Part 2: The Ordinary Scope Of A Traffic Stop
Before there can be a car search there usually is a traffic stop. But does a traffic stop alone allow a warrantless search of a vehicle?
No, of course not. Gant made that much clear.
Here, we’ll outline the normal scope of every traffic stop. In other words, after a valid traffic stop an officer will always be allowed to do certain specific things no matter what.
This ensures an officer will have some minimum amount of contact with the driver and occupants of a car. This is called the ordinary scope of every traffic stop.
Traffic Enforcement, Car Registration, Proof of Insurance, Warrant Checks and Safety Concerns
When an officer stops a car the dance begins instantly.
As soon as a car is stopped the officer instantly begins making observations and asking questions. The information learned during the traffic stop may end up supporting a warrantless search of the car.
People v. Cummings
People v. Cummings, 2016 IL 115769 spells out the minimal things an officer can do after every traffic stop. In this case the officer stopped a car because the registered owner came back as a female with a suspended license.
As the officer was walking up to the driver’s door he realized the driver was in fact a man. The defense argued that the officer had an obligation to immediately cease the interaction with the driver the instant he realized the driver was a man and not the registered car owner.
The Illinois Supreme Court thought otherwise.
Every traffic stop inherently includes
- Some type of traffic enforcement
- Inspection of the automobile’s registration
- Proof of insurance
- Warrant checks, and
- Other related safety concerns.
The court said once the stop had occurred the officer was authorized to follow through with these basic responsibilities. It was, thus, completely proper for the officer to continue the interaction with the driver.
People v. Veal
In People v. Veal, 2017 IL App (1st) 150500 the officer had secured and arrested the driver.
The officer then went back and ordered the passenger out of the car and discovered a gun in his waist.
The passenger argued that once the driver was arrested the officer had an obligation to release the passenger. The court said the stop didn’t end for the passenger just because the driver was arrested.
The officer had a right to further engage the passenger who at the very least was being ticketed for not wearing a seatbelt.
Ordering The Driver Out Of The Car
Assuming there is a lawful traffic stop, can an officer order a driver out of a vehicle?
The Mimms case is pretty clear that an officer can order a driver and car occupants out of the car anytime for any reason. In the field, you can decide when and if you want to do it. Most officers may remove car passengers at the first hint of danger.
Pennsylvania v. Mimms
Pennsylvania v. Mimms, 98 S.Ct. 330 (1977) involved a traffic stop where the officer immediately asked the driver to exist and produce his license. As the man was exiting the car the officer noticed a large bulge under the man’s sports jacket.
Fearing a weapon, the officer quickly frisked him and discovered a loaded .38 revolver in the man’s waistband.
When the driver was ordered out of the car the officer had no reason to fear for his safety.
The court held that even though there was no specific reason to believe the driver was armed the act of ordering him out of the car is a minimal intrusion. Additionally, there is a strong officer safety reason to give officers the freedom to remove occupants at their discretion.
People v. Daniel – Handcuffing The Driver
This rule, authorizing removal of a driver from a car has been repeatedly cited and upheld by Illinois court opinions. Consider People v. Daniel, 2013 IL App (1st) 111876 where a driver was not only removed from a car by force he was also handcuffed.
The officer ordered the driver out, opened the door and handcuffed one of his hands before the driver was completely out.
The court held that the use of handcuffs did not convert this Terry interaction into a full blown arrest. The use of handcuffs was reasonably necessary for safety.
Although, generally, the use of handcuffs converts a traffic stop into an arrest, a valid concern for officer safety will justify their use. After everyone was secure the police saw a small plastic bag containing cannabis on the floorboard.
More cannabis and a gun were found in the car.
People v. Moss – General Risk To Officers
Sometimes, the general scene may create significant risk for an officer. In People v. Moss, 217 Ill.2d 511 (2005), 2 officers stopped a truck with 3 occupants.
The police discovered that the 3 men all had serious weapons related offenses in their history. Defendant was a passenger and was on parole for a weapons crime.
He was asked to exit the car for a pat down. Several packets of cocaine were removed from his front pocket. A court likely won’t approve of routine pat downs done without reason. But here, 2 officers were outnumbered by 3 men all known to have significant weapons convictions.
The court said the limited scope of a pat-down search for weapons, as opposed to a full-fledged search for evidence, was appropriate even when there was no individualized suspicion of illegal activity.
Anytime an officer has reason to believe he is interacting with an armed or dangerous individual removal and a pat down will be justified.
Ordering Passengers Out Of The Car
Can passengers also be ordered to exit a vehicle?
Mimms Rule Extended To Passengers…
Means They Can Be Removed As Well.
Maryland v. Wilson
Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882 (1996) officially extended the Mimms rule to car passengers.
A car was stopped for speeding and registration problems. The officer could see that the occupants were ducking or trying to conceal their presence. When the officer got to the car he ordered the defendant, who was the front seat passenger, out of the car.
Defendant was nervous and sweating. A small amount of crack fell to the ground as defendant was getting out of the car.
Defendant challenged the case because the officer chose to engage the passenger first rather than deal with the driver and the traffic issues.
The United States Supreme Court said that the Mimms rule applies to passengers as well as to drivers. Officer safety justifies removing the passenger as well as the driver. An officer making a traffic stop my order passengers to get out of the car pending completion of the stop.
Passengers Can Also Be Patted Down
Arizona v. Johnson
An officer can have many reasons for wanting occupants out of the car to talk to them.
Moss showed us that the general circumstances an officer finds him or herself in can be considered dangerous. In a dangerous scenario a court will allow a pat down for weapons.
For instance, Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781 (2009) describes the kind of “dangerous circumstance” I’m talking about.
3 officers of a gang task force were on patrol in a known gang area. A car was stopped for insurance and registration problems. There were 3 people in the car. The named defendant was in the back seat.
Defendant had on a blue bandana and he had a police scanner in his pocket. Police learned that defendant had been in prison and was from a known gang area. An officer asked defendant to step out of the car and she patted him down right away. The officer felt the butt of a gun near his waist. Defendant began to struggle, but the officer got him cuffed.
The officer did not see a gun.
The defendant never indicated he had a gun. You can say the officer didn’t have a specific reason to believe the passenger was armed. However, the officer definitely had a general reason to believe the passenger was armed. She was, without a question in a dangerous situation.
In the end, the court said that an officer may perform a pat down of the driver and any passengers upon reasonable suspicion that they may be armed and dangerous.
Reasonable suspicion under the constitution includes talking to a gang member, in a known gang area, who likely is involved in other gang activity.
The officer certainly was not constitutionally required to let defendant depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.
Can Police Order Passengers To Remain At The Scene?
If a passenger is not suspected of committing a traffic infraction then to what extent can an officer keep a passenger at the scene?
People v. Gonzalez, 184 Ill.2d 402 (1998) was an Illinois Supreme Court case that clarified that a passenger can be ordered to stay at the scene.
Defendant was a passenger in a car stopped for a traffic violation. Defendant exited the vehicle and was proceeding to leave the scene. The officer ordered him to remain. The officer had a K-9 and released him to help encourage the passenger’s return.
The passenger turned around and walked back to the car. As soon as he got back the passenger told the officer he had a gun. The court concluded that it is reasonable for a police officer to immediately instruct a passenger to remain at the car, when a passenger attempts to leave the scene.
This rule stems from the same concerns over officer safety discussed in Mimms and Wilson.
Compliance Is Not Optional
People v. Synnott
So an officer has a right to remove passengers or at least ask them to exit the car, but do the occupants have the right to refuse to get out?
They must comply with the order. By that token, let’s look at People v. Synnott, 349 Ill.App.3d 223 (2nd Dist. 2004).
This driver was stopped for speeding. The stop quickly turned into a DUI investigation, but the driver was less than compliant. When the officer ordered him out of the car, he refused. When ordered again he said his lawyer told him to never get out of the car. Defendant also grabbed the steering wheel with both hands and held it tight.
Defendant was eventually pulled out of the car by officers and charged with obstructing a peace officer.
The court upheld the conviction on the grounds because the driver had no right to refuse to exit. The Veal case discussed earlier makes it clear that passengers also have no right to refuse to exit the car when ordered by an officer.
Removal For Questioning Does Not Extend The Scope Of The Stop
People v. Reedy
If an officer removes the driver and the passengers from a car will a court accuse the officer of delaying the traffic stop?
So long as an officer is moving the business of the traffic stop forward a court is not going to tank the case just for removing the occupants. Take for example, People v. Reedy, 2015 IL App (3d) 130955-U.
A car with three occupants was stopped for crossing the fog lines. The officers asked defendants to step out of the vehicle. The entire traffic stop lasted less than 10 minutes. Removal of the passengers did not in any way unreasonably prolong the stop.
This is not a case where the officers stalled in any way in order to give the K-9 time to arrive at the scene. The dog arrived almost immediately and got right to work. Eventually a kilo of heroin was recovered from a duffel bag near the passenger seat.
At The First Whiff Of A Weapon A Protective Search Is Permitted
During a lawful traffic stop and a lawful pat down of an occupant of the car (driver or passenger), may any warrantless search of the car be performed?
Yes, a limited search of the passenger area and containers is permissible if the location can reasonably hold weapons.
May containers and the glove compartment be opened?
Yes, if weapons can fit in them.
What about the trunk?
No, because generally a person can’t likely reach weapons in the trunk. But if an individual can actually reach the trunk from the passenger compartment then the trunk may be searched.
Mimms and Moss have officer safety concerns built right into them. Always remember a court will back-up an officer when there are legitimate safety issues in a traffic stop.
- Mimms allows you to remove occupants of a car at your own discretion, and
- Moss says a pat down is reasonable if you have reason to believe a person might be armed.
But Moss and Mimms are important because they authorize police action under general “dangerous” circumstances.
What does that mean?
It means police don’t necessarily need to see a gun to remove occupants and pat them down. If police are outnumbered, you’re in a bad area, and police are dealing with known dangerous persons, police don’t need to see a weapon for removal and a pat down.
We are now going to put officer safety concerns front and center as a justification for a more thorough car search.
When an officer has more than a general reason to believe he is in a dangerous situation, but has more specific reasons for fearing safety, the law will support a more intrusive inspection of a car and its occupants.
Weapons Can Be Stored Almost Anywhere In A Car
Michigan v. Long
To illustrate let’s start with Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983).
Police are in a rural area when they see a car speeding and driving erratically. It swerves off into a shallow ditch getting stuck. They made contact with the driver and only occupant who appeared to be under the influence of something.
The driver began to start walking back to the car. As police followed him they observed a large hunting knife on the floorboard of the driver’s side.
The police then searched the car and found marijuana in the armrest. At this point, defendant was arrested and the car searched some more. In the trunk there was 75 pounds of marijuana.
The court held that once the officers saw the knife in the car it was reasonable for them to believe there were other weapons in the car. The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, reasonably warrant the officer in believing that the suspect may gain immediate control of weapons.
The law clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially armed and dangerous.
The officers were justified in searching the car. The discovery of the small amount of cannabis then justified the search of the trunk.
Search For Weapons Does Not Require Probable Cause Of A Crime
People v. Colyer
Remember, an initial sweep for weapons is justified if you have a specific reason to believe a weapon in the car. That means you’ve seen a weapon with your own eyes (or another officer’s eyes) or someone in the car has told you there is a weapon inside.
What happens if you don’t see a weapon exactly, but something else?
Take for instance what happened in People v. Colyer, 2013 IL 111835. Police see that a car is running and parked right outside a motel blocking the entrance. Defendant was in the driver’s seat, there was a man in the front seat, and as officers approached a third man got inside the rear passenger compartment.
While talking to the driver in plain view in a plastic bag an officer saw a large pistol round about 3 inches long. At that point the men were ordered out of the car. They were handcuffed and police recovered a plastic bag from the center console with five more live .454 caliber rounds. Defendant had another similar bullet in his front pocket.
Ultimately, a .454 revolver was found under a floor mat on the front passenger side.
The Illinois Supreme Court said that common sense and logic dictate that a bullet is often associated with a gun. It was reasonable for the officers to suspect that their safety was in danger and the search for weapons was reasonable.
Reminder That A Weapons Search Can Include Searching The Property Of The Passenger As Well
Wyoming v. Houghton
As a final point, let’s remember that an initial search for weapons is going to have to be limited to areas and places where a weapon can be stored and reached.
This next case doesn’t involve a weapon exactly but involves a hypodermic needle. The needle itself was evidence of drug use, but the presence of a needle like this during a traffic stop also poses a significant risk to the officer. The case in question is Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297 (1999).
Wyoming Highway Patrol stopped a car for speeding and driving with faulty brake lights. Three people were in the car. While talking to the driver, the officer noticed a hypodermic syringe needle in the driver’s shirt pocket. The man admitted he uses it to take drugs.
At this point, the two female passengers were ordered out of the car.
Police searched the car. In the back seat there was a purse. The female passenger in the back seat said it was hers. Police searched the purse and found a brown pouch and a container with drug paraphernalia and a syringe with 60 ccs of methamphetamine. At that point, she was placed under arrest.
The female passenger challenged the search of her purse saying that the observation of the needle in the driver’s pocket said nothing about what may or may not have been in her purse.
The court said that when there is probable cause to search for contraband in a car, it is reasonable for police officers to examine packages and containers without a showing of individualized probable cause for each one.
A passenger’s personal belongings, just like the driver’s belongings may contain the contraband or weapon that the officer has reason to believe is in the car.
The sensible rule is that a passenger’s purse or container may be searched, whether or not its owner is present as a passenger or otherwise. Police with probable cause to search may inspect a passenger’s belongings found in the car that are capable of concealing the object of the search.