Brendlin v. California - Oral Argument

Argument of Elizabeth M. Campbell

Chief Justice Roberts: We'll hear argument next in 06-8120, Brendlin versus California.

Ms. Campbell.

Mr. Campbell: Mr. Chief Justice, and may it pleast the Court:

When an officer makes a traffic stop, activates his flashing lights, he seizes not only the driver of the car but also the car and every person and everything in that car.

This unremarkable conclusion is what Petitioner asks this Court to rule on, rule today.

This simple rule is not only firmly rooted in this Court's precedence, it also protects police officers and the liberty interests of everyone traveling on a public State highway.

Chief Justice Roberts: Well, it wouldn't apply in a taxicab, right?

I mean, the cab is driving erratically, the officer pulls it over.

If I'm a passenger in the cab, I think I can get out and catch another cab, right?

Mr. Campbell: Whether or not you can get out and catch another cab is sort of a separate issue, but at the moment that the car comes to a stop you've been stopped by a Government means intentionally applied, and I believe you are seized at that point.

After that it may become a factual question with the totality of the circumstances and it may be significantly different from that, from the question we face in a case like this where it's a passenger in a private car.

Justice Alito: And would that apply if a bus was pulled over?

Mr. Campbell: If a bus--

Justice Alito: Everybody on the bus is seized?

Mr. Campbell: --Once again, a forward motion stopped by government means intentionally applied is a seizure under this Court's holding in Brower.

Chief Justice Roberts: But you would have no reason if you were a passenger on a bus in the normal case to assume that the officer was concerned about you.

Your view would not be that they are stopping me, you'd think they're stopping the bus because the driver ran a red light or whatever.

Mr. Campbell: With all due respect, I believe at that point what you believe is not necessarily the dispositive issue.

The dispositive issue is that your freedom of movement has been curtailed by government action.

Justice Souter: Well, are you saying then that in a case in which the bus is stopped, the car is stopped and so on, the role for the test about whether a reasonable person would regard himself as free to leave is a test to determine when the, when the seizure ends, as distinct from when the seizure begins?

Mr. Campbell: Exactly, Your Honor.

Justice Souter: There's no other role for that test.

Mr. Campbell: Exactly, Your Honor.

And I believe that's the rule we apply with respect to drivers.

We don't normally formulate it that was because usually there's a directive from the officer saying okay, you're free to leave, there's a clear point where the seizure ends.

But--

Justice Souter: Yeah, but you're taking the position that whenever you are in a vehicle that is stopped, you are seized?

Mr. Campbell: --Exactly.

Yes, Your Honor.

Justice Alito: In this case, is it correct to view this as... to view it this way: As soon as the officer approached the car, as I understand it, he recognized the Defendant as a potential parole violator.

Mr. Campbell: Yes.

Justice Alito: And there would be reasonable suspicion then from that moment on, for at least a brief detention of the individual to determine whether in fact there was a warrant for the individual.

So all we're talking about, the only period of potential seizure that we have to worry about is up to the moment when the officer sees Mr. Brendlin.

Mr. Campbell: In terms of determining when Mr. Brendlin was seized, yes.

The... there--

Justice Alito: In other words, any seizure after that point would be supported by reasonable suspicion?

Mr. Campbell: --Well, except in this case of course, it would be fruit of the poisonous tree, since the State has continued--

Justice Kennedy: Well, that's the question.

Do you concede that this arrest was lawful?

Mr. Campbell: --The arrest itself... the arrest itself is still a product of the exploitation.

Justice Kennedy: Do you concede that the arrest was lawful?

The officer was obligated to arrest this person, knowing what he did, was he not?

Mr. Campbell: Yes.

We concede that the--

--Yes.

Justice Kennedy: Do you have any case in which we exclude the evidence seized incident to an arrest when the arrest is lawful?

Mr. Campbell: Well, Your Honor, I don't have a case that has these specifics in it.

This is a new--

Justice Kennedy: I didn't think you did, and that's my concern.

I assumed that this officer was required to arrest the person, and we can have hypotheticals, he sees somebody wanted for multiple murders and so forth.

But I'm just not aware of authority which says that when the arrest is lawful and the search is incident to that arrest, that the evidence is excluded.

What's your best... what's your closest case you can give me on that?

Mr. Campbell: --Well actually, I would turn to the cases that talk about searches incident to arrest and also, go back to the rationale for the intended--

Justice Kennedy: Can I have one please?

Mr. Campbell: --Well actually, let's look at Thornton and--

Justice Kennedy: Thornton, I'm not familiar with immediately.

I'll look it up.

Mr. Campbell: --Thornton and Knowles are two cases that this Court has decided relatively recently where you talk about the rationale for searches incident to arrest.

They're not cases that I would have considered to be directly on point for the seizure issue in this case, but in Knowles the Court held that you can't search a car incident to arrest on a minor traffic stop because--

Justice Kennedy: No, no.

This was the search of a person incident to an arrest, and I really jumped a little bit ahead of the questions that Justice Alito was proposing.

There may have been a moment in which the officer did not have the authority to act and he did, but it seems to me that once he has this knowledge, there is now an intervening cause and the arrest is proper, and the search as well.

Mr. Campbell: --If I can divide this into two issues.

First we have the issue of the arrest itself, and I am aware of no mechanism by which Mr. Brendlin would be entitled to suppress the arrest itself, to not be arrested on the parole warrant, or to get out of jail free, so to speak.

That is a separate issue, however, than discussing whether or not the evidence that comes out of this auto search which is a direct product of the illegal stop should be admissible.

And--

Justice Scalia: Well, it's a direct product of the arrest, and if the arrest is legal, then it seems to me the search incident to the arrest is legal.

And are you acknowledging that the arrest is legal, that whatever the exclusionary rule does, it does not require you... when you've engaged in an unlawful seizure and you find an ax murderer sitting there in the car, you don't have to say sorry, I shouldn't have stopped the car.

You can arrest the person, right?

Mr. Campbell: --And--

Justice Scalia: So the arrest is legal.

If the arrest is legal, then the search incident to it must be legal.

Mr. Campbell: --Well, I think we have to look, as I said, at the purpose... the rationales for allowing a search incident to arrest are the need to disarm the suspect or take him into custody, and the need to preserve evidence for trial.

In this specific case he's arrested on a parole warrant.

I can't imagine what evidence in that car would be needed to be preserved in order to proceed on the parole warrant.

Justice Kennedy: What authority do you have that the operation of the exclusionary rule depends on the offense for which he was arrested?

Mr. Campbell: Well, the search incident to an arrest is an exception to... to the exclusionary rule.

Justice Kennedy: Do you have any authority for the proposition you just offered?

Mr. Campbell: The proposition--

Justice Kennedy: The search incident to an arrest leads to an exclusion in one case and not in another case, depending on the charge on which he was arrested?

Mr. Campbell: --Well, if what we are talking about is whether or not the exclusionary rule should apply, we look to the purposes of the exclusionary rule which is to deter unlawful police conduct.

If we allow officers to make a stop on a hunch that someone has a, has a, has a warrant or whatever, we have essentially reduced the deterrent effect of the exclusionary rule as it applies to traffic stops, as it has historically applied to traffic stops.

This is, this is not a new proposition that if you stop a car and... if you saw something in plain view after an illegal stop, it wouldn't be... it would still be excluded.

Justice Souter: Well, but why... why doesn't plain view kick in just as readily, once it is conceded as it has to be, that at the point that he was making the arrest, the officer was acting lawfully?

And if he was acting lawfully when he made the arrest, why doesn't he get the benefit of the plain view doctrine to the extent that he saw any evidence before him at that point?

And I take it the plain view exception would at least cover the, I forget what it was, but the materials that were in the, in the passenger well of the passenger car, that... that were known to be used as a source of, of ingredients for making methamphetamine?

Mr. Campbell: Well, I believe you misunderstood me.

I wouldn't say that the plain view doctrine would allow admission of that evidence.

If the stop is illegal then anything the officer seized--

Justice Souter: No, I realize.

But we've got... we've got a choice here, I mean, I think Justice Kennedy's questions brought this out.

We've got a choice here of two ways to look at the State action at the moment of... of the arrest.

One way to look at it would be to say it was a product of an unlawful stop.

Another way to look at it would be to say it was an act of executing a validly issued warrant.

And you concede that they at least could lawfully have executed the arrest, they didn't have the arrest warrant but there was an arrest warrant issued for them and they could lawfully execute that warrant and arrest him at that point.

Let's assume that those are our two choices.

On choice number one the State, the police officer, is acting someplace where he shouldn't have been.

On choice number two, the parole violator, your client, is in a place where he shouldn't have been because he should have been arrested and he should have been back behind bars at that point.

If we have a choice between those two ways of looking at the case, why don't we for any purpose, give the casting vote to the lawfulness of the arrest, to the warrant which was issued by a neutral and detached magistrate at some point?

And if we do that, then why isn't not only a search incident to an arrest, but the seizure of materials which were in plain view at the moment of that arrest, subject to a... an admissibility rule?

Mr. Campbell: --Well, first, Your Honor, a slight correction.

I don't believe that there is any evidence that this was an issue issued by an detached magistrate because what we call in California a Powell warrant under California Penal Code Section 3000(v)(a)--

Justice Souter: Okay.

But it was, it was a warrant that was lawful for Fourth Amendment purposes, is that conceded?

Mr. Campbell: --Yes.

Yes.

Justice Souter: Okay.

Mr. Campbell: Issued by the Board of Prison Terms.

Justice Souter: All right.

Mr. Campbell: But in terms of why we don't do this, it's the reason we exclude evidence in general when it's unlawfull seized, when it is the direct result of a... of a stop that is illegal from its inception.

Justice Souter: Well, all right, but you're simply saying we give, we put the greatest emphasis on act A, stopping the car rather than act B, lawfully arresting, regardless of the legality of stopping the car.

Mr. Campbell: Well... well actually we have a test for this.

It's the Brown test; it's the Wong sun test, and the people have the burden.

The test is if the, even there is attenuation, which I... which is what the people are arguing, the warrant in this case is, that's not the end of the inquiry.

We also look at the flagrancy of the officer's misconduct, and we look at the temporal proximity to the initial illegality.

And in this case that attenuating circumstance is simply not--

Justice Souter: But do we, do we have do we have in any of the cases... I, frankly I don't recall.

I remember Brown but I don't think there was anything in Brown comparable to the lawful authority to arrest independent of the stop.

And... and that's what makes this case unusual.

And... and if we emphasize the lawfulness of the arrest, quite independent of the circumstances of the stop, and we also bear in mind that the point of the exclusionary rule is... is to deter police conduct, and you've got another priority here, the driver, who can invoke the exclusionary rule and deter police misconduct.

I don't see where the interest would lie in, or where the justification would lie, in our saying we've got to put, as it were all the eggs in the basket of the unlawful stop, as opposed to the basket of the lawful arrest.

Mr. Campbell: --Well, Your Honor, I think, actually I'm not sure that the driver in this case is going to have a remedy.

If we look at the steps in this case, first we have this officer who makes an illegal stop.

He continues that detention in order to run warrant checks on both parties; he finds probable cause to arrest Mr. Brendlin; he searches the car incident to the arrest, even though the Belton rationale search incident to arrest perhaps is a bit shaky in the case, because Mr. Brendlin is in the back of the car, and it's a parole warrant.

But at that point the officer also searches the driver, and if the evidence is, or if the taint is attenuated, as to Mr. Brendlin, and this is a lawful search incident to his arrest, I don't really understand how the driver is going to have a remedy as well.

And in fact--

Justice Kennedy: Well, do we have an... an argument that something was seized from the driver that should not have been seized from his person?

Mr. Campbell: --The driver is not a party to the appeal, but she was convicted, and... and... and--

Justice Kennedy: Well, but I mean, that's not before us.

Mr. Campbell: --No, it's not.

Justice Kennedy: We're talking about evidence seized from the defendant.

Mr. Campbell: No, Your Honor.

I was responding to the question doesn't the driver have a remedy?

You know, isn't that enough to provide deterrence?

But if we allow a warrant by one person of the car to attenuate the search, search of the car, then as I read this Court's precedents, the search is attenuated, the taint is--

Justice Breyer: The California Supreme Court as far as I could tell was thinking that it turns, if you stop somebody, you stop somebody, if you make him think he isn't free to go.

So you seem to me to give a lot of cases where he would feel free to go, and you're saying still that that's a stop.

Well, I mean, suppose the policeman comes along and he sees three people in a car and there is Jack the Ripper driving.

So he says okay, I'm stopping the car.

Now he says the other three people, I'm not interested in you; my pal and partner here is in a second squad car; he will take you wherever you want to go.

Have they been stopped?

Mr. Campbell: --Have they been stopped by the initial seizure?

Justice Breyer: No.

Mr. Campbell: The initial stop of the car, yes.

Justice Breyer: Okay.

Well, I don't think you're going to find authority for that in the law.

At least not in this Court.

I mean, I'd like to know what it is.

Maybe you are.

I think that would be very interesting.

Mr. Campbell: Well, I think the Brower decision--

Justice Breyer: Brower--

Mr. Campbell: --The Brower opinion has a very--

Justice Breyer: --What, what were the facts there?

Mr. Campbell: --Well, in Brower there was a roadblock--

Justice Breyer: There was a roadblock.

Mr. Campbell: --The car crashed into it.

But the, the crucial question, the crucial issue was was means intentionally applied by the Government.

Justice Scalia: What if the car... you know, the car doesn't come to a complete stop.

The same facts that Justice Breyer just gave you.

It's creeping along at, you know, a foot a minute.

And then he says to these other people, you can jump out and go wherever you like, or you know, or go back to, to my partner's car.

Then they wouldn't have been stopped; is that right?

Mr. Campbell: I think then we'd have a totality of the circumstances test and whether someone feels free to leave and jump out of a moving car.

But I... I--

Justice Scalia: So you're putting all the eggs into the basket that the, the car came to a complete stop and therefore they have been seized.

And what is crucial for the seizure is the elimination on--

motion on the part of the car.

Mr. Campbell: --That's how--

Justice Scalia: Any elimination of motion in a vehicle in which you are the passenger constitutes, at the request of the authorities, constitutes a seizure?

Mr. Campbell: --If it is by means intentionally implied, yes.

I think that's, that's how Hodari--

Justice Scalia: But not if you're still rolling a little bit, a foot a minute.

[Laughter]

Mr. Campbell: --Well, then it would be totality of the circumstances test.

Justice Souter: It seems to me that you're, you're blending two tests together, and tell me if I'm wrong.

One test is there is no question that if the police get control over people, those people are not free to go.

Mr. Campbell: Yes.

Justice Souter: And those are the motion cases.

The most extreme example being the... the roadblock.

Hodari D, did they... you know, they were trying to catch him but did they actually get to the point of a seizure for Fourth Amendment purposes?

Then you got another category of cases in which there is no question that someone is stopped, that a police officer can exercise control, and that control if so exercised is certainly going to be seizure for Fourth Amendment purposes.

But we don't know whether the officer really is exercising control, so we ask the question would a reasonable person in the position of the individual stopped have believed that he was free to go?

Aren't those two quite distinct tests?

The first test assumes the answer to the question in the second test.

The second test assumes the answer to the first test, i.e., they're stopped, subject to control.

Aren't they two independent tests?

Mr. Campbell: I agree with you that they are two independent tests, and as I went through this Court's precedents I frankly could not find a single case in which a person had been in motion and stopped and came to a stop, the physical stopping of motion, in which this Court did not find that a seizure had occurred.

Justice Souter: Okay.

So you were engaging in shorthand?

You, you accept the analytical distinction but you say look, in the real world once you stop, we... we know how the person would have felt?

Mr. Campbell: Well--

Justice Souter: A reasonable person would have felt.

Mr. Campbell: --I think that what we have here, is... as I said it's really the way we look at it with drivers as well.

There is a bright line.

The car comes to a stop as a result of this display of authority, you are seized.

From that point on when you would, when a reasonable person would feel--

Justice Souter: No, but aren't... you are saying, I thought by agreeing with you what you were saying was once the car is stopped, a reasonable person under those circumstances would not have felt free to leave.

Mr. Campbell: --I think that's true.

Justice Souter: Okay.

Mr. Campbell: I think a reasonable person would not feel free to leave.

Justice Alito: What if the officer went, before even approaching the car got on the loudspeaker and said:

"Driver remain in the car; passenger, you're free to go? "

Mr. Campbell: I think under the totality of the circumstances any court would have a hard time saying the passenger is not free to leave then, unless there is some other intervening, some other factor.

Chief Justice Roberts: But you would state he is still seized because the car is stopped.

Mr. Campbell: He is seized by the stop, absolutely.

Justice Souter: Well, then you're... you're blending the two tests together again.

Mr. Campbell: Well, the two different--

Justice Souter: You have either got to accept their analytical distinction or not.

Mr. Campbell: --I do accept their analytical distinction, Your Honor.

I think it's just... it's actually two different fact, two different points in time.

There's the, there's the seizure that occurs when the car stops; and then there is the continuing seizure during the course of the traffic stop which for the driver has a fairly clear ending point; for a passenger it's going to depend on the facts.

Justice Alito: What's the difference between that situation where the police officer says on the loudspeaker passenger remain, driver you're free to go, and the example that the State has in their brief, in which a car is stopped and as a result of the way it's stopped on a narrow road, the other cars behind that car are for some other period of time prevented from going forward?

What's the difference between those two situations?

Mr. Campbell: That difference is actually addressed directly in Brower.

Brower addresses that exact hypothetical.

It says a passerby who is inconvenienced by another stop.

There you have Government, a Government-caused termination of movement but it's, but there is no intentionally, means intentionally applied.

Justice Breyer: So what it says here, getting out their quote from it, is it says it does not occur whenever there is a governmentally caused termination in individual's freedom of movement, nor even where there is a governmentally caused and governmentally desired termination of an individual's freedom of movement.

That only when there is a termination of freedom of movement through means intentionally applied.

Now, the only way I can... I mean I say the difference between desired is that they didn't want to stop him.

They are not interested in stopping him.

That's not our desire to stop him.

Our desire is to stop the driver.

So if you don't have the desire and if there is no real restriction of any significance, is there a stop?

I mean I would say Brower, they cited on their side, for that language.

Mr. Campbell: Your Honor, where you're looking at... we have to look at the objectively observable facts, which in this case are the flashing lights.

We don't... I mean the passenger has no particular way of knowing what the officer's intent is, which I think is why this Court has consistently held that the officer's object intent in... in... is irrelevant to the equation.

Justice Breyer: Well, the passenger, you also have to have two things.

One they don't intentionally want to stop him.

Two, he doesn't think his movement is restricted.

Where both of those things are true, then no stop.

That's why the people who, say, are on the railroad car and they stop the whole train, that the railroad says don't worry, not an inconvenience: We'll have another train for new 10 or 15 minutes; just get out, except for car one where there is Jack the Ripper... you know, those other people are not stopped.

Now that's their argument.

What's your response?

Mr. Campbell: Well, my response is the same as it has been.

The passenger is certainly stopped when the car comes to a halt.

We discuss in our brief that there are reasons why a passenger could, why the car could be stopped, as far as the passenger knows, and particularly in this case where we have... whereas it was an unreasonable stop, there was no traffic violation, neither the passenger nor the driver has any reason to know why they are being stopped, and--

Chief Justice Roberts: Well, does that make a difference?

Let's say, you know, the car drives through a red light and the police lights come on.

The passenger surmises that it's because they ran a red light.

So that's a different case?

You would say it's not seized if he reasonably, objectively, reasonably assumes it's because of what the driver did.

Mr. Campbell: --No, Your Honor.

I would still say that the passenger is seized when the car comes to a stop.

Chief Justice Roberts: So then why are we pointing out that they didn't know?

It makes no difference under your view of the case.

Mr. Campbell: Well, I don't think it makes a difference one way or the other.

I was responding to the suggestion that the passenger should somehow be aware of the officer's intent and know when he sees flashing lights that it means the driver... I don't think that that's a proper inquiry to determine whether or not--

Chief Justice Roberts: Well then, if all that matters is the physical stop, what do you do about the cases that were talked about earlier where the other cars have to stop because of the way... that's a physical stop and yet our cases indicate you're not seized in those situations.

Mr. Campbell: --That's a physical stop, but it's not... it's not the... the means intentionally applied portion of the test doesn't work or it doesn't satisfy it.

Justice Alito: Well, how do you explain the justification for stopping if there is the seizure, for stopping the innocent passenger because the driver has committed a traffic violation?

If that's a seizure of the passenger, then it's a seizure without reasonable suspicion of probable cause, right?

Mr. Campbell: No.

I would say that that's a reasonable, a reasonable stop.

That's the risk... when you get into the car as a passenger, you take a risk that you may be subject to a reasonable search or reasonable detention.

But the Fourth Amendment doesn't provide any protection for anyone against reasonable detentions and that would be a reasonable detention.

Was there a question?

Justice Scalia: What about a shutdown of an airport?

You know, there is word that somebody has been seen walking in with a bag of explosives or it looks like a bag of explosives, so they stop all planes on the tarmac, shut down all exits to the airport until they can ascertain what this bag is.

Everybody in the airport and everybody in those planes has been seized for Fourth Amendment purposes?

Mr. Campbell: No, Your Honor.

Some of those people in the airport would be in the same position as the passengers in Bostick and Drayton, where they weren't going anywhere in the first place, and--

Justice Scalia: Okay, just the people who were trying to leave the airport.

They had just arrived and they were going to go out to catch a cab and go home.

They have been seized.

Mr. Campbell: --I would say some of those people would be in the position of the passer-by, the passers-by identified in Brower.

Possibly some of them would be seized, but it sounds to me like it would be a reasonable seizure and wouldn't necessarily... I mean a reasonable seizure, there's no Fourth Amendment protection against a--

Justice Scalia: Well, it turns out that there wasn't a bag of explosives and that no reasonable person would have thought.

This was a knitting bag and some foolish cop thought it was a bag of explosives.

That would have made it unreasonable.

So everybody in the airport who is on the way home has been seized and has a cause of action.

Mr. Campbell: --Given the extreme leeway given in airports, if it's so bad that there wasn't reasonable suspicion to shut it down, I'd say that's probably a reasonable result for shutting down entire airports for no reason whatsoever.

But under the fact that you posited, it sounds like it would be exigent-sent circumstances or something else that would make that a reasonable suspicion.

Going back to our, to the test that Petitioner asks this Court to adopt, the most important thing I can say about this test is not only does it reflect what I think is the real life expectation.

It also protects officer safety by providing a measure of predictability for both passengers and drivers and as well for officers.

And I'd like to reserve the rest of my time.

Argument of Clifford E. Zall

Chief Justice Roberts: Thank you, counsel.

Mr. Zall.

Mr. Zall: Mr. Chief Justice and may it please the Court:

I'd like to respond if I could to Justice Souter's point earlier.

The State sees this as having two distinct components in a situation where a passenger is subject to a, in a vehicle that's subjected to a routine traffic stop.

First, you have the stopping of the vehicle, the physical stopping of the vehicle.

In our view that does not result in a seizure of a passenger.

It's a show of authority much like Hodari D discussed, which is directed at the driver.

The driver is the operator of the vehicle.

When the driver submits to that show of authority, under this Court's precedents the driver is seized.

The passenger is not seized.

Justice Scalia: Even, even when the reason the driver is stopped is that a police officer whose car was alongside, he looks over there and he sees that it is some notorious felon who is in the back seat, and the only reason he stops the car is so arrest that felon?

You would still say that, that the show of authority is only directed at the driver and hence it is only the driver that's seized?

Mr. Zall: Justice Scalia, the way I'd answer that question is to say yes at the outset, because the driver is in control of the vehicle.

By necessity, the show of authority to stop if it's done in a routine manner, as was done here, is directed at the driver.

Therefore--

Justice Scalia: That's the right answer.

I think you're being consistent.

You have to say that.

You have to say that.

Mr. Zall: --Thank you.

Justice Souter: Well, consistent with that answer, consistent with that answer, what we're concerned with in these cases is not, in cases like this, is not literally the moment of the stop, but the moment of the stop plus one.

And in cases like this the... I take it you concede the question is would the passenger, would a reasonable passenger in, in that situation feel free to leave.

And in the absence of a hypothetical like Justice Alito's in which the loudspeaker says, all I want is the driver, passenger is free to go, and so on, absent something like that, what is the argument that the, that a reasonable person in the passenger seat would feel free to open the door and traipse off?

Mr. Zall: Justice Souter, I think the, the pervasiveness and the commonplace nature of a routine traffic stop gives--

Justice Souter: Have you ever been stopped?

Have you ever been subject to a traffic stop?

Justice Scalia: Tell the truth now.

[Laughter]

Mr. Zall: --Yes.

Yes, I have.

Justice Scalia: Okay.

[Laughter]

Justice Souter: Okay.

The heart rate went up.

The blood pressure went up.

But--

Mr. Zall: But I was the driver, I was the driver.

Justice Souter: --Don't you think that a reasonable passenger at that point would assume that the officer is in control and that, in the absence of some affirmative indication that the passenger can go, that he's supposed to sit there until this thing gets over with?

Isn't that the reasonable response of a passenger?

Mr. Zall: No, Justice Souter, I don't think so.

I think again, because the, the traffic stop is such a common occurrence and in the overwhelming majority of cases involving a routine traffic stop, it's an investigatory stop of the driver.

And I think it's reasonable for the passenger and the driver to see it that way, I would submit that if I am a passenger in a car and I'm riding with somebody and they, and one patrol car signals for the driver to pull over, I think the natural reaction is the driver says, what did I do, and the passenger says, what did you do?

I mean, I think that's the natural reaction.

Justice Ginsburg: The fact that the action--

Justice Scalia: Well, but the policeman usually tells the drive and anybody else in the car: Stay in the car.

Policemen don't like people jumping out of the car.

They don't know why they're jumping out of the car.

And I would certainly if I were a passenger not feel free to immediately open the door and start walking away, and if I did I would expect the policeman to tell me: Get back in the car.

Isn't that, isn't that the normal procedure, to keep the occupants in the car until the policeman investigates?

Mr. Zall: Well, I think, Justice Scalia, I think if the officer did tell you to stay in the car--

Justice Scalia: Well, even if he didn't tell me.

I would have expected him to tell me.

I wouldn't even open the door because I know he would tell me.

I know that I'm not free to leave the car immediately until he investigates the stop.

Mr. Zall: --Well, I, I'm not sure that I agree with that.

Chief Justice Roberts: What if there's a suitcase in the back seat?

Just the driver, the driver's pulled over, and then somebody comes walking down the sidewalk, the driver's friend, he opens the car door, takes the suitcase and starts walking away?

Wouldn't the policeman say, put that back, because he thought he had seized not just the driver but everything in the car, too?

Mr. Zall: Well, again, Mr. Chief Justice, I think that if, if the officer... our position is that if the officer does something to the passenger to indicate--

Chief Justice Roberts: I'm talking about the suitcase.

You wouldn't, you wouldn't reasonably think someone could just take something out of the car that's been stopped by the officer and walk off with it, right?

Everything, all the contents of the car, are seized as well as the driver, right?

Mr. Zall: --I'm not sure that a passenger, though, is like a suitcase.

I mean, a suitcase can't go anywhere unless somebody does something.

Justice Kennedy: You're representing the State of California and you want to establish the proposition that any time there is a traffic stop in the State of California or I guess anywhere in the United States all the passengers are free to immediately leave, absent some further countermanding officer... order by the officer.

I think that's a quite surprising proposition.

Now, we don't have empirical studies and so forth, but at some point the Court takes judicial notice and I think indications from the bench are we just don't think passengers, A, are or, B, should feel free to leave when there's a traffic stop.

I just think you have no social or empirical documentation for that position.

Mr. Zall: Well, though it's not cited in our brief, Justice Kennedy, we have talked with the California Highway Patrol who make over a million stops a year in California and they treat passengers as free to leave.

Justice Breyer: But I mean, the question... so I want to know how to decide this case.

I understand what your position is.

But I think the normal instinct of everybody is not about boats, taxis, airports and all these other examples, but this case.

And I, I would say if you want to go on instinct I wouldn't think of getting out of a car when I'm the passenger and the policeman has stopped.

But maybe I'm wrong.

So when you asked a million policemen, how many instances did they tell you about where they stopped the car and all the passengers jumped out and walked away?

Was there one?

Was there one.

Mr. Zall: Well, I mean... but I think that prudent behavior... just because it's prudent to do something doesn't make it a seizure.

Justice Scalia: Right.

I never pass a police car.

I don't care how slow I'm going.

I never pass a police car.

I don't consider myself arrested just because that's the prudent thing to do, and it may well be a similar situation when you're sitting in a car that's been stopped by a traffic policeman.

Mr. Zall: I mean, I think, I think again that--

Justice Ginsburg: --Mr. Zall, let's say we have just an intelligent reasonable person reads the newspaper and says: Oh, they handed down a decision today that said the police can order me to get out of the car, the police can order me to stay in the car.

How could such a person feel free to leave knowing that it is the law that that person can be told, get out, or if he tries to get out, stay in?

Mr. Zall: --Well, Justice Ginsburg, I'd say that, you know, in the Court's seizure jurisprudence there is this notion of a consensual encounter.

I think when an officer approaches a citizen on the street there is always the apparent authority.

The apparent authority of the police is always present.

The police always have the factual upper hand, if you were, and at the traffic stop is no different.

I mean... and yet, this Court has repeatedly said that when the police approach a citizen, ask for his identification, ask for his cooperation, even if the police follow him in a squad car, that that's a consensual encounter.

Justice Breyer: Does it matter if they're on the Santa Monica Freeway?

Mr. Zall: I don't think so.

Justice Breyer: I mean it would be pretty dangerous to get out.

Mr. Zall: Well, but that would be a reason why you don't get out.

But it doesn't have anything necessarily to do with the police coercion.

I don't, I don't think... most of us wouldn't get out.

But that doesn't make it a seizure, just like most of us would cooperate with the police when the police approach us on the street.

But I don't think... if anything, I think the traffic stop is less ambiguous.

It's clearer that the police are not interested in me if I'm a passenger.

Justice Stevens: May I ask this question?

Suppose after the stop the passenger in the back seat starts to get out and the officer says: Stay in the car.

Is he then seized?

Mr. Zall: Yes.

Yes, because now the police have directed action at him and in that situation a reasonable person--

Justice Stevens: Doesn't it mean that the authority to cause the person to stay in the car existed throughout the stop?

Mr. Zall: --The authority?

Yes, but I mean, I think the police always have some degree of authority over us in any encounter.

Justice Stevens: Let me ask you this.

On a casual street in downtown, if they say, I'd like to stop and talk to you, you don't have to stop.

There's no authority to make them stop.

But there is authority for the passenger in the back seat of the car.

Mr. Zall: Well, it depends, Justice Stevens.

I think, is there legal authority?

I mean, I think police always have the factual authority and I think that's the way the reasonable person looks at things.

I don't think the reasonable person--

Justice Stevens: Is there a difference between legal authority and factual authority?

Mr. Zall: --I don't think in this context there is.

I mean, certainly in--

Justice Stevens: If there's no difference then there's legal authority.

Mr. Zall: --I'm sorry, Justice Stevens?

Justice Stevens: If there's no difference then there's legal authority, which would mean the person is subject, is in custody of the officer.

Mr. Zall: No, I don't think so, any more so than Mr. Drayton was in the Drayton case, where his compatriot was arrested and the police continued to engage him, and this Court found that that was a consensual--

Justice Breyer: How are we supposed to... I think it's quite interesting.

How do you suggest we decide this/I don't mean the result, but I'll go, I'll say yes, you've done your survey of the policemen, a million policemen think they're not restricting the movement of the passenger.

Very few passengers jump out of the car, but that may be because they're worried about being run over.

So you say, well, in fact they're restricted, but they don't think they're being restricted by the police, or do they?

And here we have no idea, at least I have no idea.

I really don't know what the majority think and yet it would seem totally relevant.

How would we find out?

Mr. Zall: --Well, Justice Breyer, I mean, I think that in this Court's... to be consistent with this Court's consensual encounter jurisprudence, with Rodriguez, with Royer, with Drayton, with Bostick--

Justice Stevens: But those are encounters in an airport where there are pedestrians; there's no authority to make the person stay, where here I think you've conceded that there is legal authority to require the person to stay where he was.

Mr. Zall: --Yes, yes, I do, Justice Stevens.

But I think the point is that if--

Justice Stevens: And if it wasn't a seizure what's the source of the legal authority?

Mr. Zall: --Well, again, I think, though, that it's a question of seizable versus seized.

I don't think just because the police have some authority that that makes you seized.

I mean, if the police see a citizen jaywalking that person is not arrested because the police have the authority to make, to arrest him.

So again I think, I think that the seizure occurs when the police exercise some authority over you.

I just think the traffic stop is less ambiguous.

It's clear that the traffic stop is to deal with the driver, whereas in the street encounter--

Chief Justice Roberts: If it's not, if the opposite is true, then it is a seizure even though they stop the car?

Mr. Zall: --Then, Mr. Chief Justice, I would say that it's a seizure that at the outset, again per Justice Scalia's hypothetical, that the, the driver only is seized at the outset, but then once the police make it clear that their interest is with the passenger then the passenger would not feel free to leave, and then the passenger would be seized.

Chief Justice Roberts: Even if they make that, even if they make that interest clear prior to the stop?

Mr. Zall: Yes, I think it would sort of happen instantaneously.

Chief Justice Roberts: No.

They pull up next to them and they see that Brendlin is the passenger and they yell over: Pull over, Brendlin.

Mr. Zall: So they direct their action, they direct their attention at the passenger at the outset.

Yes, then I would say the driver is seized by the stop, and then right immediately the passenger, the reasonable passenger, would not feel free to leave and then he would also be seized at that point.

But again, I harken back to the Court's consensual encounter jurisprudence.

It seems to me that again the straight encounter is more anxiety-forming for the citizen because the police have directed their attention at you.

Justice Ginsburg: It may be that you can walk away, you're not in an enclosed space.

Suppose the passenger knows when the police approaches: Oh my goodness, I didn't buckle up.

Would that passenger be the object of the police authority from the start?

Mr. Zall: Well, in your hypothetical, Justice Ginsburg, the passenger would not be an innocent passenger and the Court's test presupposes an innocent person.

So we can't really ask the question from the perspective of the seatbelt violator.

Justice Ginsburg: So it could be, it could be sometimes the attention is directed at the driver, but that's not always the case.

Mr. Zall: Again, I... as Justice Souter indicated, I think you have to, you have to break it up.

At the outset, the show of authority is by nature of the, of the vehicle, is directed at the driver.

After the vehicle comes to a stop, the police could manifest some interest in the passenger and then that changes things.

Justice Kennedy: But on your earlier answer to Justice Ginsburg, there's no authority in this Court to say that whether you deem yourself stopped or not depends on whether think you're innocent.

There's zero--

authority for that, right?

Mr. Zall: That's correct.

Justice Kennedy: Correct me if I'm wrong.

Mr. Zall: No, that's correct.

That's correct.

The perspective must be... we must look at it from the innocent passenger and whether the innocent passenger would as a result merely of the stop of the car feel free to leave.

Justice Kennedy: Going back to Justice Stevens' question, the passenger knows the minute the red light goes on that the police can either tell them to get out or tell him to stay in.

He knows at that very moment.

That seems to me to substantially limit his freedom of action and indicates that--

Mr. Zall: Well, again I think factually citizens when they encounter police always know... I mean, the policeman in any encounter is armed, is typically armed, and has apparent authority over you.

And yet this Court has repeatedly held that that in and of itself, although it may cause some anxiety on the part of citizen--

Justice Stevens: Yes, but isn't your case he doesn't in fact have the authority, he has apparent authority, but in this case he has actual authority, not just apparent authority?

Mr. Zall: --But Justice Stevens, again I don't think that the reasonable innocent passenger is... this Court has never said it's the reasonable innocent passenger that knows the Supreme Court's Fourth Amendment jurisprudence by heart.

I mean--

Justice Scalia: You're saying he doesn't have actual authority.

If I understand you, you're saying he has no authority to stop an innocent passenger from walking away.

Aren't you saying that?

Unless there's some reason to hold a person in the car, he has no authority to stop him from walking away.

Mr. Zall: --I think that is the current state of the law.

Yes, that is the current state of this Court's jurisprudence.

Justice Scalia: What if I feel, even though that's the current state of the law, I wouldn't think of opening the door and walking away without asking the policeman, do you mind if I open the door and walk away?

Does that suggest that I think I've been seized?

Mr. Zall: No, I don't think so, Justice Scalia.

That just suggests that you're prudent when you're dealing with an armed officer.

Chief Justice Roberts: It's not the police who have authority over the passenger; it's the driver.

The driver's exercising authority.

Just because the police say to pull over, the driver can take off and the passenger isn't seized at that point.

Mr. Zall: Absolutely, Mr. Chief Justice.

I think again, though, that the stop and then the after the stop are discrete.

Justice Breyer: So now perhaps I'm having so much difficulty, and maybe others are, because you've actually reached a question of law where facts matter.

That is, the law points us to the direction of what would a person reasonably think in general in such circumstances, and we can look at five million cases, but we don't know.

So what do we do if we don't know?

I can follow my instinct.

My instinct is he would feel he wasn't free because the red light's flashing.

That's just one person's instinct.

Or I could say, let's look for some studies.

They could have asked people about this, and there are none.

Or I could say, well, you're the State of California, you're the ones able to get the studies; you could tell some of those professors, you know, to stop thinking about whatever they're thinking about and go ask a few practical questions, but you didn't.

What should I do?

Hold that against you?

Look for more studies?

Follow my instinct?

Mr. Zall: I think, Justice Breyer, again I would keep coming back to the Court's consensual encounter jurisprudence.

I think you could ask some of the same questions about in the Drayton case, in the Bostick case, in the Royer case.

But if you accept those at consensual, then I'm not sure that this is any--

less consensual here.

Justice Scalia: Maybe we can just pass until the studies are done?

[Laughter]

Justice Souter: Mr. Zall, assume, and I--

realize you don't assume, but assume for the sake of argument, that, that there is a seizure here.

What's the significance of the arrest warrant, or... yes, I guess there was a warrant as I understand it, although it was not on the person of the officer who stopped the car.

Is that correct?

Mr. Zall: That's correct.

Justice Souter: Okay.

What's the significance of that for the outcome of this case?

Mr. Zall: Well, I think that even were this Court to rule that the passenger were subject to a seizure, that the presence of the arrest warrant attenuates any taint and therefore the evidence was... was not suppressible.

Justice Kennedy: --Well, maybe our questions took your colleague representing the Petitioner beyond the question presented.

The question presented is only whether the passenger felt seized.

If we agree with the Petitioner, do we send the case back?

Mr. Zall: I wouldn't, I wouldn't think there would be a need to send the case back.

I mean, I think--

Justice Kennedy: Well, why, if we have serious doubts whether or not the evidence is suppressible?

All we've been asked in the question is, is whether the passenger is detained.

Mr. Zall: --I concede that that's true.

Justice Kennedy: While the questions indicate that even if the passenger is detained, who cares, it's a lawful arrest.

Mr. Zall: Well, I think that because it's fairly clear that the arrest would, would remove the taint from the seizure, that there would be little reason to send the case back to the California Supreme Court.

Justice Breyer: Well, that question hasn't been argued here.

Mr. Zall: Well, I think it's subsumed in the question presented and I think it was raised in our opposition and the parties have briefed it.

Chief Justice Roberts: Well, but there's... you know, our Brown case establishes a multifactor test for determining when the illegal seizure has been attenuated and the Court hasn't applied that, the California Supreme Court hasn't gone through that test in this case.

Mr. Zall: That is correct, but again I think because the warrant is such a clear intervening circumstance that has nothing to do, you couldn't in any way say it's an exploitation of the, of the illegal stop.

Justice Souter: But don't we have two problems if we go to that stage?

The first one is we would be applying a test that was not applied by the court we're reviewing.

And number two, correct me if I'm wrong, but the, the... assuming you win, as it were, on the general point about the significance of the, of the arrest warrant, there are still going to be questions about the suppression of the evidence because there are going to be questions about whether the legality of the arrest on that theory suffices to justify the seizure of the evidence.

You recall the colloquy I had with opposing counsel about the possibility of applying a plain view test here.

Aren't those issues that should all be decided in the first instance in the State courts?

Mr. Zall: Certainly you could take that position, Justice Souter.

But it seems to me that again, that it's relatively straightforward.

The arrest was valid.

I mean, unquestionably the arrest was valid.

If the arrest was valid, I'm not sure that there are any cases--

Justice Ginsburg: But the question that's presented is kind of a standing question.

It's who can complain when the police stop a car?

You say the driver.

The question that's been presented in this case is, can the passenger also complain, and that's the only thing that we're dealing with.

So the... the arrest warrant may pose a disqualification for this particular passenger, but that would be a second question.

The question that is tendered to us and that was answered by the California Supreme Court is when the car is stopped by the police who can complain.

Mr. Zall: --Absolutely, Justice Ginsburg, I agree.

And one further point I'd like to make on that is, would be to draw a parallel between a parked car situation, in which the lower courts have uniformly held that no seizure results when the police turn on their lights and approach a parked car, and even when they rap on the window to get the attention of the occupants there is no seizure.

Chief Justice Roberts: No seizure of a passenger or a driver?

Mr. Zall: Of anybody.

Lower courts have uniformly held that, and yet that seems to be a more ambiguous situation and a situation in which the occupants' natural reaction would be to turn to each other and say: What's going on here?

Whereas again in the traffic stop I think it's, it is probably the most likely place that a citizen encounters a policeman, much more so than a, an officer approaching me at an airport and saying, can I see your identification, or approaching me on a street corner, or, as in Chesternut, following me as I'm walking home in his squad car.

Those seem to me to be more anxiety-creating and yet the Court has held that those are consensual encounters.

And in the parked car, there's ambiguity about what the police want, whereas in the routine traffic stop there isn't that ambiguity, so there's no reason why the passenger shouldn't feel free to leave.

Now, it might be prudent, as Justice Scalia indicated, to say, I'm leaving.

But that doesn't make it a seizure, that you should act prudently.

I think you should always act prudently when you're dealing with the police.

Justice Alito: What is this period of time that we are talking about when Mr. Brendlin might or might not have felt that he was free to leave?

As I understand the facts, the officer recognized him as one of the two Brendlin brothers immediately upon approaching the car.

Isn't that right.

Mr. Zall: That's... that right, Your Honor.

But again I think, so I think it's just the mere presence.

It would just be from the time that he got out of his parked, of his car after he parked it, and then with his lights on approached the car and then looks in and sees Mr. Brendlin.

So that's the period of time that Petitioner would have to establish that a reasonable person would not feel free to leave.

And the... and the comparison with the parked car and the other consensual encounter cases of this Court in my view indicate that there is nothing that's been done to the passenger.

I mean, the arrest of one person as this Court said in Drayton does not mean that everyone around him is detained so it doesn't seem to the State that anything has been done to the passenger.

He just was unlucky enough to be in this car when the driver was stopped for a traffic violation.

And that seems to me fairly unambiguous and we don't feel like a reasonable passenger would not feel free to leave in that situation.

Justice Kennedy: Well, it may be that we would say because of the exclusionary rule dynamic, we have very little interest in applying the exclusionary rule to this but I'm not so sure that we should bend the concept of seizure and say that the passenger hasn't been seized.

Perhaps we should be very liberal insofar as applying the exclusionary rule and in this case it seems to me there is lawful arrest which is intervening cause anyway.

But I don't know that we should distort the law of seizure.

Mr. Zall: Justice Kennedy, I wouldn't think you're distorting the law of seizure by saying the passenger isn't seized.

Nothing is done to the passenger.

He happens to be in this stopped vehicle, but the police have directed no action toward him and so I'm not sure that you would be torturing the definition at all.

Justice Stevens: Suppose 10 or 20 years ago we had this case and we decided your way and decided passengers are not seized, and then subsequently we had the question of whether an officer could order a passenger out of the car.

What would be held then?

Would we have said we can't because he is not seized?

Or would you say yes, he was seized.

I meant if we decided in your case there is no seizure, would we then have later on, do you think said, notwithstanding the absence of a seizure the officer could order the person out of the car?

Mr. Zall: Yeah.

Because I think... because I think the weighty interest in officer safety would still allow the officer to have some degree of control over the situation.

But again seizable does not mean seized.

The fact that the officer could seize the passenger doesn't mean that the passenger is seized.

Justice Stevens: But in most situations where an officer meets a person, unless there is a crime scene or something like that, he can't order them to cross the street or go someplace else, can he?

He can't issue any order to a citizen.

Mr. Zall: But again--

Justice Stevens: But he can issue orders to passengers even though they are not seized.

Mr. Zall: --But Justice Stevens, I think that's because of, the Court recognized in Mimms and in Wilson that there is something inherently dangerous about the traffic stop situation, and there may be weapons in the car that the officer can't see, and so that's why this Court found in Wilson that you could order the--

Justice Kennedy: Yes, but in that case there was a blanket rule.

The officer didn't have to have a specific reason.

And that it seems to me indicates that that's because the person as a general rule knows that he or she is seized.

If the officer had to give a specific reason requiring the person to stand outside as the dissent said, then you might have had a point.

But I don't think that's what the Court held.

Mr. Zall: --I don't think, Justice Kennedy, that the Court ever indicated that the passenger was seized in Wilson prior to the order out.

I know there was a dissent that indicated that the passenger wasn't seized and the majority never indicated that they disagreed with that point.

I think that what happened in Wilson is that the Court just felt that... may I--

Chief Justice Roberts: Finish your sentence.

Sure.

Mr. Zall: --the Court just felt that the weighty interest in officer safety justified the order out, regardless of whether the passenger was seized at the outset.

Rebuttal of Elizabeth M. Campbell

Chief Justice Roberts: Thank you Counsel.

Miss Campbell, you have five minutes remaining.

Mr. Campbell: Thank you.

Just to respond to that last question very briefly, I agree with Justice Kennedy that Wilson could not have been decided the way that it was decided had there not been an underlying assumption that the passenger is seized, because Wilson does not require any reasonable suspicion that the person is posing a danger to the driver.

I'd also like to respond to the State's argument that the passenger in this case simply got unlucky and he was in a car with someone, that he happened to be in a car with someone who was stopped for a traffic offense.

This passenger wasn't merely unlucky; his Fourth Amendment rights were violated by an unreasonable stop that was unreasonable from its inception.

Not only did the officer have no reason to make the stop; he had actually called in and verified and gotten affirmative evidence confirming that there was no reason for the stop.

So it--

Chief Justice Roberts: So that... so that, still then, it's just begging the question of whether or not his Fourth Amendment rights were violated.

You're making a good case that the driver's Fourth Amendment rights were violated, but why isn't the passenger, as your friend said, just in the unlucky circumstance to have been in a car whose the driver's Fourth Amendment rights were violated?

Mr. Campbell: --Because Your Honor, this Court has... this Court held in Delaware versus Prouse, the Court recognized the passengers as well as drivers have a liberty interest in free travel on the highways, and because if we look at every case this Court has decided in the last 20 or 30 years regarding when a seizure occurs, the case of a passenger in an auto test... in an auto stop meets the test.

Under Hodari D we need a show of authority or physical control; in this case we have both.

We have the driver response to the officer's show of authority and as a result the passenger is, is subject to physical control, as a direct line.

Justice Scalia: What have we done in a case, and maybe we haven't had it, but what have we done in a case where there is a warrantless entry in violation of the Fourth Amendment of somebody's apartment, and there is a suitcase in there that does not belong to the owner of the apartment?

My impression is that, that the owner of that suitcase has not been subjected to an unreasonable search and seizure; is that correct?

Mr. Campbell: If the person has no expectation of privacy in that suitcase that is correct, Your Honor.

But this Court has recognized in Delaware vs. Prouse that a passenger does have a privacy liberty interest in free travel.

So it's a different situation.

Once again, going back to the Brower case, the, there was some question about whether or not the, the seizure of a bystander would be, would be a seizure under the rule proposed by, by Petitioner in this case.

Brower talks about an entirely accidental seizure.

Justice Kennedy: Well, but there was only one, there was just the driver in the Brower case.

Mr. Campbell: Yes, Your Honor.

Justice Kennedy: There was no passenger as I recall.

Mr. Campbell: No.

But... but under the rule proposed by the State if there had been a passenger that passenger would not have been seized.

But if we look at how this Court--

Justice Kennedy: Well, but I mean in the case it's just not directly on point.

That's what we are arguing about.

Mr. Campbell: --Yes, Your Honor.

But if we look at the case next in line case, the County of Sacramento versus Lewis case, there was a passenger in that case who was struck by the officer in the pursuit, and although the Court found no seizure it didn't base that on the fact that the person was a passenger, but on the fact that it was an accidental application of force.

Justice Kennedy: So that's just another case that doesn't help us.

Mr. Campbell: I think it certainly informs the discussion, Your Honor.

Justice Ginsburg: But what of the question that was raised about well, a passenger is locked in for the moment, but so are all the cars that are backed up behind the car that's been stopped?

What's the difference between the passenger--

Mr. Campbell: In that case, Your Honor, there hasn't been an intentional impeding of those people's free, free movement by the officer.

The officer has intentionally stopped this vehicle.

And I... I don't think it's really, it's really far-fetched to argue that it's reasonably foreseeable that automobiles often have passengers in them, and there is certainly a large body of statutory law at least in California that shows that the car can be stopped for reasons related to the passenger.

So it's, it's a different situation.

We are not looking at an accidental seizure.

We are looking at an intentional seizure of the car.

Just to address for a moment whether or not remand is appropriate in this case, just to clarify the procedural posture.

The intermediate appellate court in California did rule this, that the evidence seized in this case was the fruit of the poisonous tree and should be suppressed.

The California Supreme Court did not grant review on that issue and it was not, it's not included in the question presented.

Just for clarification.

But if the--

Chief Justice Roberts: The California Supreme Court didn't have to reach that issue because it found there was no seizure.

Mr. Campbell: --No.

The court did not... did not actually request briefing on the issue either.

Thank you.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.