Opinion: 9-zip for passengers’ rights

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This week’s U.S. Supreme Court decision protecting the privacy rights of passengers in cars is notable not only for its unanimity but also for its reliance on common sense—a virtue lacking in the California Supreme Court ruling the justices overturned.

You don’t have to be Oliver Wendell Holmes—or David Souter, the author of this opinion—to recognize that passengers in a car stopped by police would think twice about skedaddling before officers could question or search them. Common sense also tells lawyer and layperson alike that a lot of mischief—and some mayhem—might ensue from a legal rule that passengers with something to hide should bolt from the scene.

Less obvious is another observation in Souter’s opinion: that a holding that passengers are not “seized” for Fourth Amendment purposes “would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal.”

A man’s car is not his castle. Police can still stop a vehicle for minor infractions and subject driver and passenger alike to uncomfortable if not unreasonable searches. But it’s good news that justices as diverse in their views as David Souter and Samuel Alito recognize that the idea that stopped passengers are free to go is a legal fiction.