SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

opposed to a taxi, bus, or other common carrier), the
passenger, by virtue of being in a vehicle stopped
for a possible traffic infraction, is in fact detained,
giving him the right to challenge the legality of the
traffic stop. (Brendlin v. California (2007) 551
U.S. 249 [127 S.Ct. 2400; 168 L.Ed.2 nd 132].)
The test is whether, “in view of all of the
circumstances surrounding the incident, a
reasonable person would have believed that
he was not free to leave.” Or, in the case
where the person has no desire to leave,
“whether ‘a reasonable person would feel
free to decline the officers’ requests or
otherwise terminate the encounter.’”
(127 S.Ct., at pp. 2405-2406.)
If the driver is stopped for a traffic-related
offense, a “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.” If the driver is stopped for
something unrelated to his driving, a
“passenger will reasonably feel subject to
suspicion owning to close association” with
the driver. (127 S.Ct., at p. 2407.)
© 2012 Robert C. Phillips. All rights reserved
This decision is in accord with the majority
of prior cases that have considered this
issue. (See People v. Bell (1996) 43
Cal.App.4 th 754; see also People v. Grant
(1990) 217 Cal.App.3 rd 1451, 1460; People
v. Hunt (1990) 225 Cal.App.3 rd 498, 505;
People v. Lionberger (1986) 185
Cal.App.3 rd Supp. 1, 5; and People v.
Lamont (2004) 125 Cal.App.4 th 404; United
States v. Twilley (9 th Cir. 2000) 222 F.3 rd
1092, 1095; United States v. Eylicio-
Montoya (10 th Cir. 1995) 70 F.3 rd 1158,
1164; United States v. Kimball (1 st Cir.
1994) 25 F.3 rd 1, 5-6; United States v.
Roberson (5 th Cir. 1993) 6 F.3 rd 1088, 1091;
United States v. Rusher (4 th Cir. 1992) 966
F.2 nd 868, 874, fn. 4.)
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