This installment of The Corner will address how officers can deal with drivers and passengers during traffic stops.
Bulletin Disclaimer:
I am not an attorney and make no claim to be an attorney. I developed these scenarios based on my 38 years of law enforcement experience, my professional application of the Fourth Amendment (based on case law) in the field as a law enforcement officer, and my extensive study of case law pertaining to search and seizure.
I developed and am providing this presentation for information only. I make no claim that my interpretations and perceptions of case law provided in the answers to the scenarios are correct in any or all circumstances. All government agents and any other person gathering information from this presentation should consult their respective law enforcement agencies, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information.
Dealing with drivers and passengers in vehicles:
I have fielded several questions recently regarding dealing with passengers in vehicles. As such, I felt compelled to draft this training bulletin to address the handling of passengers in vehicles stopped for a traffic violation only. When a vehicle is stopped on a routine traffic violation and there are passengers in the vehicle, the passengers are seized and are subject to some commands by officers absent any reasonable suspicion. In the following, I will explain what I mean and provide the cases that apply.
Passenger Seizure: The Impact of Brendlin v. California (2007) and Arizona v. Johnson (2009):
When officers make a stop on a vehicle for a traffic violation, the U.S. Supreme Court, in Brendlin v. California (2007) and Arizona v. Johnson (2009), ruled that all passengers are seized for the duration or the stop. The Court changed precedent regarding a passenger’s standing in a vehicle stopped for a traffic violation with its Brendlin v. California decision.
Pre-Brendlin: The “free-to-leave” rule:
Prior to the Brendlin ruling, passengers, in vehicles stopped only for a traffic violation, were free to leave at any time as the passengers were not the subject of the stop. If the passengers stayed and during the course of the stop the officer developed reasonable suspicion that the passengers were engaged in criminal activity, then the officer could detain the passengers. In the Brendlin decision, the Court, citing several cases (Florida v. Bostick, 1991; Terry v. Ohio, 1968; United States v. Mendenhall, 1980; Colorado v. Bannister, 1980, and several others), made the following comment concerning a passenger’s mindset when the vehicle he or she is riding in is stopped, whether for a traffic violation or reasonable suspicion: “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.” This ruling meant that passengers, in the Court’s eyes, were seized at the time of the stop and as a result could contest the validity of the stop. Prior to Brendlin, passengers could not contest the validity of the traffic stop.
Passenger seizure and commands: Arizona v. Johnson clarification:
The Court further clarified its stance regarding passengers being seized during a traffic stop in Arizona v. Johnson, (No. 07-1122), 217 Ariz. 58, 170 P. 3d 667 (2009). According to the Court:
A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene and inform the driver and passengers, they are free to leave.
Commanding passengers to exit the vehicle:
The Arizona v. Johnson case clarified that passengers are seized throughout the length of the stop. That said, regarding giving passengers commands, on a traffic violation-only vehicle stop, an officer can order the driver and passengers out of the vehicle without any reasonable suspicion or probable cause to believe the driver and passengers are armed and dangerous. The Court made this decision based on the inherent danger to officers when conducting traffic stops. In Pennsylvania v. Mimms (1977) the Court stated:
It is always reasonable during a valid vehicle stop for an officer to order the driver of a vehicle to get out of the vehicle for a face-to-face confrontation without reasonable suspicion that the driver is a threat to the officer…. It would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.
The Court, in its Maryland v. Wilson (1997) ruling, expanded its Pennsylvania v. Mimms ruling to include all passengers of the vehicle. What this means is that an officer can order (command) all occupants of a vehicle out without any particularized reason to believe the passengers are armed and dangerous and the passengers must comply. If a passenger does not comply, the passenger is subject to arrest for failing to obey a lawful order.
Passengers’ Seizure and the Terry “Stop and Frisk”:
Another ruling (one can surmise) that came out of the Arizona v. Johnson case is the seizure of the occupants of the vehicle (based on the stop) satisfies the “stop” portion of the Terry “stop and frisk.” As you know, the Terry “stop and frisk” is actually two parts: the stop and the frisk. An officer can detain (stop) an individual based on reasonable suspicion, but that does not give the officer the right to pat down the individual. The officer must articulate a reason to believe that the individual is armed and or dangerous in order to conduct a pat down. If the officer cannot, the officer cannot pat down the individual.
In the Arizona v. Johnson case, an officer made a traffic stop for a valid traffic violation and upon approaching the vehicle, the officer saw that the vehicle had three occupants and noticed that the rear seat passenger appeared to be a gang member based on the occupant’s clothing attire. The officer advised the driver of the reason for the stop and another officer began talking to the rear seat passenger. The rear seat passenger told the officer that he lives in an area that the officer knew has a large street gang. The passenger also told the officer that he had spent some time in prison for a crime and had been out of prison for a year (the passenger was not on parole or probation). The officer asked the passenger to exit the vehicle so that the officer could talk to the passenger—out of ear shot of the other occupants—about the passenger’s possible gang affiliation. The passenger complied and after he exited the vehicle the officer, absent consent or reasonable suspicion to believe that the passenger was currently, had been, or was about to be engaged in criminal activity, patted down the passenger based on the passenger’s clothing, his possible gang affiliation, and the officer’s knowledge that gang members often carry weapons; all of which led the officer to reasonably believe the passenger was armed and or dangerous. During the pat-down search, the officer recovered a handgun from the passenger’s waistband. The officer placed the passenger under arrest for carrying a concealed weapon.
The Role of Arizona v. Johnson in the Terry (stop and frisk) application:
In reviewing the Arizona v. Johnson case, the Court ruledthe pat down and arrest were valid. The Court reiterated that passengers were seized for the duration of a traffic stop; that a police officer effectively seizes everyone in the vehicle, the driver and all passengers. Since the passengers are seized, they can be subject to a pat-down search, absent consent, based on an officer’s reasonable belief that the subject is armed and or dangerous. The Court’s reasoning is based on the landmark Terry v. Ohio (1968) decision concerning investigatory stops. According to the Court:
Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a pat down search is constitutional.
In the Arizona v. Johnson ruling, the Court provided the following discussion concerning occupants detained for the duration of the stop and the danger that the driver and occupants pose to an officer during the traffic stop:
Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420 , are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032 , who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408 . Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment ,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal.
Now that we know that passengers are considered seized during a traffic stop, we must address the question: Can an officer require passengers to provide identification?
Before answering the above, we must first answer the question, is simply asking passengers (in vehicles stopped for a traffic infraction only) for identification legal? Numerous states (e.g., Massachusetts, Minnesota, New Mexico, New Jersey, and Washington) do not allow officers to ask for a passenger’s identification without a minimum of reasonable suspicion to believe the passenger is, was, or is about to be engaged in criminal activity (See Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 692 N.E.2d 106, 1998 State v. Johnson, 645 N.W.2d 505, 510, Minn. Ct. App., 2002; State v. Affsprung, 87 P.3d 1088, 1093, N.M. Ct. App. 2004; Hornberger v. Am. Broad. Cos., 351 N.J. Super. 577, 613, 799 A.2d 566, 2002; State of Washington v. Rankin, 2004).
Colorado’s stance:
Fortunately, Colorado agrees with the United States Supreme Court that merely asking a passenger in a vehicle for identification does not constitute a seizure of the person (People v. Paynter, 955 P.2d 68, 75, Colo. 1998).
Since we know Colorado allows offers to ask for a passenger’s identification during a traffic stop, we must address whether the passenger, who is seized, is compelled, as a result of the seizure, to provide information to an officer upon the officer’s command. Unfortunately, in its opinions on the Brendlin and Johnson cases, the United States Court did not answer the question regarding if passengers are compelled to provide their information on the officer’s command just based on being seized as a result of the stop. As such, I rely on the following cases to answer this question: Hiibel v. Nevada (2004); Stufflebeam v. Harris (8th Cir. 2008); and Terry v. Ohio (1968).
Terry v. Ohio (1968) is the landmark case that addressed reasonable suspicion contacts. Terry v. Ohio set the precedent, which other cases have followed, that allows officers to demand information (e.g., name, date and date of birth) from individuals suspected of criminal activity and compels individuals detained (for reasonable suspicion) to provide such information. In Hiibel v. Nevada (2004), the Court considered the constitutionality of an arrest based on the failure of an individual to identify himself to police during a valid “Terry” stop. The Court ruled upheld the arrest and conviction of Hiibel for refusing to identify himself, and provided the following comments:
…obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense or has a record of violence or mental disorder. On the other hand, knowing (a person’s) identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
In Colorado, according to 16-3-103 (1) C.R.S.:
A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions. A peace officer shall not require any person who is stopped pursuant to this section to produce or divulge such person’s social security number. The stopping shall not constitute an arrest.
While individuals who are seized based on the Terry rationale are compelled to identify themselves to officers, passengers who are also seized are not. While both are seized, the difference lies in the reasons surrounding the seizures. Passengers in vehicles are seized as the result of the driver’s traffic infraction and subsequent stop, not because of the belief they are involved in criminal activity.
Passenger Exception: Stufflebeam v. Harris (8th Cir. 2008):
This is exactly what the 8th Circuit Court of Appeals determined in its Stufflebeam v. Harris (8th Cir. 2008) decision that officers cannot require passengers to provide identification during a traffic stop for a traffic violation only.
Officer Harris stopped a vehicle for a traffic infraction and upon contacting the driver and the passenger (Stufflebeam), Officer Harris, absent any reasonable suspicion to believe that Stufflebeam was involved in criminal activity, commanded Stufflebeam to provide identification. Stufflebeam refused and Officer Harris ultimately arrested Stufflebeam for his refusal. The 8th Circuit Court of Appeals, citing Hiibel and Terry, found that Stufflebeam’s arrest violated his constitutional rights. Below is a portion of the opinion:
In applying the principles from Hiibel to the circumstances involving Stufflebeam’s arrest, the court noted that Officer Harris had no reasonable suspicion to believe that Stufflebeam was involved in criminal activity; he was merely a passenger in a vehicle stopped for motor vehicle violations. As such, Hiibel would not justify his arrest since the rule from Hiibel requires that the person(s) being asked to identify themselves must be the subject of a valid Terry stop, i.e. they must be suspected of criminal activity and that suspicion must be supported by reasonable suspicion. Even though Arkansas is one of the states that has a statute requiring person(s) to identify themselves during a valid Terry stop, the court concluded that Stufflebeam was not the subject of such a stop. Thus, the court concluded that Mr. Stufflebeam’s lawsuit against the officer should go on to a jury. (Stufflebeam v. Harris [8th Cir., 2008])
Based on the above, the answer to the question is “no,” an officer cannot require passengers to provide identification without reasonable suspicion to believe they are, were, or are about to be engaged in criminal activity.
This training bulletin provides valuable information for officers concerning the handling of drivers and passengers during traffic stops. It highlights the United States Supreme Court rulings that changed the “free-to-leave” precedent to a seizure precedent due to the stop, which allows passengers the legal ability to contest the validity of the stop. The bulletin also clarifies that officers can require the driver and passengers to exit the vehicle without reasonable suspicion or probable cause, based on the need for officer safety during traffic stops. Additionally, it addresses the issue of passengers providing identification, with some states prohibiting officers from asking for identification without reasonable suspicion, while others, like Colorado, allow it. Finally, the bulletin identified, based on the Stufflebeam v. Harris case, that officers cannot compel passengers to provide identification during a traffic stop for a traffic violation only. Overall, this training bulletin serves as a valuable resource for law enforcement officers navigating the complex dynamics of traffic stops involving drivers and passengers.
I hope this bulletin provides clarification on dealing with passengers in vehicles stopped for a traffic infraction only. Please reach out with any comments or questions.