'The Hitchhiker's Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers Under the Heightened Factual Nexus Approach to Exclusion'

The title of this post comes from this recent paper by Professor Nadia B. Soree, the abstract of which states:

Over thirty years ago, the Supreme Court, in Rakas v. Illinois, made it abundantly clear that “mere passengers” do not have “standing” to contest the searches of the cars in which they are riding. However, the Court offered a glimmer of hope to passengers in California v. Brendlin, by holding that passengers, like drivers, are seized when the police effectuate a traffic stop. Theoretically, then, unlawfully seized passengers can seek suppression of the evidence found in the stopped vehicles as fruit, not of the search of the vehicle, but of their unlawful detentions. Three circuits, however, have expressly adopted a heightened factual nexus test in determining whether passengers can successfully move to suppress evidence discovered in cars that are initially stopped lawfully, but whose occupants are then unlawfully detained, for example, when the duration of the stop exceeds the stop’s lawful scope. The Sixth, Ninth, and Tenth Circuits utilize a counterfactual hypothetical, typically to reach a finding that because the passenger is unable to demonstrate that the evidence would not have been found but-for her and only her detention, the passenger fails to establish the causal relationship between the constitutional violation and the discovery of evidence necessary to trigger the exclusionary rule. These courts force the passenger defendant to prove the following unlikely scenario: that had she asked the police for permission to leave, the police would have permitted her not only to leave, but to take the car (not belonging to her) as well. This Article surveys the relevant case law in the circuits that have considered and either adopted or rejected this approach and argues that the heightened factual nexus approach is inconsistent with the Court’s holdings in Brendlin and its other decisions defining seizures, particularly with respect to automobile passengers. Further, this Article posits that the heightened factual nexus approach creates a no-win situation for passenger defendants, where the very fact of their unlawful detention, necessary for standing to seek suppression, seems to preclude their success in doing so. Further, this Article argues that the subjective motivations of officers who prolong a seizure beyond its lawful scope should be taken into account when making exclusionary rule determinations, and that the Court’s decision in Whren v. United States, holding that when a traffic stop is predicated on objective probable cause, the subjective motivations of the officer are irrelevant in determining the reasonableness of the stop, does not preclude such scrutiny of officer motives in this context. Finally, the Article seeks to illustrate the danger to FourthAmendment rights and values engendered in the heightened factual nexus approach by examining data on traffic stops and motions to suppress arising from such stops.