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Orin Kerr: Brendlin “Deliciously Certworthy”

Over at the Volokh Conspiracy, Orin Kerr has some harsh wordsfor the California Supreme Court’s reasoning in People v. Brendlin, the June 2006 decision in which it said that the passenger of a car stopped by police is not “seized” for Fourth Amendment purposes.

Kerr calls Brendlin “one of the nuttiest Fourth Amendment decisions I have read in a long time” and says it is “deliciously certworthy.”

A commenter on the VC makes another point: “This is another of those War on Drugs decisions that have all but destroyed fourth amendment protections.”

On the other hand, I have to say that Brendlin might make sense if you view it in light of cases like Florida v. Bostick, the 1991 bus seizure case. If you aren’t necessarily “seized” just because an officer walks on to your bus and starts talking to you (even though no reasonable person in that situation would feel free to leave and even though a show of government authority is the reason they would not feel free), then perhaps it follows that you aren’t seized when you are a passenger in a car stopped by a police officer. I’m not saying that I agree with Bostick — indeed, I think it’s a classic example of the Fourth Amendment being gutted for the sake of the war on drugss. But given that Bostick is the law, Brendlin had to pay attention to its reasoning.