Justice rides shotgun

IT ISN’T OFTEN that the U.S. Supreme Court can resolve a constitutional question by relying on simple common sense. But that’s precisely what the court can and should do in a California case involving the search and subsequent arrest of a passenger in a car that was illegally stopped by police.

By ruling that passengers as well as drivers are protected by the 4th Amendment against “unreasonable searches and seizures,” the justices also would be doing a service for the nation’s police by removing an incentive for passengers with something to hide to try to escape from a stopped car.

As viewers of “Law & Order” know, evidence seized illegally may not be introduced in court because it’s the “fruit of the poisonous tree.” Like it or not, the exclusionary rule has been adopted by the courts as the best way to deter police misconduct.

But last year, the California Supreme Court ruled that drug evidence found on Bruce Brendlin, a front-seat passenger in a car stopped by a Sutter County deputy sheriff, could be used against him even though the stop that made the search possible was unlawful. (The pretext for the stop was that the car’s registration had expired, but a temporary permit was visible in the rear window.)

The state court ruled 4 to 3 that Brendlin’s rights weren’t violated because, as a passenger, he wasn’t the subject of the deputy’s “show of authority” in flashing his lights and pulling the car over. Therefore, unlike the driver, he wasn’t “seized” and, in theory, could leave the scene.

At oral arguments Monday, both conservative and liberal justices were appropriately skeptical of the real-world relevance of this distinction.

Justices as diverse as David H. Souter and Antonin Scalia questioned the notion that passengers at a traffic stop feel free to simply walk away. Moreover, if that’s true and passengers aren’t “seized,” some undoubtedly will capitalize on their freedom and choose that moment to leave -- putting themselves and police in danger. The “routine traffic stop” could become a confrontation, or worse.

The justices could uphold Brendlin’s drug conviction on the grounds that the deputy sheriff -- who recognized Brendlin as a parole violator -- was justified in arresting and then searching him for reasons unrelated to the traffic stop.

If they take that course, however, the justices should make it clear that the California Supreme Court departed from the 4th Amendment -- as well as common sense -- in suggesting that passengers aren’t “seized” when police force a car to pull over.