Excluding automobile passengers from Fourth Amendment protection.

• Author: Riggs, Jenny L.
• Position: During police search after detainment - Supreme Court Review - Case Note

1. INTRODUCTION

   In Maryland v. Wilson,(1) the Supreme Court addressed whether police officers can order an innocent passenger to exit a vehicle when the driver is lawfully stopped for traffic violations.(2) The Court held that, as a matter of officer safety, police officers may order a passenger out of a lawfully stopped vehicle without having any particular reason to believe that the passenger poses a threat to the officer.(3) The Court weighed the public interest in effective law enforcement and the protection of police officers' lives against a passenger's liberty interest in remaining free from arbitrary government intervention.(4) The Court found in favor of the public interest: a command to a passenger to exit a vehicle may save an officer's life, while it affords only a petty indignity to a passenger.(5) Under Wilson, a police officer needs only a lawful reason to make a traffic stop; having made it, she is free to order all passengers to exit the vehicle for any, or no, reason.(6)

   This Note argues that Wilson represents a departure from prior Supreme Court case law that required Fourth Amendment seizures to be based on specific, articulable facts that would lead a police officer to believe that she is in danger.(7) This Note contends that the Wilson Court erred by refusing to recognize that ordering the passenger to exit the vehicle constituted an illegal seizure.(8) This Note further argues that Wilson represents an isolated instance of Supreme Court authorization of the potentially arbitrary use of state power to seize an innocent, non-threatening person without any showing either of probable cause or reasonable suspicion.(9) This Note concludes by advising that citizens must now look to their state constitutions for any analogous Fourth Amendment protection in this context.(10)

2. BACKGROUND

   The Fourth Amendment to the Constitution requires that searches and seizures be reasonable and that warrants be based upon probable cause.(11) The text of the amendment applies only to federal officers and does not contain a remedy on its face for violations.(12) Through the incorporation of the Fourth Amendment into the Fourteenth Amendment, the Supreme Court has applied the search and seizure provision of the Fourth Amendment to the individual states.(13) The primary importance of the application of the Fourth Amendment to the states is the imposition of the exclusionary rule(14) as a tool to control state authority and a remedy for Fourth Amendment violations.(15) Using the exclusionary rule, the courts have the ability both to oversee the use of state power and to control that power by refusing to authorize outrageous abuses of it.(16)

   In earlier interpretations of the Fourth Amendment, the Supreme Court required state actors, such as police officers, always to show probable cause before seizing a person.(17) The state actor could show probable cause to a neutral magistrate before making a seizure, and thereby obtain a warrant authorizing the seizure,(18) or the state actor could make the showing after seizing a person when the person was on trail.(19) Absent a showing of probable cause that the individual was engaged in wrongdoing at the time of the seizure, however, the seizure was found unconstitutional.(20)

   1. TERRY v. OHIO AND REASONABLE SUSPICION

      In Terry v. Ohio,(21) the Supreme Court authorized an exception to the Fourth Amendment's probable cause requirement.(22) The Court held that an officer's articulable suspicion may be sufficient to justify a warrantless stop and search.(23) The Court defined articulable suspicion as a belief, not rising to the level of probable cause, that the individual affords a danger to the officer.(24) The suspicion must be based on observable facts, as opposed to hunches, that can later be articulated to a judge.(25) The Court emphasized that the circumstances of each situation provide the justification for a warrantless stop and search.(26) Consequently, Terry-type cases are fact-intensive.(27)

      The facts of Terry convinced the Court that the officer's seizure of the defendants was based on what he observed of their behavior, in conjunction with his law enforcement experience:(28) A police officer watched the defendant and another man taking turns walking back and forth in front of a store.(29) At the end of each trip past the front of the store, the defendant stopped to speak to the other man. After observing this behavior for more than ten minutes, the police officer approached the men.(30) When the officer asked the men for their names, they only mumbled a reply, at which point the officer grabbed defendant Terry.(31) He patted the outside of Terry's jacket and felt a pistol.(32)

      The police officer's observation of the defendant, coupled with the officer's experience, allowed him to conclude reasonably that the suspects afforded a threat to the officer.(33) The Court acknowledged that, given exigent circumstances (in this case, for example, a police officer observed two men "casing" a store), the police may not have time to seek a warrant in order to prevent a crime.(34) Although the officer did not have probable cause to arrest the men, his suspicion that the men were (or were about to be) engaged in criminality was reasonable.(35) If the officer were to leave the men to get a warrant, he would lose the opportunity to prevent crime.(36)

      Using a balancing test, the Court weighed the public and private interests involved.(37) On the government side, the Court highlighted the interests in the detection and prevention of crime and in the safety of police officers.(38) On the private side of the scale, the Court found that the liberty interest of individual citizens was weighty, as the Fourth Amendment was written to protect citizens from arbitrary government interference with their liberty.(39)

      Nonetheless, the Court found that the safety of the officer outweighed the private interest at stake.(40) The officer must have "specific reasonable inferences," not just "inchoate and unparticularized suspicion," that a certain suspect offers danger to her.(41) Thus, the Terry Court maintained that the Fourth Amendment allows a seizure if a reasonable officer can point to specific, articulable facts not arising to the level of probable cause that lead him to believe that he should seize a suspect to protect his own safety.(42)

   2. PENNSYLVANIA v. MIMMS AND THE RULE FOR DRIVERS

      Since Terry, the Court has refined the balancing test that determines whether a particular search or seizure was reasonable. The Fourth Amendment proscribes only unreasonable seizures.(43) The seminal case in the area of seizures of motorists is Pennsylvania v. Mimms.(44) In Mimms, the Court determined the relative reasonability of a seizure by inquiring into the state interest in question and balancing it against the citizenry's liberty interest.(45)

      In Mimms, police officers observed the defendant, Mimms, driving an automobile with an expired license plate tag.(46) They stopped the car to issue Mimms a citation.(47) An officer approached the vehicle and asked Mimms to step out of the vehicle and to produce his driver's license and registration.(48) As Mimms got out of the car, the officer saw a bulge under Mimms' jacket.(49) Believing that the bulge might be a concealed weapon, the officer Terry frisked(50) Mimms and discovered that the bulge was, indeed, a loaded .38-caliber revolver.(51) The officer then arrested Mimms.(52)

      The Court held that the police had probable cause to stop Mimms, and, therefore, concluded that the subsequent request to exit the vehicle was merely a request to change locations during a legal seizure.(53) The Court distinguished Terry on the basis that the initial stop or seizure in Mimms was clearly constitutional, while in Terry the legality of the initial stop was at issue.(54) Given the expired license plate tags, the officers had a right to stop Mimms.(55) Since Mimms had already been legally "seized" under the Fourth Amendment, the only issue before the Court was the "incremental intrusion" into the driver's liberty occasioned by the order to exit the vehicle.(56)

      Following the logic of Terry, the Court articulated a balancing test to determine the reasonableness of the order to exit the vehicle.(57) Since the Fourth Amendment requires only that a seizure be reasonable, the Court weighed the state interest against the individual interest.(58) The Mimms Court maintained that it was "too plain for argument that the State's proffered justification--the safety of the officer--is both legitimate and weighty."(59) The Court then examined the intrusion into the driver's liberty interest caused by the order to exit the vehicle.(60) The Court termed the order a "de minimus" intrusion, "a mere inconvenience," as it "expose[d] to view very little [more] of [the driver's] person than is already exposed."(61) Consequently, the Court held that the safety of an officer making a lawful traffic stop outweighed the individual citizen's liberty interest, and found that the officer could order the driver to exit the vehicle.(62)

   3. MICHIGAN v. SUMMERS AND THE AUTHORITY OF POLICE OFFICERS TO CONTROL POTENTIALLY DANGEROUS SITUATIONS

      The state interest in protecting law enforcement officials also led the Court to authorize officers to detain individuals at their residences when serving search warrants. The Court in Michigan v. Summers(63) held such a detention to be reasonable under the Fourth Amendment.

      When police arrived at Summers' home to serve a search warrant, Summers was leaving the house.(64) The police stopped him and brought him into the house while they conducted their search pursuant to the warrant.(65) After finding drugs in the house, the police officers arrested Summers and searched him, finding more drugs in his pocket.(66)

      Thus, the question presented to the Court was whether the officers had authority to detain Summers and require him to enter the house while they...