06/02/2007

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Supreme Court say officers can control passengers on traffic stops

From the archives of the Calibre Press Street Survival Newsline

Editor's note: This article was originally published at the advent of this court decision. The information surrounding the cases and the basis of the decisions remain relevant.

You won a victory in the U.S. Supreme Court in a case with important officer-survival implications.

In an opinion written by Chief Justice William Rehnquist, the Court ruled that an officer making a traffic stop may order passengers to get out of the vehicle pending completion of the stop. Already, under a 1977 Supreme Court ruling (Pennsylvania v. Mimms, 434 U.S. 106), you had the right to arbitrarily order a driver out of a vehicle, in the interest of officer safety.

The same "weighty" concern for your safety is present regarding passengers, the Court declared. "Indeed, the danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car."

Yes, orders to passengers do intrude on their personal liberty, the Court observed, but "as a practical matter, passengers are already stopped...so the additional intrusion upon them is minimal."

Thus the Court officially extended the principle of Mimms to include passengers as well as drivers.

We're happy to say that Calibre Press played a role in today's pro-law enforcement ruling. Two of our books--Street Survival and The Tactical Edge, both written by Calibre co-founder Chuck Remsberg--were cited as authoritative references on proper police tactics in a brief submitted to the Court by Wayne Schmidt, executive director of Americans for Effective Law Enforcement. The AELE brief, speaking for several professional law enforcement groups, argued in favor of officers being permitted to control vehicle passengers.

Today's case is Maryland v. Wilson, No. 95-1268 on the Court's docket. It was described last August in Street Survival Newsline No. 91, when the AELE brief was submitted.

The case began about 7:30 one June evening when Maryland State Trooper David Hughes spotted a car in Baltimore County speeding 9 mph over the posted limit. Some of the initial suspicious indicators of possible contraband involvement that we describe in our book Tactics for Criminal Patrol were present: the car was a rental vehicle...it had no regular license plate...the driver did not pull over until a mile and a half after Hughes hit his lights and siren...2 passengers in the vehicle turned to watch his movements closely and themselves engaged in furtive activities, like "ducking below sight level and then reappearing."

When the car finally stopped, the driver quickly alighted and came back toward Hughes--another strong indicator of something being amiss in the car. The driver was "trembling and appeared extremely nervous" as he presented his Connecticut operator's license. As the driver returned to the car for his rental documents, Hughes noticed that the front-seat passenger, Jerry Lee Wilson, was "sweating and also appeared extremely nervous." In Tactics for Criminal Patrol we explain that this is highly suspicious because on a stop that involves nothing more than a traffic violation passengers have nothing to lose (the risk is solely on the driver) and thus have nothing to be nervous about.

While the driver looked for the rental papers, Hughes ordered Wilson out of the car. When he exited, a quantity of crack cocaine fell to the ground. Wilson was then arrested and charged with possession of cocaine with intent to distribute.

In county Circuit Court, Wilson's lawyer moved to suppress the evidence, arguing that Hughes' ordering Wilson out of the car "constituted an unreasonable seizure under the 4th Amendment." The trial court agreed, a decision that was then upheld by the Maryland Court of Special Appeals in 1995.

In reversing that decision today, the Supreme Court pointed out that "traffic stops may be dangerous encounters." In one recent year alone, Rehnquist's opinion states, "there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops....The fact that there is more than 1 occupant of the vehicle increases the possible sources of harm to the officer." Thus, from an officer-safety standpoint, it makes sense that an officer should be entitled to maneuver a passenger to his own protective advantage, just as he can a driver.

From a standpoint of personal liberty, the only change in a passenger's circumstance if ordered out "is that [he] will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment."

Rehnquist continued: "It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension for such a crime is every bit as great as that of the driver....

"While there is not the same [legal] basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop."

Justice John Stevens, joined by Justice Anthony Kennedy, dissented. Stevens wrote that he has no problem with officers ordering passengers to exit when there is some articulable suspicion of possible danger. But he objects to the Court allowing passenger manipulation when "there is not even a scintilla of evidence of any potential risk to the police officer." He fears that "obviously innocent citizens" will be abused with "routine and arbitrary seizures."

He quarreled with the statistics regarding assaults and murders of officers on vehicle stops. "Those statistics do not tell us how many of the incidents involved passengers," Stevens wrote. "We do not know how many occurred after the passenger got out of the vehicle, how many took place while the passenger remained in the vehicle, or indeed, whether any of them could have been prevented by an order commanding the passengers to exit. There is no indication that the number of assaults was smaller in jurisdictions where officers may order passengers to exit the vehicle without any suspicion than in jurisdictions where they were then prohibited from doing so."

Any benefit to officers from today's ruling would be "extremely marginal," Stevens predicted. He rather sarcastically estimated that out of roughly 1 million stops a year in Maryland, officers would gain some "potential benefit" in only about 25 stops.

"In contrast, the potential daily burden on thousands of innocent citizens is obvious." Any risk to officers, Stevens wrote, "must be weighed against the unnecessary invasion that will be imposed on innocent citizens under the majority's rule in the tremendous number of routine stops that occur each day....[C]ountless citizens who cherish individual liberty and are offended, embarrassed and sometimes provoked by arbitrary official commands may well consider the burden to be significant....[T]he aggregation of thousands upon thousands of petty indignities has an impact on freedom that I would characterize as substantial, and which in my view clearly outweighs the...safety concerns....

"How far this ground-breaking decision will take us, I do not venture to predict," Stevens darkly concluded. "I fear, however, that it may pose a more serious threat to individual liberty than the Court realizes."

While joining in Stevens' dissent, Justice Kennedy independently commented that he expects most officers to "exercise their new power with discretion and restraint....[I]f some jurisdictions use today's ruling to require passengers to exit as a matter of routine in every stop, citizen complaints and political intervention will call for an end to the practice."

Obviously Stevens' end-of-civilization-as-we-know-it perspective does not reflect a strong officer-survival orientation. Fortunately, the majority view does.

Thanks to the majority for that. And congratulations to Wayne Schmidt and other attorneys who collaborated on the AELE brief, which helped the Court reach its decision. Job well done!

Incidentally, in an unintentionally funny footnote to his remarks, Justice Kennedy observed that "[D]uring the pursuit of a moving vehicle, it would obviously be impossible for an officer to order a passenger out of the car."

Now THAT would be a significant intrusion!

About the author

Charles Remsberg co-founded the original Street Survival Seminar and the Street Survival Newsline, authored three of the best-selling law enforcement training textbooks, and helped produce numerous award-winning training videos. His nearly three decades of work earned him the prestigious O.W. Wilson Award for outstanding contributions to law enforcement and the American Police Hall of Fame Honor Award for distinguished achievement in public service.

Buy Charles Remsberg's latest book, Blood Lessons, which takes you inside more than 20 unforgettable confrontations where officers' lives are on the line.
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