related to

the passenger.

So it's, it's a different situation. We are

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not looking at an accidental seizure. We are looking at

an intentional seizure of the car.

Just to address for a moment whether or not

remand is appropriate in this case, just to clarify the

procedural posture. The intermediate appellate court in

California did rule this, that the evidence seized in

this case was the fruit of the poisonous tree and should

be suppressed. The California Supreme Court did not

grant review on that issue and it was not, it's not

included in the question presented. Just for

clarification. But if the --

CHIEF JUSTICE ROBERTS: The California

Supreme Court didn't have to reach that issue because it

found there was no seizure.

MS. CAMPBELL: No. The court did not -- did

not actually request briefing on the issue either.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you, Counsel.

The case is submitted.

(Whereupon, at 12:04 p.m., the case in the

above-titled matter was submitted.)

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51:10seize 51:11

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20:20 30:9,10

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29:11 46:1647:14we've 11:13,14

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Z Zall 1:17 2:6

27:25 28:1,328:25 29:9,2430:6,11,20

31:19 32:1,1132:21 33:1334:5,14,16,2435:13,16 36:436:10,18,2537:4,8 38:1,1038:14 39:3,1339:18 40:8,1641:3,5,16 42:242:13,21 43:444:1,11,18,21

45:6,13,17,2446:8 47:3,2048:5 49:850:14 51:7,1851:21 52:11,20zero 41:1

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12:21,24 13:1914:22 15:2 21

wouldn't 3:19

10:19 11:1017:17 26:23

10 23:19 50:2111:03 1:13 3:212 04 57 20

us supreme court: 06-8120

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