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Rights of passage.

Article Excerpt
Recently, the Supreme Court has been disturbingly slow to grant certiorari and to decide cases, making for a long winter of discontent for those, like me, who are called on to analyze decisions of interest. But I'm happy to report that with the granting of certiorari in Brendlin v. California and a few other cases, winter may now be made glorious summer with an abundance of new criminal case law to study. Brendlin, in particular, offers an important opportunity to clarify a critical question in Fourth Amendment jurisprudence. (1)

In Brendlin, the California Supreme Court, in a 4-3 decision, held that a passenger in a car lacked standing to protest the stop of that car. (2) The ruling conflicts with the decisions of every federal circuit court that has considered this issue.

A police officer concededly illegally stopped a car in which Bruce Brendlin was a passenger, because the officer believed--mistakenly--that the car's temporary operating permit was invalid. During the stop, the officer recognized Brendlin as a parole violator and saw substances used for making methamphetamine in the car. The officer then pointed his weapon at Brendlin, told him to get out of the car, arrested him, and found more evidence of drug use on his person.

Brendlin moved to suppress the evidence found in the car and on his person, claiming that because the stop was illegal, any evidence recovered at the scene was the fruit of his unlawful seizure. The trial court denied the motion, concluding that Brendlin, as a passenger, lacked standing to suppress the items found in the car.

The appellate court reversed, but the California Supreme Court reversed that decision, agreeing with the trial court that Brendlin had not been seized within the meaning of the Fourth Amendment until the policeman ordered him out of the car at gunpoint and placed him under arrest. Until then he was "free to leave." (3) Consequently, the court found, he could receive no exclusionary benefit from the illegal stop.

Although the U.S. Supreme Court has officially disapproved of using the term "standing" since Rakas v. Illinois in 1978, (4) it is useful to consider standing as a separate issue from the question of whether there was a search or seizure. In Rakas, the Court held that the passenger lacks standing to protest the search of a car unless...

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