a public defender

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That is the question in Brendlin v. California, argued today. Here is the transcript [pdf] of the oral argument. It is very, very interesting. I will have more on it later tonight. Here’s a teaser, though:

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 hey, 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.

Yeah…I’d love to see the “Cops” video of him getting out of the passenger seat.

Update: Okay, I’m back and here’s more. Justice Kennedy sums up my view of the state’s argument with this beaut:

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.

I think the Court is in a really tough position here. Either they hold that passengers are not seized, thereby creating public safety issues or they hold that passengers are seized - which they have been reluctant to do. I will await this outcome with glee. Yes, I said glee.