The hitchhikers guide to the Fourth Amendment: the plight of unreasonably seized passengers under the heightened factual nexus approach to exclusion.

• Author: Soree, Nadia B.
• Position: Introduction through II. Passengers with Standing: Arguments for Rejecting the Heightened Factual Nexus Approach A. Voices in Dissent: A Closer Look, p. 601-626

INTRODUCTION I. PASSENGERS AT THE CROSSROADS OF THE FOURTH AMENDMENT AND THE EXCLUSIONARY RULE: A SURVEY OF THE RELEVANT CASE LAW A. Origins of the Heightened Factual Nexus Approach B. Circuits Adopting the Heightened Factual Nexus Approach 1. The Sixth Circuit 2. The Tenth Circuit 3. The Ninth Circuit 4. The Eighth Circuit C. Circuits (Perhaps) Disapproving of the Heightened Factual Nexus Approach 1. The Fifth Circuit 2. The Third Circuit II. PASSENGERS WITH STANDING: ARGUMENTS FOR REJECTING THE HEIGHTENED FACTUAL NEXUS APPROACH A. Voices in Dissent: A Closer Look B. The Heightened Factual Nexus Approach: An Impossible Bind for the Reasonable, but Unreasonably Seized, Passenger 1. Defining the Fourth Amendment Seizure: From Pedestrian to Passenger 2. The Heightened Factual Nexus Test: A Veritable Kobayashi Maru Scenario for Passengers C. Passengers Suffering from Separation Anxiety: One Detention or Two? 1. Prolonging One Detention Does Not Make Two 2. A Lawful-Turned-Unlawful Traffic Stop Does Not Make Two D. The Elephant in the Courtroom: Whren v. United States and the Role of Subjective Motivations Whren v. United States: Unlawfully Motivated But Lawfully Justified 2. Subjective Motivations: When They Can and Should Matter a. Classifying the Court's Decisions Regarding Subjective Intent of Government Actors Determining Reasonableness: The Existence of Objective Justification ii. Threshold Matters: Defining Purpose Objectively iii. Threshold Matters: Focus on the Defendant iv. Threshold Matters: Official Intent in Defining Searches and Seizures v. Assessing Violations: Flagrancy of Police Misconduct b. Categorizing the Lawful-Turned-Unlawful Traffic Stop as a Flagrant Violation III. SOME PRELIMINARY DATA ON TRAFFIC STOPS INVOLVING PASSENGERS CONCLUSION INTRODUCTION

The benefits of carpooling are well documented and widely known. Being a passenger, however, does not come without its perils, at least in terms of diminished Fourth Amendment protection. (1) Over thirty years ago, the Supreme Court, in Rakas v. Illinois, established its current approach to Fourth Amendment standing in the context of suppressing the fruit of an unlawful search, holding that a defendant may seek suppression only if he has a "legitimate expectation of privacy in the particular areas" searched. (2) Addressing the admissibility of evidence found during the search of a vehicle, (3) the Court held that the petitioners, both of whom were "passengers occupying a car which they neither owned nor leased," (4) were unable to demonstrate a legitimate expectation of privacy in the vehicle. (5) Therefore, the petitioners did not have standing to contest the legality of the search.

Rakas created a harsh reality for automobile passengers: as "mere passengers," they are unable to suppress the evidence uncovered in an even egregiously unlawful search of the car in which they are riding, as they are not deemed to have suffered a personal Fourth Amendment violation. Justice White, in dissent, accused the Court of holding "that the Fourth Amendment protects property, not people," and admonished that "[i]nsofar as passengers are concerned, the Court's opinion today declares an 'open season' on automobiles." (6) Justice White continued:

[T]he ruling today undercuts the force of the exclusionary rule in the one area in which its use is most certainly justified--the deterrence of bad-faith violations of the Fourth Amendment. This decision invites police to engage in patently unreasonable searches every time an automobile contains more than one occupant.... After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person. (7) In 2007, the Court offered automobile passengers a glimmer of hope, holding, in Brendlin v. California, that passengers, as well as drivers, are seized when officers effectuate a traffic stop. (8) Brendlin was a passenger in a vehicle stopped without legal justification. (9) Further investigation revealed that Brendlin had violated his parole and, as a result, was subject to an outstanding arrest warrant. (10) Subsequent searches of Brendlin's person and the car revealed evidence of methamphetamine possession and manufacture. (11) Appealing his conviction, Brendlin did not claim the evidence was fruit of an unlawful search--after all, Rakas precluded such an attack--but instead successfully argued that the evidence obtained from his person and the car were fruit of an unlawful seizure. (12)

The concerns voiced by Justice White in his Rakas dissent carried the day in Brendlin: "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." (13) For passengers, however, this may be a victory more in principle than in fact. Police often have the requisite probable cause or reasonable suspicion to pull over a vehicle for the driver's failure to adhere to any one of a myriad of traffic rules, making a seizure lawful and rendering Brendlin inapplicable. Further, the Court, in Whren v. United States, held that as long as a seizure is justified by probable cause, that seizure is reasonable under the Fourth Amendment regardless of the subjective motivation of the officer. (14) Thus, if the seizure is objectively justified, it is irrelevant for Fourth Amendment purposes whether the traffic stop is a pretext for an unrelated investigation, even if the stop is racially motivated, effectively permitting police to "single out almost whomever they wish for a stop." (15)

Despite the ease with which officers can articulate a traffic-related justification for stopping a vehicle, stops that are unlawful at their inception or, alternatively, stops that, although initially lawful, exceed the scope of their justification, still occur. It is in this latter situation that Brendlin, at least in three circuits, does not deliver the protection it seemed to promise. The Sixth, Ninth, and Tenth Circuits apply a "heightened 'factual nexus'" (16) approach to determine whether a passenger may suppress evidence found in a car following a lawful stop that was unlawfully extended. Under this test, a passenger-defendant must show that the search and discovery of evidence was a result of his and only his unlawful seizure. This is theoretically distinct from the standing inquiry, which requires a defendant to demonstrate a personal constitutional violation in order to seek suppression based on that violation. When driver and passengers have been unlawfully detained, the passenger has himself suffered a violation through the unlawful seizure of his person, and thus has standing to suppress. He must, however, establish a sufficient causal connection between that violation and the discovery of evidence in order to succeed in his motion. Under the heightened factual nexus approach, no matter how egregious the violation, the passenger must survive an exceedingly stringent but-for causal test to benefit from the exclusionary rule.

Part I of this Article discusses the relevant case law in the circuits that have either adopted or rejected the heightened factual nexus approach. The courts adopting this approach see the initial, lawful stop as separate from the continued unlawful detention of the driver and passengers, and further separate the passenger's detention from the entire course of police conduct in stopping and then searching the vehicle. Once the passenger's detention is analytically separate, this approach posits that because the driver was also (unlawfully) detained, the evidence in the car would have been discovered even had the passenger been permitted to leave the scene.

Part II examines the arguments against the heightened factual nexus approach by analyzing the judicial opinions that reject it. Part II also demonstrates this approach's inconsistency with Brendlin and other Supreme Court decisions defining Fourth Amendment seizures, and posits that the heightened factual nexus approach creates a no-win situation for passenger-defendants: the very fact of their unlawful detention, which is necessary for standing to seek suppression, seems to preclude their success in doing so. Finally, Part II argues that officers' subjective motivations in prolonging a traffic stop beyond its lawful scope, or in effectuating the stop in the first place if it exceeds its lawful limits, should be scrutinized when making these exclusionary rule determinations, Whren notwithstanding.

Part III examines data on traffic stops and motions to suppress arising from such stops to illustrate the danger to Fourth Amendment rights engendered by the heightened factual nexus approach. The Article concludes by urging further study of the correlation between traffic stops and the number of occupants in those vehicles and by urging courts to reject the heightened factual nexus approach, which renders passengers vulnerable to unreasonable seizures with virtually no constraint upon law enforcement.

1. PASSENGERS AT THE CROSSROADS OF THE FOURTH AMENDMENT AND THE EXCLUSIONARY RULE: A SURVEY OF THE RELEVANT CASE LAW

   1. Origins of the Heightened Factual Nexus Approach

      The heightened factual nexus approach adopted by the Sixth, Ninth, and Tenth Circuits has its origins in factual scenarios quite different from the traffic stops to which it is now applied. The inquiry into a "factual nexus" between a particular Fourth Amendment violation and the evidence stemming from that violation is derived from two Supreme Court cases involving wiretaps, (17) and comports with the requirement that, for evidence to be excluded, the constitutional violation must be, at a minimum, a "but-for" cause of the evidence's discovery, although establishing this causal relationship does not guarantee exclusion. (18)

      Announcing the attenuation doctrine in Wong Sun v. United States, Justice Brennan stated:

      ...