Case o' the Week: Pulliam & 4th Amendment Standing
A particularly discouraging opinion strikes dual blows to the Fourth Amendment; it slices the scope of a Fourth Amendment stop into discrete moments to deny standing, and it raises standing causality requirements. United States v. Pulliam, __ F.3d __, 2005 WL 913451 (9th Cir. April 21, 2005), available here.
Players: Hard-fought case by CD Cal AFPD Elizabeth Newman; troubling opinion by Judge Wallace; great, persuasive dissent by Wardlaw.
Facts: Gang officers follow a gang member and passenger in a car, having already decided that they were going to follow them and find a reason to stop them. Id. at *1. The cops stop the car because the "left rear brake light did not operate when the car slowed," and the officers said that the car rolled through a stop sign. Id. The cops approach with guns drawn, take the gang member and the passenger – Pulliam – out of the car, and find a gun under the passenger seat. Id. Pulliam confesses to the gun. Id.
Issue(s): The government conceded the cops had no authority to detain Pulliam, or to search the car. Id. at *3. Therefore, the issue is whether Pulliam, the passenger, had standing to contest the search of the car?
Held: No. "As a passenger with no possessory interest in the car Richards was driving, Pulliam has no reasonable expectation of privacy in a car that would permit his Fourth Amendment challenge to a search of the car." "Furthermore, Pulliam made no showing that he had any legitimate expectation of privacy in the area under the seat of the car in which he was merely a passenger . . . ." "Similarly, the mere fact that Pulliam claimed ownership of the gun does not confer standing upon him to seek its suppression." Id. at *3 (citations and quotations omitted). Pulliam didn’t argue that the stop of the car was a de facto stop of his person,– but even if it was, the discovery of the gun was not in some sense the product of his detention. Id. at *4.
Of Note: Judge Wallace is forced to concede that a passenger can have standing to challenge a search – but only when the initial stop is unlawful. Id. at *5-*6. This distinction of previous Ninth precedent is particularly unpersuasive. Note how the decision, Matrix-like, freezes slices of time to eliminate Fourth Amendment standing at each instant: no standing when the car was stopped, because the stop was lawful, no standing when the car was searched, because the passenger didn’t try to leave. Hence, the decision is important – and particularly bad – because it rejects a natural view of the "scope of the fourth amendment violation" to include the entire stop. Id. at *6.
Worry also about the opinion's overly-strict causal requirements for standing – which seems to far exceed other Fourth Amendment authority.
Aside: The driver was a parolee. Id. at *1. Why didn’t the cops stop and search him when they first saw him outside of the car? This appears to be double-pretext: cops waiting until the parolee drives, so they can search the car as well.
How to Use: To uphold this search the Court engages in a hyper-technical Fourth analysis – the defense will have to do the same. A passenger will now have to assert that the initial stop was unlawful to gain Fourth Amendment traction. Alternatively (or additionally), a passenger should assert that he or she would have left but for the seizure. Finally, anticipate articulating how the passenger seizure is causally linked to the search in light of the bad new causality requirements for standing.
For Further Reading: Judge Wardlaw’s excellent dissent nails the majority rule as "arbitrary" and identifies a Circuit split on passenger standing. Id. at *12-*13 (Wardlaw, J., dissenting). She also realistically identifies the dangers of bad faith searches – and identifies the problem lurking in this case, where the police admitted that this was a pretext search. Id. at *12. Of course, another reality of this decision is specter of race-based traffic stops by cops who know a passenger won’t be able to assert standing. See, e.g., ACLU Article here.
Steven Kalar, Senior Litigator ND Cal FPD. Website available here.
Players: Hard-fought case by CD Cal AFPD Elizabeth Newman; troubling opinion by Judge Wallace; great, persuasive dissent by Wardlaw.
Facts: Gang officers follow a gang member and passenger in a car, having already decided that they were going to follow them and find a reason to stop them. Id. at *1. The cops stop the car because the "left rear brake light did not operate when the car slowed," and the officers said that the car rolled through a stop sign. Id. The cops approach with guns drawn, take the gang member and the passenger – Pulliam – out of the car, and find a gun under the passenger seat. Id. Pulliam confesses to the gun. Id.
Issue(s): The government conceded the cops had no authority to detain Pulliam, or to search the car. Id. at *3. Therefore, the issue is whether Pulliam, the passenger, had standing to contest the search of the car?
Held: No. "As a passenger with no possessory interest in the car Richards was driving, Pulliam has no reasonable expectation of privacy in a car that would permit his Fourth Amendment challenge to a search of the car." "Furthermore, Pulliam made no showing that he had any legitimate expectation of privacy in the area under the seat of the car in which he was merely a passenger . . . ." "Similarly, the mere fact that Pulliam claimed ownership of the gun does not confer standing upon him to seek its suppression." Id. at *3 (citations and quotations omitted). Pulliam didn’t argue that the stop of the car was a de facto stop of his person,– but even if it was, the discovery of the gun was not in some sense the product of his detention. Id. at *4.
Of Note: Judge Wallace is forced to concede that a passenger can have standing to challenge a search – but only when the initial stop is unlawful. Id. at *5-*6. This distinction of previous Ninth precedent is particularly unpersuasive. Note how the decision, Matrix-like, freezes slices of time to eliminate Fourth Amendment standing at each instant: no standing when the car was stopped, because the stop was lawful, no standing when the car was searched, because the passenger didn’t try to leave. Hence, the decision is important – and particularly bad – because it rejects a natural view of the "scope of the fourth amendment violation" to include the entire stop. Id. at *6.
Worry also about the opinion's overly-strict causal requirements for standing – which seems to far exceed other Fourth Amendment authority.
Aside: The driver was a parolee. Id. at *1. Why didn’t the cops stop and search him when they first saw him outside of the car? This appears to be double-pretext: cops waiting until the parolee drives, so they can search the car as well.
How to Use: To uphold this search the Court engages in a hyper-technical Fourth analysis – the defense will have to do the same. A passenger will now have to assert that the initial stop was unlawful to gain Fourth Amendment traction. Alternatively (or additionally), a passenger should assert that he or she would have left but for the seizure. Finally, anticipate articulating how the passenger seizure is causally linked to the search in light of the bad new causality requirements for standing.
For Further Reading: Judge Wardlaw’s excellent dissent nails the majority rule as "arbitrary" and identifies a Circuit split on passenger standing. Id. at *12-*13 (Wardlaw, J., dissenting). She also realistically identifies the dangers of bad faith searches – and identifies the problem lurking in this case, where the police admitted that this was a pretext search. Id. at *12. Of course, another reality of this decision is specter of race-based traffic stops by cops who know a passenger won’t be able to assert standing. See, e.g., ACLU Article here.
Steven Kalar, Senior Litigator ND Cal FPD. Website available here.
posted by Steve Kalar at 4/25/2005 08:46:00 AM
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