OPINION OF THE COURT
BRENDLIN V. CALIFORNIA
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-8120
BRUCE EDWARD BRENDLIN, PETITIONER
v.
CALIFORNIA
on writ of certiorari to the supreme court of
california
[June 18, 2007]
Justice Souter delivered the
opinion of the Court.
When a police officer makes a
traffic stop, the driver of the car is seized within the meaning of
the Fourth Amendment. The question in this case is whether the same
is true of a passenger. We hold that a passenger is seized as well
and so may challenge the constitutionality of the stop.
I
Early in the morning of November
27, 2001, Deputy Sheriff Robert Brokenbrough and his partner saw a
parked Buick with expired registration tags. In his ensuing
conversation with the police dispatcher, Brokenbrough learned that
an application for renewal of registration was being processed. The
officers saw the car again on the road, and this time Brokenbrough
noticed its display of a temporary operating permit with the number
“11,” indicating it was legal to drive the car through November.
App. 115. The officers decided to pull the Buick over to verify
that the permit matched the vehicle, even though, as Brokenbrough
admitted later, there was nothing unusual about the permit or the
way it was affixed. Brokenbrough asked the driver, Karen Simeroth,
for her license and saw a passenger in the front seat, petitioner
Bruce Brendlin, whom he recognized as “one of the Brendlin
brothers.”
Id., at 65. He recalled that either Scott or
Bruce Brendlin had dropped out of parole supervision and asked
Brendlin to identify himself.[
Footnote 1] Brokenbrough returned to his cruiser, called
for backup, and verified that Brendlin was a parole violator with
an outstanding no-bail warrant for his arrest. While he was in the
patrol car, Brokenbrough saw Brendlin briefly open and then close
the passenger door of the Buick. Once reinforcements arrived,
Brokenbrough went to the passenger side of the Buick, ordered him
out of the car at gunpoint, and declared him under arrest. When the
police searched Brendlin incident to arrest, they found an orange
syringe cap on his person. A patdown search of Simeroth revealed
syringes and a plastic bag of a green leafy substance, and she was
also formally arrested. Officers then searched the car and found
tubing, a scale, and other things used to produce
methamphetamine.
Brendlin was charged with
possession and manufacture of methamphetamine, and he moved to
suppress the evidence obtained in the searches of his person and
the car as fruits of an unconstitutional seizure, arguing that the
officers lacked probable cause or reasonable suspicion to make the
traffic stop. He did not assert that his Fourth Amendment rights
were violated by the search of Simeroth’s vehicle, cf.
Rakas v.
Illinois,
439 U. S. 128 (1978),
but claimed only that the traffic stop was an unlawful seizure of
his person. The trial court denied the suppression motion after
finding that the stop was lawful and Brendlin was not seized until
Brokenbrough ordered him out of the car and formally arrested him.
Brendlin pleaded guilty, subject to appeal on the suppression
issue, and was sentenced to four years in prison.
The California Court of Appeal reversed the
denial of the suppression motion, holding that Brendlin was seized
by the traffic stop, which they held unlawful. 8 Cal. Rptr. 3d 882
(2004) (officially depublished). By a narrow majority, the Supreme
Court of California reversed. The State Supreme Court noted
California’s concession that the officers had no reasonable basis
to suspect unlawful operation of the car, 38 Cal. 4th 1107, 1114,
136 P. 3d 845, 848 (2006),[
Footnote 2] but still held suppression unwarranted because
a passenger “is not seized as a constitutional matter in the
absence of additional circumstances that would indicate to a
reasonable person that he or she was the subject of the peace
officer’s investigation or show of authority,”
id., at
1111, 136 P. 3d, at 846. The court reasoned that Brendlin was not
seized by the traffic stop because Simeroth was its exclusive
target,
id., at 1118, 136 P. 3d, at 851, that a passenger
cannot submit to an officer’s show of authority while the driver
controls the car,
id., at 1118–1119, 135 P. 3d, at
851–852, and that once a car has been pulled off the road, a
passenger “would feel free to depart or otherwise to conduct his or
her affairs as though the police were not present,”
id.,
at 1119, 136 P. 3d, at 852. In dissent, Justice Corrigan said that
a traffic stop entails the seizure of a passenger even when the
driver is the sole target of police investigation because a
passenger is detained for the purpose of ensuring an officer’s
safety and would not feel free to leave the car without the
officer’s permission.
Id., at 1125, 136 P. 3d, at 856.
We granted certiorari to decide whether a
traffic stop subjects a passenger, as well as the driver, to Fourth
Amendment seizure, 549 U. S. __ (2007). We now vacate.
II
A
A person is seized by the police
and thus entitled to challenge the government’s action under the
Fourth Amendment when the officer, “ ‘by means of physical
force or show of authority,’ ” terminates or restrains his
freedom of movement,
Florida v.
Bostick,
501 U. S. 429, 434
(1991) (quoting
Terry v.
Ohio,
392 U. S. 1, 19, n. 16
(1968)), “
through means intentionally applied,”
Brower v.
County of Inyo,
489 U. S. 593, 597 (1989) (emphasis in
original). Thus, an “unintended person … [may be] the object of the
detention,” so long as the detention is “willful” and not merely
the consequence of “an unknowing act.”
Id., at 596; cf.
County of Sacramento v.
Lewis,
523 U. S. 833, 844 (1998) (no seizure
where a police officer accidentally struck and killed a motorcycle
passenger during a high-speed pursuit). A police officer may make a
seizure by a show of authority and without the use of physical
force, but there is no seizure without actual submission;
otherwise, there is at most an attempted seizure, so far as the
Fourth Amendment is concerned. See
California v.
Hodari D.,
499 U. S. 621, 626, n. 2
(1991);
Lewis,
supra, at 844, 845, n. 7.
When the actions of the police do
not show an unambiguous intent to restrain or when an individual’s
submission to a show of governmental authority takes the form of
passive acquiescence, there needs to be some test for telling when
a seizure occurs in response to authority, and when it does not.
The test was devised by Justice Stewart in
United States
v.
Mendenhall,
446 U. S. 544 (1980),
who wrote that a seizure occurs if “in view of all of the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave,”
id., at 554
(principal opinion). Later on, the Court adopted Justice Stewart’s
touchstone, see,
e.g.,
Hodari D.,
supra,
at 627;
Michigan v.
Chesternut,
486 U. S. 567, 573
(1988);
INS v.
Delgado,
466 U. S. 210, 215
(1984), but added that when a person “has no desire to leave” for
reasons unrelated to the police presence, the “coercive effect of
the encounter” can be measured better by asking whether “a
reasonable person would feel free to decline the officers’ requests
or otherwise terminate the encounter,”
Bostick,
supra, at 435–436; see also
United States v.
Drayton,
536 U. S. 194, 202
(2002).
The law is settled that in Fourth Amendment
terms a traffic stop entails a seizure of the driver “even though
the purpose of the stop is limited and the resulting detention
quite brief.”
Delaware v.
Prouse,
440 U. S. 648, 653 (1979); see also
Whren v.
United States,
517 U. S. 806, 809–810 (1996). And
although we have not, until today, squarely answered the question
whether a passenger is also seized, we have said over and over in
dicta that during a traffic stop an officer seizes everyone in the
vehicle, not just the driver. See,
e.g.,
Prouse,
supra, at 653 (“[S]topping an automobile and detaining its
occupants constitute a ‘seizure’ within the meaning of [the Fourth
and Fourteenth] Amendments”);
Colorado v.
Bannister,
449 U. S. 1, 4, n. 3
(1980)
(per curiam) (“There can be no question that the
stopping of a vehicle and the detention of its occupants constitute
a ‘seizure’ within the meaning of the Fourth Amendment”);
Berkemer v.
McCarty,
468 U. S. 420, 436–437
(1984) (“[W]e have long acknowledged that stopping an automobile
and detaining its occupants constitute a seizure” (internal
quotation marks omitted));
United States v.
Hensley,
469 U. S. 221, 226
(1985) (“[S]topping a car and detaining its occupants constitute a
seizure”);
Whren,
supra, at 809–810 (“Temporary
detention of individuals during the stop of an automobile by the
police, even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons’ within the meaning of [the
Fourth Amendment]”).
We have come closest to the question here in
two cases dealing with unlawful seizure of a passenger, and neither
time did we indicate any distinction between driver and passenger
that would affect the Fourth Amendment analysis.
Delaware
v.
Prouse considered grounds for stopping a car on the
road and held that Prouse’s suppression motion was properly
granted. We spoke of the arresting officer’s testimony that Prouse
was in the back seat when the car was pulled over, see 440 U. S.,
at 650, n. 1, described Prouse as an occupant, not as the
driver, and referred to the car’s “occupants” as being seized,
id., at 653. Justification for stopping a car was the
issue again in
Whren v.
United States, where we
passed upon a Fourth Amendment challenge by two petitioners who
moved to suppress drug evidence found during the course of a
traffic stop. See 517 U. S., at 809. Both driver and passenger
claimed to have been seized illegally when the police stopped the
car; we agreed and held suppression unwarranted only because the
stop rested on probable cause.
Id., at 809–810, 819.
B
The State concedes that the
police had no adequate justification to pull the car over, see
n. 2,
supra, but argues that the passenger was not seized
and thus cannot claim that the evidence was tainted by an
unconstitutional stop. We resolve this question by asking whether a
reasonable person in Brendlin’s position when the car stopped would
have believed himself free to “terminate the encounter” between the
police and himself.
Bostick,
supra, at 436. We
think that in these circumstances any reasonable passenger would
have understood the police officers to be exercising control to the
point that no one in the car was free to depart without police
permission.
A traffic stop necessarily
curtails the travel a passenger has chosen just as much as it halts
the driver, diverting both from the stream of traffic to the side
of the road, and the police activity that normally amounts to
intrusion on “privacy and personal security” does not normally (and
did not here) distinguish between passenger and driver.
United
States v.
Martinez-Fuerte,
428 U. S. 543, 554
(1976). An officer who orders one particular car to pull over acts
with an implicit claim of right based on fault of some sort, and a
sensible person would not expect a police officer to allow people
to come and go freely from the physical focal point of an
investigation into faulty behavior or wrongdoing. If the likely
wrongdoing is not the driving, the passenger will reasonably feel
subject to suspicion owing to close association; but even when the
wrongdoing is only bad driving, the passenger will expect to be
subject to some scrutiny, and his attempt to leave the scene would
be so obviously likely to prompt an objection from the officer that
no passenger would feel free to leave in the first place. Cf.
Drayton,
supra, at 197–199, 203–204 (finding no
seizure when police officers boarded a stationary bus and asked
passengers for permission to search for drugs).[
Footnote 3]
It 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. In
Maryland v.
Wilson,
519 U. S. 408
(1997), we held that during a lawful traffic stop an officer may
order a passenger out of the car as a precautionary measure,
without reasonable suspicion that the passenger poses a safety
risk.
Id., at 414–415; cf.
Pennsylvania v.
Mimms,
434
U. S. 106 (1977)
(per curiam) (driver may be ordered
out of the car as a matter of course). In fashioning this rule, we
invoked our earlier statement that “ ‘[t]he risk of harm to
both the police and the occupants is minimized if the officers
routinely exercise unquestioned command of the situation.’ ”
Wilson,
supra, at 414 (quoting
Michigan
v.
Summers,
452 U. S. 692, 702–703
(1981)). What 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.
Wilson,
supra,
at 414.[
Footnote 4]
Our conclusion comports with the views of all
nine Federal Courts of Appeals, and nearly every state court, to
have ruled on the question. See
United States v.
Kimball, 25 F. 3d 1, 5 (CA1 1994);
United
States v.
Mosley, 454 F. 3d 249, 253 (CA3 2006);
United States v.
Rusher, 966 F. 2d 868, 874,
n. 4 (CA4 1992);
United States v.
Grant, 349
F. 3d 192, 196 (CA5 2003);
United States v.
Perez, 440 F. 3d 363, 369 (CA6 2006);
United
States v.
Powell, 929 F. 2d 1190, 1195 (CA7
1991);
United States v.
Ameling, 328 F. 3d
443, 446–447, n. 3 (CA8 2003);
United States v.
Twilley, 222 F. 3d 1092, 1095 (CA9 2000);
United
States v.
Eylicio-Montoya, 70 F. 3d 1158,
1163–1164 (CA10 1995);
State v.
Bowers, 334 Ark.
447, 451–452, 976 S. W. 2d 379, 381–382 (1998);
State
v.
Haworth, 106 Idaho 405, 405–406, 679 P. 2d 1123,
1123–1124 (1984);
People v.
Bunch, 207 Ill. 2d 7,
13, 796 N. E. 2d 1024, 1029 (2003);
State v.
Eis, 348 N. W. 2d 224, 226 (Iowa 1984);
State v.
Hodges, 252 Kan. 989, 1002–1005, 851
P. 2d 352, 361–362 (1993);
State v.
Carter,
69 Ohio St. 3d 57, 63, 630 N. E. 2d 355, 360 (1994)
(per
curiam); State v.
Harris, 206 Wis. 2d 243,
253–258, 557 N. W. 2d 245, 249–251 (1996). And the treatise
writers share this prevailing judicial view that a passenger may
bring a Fourth Amendment challenge to the legality of a traffic
stop. See,
e.g., 6 W. LaFave, Search and Seizure §11.3(e),
pp. 194, 195, and n. 277 (4th ed. 2004 and Supp. 2007) (“If either
the stopping of the car, the length of the passenger’s detention
thereafter, or the passenger’s removal from it are unreasonable in
a Fourth Amendment sense, then surely the passenger has standing to
object to those constitutional violations and to have suppressed
any evidence found in the car which is their fruit” (footnote
omitted)); 1 W. Ringel, Searches & Seizures, Arrests and
Confessions §11:20, p. 11–98 (2d ed. 2007) (“[A] law
enforcement officer’s stop of an automobile results in a seizure of
both the driver and the passenger”).[
Footnote 5]
C
The contrary conclusion drawn by
the Supreme Court of California, that seizure came only with formal
arrest, reflects three premises as to which we respectfully
disagree. First, the State Supreme Court reasoned that Brendlin was
not seized by the stop because Deputy Sheriff Brokenbrough only
intended to investigate Simeroth and did not direct a show of
authority toward Brendlin. The court saw Brokenbrough’s “flashing
lights [as] directed at the driver,” and pointed to the lack of
record evidence that Brokenbrough “was even aware [Brendlin] was in
the car prior to the vehicle stop.” 38 Cal. 4th, at 1118, 136 P.
3d, at 851. But that view of the facts ignores the objective
Mendenhall test of what a reasonable passenger would
understand. To the extent that there is anything ambiguous in the
show of force (was it fairly seen as directed only at the driver or
at the car and its occupants?), the test resolves the ambiguity,
and here it leads to the intuitive conclusion that all the
occupants were subject to like control by the successful display of
authority. The State Supreme Court’s approach, on the contrary,
shifts the issue from the intent of the police as objectively
manifested to the motive of the police for taking the intentional
action to stop the car, and we have repeatedly rejected attempts to
introduce this kind of subjectivity into Fourth Amendment analysis.
See,
e.g.,
Whren, 517 U. S., at 813 (“Subjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis”);
Chesternut, 486 U. S., at 575,
n. 7 (“[T]he 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”);
Mendenhall, 446 U. S., at 554,
n. 6 (principal opinion) (disregarding a Government agent’s
subjective intent to detain Mendenhall); cf.
Rakas, 439 U.
S., at 132–135 (rejecting the “target theory” of Fourth Amendment
standing, which would have allowed “any criminal defendant at whom
a search was directed” to challenge the legality of the search
(internal quotation marks omitted)).
California defends the State
Supreme Court’s ruling on this point by citing our cases holding
that seizure requires a purposeful, deliberate act of detention.
See Brief for Respondent 9–14. But
Chesternut,
supra, answers that argument. The intent that counts under
the Fourth Amendment is the “intent [that] has been conveyed to the
person confronted,”
id., at 575, n. 7, and the
criterion of willful restriction on freedom of movement is no
invitation to look to subjective intent when determining who is
seized. Our most recent cases are in accord on this point. In
Lewis,
523 U. S. 833, we considered whether a
seizure occurred when an officer accidentally ran over a passenger
who had fallen off a motorcycle during a high-speed chase, and in
holding that no seizure took place, we stressed that the officer
stopped Lewis’s movement by accidentally crashing into him, not
“through means intentionally applied.”
Id., at 844
(emphasis deleted). We did not even consider, let alone emphasize,
the possibility that the officer had meant to detain the driver
only and not the passenger. Nor is
Brower,
489 U. S. 593, to the contrary, where
it was dispositive that “Brower was meant to be stopped by the
physical obstacle of the roadblock—and that he was so stopped.”
Id., at 599. California reads this language to suggest
that for a specific occupant of the car to be seized he must be the
motivating target of an officer’s show of authority, see Brief for
Respondent 12, as if the thrust of our observation were that
Brower, and not someone else, was “meant to be stopped.” But our
point was not that Brower alone was the target but that officers
detained him “through means intentionally applied”; if the car had
had another occupant, it would have made sense to hold that he too
had been seized when the car collided with the roadblock. Neither
case, then, is at odds with our holding that the issue is whether a
reasonable passenger would have perceived that the show of
authority was at least partly directed at him, and that he was thus
not free to ignore the police presence and go about his
business.
Second, the Supreme Court of California
assumed that Brendlin, “as the passenger, had no ability to submit
to the deputy’s show of authority” because only the driver was in
control of the moving vehicle. 38 Cal. 4th, at 1118, 1119, 136
P. 3d, at 852. But what may amount to submission depends on
what a person was doing before the show of authority: a fleeing man
is not seized until he is physically overpowered, but one sitting
in a chair may submit to authority by not getting up to run away.
Here, Brendlin had no effective way to signal submission while the
car was still moving on the roadway, but once it came to a stop he
could, and apparently did, submit by staying inside.
Third, the State Supreme Court shied away from
the rule we apply today for fear that it “would encompass even
those motorists following the vehicle subject to the traffic stop
who, by virtue of the original detention, are forced to slow down
and perhaps even come to a halt in order to accommodate that
vehicle’s submission to police authority.”
Id., at 1120,
136 P. 3d, at 853. But an occupant of a car who knows that he is
stuck in traffic because another car has been pulled over (like the
motorist who can’t even make out why the road is suddenly clogged)
would not perceive a show of authority as directed at him or his
car. Such incidental restrictions on freedom of movement would not
tend to affect an individual’s “sense of security and privacy in
traveling in an automobile.”
Prouse, 440 U. S., at 662.
Nor would the consequential blockage call for a precautionary rule
to avoid the kind of “arbitrary and oppressive interference by
[law] enforcement officials with the privacy and personal security
of individuals” that the Fourth Amendment was intended to limit.
Martinez-Fuerte, 428 U. S., at 554.[
Footnote 6]
Indeed, the consequence to worry about would
not flow from our conclusion, but from the rule that almost all
courts have rejected. Holding that the passenger in a private car
is not (without more) seized in a traffic stop would invite police
officers to stop cars with passengers regardless of probable cause
or reasonable suspicion of anything illegal.[
Footnote 7] The fact that evidence uncovered as a
result of an arbitrary traffic stop would still be admissible
against any passengers would be a powerful incentive to run the
kind of “roving patrols” that would still violate the driver’s
Fourth Amendment right. See,
e.g.,
Almeida-Sanchez v.
United States,
413 U. S. 266, 273
(1973) (stop and search by Border Patrol agents without a warrant
or probable cause violated the Fourth Amendment);
Prouse,
supra, at 663 (police spot check of driver’s license and
registration without reasonable suspicion violated the Fourth
Amendment).
* * *
Brendlin was seized from the
moment Simeroth’s car came to a halt on the side of the road, and
it was error to deny his suppression motion on the ground that
seizure occurred only at the formal arrest. It will be for the
state courts to consider in the first instance whether suppression
turns on any other issue. The judgment of the Supreme Court of
California is vacated, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
Footnote 1
The parties dispute the accuracy of the
transcript of the suppression hearing and disagree as to whether
Brendlin gave his name or the false name “Bruce Brown.” App.
115.
Footnote 2
California conceded that the police officers
lacked reasonable suspicion to justify the traffic stop because a
“ ‘vehicle with an application for renewal of expired
registration would be expected to have a temporary operating
permit.’ ” 38 Cal. 4th, at 1114, 136 P. 3d, at 848
(quoting Brief for Respondent California in No. S123133 (Sup. Ct.
Cal.), p. 24).
Footnote 3
Of course, police may also stop a car solely
to investigate a passenger’s conduct. See,
e.g.,
United States v.
Rodriguez-Diaz, 161
F. Supp. 2d 627, 629, n. 1 (Md. 2001) (passenger’s
violation of local seatbelt law);
People v.
Roth,
85 P. 3d 571, 573 (Colo. App. 2003) (passenger’s violation of
littering ordinance). Accordingly, a passenger cannot assume,
merely from the fact of a traffic stop, that the driver’s conduct
is the cause of the stop.
Footnote 4
Although the State Supreme Court inferred
from Brendlin’s decision to open and close the passenger door
during the traffic stop that he was “awar[e] of the available
options,” 38 Cal. 4th 1107, 1120, 136 P. 3d 845, 852 (2006), this
conduct could equally be taken to indicate that Brendlin felt
compelled to remain inside the car. In any event, the test is not
what Brendlin felt but what a reasonable passenger would have
understood.
Footnote 5
Only two State Supreme Courts, other than
California’s, have stood against this tide of authority. See
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).
Footnote 6
California claims that, under today’s rule,
“all taxi cab and bus passengers would be ‘seized’ under the Fourth
Amendment when the cab or bus driver is pulled over by the police
for running a red light.” Brief for Respondent 23. But the
relationship between driver and passenger is not the same in a
common carrier as it is in a private vehicle, and the expectations
of police officers and passengers differ accordingly. In those
cases, as here, the crucial question would be whether a reasonable
person in the passenger’s position would feel free to take steps to
terminate the encounter.
Footnote 7
Compare
Delaware v.
Prouse,
440 U. S. 648, 663 (1979) (requiring
“at least articulable and reasonable suspicion” to support random,
investigative traffic stops), and
United States v.
Brignoni-Ponce,
422 U. S. 873, 880–884
(1975) (same), with
Whren v.
United States,
517 U. S. 806, 810 (1996) (“[T]he
decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred”),
and
Atwater v.
Lago Vista,
532 U. S. 318, 354
(2001) (“If an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in his
presence, he may, without violating the Fourth Amendment, arrest
the offender”).
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