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Monday, June 18, 2007

Some Thoughts on Brendlin

Orin Kerr comments today on the Supreme Court’s unanimous decision in Brendlin v. California, which held that an automobile passenger is seized for Fourth Amendment purposes when the police stop the automobile and its driver. Or at least generally, as Orin notes — in footnote 6, the Court distinguished passengers in a "private vehicle" from passengers in a "common carrier," like a taxi or a bus. Orin observes:

I tend to think this approach misses the initial brief seizure as the car is coming to rest; I think the passenger is seized in the few seconds when the car is slowing down and coming to rest as much as after the car is stopped, so that even the taxi and bus passenger would be seized for a brief interim even if they would feel free to leave after the car is stopped.

Orin raises a good doctrinal point, although one he characterizes as a "very minor quibble, and not one that will make a difference in 99.8% of the cases."

When reading Orin's post, I was struck with the thought that footnote 6 in Brendlin demonstrates the sort of pragmatism in Fourth Amendment decision-making about which Orin himself has commented previously: It’s simply difficult to imagine the Court extending Fourth Amendment claims to every inconvenienced passenger when the police stop a bus or a subway carrying dozens or even hundreds of passengers simply by virtue of the incidental "stop" of these passengers, even though the stop of these passengers initially may look a lot like the stop of a private automobile passenger. As Orin aptly observed in his previous post, this distinction in "doctrine [does] not arise out of text, or history, or natural law, or First Principles of Immutable Justice. Rather, it's arising out of a need to impose a set of reasonable limits on police practices given a few basic guideposts of doctrine and the common facts of police investigations." It’s also why lawyers, judges and law students often find Fourth Amendment decision-making frustratingly unpredictable.

With this pragmatism-fueled unpredictability mind, I'll be interested to see how judges apply footnote 6 to taxi stops in cities like New York, where taxis are an extremely common and important mode of transportation to urban residents who don't regularly use or even own cars. In my experience, these taxis involve a driver-passenger relationship that, while commercial in nature, generally is viewed by passengers as far more private than the passenger relationship to subway or bus driver, where police interference with a taxi and its driver typically encompasses the passengers just as if the police stopped a limo or other privately contracted vehicle. If judges, however, apply footnote 6 broadly to preclude many taxi passengers from challenging a stop of their taxi, Brendlin's footnote may affect noticeably more than the .2% of Fourth Amendment cases that Orin predicts.

Posted by Brooks Holland on June 18, 2007 at 01:32 PM in Criminal Law | Permalink

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