I noted yesterday that a law enforcement officer conducting a traffic stop may order the driver and any passengers out of the vehicle. It's also reasonably clear that the officer can order the vehicle's occupants to remain in the vehicle. Robert L. Farb, Arrest, Search, and Investigation in North Carolina 30 & n.160 (collecting cases). But can the officer, without any particularized suspicion that the vehicle's occupants are committing any non-traffic offense, order one or more of the occupants into his police cruiser? It's an important question, because if the answer is yes, the officer may also be able to frisk the occupants as a precaution. (More on that below.) Unfortunately, there's no clear answer to the question. A leading commentator presents the authority to "direct[] the driver to be seated . . . in the patrol car during the stop" as if it were as well-established as the authority to order the driver out of his own vehicle. 4 Wayne R. LaFave, Search and Seizure 387 (4th ed. 2004). But the cases reveal a much more complicated picture. Some, like State v. Lozada, 748 N.E.2d 520 (Ohio 2001), do indeed endorse the practice, though the Lozada court held that "if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer," the driver may not be frisked. Other cases, though, reach a contrary conclusion. See, e.g., State v. Berrios, 235 S.W.3d 99 (Tenn. 2007) (holding that an officer may not, as a routine matter, order a driver into a patrol car during a traffic stop, though acknowledging that unusual circumstances might justify such an intrusion). Of particular note in this connection is Bennett v. City of Eastpointe, 410 F.3d 810 (6th Cir. 2005), which observed that there is a split of authority on this issue, but held that officers do not have "carte blanche authority to throw any motorist pulled over for a traffic violation into the back of a squad car while they check the motorist's license and registration." Instead, the court held, being ordered into a patrol car is a more serious intrusion that can be justified only if unusual circumstances are present, such as erratic or threatening behavior by the driver. Perhaps the United States Supreme Court will grant certiorari and review a case raising this issue, or perhaps one of the North Carolina appellate courts will address it. Until then, my advice to officers is as follows:
- Don't order traffic stop subjects into your vehicle as a routine practice.
- If there is a specific reason that you need to do so during a particular stop, such as a need to protect a subject from inclement weather, or a need to control a subject who is behaving in a threatening manner, go ahead, but document your reasons.
- If you have a choice between ordering a driver or a passenger into your vehicle, choose the driver. After all, it is the driver who committed the traffic violation that resulted in the stop.
- You can't automatically frisk a person just because you have ordered the person into your vehicle. For example, if you order a driver into your vehicle because of inclement weather, you may not have a justification to frisk the driver. If, however, the person is behaving in a threatening manner or if there are other indicators of danger, you may frisk the person for weapons.
Anyone have a different view of this issue? I'd be especially interested to hear from officers about how they handle this issue and why they do what they do. As always, if you're willing to share your practice but don't want to post a comment, you can email me and ask me to share your feedback without attribution.
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