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: II. Passengers with Standing: Arguments for Rejecting the Heightened Factual Nexus Approach B. The Heightened Factual Nexus Approach through Conclusion, with footnotes, p. 626-656

2. 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

      The Supreme Court, in the landmark decision of Terry v. Ohio, held that a police constraint short of a formal arrest could still trigger one's Fourth Amendment protection against being unlawfully seized. (195) Specifically, the Terry Court defined a Fourth Amendment seizure as occurring "whenever a police officer accosts an individual and restrains his freedom to walk away." (196) The Court elaborated that not all contact between officer and citizen rises to the level of a Fourth Amendment seizure, but that "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." (197)

      Many years later, the Court applied Terry's definition to facts involving Drug Enforcement Agency ("DEA") agents who approached a woman at an airport concourse and, after having identified themselves, requested to inspect her identification and ticket. (198) A fractured Court found this encounter to be reasonable under the Fourth Amendment, although there was disagreement as to whether a seizure had occurred. (199) Consequently, only two Justices officially endorsed the part of Justice Stewart's opinion providing the definition of a seizure that would later be referred to as "the Mendenhall test." (200) This definition added a layer to the Terry formulation: "a person has been 'seized' ... only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." (201) In I.N.S. v. Delgado, the Court quoted Mendenhall's language, which has become an essential part of the definition of the Fourth Amendment seizure. (202)

      The Court, in California v. Hodari D., added one other requirement to the Terry-Mendenhall definition: when the seizure is predicated upon a "show of authority," the individual is not in fact seized until and unless he submits to such authority, or is subdued by physical force. (203) In other words no seizure has occurred until the individual is under the officer's control. Turning to passengers (albeit traveling by bus, rather than by automobile), the Court clarified that Mendenhall's language indicating an individual's freedom to leave or "walk away," was inapplicable where the approached individual may reasonably feel unable to leave, not because of the police interest, but as "the natural result of his decision to take the bus" and the fear of being stranded. (204) Eschewing any per se rule with respect to bus dragnets, the Court phrased the test of whether police have conducted a Fourth Amendment seizure as follows:

      [A] court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to encounters on a bus. (205) As we shall see, that rule also applies to encounters in private automobiles.

      The Court in United States v. Brignoni-Ponce considered the applicability of the Fourth Amendment to roving-patrol stops of vehicles traveling near the Nation's border. (206) The Court held that the Fourth Amendment prohibits even brief detentions207 unless supported by at least reasonable suspicion. (208) In Delaware v. Prouse, the Court reiterated that "stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth and Fourteenth] Amendments" (209) in the context of a random stop to check the driver's license and the vehicle registration. (210) The Court also emphasized the requirement that officers have at least some "articulable basis amounting to reasonable suspicion" for stopping a particular driver, admonishing that "[t]his kind of standardless and unconstrained discretion is the evil" the Court had, in earlier cases, sought to curtail. (211) Interestingly, Prouse may actually have been a passenger in, rather than the driver of, the vehicle. (212) More remarkable still, is that less than one year after the Court decided Rakas, (213) the Court here stated: "An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation." (214)

      It was not until 2007 that the Court formally announced that the defendant, a passenger in a stopped vehicle, "was seized from the moment [the] car came to a halt on the side of the road" and thus, entitled to seek suppression of the fruit of that seizure. (215) Applying the Mendenhall-Hodari D. definition of a seizure, the Brendlin Court reasoned that "any reasonable passenger would have understood ... that no one in the car was free to depart without police permission" (216) and, further, that by staying inside the vehicle, the passenger had, in fact, submitted to the officer's "show of authority." (217) The Article next turns to demonstrating how the heightened factual nexus approach is inconsistent with the reasoning underlying the holding of Brendlin, and in fact, places the passenger defendant in an impermissible and impossible bind.

   2. The Heightened Factual Nexus Test: A Veritable Kobayashi Maru Scenario for Passengers

      For fans of the Star Trek film series, the Kobayashi Maru Scenario is synonymous with a no-win situation. (218) This is precisely what passengers face under a heightened factual nexus approach when they seek to suppress evidence stemming from an unconstitutional seizure of their persons. To establish the requisite factual (but-for) nexus between his seizure and the discovery of evidence, the defendant must demonstrate that had he requested permission to depart the scene of the stop, he would have been permitted to do so in the car containing the discovered evidence. (219) Herein lies the rub--in order to seek suppression, the defendant must prove that he was seized as a matter of standing; for him to prevail under this test, however, he must show, in effect, that he was not. (220) It is therefore instructive to examine closely the language used by the Court in Brendlin to fully appreciate what the passenger must prove to meet the threshold standing requirement.

      Who, then, is the reasonable passenger in a traffic stop? A reasonable passenger "understands] the police officers to be exercising control to the point that no one in the car [is] free to depart without police permission." (221) The reasonable passenger

      [W]ould 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 ... [and] 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. (222) The reasonable passenger "expects[s] 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." (223)

      Additionally, if the passenger submits to police authority by remaining in the car, how much more emphatic is his compliance if he exits the car on the officer's command? (224) The Court endorsed an officer's lawful ability to order passengers out of a stopped vehicle, reasoning 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." (225) The Court reiterated this point in Brendlin: "What we have said ... 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." (226)

      Thus, to prove he was seized, a reasonable passenger must have felt the police were exercising "unquestioned" control over his movement, and yet to actually suppress, that same passenger must show that he would have asked a most daring question and would have received an equally unexpected answer. But if the passenger can demonstrate that he would have asked, and been granted, permission to depart in his companion's stopped vehicle (even while his companion remained detained), that would seem to disprove the fact that he was seized at all (since the reasonable person would not feel free to terminate the encounter in any way). Having established standing, the passenger gets to play the game, but by his very eligibility, a losing result is a foregone conclusion--he can never win. (227)

      Interestingly, the Court had previously recognized and sought to remedy a somewhat analogous no-win situation for defendants, also in the context of standing to suppress. Before Rakas so dramatically changed a defendant's ability to contest a search, (228) a defendant was entitled to seek suppression if he was "legitimately on premises where a search occurs" (229) or if he could "claim either to have owned or possessed the seized property." (230) This latter basis for standing naturally presented a bit of a conundrum for the defendant accused of a possessory offense: in order to establish standing, he would have to "allege facts[,] the proof of which would tend, if indeed not be sufficient, to convict him." (231)

      To alleviate this dilemma, the Jones Court established the doctrine of automatic standing, holding that the very possession of which the defendant is accused automatically confers on him standing to seek suppression of the contraband derived from an allegedly unlawful search. (232) In addition, the Jones Court sought, as a...