Extending the Mimms rule to include passengers.

On February 15, 1997, television viewers across the country witnessed a real-life drama involving two law enforcement officers in Wilmington, Ohio. The camera mounted on the dashboard of the officers' patrol car recorded a shooting incident that took place during what is perhaps the most misnamed activity in law enforcement - the "routine traffic stop."

The confrontation began when the two police officers in a marked patrol car stopped a vehicle after noticing that it was being operated with expired Washington State license plates. After pulling the vehicle over, one of the officers ordered the driver out; the passenger remained inside the vehicle. Shortly after the stop was initiated, the passenger suddenly opened the passenger's side door, quickly lunged from the seat, and began firing at the officers with a semiautomatic weapon. The gunman, by continuing to fire at the officers, managed to flee the scene on foot. During the exchange of gunfire, the driver was able to get back in the vehicle and drive away.

What began as a routine traffic stop involving an expired license plate quickly evolved into a life-and-death encounter, all due to the decision by the passenger to fight. Fortunately, neither officer was injured during the encounter.

The timing of this shooting incident, while certainly not planned, proved somewhat ironic. Just 4 days later, the U.S. Supreme Court issued its written decision in Maryland v. Wilson.(1) In this case, the Court again recognized the danger inherent in routine traffic stops and ruled that, in order to protect their safety, law enforcement officers who lawfully stop a vehicle may order all its occupants to exit.

So-called routine traffic stops, like the one that occurred in Wilmington, Ohio, take place thousands of times each day in the United States. Fortunately, not all traffic stops lead to attempts to inflict serious bodily injury or death on the law enforcement officers making the stop.

When officers stop a vehicle they initiate an encounter that is not only potentially risk-filled in the sense that the individuals stopped may turn to violence; the risk also exists that uninformed officers may overstep their investigative authority under the Constitution. In assessing the above risks, the Supreme Court concluded that it is appropriate for officers automatically to take certain minimally intrusive steps for safety reasons.

In Wilson, the Supreme Court concluded that a blanket rule allowing police to order occupants from a lawfully stopped vehicle is constitutionally permissible. However, subjecting such occupants to investigative techniques such as a frisk for weapons would require specific factual justification in order to comply with constitutional requirements.

This article will first revisit the Supreme Court's decision in Mimms v. Pennsylvania,(2) which allows officers to order the driver from a lawfully stopped vehicle. It will then examine the Supreme Court's extension of this authority to passengers within the vehicle, decided in Wilson. Finally, the article will briefly address several additional constitutional restraints imposed if officers desire to intrude further into the passenger's personal liberty during the stop.

MIMMS V. PENNSYLVANIA

In the 1977 case of Mimms, the U.S. Supreme Court held that the Fourth Amendment of the U.S. Constitution allows a law enforcement officer who has made a lawful routine stop of a vehicle for a traffic offense to order the driver to exit the vehicle without requiring any additional factual justification. In Mimms, the defendant was stopped for driving with an expired license plate. The officer then ordered the defendant to exit the vehicle. The officer later testified that while he had no reason to suspect the defendant of foul play other than the minor traffic violation, he routinely ordered drivers to exit vehicles following routine traffic stops out of a concern for his safety.(3) When Mimms stepped out of the vehicle, the officer noticed a bulge in his jacket, prompting the officer to conduct a limited search for weapons and leading to the discovery of a handgun. Mimms was subsequently arrested for carrying a concealed weapon.

The Supreme Court in Mimms was asked to rule on the reasonableness of the order to exit the vehicle since the discovery of the weapon was the direct result of the officer's ordering the passenger out of the car. Based primarily upon concerns for officer safety, the Court held the order reasonable. The Court reasoned that the "legitimate and weighty" interest in officer safety outweighs the "de minimis" intrusion resulting from the request to get out of the car, and thus, the officer need not articulate any particular suspicion to justify this request.(4)

LOWER COURTS DIVIDED REGARDING PASSENGERS

While the Supreme Court's decision in Mimms resolved the issue with respect to the driver, lower courts subsequently disagreed regarding officers' authority to order passengers to exit vehicles. For example, in State v. Landry,(5) the Louisiana Supreme Court overruled an earlier decision by that same court and held that an officer who lawfully stopped a vehicle may order all its occupants to exit the vehicle. In an earlier decision the court had ruled that the Mimms rule did not extend to passengers.(6)

Reaching a different conclusion than reached in Landry, an Iowa state court ruled that ordering a passenger to exit a lawfully stopped vehicle requires officers, at a minimum, to articulate some suspicion of criminal activity on the part of the passenger.(7) In the Iowa case, an officer, upon pulling over a car for speeding, ordered both the driver and the passenger from the vehicle. As the passenger got out of the car, the officer observed a gun protruding from his jacket. The officer arrested the passenger. A subsequent search incident to the arrest led to the discovery of a controlled substance. The officer testified that he often requests all occupants of a vehicle to exit once the vehicle is stopped in order to protect his safety. The Iowa Supreme Court concluded that this order was reasonable with respect to the driver but, absent some articulable suspicion with respect to the passenger, it violated the passenger's Fourth Amendment right to be free from unreasonable seizures.(8)

After declining to resolve this issue on several prior occasions,(9) the U.S. Supreme Court agreed to consider whether the Mimms rule extends to passengers. While Mimms was decided by the Supreme Court without considering any written or oral arguments,(10) Wilson was argued not only by the attorneys representing the defendant and the state of Maryland but also by the U.S. Attorney General.

MARYLAND V. WILSON

Facts

In Wilson, a Maryland state trooper pulled over a vehicle for speeding. The trooper, out of concern for his safety, directed the defendant, a passenger in the vehicle, to step outside the car. As the man exited the car, the trooper observed a bag of cocaine fall to the ground. The passenger was arrested for possession of cocaine with intent to distribute. The defendant's motion to suppress the cocaine was granted by a state circuit court judge based upon his conclusion that the trooper's order to get out of the car constituted an unreasonable seizure under the Fourth Amendment. The Maryland Court of Special Appeals affirmed the decision to suppress the evidence, ruling that a law enforcement officer's authority to order a driver to exit a vehicle does not extend to passengers.(11)

The Supreme Court's Holding and Rationale

In reversing the judgment of the Maryland courts, the Supreme Court emphasized once again that "...the touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular government invasion of a citizen's personal security.'"(12) In other words, the Constitution does not require that seizures be based on probable cause or reasonable suspicion, rather, its only requirement is reasonableness.(13) In determining the reasonableness of the government's conduct, the Court balances the public interest promoted by the government action against the "...individual's right to personal security free from arbitrary interference by law officers."(14)

Applying this balancing test to the trooper's order in Wilson, the Supreme Court concluded that the public interest at stake - the concern for officer safety - outweighs the interests on the personal liberty side of the balance.(15) As could be expected, in reaching this conclusion, the Court relied heavily on Mimms. The Court again recognized the inherently dangerous nature of the traffic stop, citing statistics showing that in 1994, the year in which this incident occurred, 5,762 officers were assaulted and 11 killed during traffic pursuits and stops.(16) On the personal liberty side, the Court in Wilson acknowledged that there is somewhat of a stronger argument with respect to the passenger who, at the time the stop is made, has not engaged in any wrongdoing. At least in Mimms, the driver committed a vehicular offense, albeit minor.(17) Nonetheless, the Court concluded that this did not cause the balance to shift in favor of the passenger since, as a practical matter, the passenger is already detained by virtue of the traffic stop and an order to get out of a vehicle is only minimally intrusive.

The addition of another occupant in the vehicle may also increase the danger to the officer. A decision by a driver and/or passenger to fight versus submit to authority may be influenced by whether the officer is outnumbered. This inference is supported by statistics relating to the number of officers killed during traffic stops and pursuits. Between 1985 and 1994, 9 officers were killed in "two-officer" vehicles while 65 officers riding in "one-officer" vehicles were killed.(18) As stated by the Court, "...danger to an officer from a traffic stop is likely to be even greater when there are passengers in addition to the driver in the stopped car."(19)

DETENTION OF THE PASSENGER AT THE SCENE

The Court in Wilson expressly refused to answer the question of whether an officer could direct the passenger - once ordered out of the vehicle - to remain at the scene for the duration of the routine traffic stop. The state court expressed disapproval of such an order, stating, "...the passenger is subjected to no mandatory detention whatsoever... [and] is presumptively free to abandon the driver to the clutches of the law and to hail a cab."(20)

Arguably, the same rationale justifying the order to get out of the vehicle would also support a request by the officer for the passenger to remain at the scene for the limited amount of time it takes to complete a stop. The Federal Government expressed this point of view in its written brief in the Wilson case:

The same concerns that justify allowing an officer to order a passenger to get out of a stopped vehicle...should also afford the officer the discretion to direct the passenger to remain within the car or on the scene during the stop without a showing of particularized suspicion.(21)

Allowing a passenger to simply walk away from the scene may increase the risk to the officer as the passenger would be out of sight and the officer would have relinquished control over the individual. This added risk when balanced against the minimally intrusive nature of the request would arguably render a request to remain at the scene reasonable under the Fourth Amendment without requiring the officer to articulate any particularized suspicion. Requiring the officer to articulate such facts might divert the officer's attention from the driver to the passenger, thereby increasing the danger to the officer. As explained by lawyers representing the state of Maryland:

During the brief time it takes to complete a traffic stop, the officer should be permitted to take limited measures to control the movement of all occupants for the sole purpose of ensuring the officer's safety.(22)

Furthermore, such stops often occur in areas where the passenger would not be permitted to simply walk away, such as along interstate highways with absolute restrictions on pedestrian traffic.

FRISKS OR PROLONGED DETENTIONS

Require Additional Justification

Further intrusion into the personal liberty of the passenger, such as a prolonged detention or a limited search for the purpose of detecting the presence of weapons, would require more justification than the mere occurrence of a lawful traffic stop. To conduct such additional investigation, officers must be prepared to articulate additional factual justification for their actions in order for the actions to comport with the reasonableness requirement of the Fourth Amendment.(23) A prolonged detention of the passenger would require the officer to articulate facts supporting a reasonable suspicion of criminal activity on the part of the passenger and must be reasonable in scope.(24) Furthermore, a frisk by the officer for the purpose of detecting weapons must be based on a reasonable suspicion that the passenger is armed and the search must be limited to what is necessary to detect a weapon.(25)

The Constitution Prohibits Arbitrary Enforcement

It is important to note that while the Supreme Court has interpreted the Fourth Amendment as allowing officers the ability during a lawful traffic stop to automatically order people out of the vehicle, this does not mean an officer's actions are left unconstrained. First, there are other constitutional guarantees such as the Equal Protection Clause of the Fourteenth Amendment that safeguard against the use of an impermissible factor, such as race, in deciding when to order occupants to exit a vehicle. Additionally, as mentioned above, the Fourth Amendment requirement that the officer act reasonably during the duration of the seizure will continue to provide safeguards against unreasonable police conduct.

CONCLUSION

In Maryland v. Wilson, the U.S. Supreme Court gave law enforcement officers the automatic authority to order all occupants from a lawfully stopped vehicle. In doing so, it concluded that such a slight restraint on an individual's freedom of movement is permissible under the Constitution when balanced against the concern for officer safety. Perhaps this ruling will allow law enforcement officers like the two police officers in Wilmington, Ohio, to go home at the end of the day, not because of the lack of accuracy on the part of a passenger in firing a firearm, but rather because the Constitution permits officers to exercise reasonable control over the occupants of a vehicle that has been lawfully stopped.

Endnotes

1 117 S.Ct. 882 (1997).

2 434 U.S. 106 (1977).

3 Id. at 109.

4 Id. at 108.

5 588 So.2d 345 (La. 1991).

6 See State v. Williams, 366 So.2d 1369 (La. 1978).

7 State v. Becker, 458 N.W.2d 604, 607 (Iowa 1990). For similar treatment of this issue see People v. Maxwell, 254 Cal.Rptr. 124 (1988); State v. Smith, 637 A.2d 158 (1994).

8 Id. at 607. Federal courts have also addressed the extension of the Mimms rule to passengers. For example, in Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1327 (9th Cir. 1995), the court held that once an officer lawfully stops "...a vehicle for a traffic violation, the officer may, consistent with the Fourth Amendment and despite the absence of probable cause or reasonable suspicion of criminal activity, order all occupants of the vehicle to step outside." See also U.S. v. Sanders, 631 F.2d 1309, n.2 (8th Cir. 1980), cert. denied, 449 U.S. 1127 (1981).

9 See Ruvalcaba v. City of Los Angeles, 64 F.3d 1323 (9th Cir. 1995), cert. denied, 116 S.Ct. 1841 (1996); U.S. v. Tellez, 11 F.3d 530 (5th Cir. 1993), cert. denied, 114 S.Ct. 1630 (1994); U.S. v. Powell, 929 F.2d 1190 (7th Cir.), cert. denied, 502 U.S. 981 (1991).

10 See dissenting opinion in People v. Martinez, 466 N.W.2d 380, 386 (Mich.App. 1991).

11 State v. Wilson, 664 A.2d 1 (Md. App. 1995).

12 Maryland v. Wilson, 117 S.Ct. 882, 884 (1997), quoting Terry v. Ohio, 392 U.S. 1, 19 (1968).

13 Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1326 (9th Cir. 1995), citing Vernonia School District 47J v. Acton, 115 S.Ct. 2386 (1995).

14 Wilson at 884, quoting U.S. v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

15 Wilson at 885-886.

16 Id. at 885, citing Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71, 33 (1994).

17 Id.

18 See Kathleen Maguire and Ann L. Pastore, eds., Sourcebook of Criminal Justice Statistics 1995, U.S. Department of Justice, Bureau of Justice Statistics Washington, D.C.: USGPO, 1996. Table 3.161.

19 Wilson at 886.

20 664 A.2d at 10.

21 Brief for the United States as Amicus Curiae Supporting Petitioner. n.5.

22 Brief for Petitioner on Writ of Certiorari to the Court of Special Appeals of Maryland. 25, n. 12. The propriety of an order to passengers to remain in the vehicle was addressed in Dennis v. State, 674 A.2d 928 (Md. 1996). The Maryland court concluded that there was not sufficient justification to direct the passenger to remain in the vehicle. The state appealed this decision to the U.S. Supreme Court. The Supreme Court vacated the judgment and remanded the case to the Maryland courts. Maryland v. Dennis, 117 S.Ct. 40 (1997).

23 See Ruvalcaba v. City of Los Angeles, 64 F.2d 1323, 1327 (9th Cir. 1995) ("Of course, no additional intrusion into the passenger's liberty, such as a frisk or prolonged detention, may be justified by the traffic stop absent some additional suspicion."); U.S. v. Wanless, 882 F.2d 1459, 1465, n. 10 (9th Cir. 1989) ("[T]he record would not justify a frisk search of [the passenger] incident to the lawful traffic stop...[n]othing in the record suggests that [he] posed a threat to the officers."). See also Brief for the United States as Amicus Curiae Supporting Petitioner, n.3, stating that further intrusion, such as a frisk of the passenger, must be based on objective facts giving rise to a reasonable suspicion.

24 Terry v. Ohio 392 U.S. 1 (1968); U.S. Sharpe, 470 U.S. 675 (1985).

25 Terry at 28.

Special Agent Regini is a legal instructor at the FBI Academy.