PASSENGERS CAN CHALLENGE THE LEGALITY OF AUTO STOPS
PASSENGERS IN STOPPED CARS ARE DETAINED AND CAN CHALLENGE THE LEGALITY OF TRAFFIC STOPS (Brendlin v. California; 2007 DJ DAR 8896; DJ, 6/19/07; 2007 WL 1730143; US Supremes)
The police stop a car. Obviously the driver is detained. Incredibly, the California Supreme Court held that passengers in stopped cars are NOT detained. (Brendlin, 38 C4th 1107.)
The US Supreme Court now reverses - unanimously. The holding is that passengers ARE detained, so the passenger gets to challenge the legality of the stop. The test is from Mendenhall (446 U.S. 544) and Drayton (536 U.S. 194): a person is seized if a reasonable person would believe that he or she isn't free to leave or would not feel free to decline the officer's requests or otherwise terminate the encounter.
But what happens when the stop is legal? What's the scope of what the police can do with the passenger? There's this recent wacko Vibanco case (2007 DJ DAR 7463; DJ, 5/25/07), where the California Court of Appeal said that ordering the passenger to stay in the car and then exit was okay because even though the passenger was detained, the detention was permissible for officer safety. They then upheld a request for Identification. The Santa Clar Public Defender's Office is petitioning the California Supreme Court to fix this.
Practice Pointer: Take the position that passengers who are detained only because there was justification to stop the driver are detained in a very limited way, which permits the police to do essentially nothing with them.
