Ordering Occupants Out of Their Vehicles — And into Officers’ Cruisers

May an officer, during a traffic stop, order an occupant out of the stopped vehicle? Into the officer’s vehicle? The law on this question has become unsettled.

Mimms: officers may order occupants out. The United States Supreme Court has ruled that, in the interest of officer safety, an officer may order any or all of a vehicle’s occupants out of the vehicle during a traffic stop. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (ruling that an officer may order a driver out of the driver’s vehicle during a traffic stop; this is “at most, a mere inconvenience” that is reasonable under the Fourth Amendment because it “diminishes the possibility . . . that the driver can make unobserved movements” preparatory to assaulting the officer); Maryland v. Wilson, 519 U.S. 408 (1997) (describing Mimms as holding that an “officer may as a matter of course order the driver of a lawfully stopped care to exit his vehicle,” and extending the same rule to passengers; the presence of passengers makes a stop more dangerous and the intrusion on passengers is “minimal”).

Rodriguez: officers can’t extend stops without reasonable suspicion. Recently, in Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609 (2015), the Court ruled that a traffic stop must end when “tasks tied to the traffic infraction are – or reasonably should have been – completed.” Thus, a traffic stop may not be extended, even briefly, to allow a drug dog to sniff the stopped vehicle absent reasonable suspicion of criminal activity justifying the continued detention. The majority opinion in Rodriguez mentions Mimms, distinguishing the slight intrusion associated with ordering an occupant out of a vehicle from the slight intrusion associated with a brief extension of a traffic stop by noting that the former is based on officer safety and so is inherent to the “mission of the stop,” while the latter is based on officers’ ”general interest in criminal enforcement” and is not inherent to a traffic stop.

Court of appeals: does Rodriguez undermine Mimms? Although Rodriguez itself did not directly criticize or question Mimms, the North Carolina Court of Appeals has issued several opinions that read Rodriguez as undermining, or at least limiting, Mimms:

• In State v. Bullock, __ N.C. App. __, 785 S.E.2d 746 (2016), the court considered a speeding stop that turned into a drug investigation. During the traffic stop, the officer “asked defendant to step back to his patrol car” while the officer ran a computer check, and “asked if he could briefly search defendant for weapons” before he got in the officer’s vehicle. The court of appeals later characterized the officer as “requir[ing]” that the defendant “submit” to these measures. The court noted that the officer’s purpose in ordering the defendant out of his own vehicle and into the officer’s was, according to the officer, not to protect the officer’s safety but to give the officer a better opportunity to observe the defendant’s conduct. In light of that purpose, the court questioned whether Mimms applied, or whether, by contrast Rodriguez prohibited the order as entailing a delay not justified by the mission of the stop. Without fully resolving that question, the court ruled that the officer’s decision to frisk the defendant and to order the defendant into the officer’s vehicle were inconsistent with Rodriguez because they prolonged the stop without reasonable suspicion.
• In State v. Reed, __ N.C. App. __, __ S.E.2d __, 2016 WL 5030389 (N.C. Ct. App. Sept. 20, 2016), the court considered another speeding stop that turned into a drug investigation. Early in the stop, the officer ordered the defendant out of his own vehicle and into the officer’s vehicle. The court of appeals stated that “[p]rior to Rodriguez, it was well settled than an officer may ask a driver to exit a vehicle during a traffic stop.” However, citing Bullock, the court stated that “an officer may offend the Fourth Amendment if he unlawfully extends a traffic stop by asking a driver to step out of a vehicle.” And, it continued, “[t]he same is true of an officer who unlawfully extends a traffic stop by asking a driver to sit in his patrol car, thereby creating the need for a weapons pat down.”

Somewhat by contrast, in State v. Castillo, __ N.C. App. __, 787 S.E.2d 48 (2016), the court considered yet another speeding stop that turned into a drug investigation. Partway through the stop, the officer “asked defendant to exit his vehicle, submit to a pat down for weapons, and sit in his patrol vehicle.” Although the court of appeals did not focus specifically on that aspect of the stop, it generally determined that the extension of the stop was properly supported by reasonable suspicion.

Analysis and predictions. Both Bullock and Reed were divided opinions, and further review seems likely. To the extent that those cases question whether an officer may, in the officer’s discretion, order an occupant out of a vehicle during a traffic stop, my guess is that further review will reaffirm Mimms. Only the Supreme Court can overrule Mimms, and it is hard to argue that Rodriguez did that. Furthermore, the court’s argument in Bullock emphasized that the officer admitted that his purpose in ordering the driver out of the vehicle was to advance the drug investigation rather that to ensure his own safety. But the subjective motivations of officers generally are irrelevant in determining their status under the Fourth Amendment. See generally Whren v. United States, 517 U.S. 806 (1996) (ruing that pretextual stops are permissible and stating that “[s]ubjective intentions play no role in ordinary . . . Fourth Amendment analysis”). In other words, if the order could have been justified by officer safety concerns – and Mimms seems to say that it could have been – the fact that it wasn’t actually motivated by such worries is likely irrelevant.

The practice of ordering vehicle occupants into an officer’s vehicle without reasonable suspicion of anything more than a traffic infraction seems strikes me as much more vulnerable. I noted several years ago that the practice was not clearly supported by existing law, and if anything, Rodriguez calls it further into doubt. There may be limited circumstances in which such an order is appropriate, but I would continue to advise officers against doing so on a routine basis.

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