I erased this entry on my first try at posting it. Maybe I was right.
The Supreme Court's decision today in Brendlin v. California showed a unanimous Court enforcing the 4th amendment against police on behalf of an individual seemingly seriously involved in the methamphetamine business. How was this possible? The case involved a so-called traffic stop — police pulled over the car in whch Brendlin was riding — as it turned out without any reason for doing so specific to the car, the way it was driven, etc. The specific question at issue was whether Brendlin the passenger had standing to object to the stop — if so, and if the stop was no good, then presumably what the police learned about Brendlin in the course of the stop (not good for him) would become legally irrelevant. Justice Souter and colleagues thought that this was an easy question to resolve.
Why? Because a seizure occurs in circumstances in which reasonable individuals feel constrained to submit to police authority. Would a reasonable individual — passenger or driver — feel free to walk away from a traffic stop? No: or so Justice Souter thought — and he noted that the Supreme Court in dictum had concluded as much frequently in the past, that other courts were in agreement, and commentators agreed with the courts (including my late stepmother-in-law's father's treatise!). All this unanimity, Justice Souter observed, “probably reflects a societal expectation of 'unquestioned [police] command….'”
Why? Because we understand that police are likely to respond harshly to insubordination whether or not police are right to stop us in the first place. Because we also understand that the police have good reason to worry about us — our guns, our occasional tendency to respond harshly ourselves. It's all Hobbes. But maybe also Calvin? We might think, at least initially, that we can always challenge police conduct after the fact. The courts will throw out prosecutions derived from groundless stops. But even minor traffic violations justify police stops (or other similar minor wrong-doings). We submit because we may well be in the wrong. Our supersaturated legal system inculcates its own version of the sense of sin (apologies to John Milton and Stanley Fish). Brendlin, on this view, was lucky (or predestined or somesuch). Most of us (if not extralegally protected by class, race, etc) at most benefit because prosecutors aren't sure they can persuasively recreate police reasons (at least sometimes) and are therefore prepared to bargain.
This chance — this liberty — supposes submission. Is this the fundamental theorem of constitutional law?