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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Gonsalves, 429
Supreme Judicial Court of Massachusetts,
Argued
Decided
John E. Bradley, Assistant District Attorney,
for the Commonwealth.
J. Drew Seqadelli,
Present:
WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED,
GREANEY, J.
The
defendant is charged with trafficking in cocaine in violation of G.L. c. 94C, §
32E (b ). The cocaine was seized by a State trooper,
who, while on routine traffic patrol about 9 P.M. on March 5, 1997, stopped a
taxi on Route 195 near Marion, after he had seen the taxi drift over [429 Mass. 659] a marked lane into the breakdown lane. In the course of the stop, the trooper
ordered the defendant, who was sitting in the rear of the taxi, to get
out. After conversing with the
defendant, the trooper searched the rear seat area and seized a package of
cocaine weighing approximately seventy‑eight grams. A judge in the Superior Court allowed the
defendant's motion to suppress both the cocaine and his statements because the
trooper had "no objective basis upon which to order the defendant out of
the vehicle." (FN1) The
Based
on the evidence that he found credible, the judge made findings of fact. We accept those facts, see Commonwealth v. Colon‑Cruz, 408
Mass. 533, 538, 562 N.E.2d 797 (1990), and now summarize them. When the State trooper observed the taxi
traveling partly in the breakdown lane of the highway which he was patrolling,
he became concerned that the driver might be under the influence of an
intoxicant, and signaled for the driver to stop. The trooper approached the stopped taxi,
spoke to the driver, and noted that there were also two passengers in the car,
including the defendant, who was the sole occupant of the back seat. The trooper took the taxi driver's license
and registration. He questioned the
driver about his driving over the marked
[429 Mass. 660] lane, and the
driver told the trooper that he had trouble with his night vision. In the course of questioning the driver, the
trooper trained his flashlight on the occupants of the car, something which he
routinely did on such stops for his personal safety. The trooper thought the defendant was extremely
nervous. His hands were trembling and
moving from his lap to the seat and back to his lap again, and he appeared to
be breathing heavily. Because the
defendant appeared nervous, the trooper ordered him to step out of the taxi. The defendant complied, and the trooper
conducted a patfrisk, which revealed nothing.
He asked the defendant why he was nervous, and the defendant replied
that there were warrants outstanding against him for driving without a
license. At that point, the trooper
"secured" the defendant in the rear seat of the police cruiser. He obtained permission from the driver of the
taxi to search the vehicle's back seat, where the trooper saw a portion of a
plastic bag protruding from between the seat cushion and the seat back. The plastic bag contained white powder which
the trooper suspected was cocaine.
The
trooper returned to the cruiser, recited the Miranda rights to the defendant,
and questioned him. The defendant denied
knowledge of the plastic bag or any cocaine.
After citing the taxi driver for a marked lane violation, the trooper
allowed the taxi to leave. He then took
the defendant to the Bourne barracks for further questioning. At first, the defendant continued to deny any
knowledge of the bag of white powder, which weighed approximately seventy‑eight
grams, but eventually, he made inculpatory statements in the trooper's
presence.
1. In Pennsylvania v. Mimms, 434 U.S. 106,
111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court held
that a police officer, may, as matter of course, order a driver out of a
vehicle that has been lawfully stopped for a traffic violation. In
Maryland v. Wilson, supra at 415, 117 S.Ct. 882, the Court extended that
rule to approve similar orders given to passengers in a stopped vehicle. (FN2)
The Commonwealth argues that we have "consistently purported to
follow Mimms." It relies on Commonwealth v. Santana, 420 Mass. 205, 212‑213, 649 N.E.2d
717 (1995), for this statement, while acknowledging, [429 Mass. 661] as it
must, that Santana contains language
which "squarely cuts against the [the United States Supreme] Court's
holding in Mimms." Nonetheless, the Commonwealth argues that we
should now expressly embrace Mimms,
and its corollary, the ruling in Wilson,
and make plain that our art. 14 case law coincides with the Mimms‑Wilson
holdings under the Fourth Amendment.
We
have not adopted Mimms.
"It is true that cases from [the
Appeals Court] and the Supreme Judicial Court have
cited approvingly to Mimms, without
expressly stating that the police are not entitled to carte blanche authority
to order drivers out of their vehicles.
See, e.g., Commonwealth v.
Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978); Commonwealth v. Robbins,
407 Mass. 147, 151, 552 N.E.2d 77 (1990); Commonwealth v. Moses, 408 Mass. 136,
142, 557 N.E.2d 14 (1990); Commonwealth v. Lantigua, 38 Mass.App.Ct.
526, 528‑529, 649 N.E.2d 1129 (1995).
"However, a closer examination of
these cases reveals that while explicit language requiring a 'reasonable
suspicion' has not appeared, each case explored the factual basis for the
officer's suspicion. See Commonwealth v. Ferrara, 376 Mass. at
505, 381 N.E.2d 141 (finding no basis for further interrogation and no need for
further protective precautions, and reversing order denying motion to suppress);
Commonwealth v. Robbins, 407 Mass. at 152, 552 N.E.2d 77 (police
officer's actions proper where officer saw brown‑handled object wedged in
passenger seat and driver had just been arrested on outstanding warrant);
Commonwealth v. Moses, 408 Mass. at 138, 141‑143, 557 N.E.2d
14 (police officer's actions proper where officer feared defendants had access
to a weapon, was outnumbered by defendants, and one defendant, upon making eye
contact with the officer, ducked under dashboard)."
Commonwealth
v. Williams, 46 Mass.App.Ct. 181, 183‑184, 704 N.E.2d 212
(1999). As the Williams opinion goes on to point out, what was implicit in the
decisions just referred to, was made explicit in Commonwealth v. Santana, supra, where we stated that "[t]o
determine whether [an exit] order was justified, we ask 'whether a reasonably
prudent man in the policeman's position would be warranted in the belief that
the safety of the police or that of other persons was in danger.' "
Commonwealth v. Santana, supra at 212‑213, 649 N.E.2d 717,
quoting Commonwealth v. Almeida, 373
Mass. 266, 271, 366 N.E.2d 756 (1977). [429 Mass. 662] This statement in Santana
was reiterated two years later in
Commonwealth v. Vazquez, 426 Mass. 99, 102‑103, 686 N.E.2d 993
(1997). Thus, the rule that a police
officer must, at least, have a reasonable suspicion of danger before compelling
a driver to leave his motor vehicle has been affirmed by this court well after
the United States Supreme Court abandoned that requirement in Mimms.
Because we have departed from the Federal view of a citizen's Fourth
Amendment rights in the area, our long‑standing rule expresses a
principle of State constitutional law under art. 14.
[1] We have expressly granted other
protections to drivers and occupants of motor vehicles under art. 14 in a
variety of areas, and we have done so to guarantee protections that, in some
cases, may not be recognized under the Fourth Amendment. See
Commonwealth v. Torres, 424 Mass. 153, 154‑155, 157‑164, 674
N.E.2d 638 (1997) (that passenger left vehicle, without being asked to do so,
on routine traffic stop provides no basis to further detain driver and
passenger after issuing speeding ticket); Commonwealth v. King, 389 Mass. 233, 244,
449 N.E.2d 1217 (1983) (once officer, making valid investigatory check of
parked car at rest area, verified driver's and passenger's licenses and vehicle
registration, no grounds existed for further investigation or precautions);
Commonwealth v. Loughlin, 385 Mass. 60, 61‑63 & n. 3, 430
N.E.2d 823 (1982) (search conducted after justifiable threshold inquiry wherein
driver produced valid license and registration held impermissible);
Commonwealth v. Ferrara, supra at 504‑505, 381 N.E.2d 141 (no
basis to interrogate passengers after driver produced valid license and
registration); Commonwealth v. Alvarez, 44 Mass.App.Ct.
531, 534, 692 N.E.2d 106 (1998) (during routine stop for traffic violation,
officer may not ask for passenger's identification as matter of "routine
practice"); Commonwealth v. Ellsworth, 41
Mass.App.Ct. 554, 556‑557, 671 N.E.2d 1001 (1996) (after officer, having
stopped driver for erratic driving, determined that there was no traffic
offense and driver had produced valid license and registration, he had no
reason to issue exit orders to passengers, in spite of earlier furtive
movements of one passenger); Commonwealth v. Kimball, 37 Mass.App.Ct.
604, 607, 641 N.E.2d 1066 (1994) (during stop on suspicion that car was stolen,
once driver produced valid license and registration, he should have been permitted
to leave). In view of these protections,
and the principles expressed in the
Santana decision, which were repeated in the Vazquez decision, we conclude that art. 14 requires that a police
officer, in a [429 Mass. 663] routine traffic stop, must have a
reasonable belief that the officer's safety, or the safety of others, is in
danger before ordering a driver out of a motor vehicle. The fact that we do not follow Mimms in this type of case necessarily
leads to the conclusion that we shall not follow Wilson either, because
Wilson extends Mimms in a manner
incompatible with the rights guaranteed Massachusetts citizens under art. 14.
2. We now explain our reasons for
reaching these conclusions and comment on some matters raised by the dissenting
opinion in this case. A routine traffic
stop, like the one in this case, presents a situation where citizens, both the
vehicle's driver and any passenger or passengers in the vehicle, expect a
police officer to get the government's business done quickly, so those detained
can go on their way. This expectation is
a reasonable one. A passenger in the
stopped vehicle may harbor a special concern about the officer's conduct
because the passenger usually had nothing to do with the operation, or condition,
of the vehicle which drew the officer's attention in the first place. Citizens do not expect that police officers
handling a routine traffic violation will engage, in the absence of
justification, in stalling tactics, obfuscation, strained conversation, or
unjustified exit orders, to prolong the seizure in the hope that, sooner or
later, the stop might yield up some evidence of an arrestable crime. That a small percentage of routine traffic
stops may result in the detection of more serious crime is no reason to subject
the vast majority of citizens to orders to get out of their vehicles.
[2] Such an intrusion into a driver or a
passenger's privacy is not minimal. As
was expressed by a dissent in Mimms,
"[a] woman stopped at night may fear for her own safety; a person in poor health may object to
standing in the cold or rain; another
who left home in haste to drive children or spouse to school or to the train
may not be fully dressed; an elderly
driver who presents no possible threat of violence may regard the police
command as nothing more than an arrogant and unnecessary display of
authority." Pennsylvania v. Mimms, supra at 120‑121,
98 S.Ct. 330 (Stevens, J., dissenting).
Routine traffic stops may also pose unique hardships on minorities who, it
has been argued, are often the subject of stops on pretext. See Harris, "Driving While Black"
and All Other Traffic Offenses: The
Supreme Court and Pretextual Traffic Stops, 87 J.Crim. L. & Criminology 544
(1997); Sklansky, Traffic Stops,
Minority Motorists, and the Future of the Fourth [429 Mass. 664]
Amendment, 1997 Sup.Ct. Rev. 271.
Justice Ireland's concurring opinion, with which we agree, makes this
point more expansively. Post at 669‑671. The rules in Mimms and Wilson, which
permit automobile exit orders during any traffic stop, but which do not require
that such orders be given, are a clear invitation to discriminatory enforcement
of the rule. (FN3)
[3] "Mimms [and Wilson ]
rested on the logic, which we do not contest, that there is danger for a police
officer inherent in any auto stop. Mimms, 434 U.S. at 110, 111, 98 S.Ct.
330. However, to permit an officer, in
the absence of any specific and articulable facts, to order the driver of a
vehicle [and a passenger or passengers] to step out of the vehicle would be to
invite random and unequal treatment of motorists. See
Commonwealth v. Bartlett, 41 Mass.App.Ct. 468, 472, 671 N.E.2d 515 (1996)
('[t]he vice in interrogations and searches based on a hunch is their
essentially random and arbitrary nature, a quality inconsistent, under
constitutional norms ... with a free and ordered society')."
Commonwealth v. Williams, supra at 183, 704 N.E.2d 212. The safety of the police can be adequately
protected. While a mere hunch is not
enough, see Commonwealth v. Silva,
366 Mass. 402, 406, 318 N.E.2d 895 (1974), it does not take much for a police
officer to establish a reasonable basis to justify an exit order or search based
on safety concerns, and, if the basis is there, a court will uphold the order. See
Commonwealth v. Johnson, 413 Mass. 598, 600, 601, 602 N.E.2d 555 (1992)
(driver put something inside his waistband after trying to evade police);
Commonwealth v. Almeida, 373 Mass. 266, 271‑272, 366 N.E.2d
756 (1977) (driver failed to produce registration in high crime area, late at
night, and carefully opened console just high enough when retrieving wallet);
Commonwealth v. Prevost, 44 Mass.App.Ct. 398, 399, 691 N.E.2d 592
(1998) (passenger bent out of officer's sight and attempted to put on his coat
as if to conceal something); Commonwealth v. Heughan, 40 Mass.App.Ct.
102, 104‑105, 661 N.E.2d 939 (1996) (as driver pulled over, back seat
passenger bent down as if replacing or retrieving object under front seat);
Commonwealth v. Rivera, 33 Mass.App.Ct. 311, 314‑315, 599
N.E.2d 245 (1992) (driver had no license, police officer outnumbered, aluminum
bat under front passenger seat, back seat passenger holding object large enough
to conceal weapon); Commonwealth v. Vanderlinde, 27
Mass.App.Ct. 1103, 1104, 534 N.E.2d 811 (1989)[429 Mass. 665] (driver had tried to evade capture and
passenger reached into well between the front seats during the stop). See also
State v. Smith, 134 N.J. 599, 618, 637 A.2d 158 (1994) ("To support an
order to a passenger to alight from a vehicle stopped for a traffic violation,
therefore, the officer need not point to specific facts that the occupants are
'armed and dangerous.' Rather, the
officer need point only to some fact or facts in the totality of the
circumstances that would create in a police officer a heightened awareness of
danger that would warrant an objectively reasonable officer in securing the
scene in a more effective manner by ordering the passenger to alight from the
car"). It could be argued plausibly
that automatic exit orders might increase the chance of confrontation when
already upset citizens are compelled to stand outside a vehicle while a police
officer disposes of the minor traffic violation, especially if circumstances
indicate that the officer's conduct may be a pretext. (FN4)
[4] The rule we adopt also provides that
the police will act in a reasoned way.
As Justice Kennedy stated in his dissent in Wilson: "The
distinguishing feature of our criminal justice system is its insistence on principled,
accountable decisionmaking in individual cases." Maryland v. Wilson, supra
at 422, 117 S.Ct. 882 (Kennedy, J., dissenting). Bright‑line rules, by their nature,
tend to eliminate this feature. They
should be allowed only in those circumstances where safety concerns clearly
outweigh the intrusion on individual rights.
(FN5) Police work is fast‑paced,
can be dangerous at times, and requires understanding of a broad set of [429 Mass. 666] rules in order to ensure that the rights of citizens are upheld. The dissent in this case calls for a bright‑line
rule in order to ease some of the complexity police officers face in the line
of duty, equating the Mimms‑Wilson rule to the automatic patfrisk
that may
accompany a lawful Terry
stop. (FN6) Post at 676‑678. The two situations are not analogous, and the
difference between them demonstrates why the
Mimms‑Wilson rule should
not be adopted.
[5] Under Terry, a police officer is permitted to pat frisk a person stopped
under suspicion of criminal activity where the police officer has reason to
believe he is dealing with an armed and dangerous individual. See
Terry v. Ohio, 392 U.S. 1, 24‑25, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). Under Mimms‑Wilson, a
police officer is permitted to issue exit orders to a person stopped for a
traffic infraction when the officer has no reason to suspect anything. It is more consistent with the Terry rule, as well as with the
circumstances in which we have been willing to create bright‑line rules,
to require some objective circumstances making it reasonable to issue an exit
order to the driver or passengers in a stopped vehicle. We believe that "[i]t does no disservice
to police officers ... to insist upon exercise of reasoned judgment" in
this kind of case. Maryland v. Wilson, supra at 423, 117
S.Ct. 882 (Kennedy, J., dissenting).
The dissent in this case refers to forty‑five
States which it asserts have accepted
Mimms or Wilson or both. This assertion should be looked at with a
skeptical eye. While we agree that twenty‑two
States have considered Mimms, and in
some instances Wilson, and accepted
the rules in these decisions as a matter of State constitutional law or policy,
(FN7) twenty‑two States have not expressly considered the issues in Mimms or Wilson [429 Mass. 667] under their State Constitutions. (FN8)
Three States have rejected Mimms
or Wilson on State constitutional
grounds. (FN9), (FN10)
We also point out other relevant
considerations. The Declaration of
Rights was adopted in 1780, as part of the Massachusetts Constitution, some seven years before the
United States Constitution was approved.
The Declaration of Rights was written in the historical context of the
abuses of governmental power inflicted on the colonists by British officials,
and art. 14 [429 Mass. 668] was directed at the unlawful invasion
of privacy rights by those officials.
That the drafters of the Fourth Amendment subsequently chose to
replicate the words used in art. 14 cannot support a conclusion that we are
compelled to act in lockstep with the United States Supreme Court when it
interprets that amendment. Such a
conclusion posits a serious misunderstanding of the authority of this court to
interpret and enforce the various provisions of the Massachusetts Constitution,
particularly those in the area of civil liberties. Chief Justice Wilkins has stated that,
"the [United States] Supreme Court ... describ[es] a common base from
which we can go up," but the Justices of this court "are, however,
entitled to [their] own views, indeed constitutionally required to have
them." Remarks of Chief Justice
Herbert P. Wilkins to Students at New England School of Law on March 27, 1997,
31 New England L.Rev. 1205, 1213 (1997).
The nature of federalism requires that State Supreme Courts and State
Constitutions be strong and independent repositories of authority in order to
protect the rights of their citizens.
[6] The foregoing discussion explains the
foundation of our rule that, once a stopped driver has produced the necessary
papers and they are found to be in order, he and his passengers are to be
promptly released, Commonwealth v.
Torres, 424 Mass. 153, 158, 674 N.E.2d 638 (1997), and why we choose not to
follow Mimms‑Wilson.
We, of course, respect the United States Supreme Court's judgment in the
matter under the Fourth Amendment. That
judgment was reached after balancing the interests of the police against the
liberty interests of citizens, with the Court's concluding that the former
should prevail over the latter. For the
reasons stated, we conclude that, under art. 14, the balancing of interests
requires that Massachusetts citizens should not be subjected to unjustified
exit orders during routine traffic stops.
[7][8] 3. We reject the Commonwealth's
arguments that the judge based his ruling on an erroneous interpretation of the
timing of the officer's exit orders, or, alternatively, that the judge erred in
finding no reasonable basis for the actions of the trooper. It was not the timing of the trooper's
actions, but the insufficient reasons for the actions, on which the judge based
his decision. We agree with the analysis
made by the Superior Court judge and the Appeals Court in considering whether
the trooper had a basis to order the defendant out of the taxi. Where, as here, the evidence consists solely
of oral testimony, the determination of the weight and credibility of the
testimony is the responsibility [429
Mass. 669] of the judge. We accept his subsidiary findings of fact and
his decision that nervousness and fidgeting do not warrant what occurred
here. (FN11) Commonwealth v. Colon‑Cruz,
408 Mass. 533, 538, 562 N.E.2d 797 (1990).
Order
allowing motion to suppress affirmed.
IRELAND, J. (concurring).
I join in the opinion of the court and
fully agree with its conclusion that, in the context of automobile exit orders,
art. 14 of our State Constitution provides greater protection to Massachusetts
citizens than the United States Constitution.
As we were once reminded, "The right question ... is not whether a
state's guarantee is the same as or broader than its federal counterpart as
interpreted by the Supreme Court. The
right
question is what the state's
guarantee means and how it applies to the case at hand."
Massachusetts v. Upton, 466 U.S. 727, 738, 104 S.Ct. 2085, 80
L.Ed.2d 721 (1984) (Stevens, J., concurring), quoting Linde, E Pluribus‑‑Constitutional
Theory and State Courts, 18 Ga. L.Rev. 165, 179 (1984).
I write separately, however, to stress
the dangers posed by unfettered police power to order individuals out of
automobiles without any justification.
The grant of such power is certainly, as the majority notes, "a
clear invitation to discriminatory enforcement of the rule." Ante
at 664. This is precisely the type of
power "that art. 14 was adopted to guard against," Commonwealth v. Blood, 400 Mass. 61,
71, 507 N.E.2d 1029 (1987), because, in the words of James Otis, it "
'places the liberty of every man in the hands of every petty officer.' "
Commonwealth v. Cundriff, 382 Mass. 137, 144, 415 N.E.2d 172 (1980),
cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981), quoting 2
Legal Papers of John Adams (L. Wroth & H. Zobel eds.1965).
[429
Mass. 670] The widespread public
concerns about police profiling, commonly referred to as "DWB‑‑driving
while black," has been the subject of much discussion and debate both
across the country and within the Commonwealth.
See Black Drivers Describe Harassment by Police, The Boston Globe, Apr.
13, 1999, at A1. Statistics show that such racial profiling occurs throughout
the nation. "In Florida, police
documented 1,100 videotaped stops along Interstate 95 in the late 1980's. While blacks and Hispanics made up just 5
percent of the drivers, they made up eighty percent of those stopped and
searched." Traffic Stops
Discounted in Sentencing, The Washington Post, Dec. 17, 1998, at A8. One study
found that seventy‑three per cent of cars stopped and searched on
Interstate 95 in Maryland were driven by black people, while only fourteen per
cent of people who use the road are black.
Seat Belt Push Raises Race Issue;
Blacks Weigh Tolls of Safety vs.
Bias, The Washington Post, Apr. 3, 1998, at A1. In addition, statistics
presented to the United States House of Representatives indicate that
"blacks, who make up about 14 percent of the population, account for 72
percent of drivers pulled over for routine traffic stops." House OKs Study of Car Searches, The Boston
Globe, Mar. 25, 1998, at A12.
Indeed, the New Jersey Attorney General's
Office has recently admitted that such racial profiling in traffic stops is
"real, not imagined." Bradley
Puts Race at Center Of Campaign, The Star‑Ledger (Newark, N.J.), Apr. 21,
1999, at 8. "Of the stops examined by the [New Jersey] Attorney General's
Office, roughly 60 percent involved white drivers, 27 percent blacks, 7 percent
Hispanics, and 4 percent Asians. Few of
those stops[,] less than 1 percent [,] resulted in searches. But when they did, 77 percent of the searches
involved blacks or Hispanics. Only 21
percent of the searches involved whites."
Belated Acknowledgment an Essential First Step To Ending Racial
Profiling, The Record (Northern N.J.), Apr. 22, 1999, at L8.
Other courts have also recognized racial
profiling and "DWB" as a real cause for concern. See
United States v. Leviner, 31 F.Supp.2d 23, 33 (D.Mass.1998);
State v. Valentine, 132 Wash.2d 1, 28 n. 1, 935 P.2d 1294 (1997)
(Sanders, J., dissenting).
As the court's opinion indicates, ante at 663‑664, the rules in Pennsylvania v. Mimms, 434 U.S. 106, 98
S.Ct. 330, 54 L.Ed.2d 331 (1977), and
Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997),
which permit automobile exit orders during any traffic stop "may also pose
unique hardships on minorities" and could be a "clear invitation to
discriminatory[429 Mass. 671]
enforcement." Prohibiting
the police from ordering people out of automobiles without any justification is
a much needed step in the right direction to cure such abuses.
FRIED, J.
(dissenting, with whom LYNCH, J., joins).
Twenty‑two years ago the Supreme
Court of the United States announced a rule intended better to assure the
safety of police officers against the sometimes lethal dangers of routine
traffic stops. Today the court, invoking
the Constitution of this State, rejects that rule. Virtually every other State has accepted the
Supreme Court's rule. Indeed, until
today we too had always cited the Supreme Court's rule with approval. Because I believe today's decision to be
unwarranted in principle and unwise in policy, I respectfully dissent.
I
In
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977),
the Supreme Court ruled that the Fourth Amendment to the United States
Constitution is not offended by the practice of ordering, as a matter of
course, the driver of a vehicle lawfully stopped to step outside the vehicle
while the necessary inquiries connected with that stop are conducted. There were three dissenters at that
time. The Court has not deviated from
that rule. Two years ago in Maryland v. Wilson, 519 U.S. 408, 117
S.Ct. 882, 137 L.Ed.2d 41 (1997), a wide spectrum of Justices (Rehnquist, C.J.,
and O'Connor, Scalia, Thomas, Souter, Ginsburg, and Breyer, JJ.) extended that
rule to the passenger of the vehicle.
There were only two dissenters. The
Court's reasoning in Mimms is worth
setting out at length:
"The State freely concedes the
officer had no reason to suspect foul play from the particular driver at the
time of the stop, there having been nothing unusual or suspicious about his
behavior. It was apparently his practice
to order all drivers out of their vehicles as a matter of course whenever they
had been stopped for a traffic violation.
The State argues that this practice was adopted as a precautionary
measure to afford a degree of protection to the officer and that it may be
justified on that ground. Establishing a
face‑to‑face confrontation diminishes the possibility, otherwise
substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the
officer will be the victim of an assault.
"We think it too plain for argument
that the State's [429 Mass. 672] proffered justification‑‑the
safety of the officer‑‑is both legitimate and weighty. 'Certainly it would be unreasonable to
require that police officers take unnecessary risks in the performance of their
duties.'
Terry v. Ohio, [392 U.S. 1, 23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)
]. And we have specifically recognized
the inordinate risk confronting an officer as he approaches a person seated in
an automobile. 'According to one study,
approximately 30% of police shootings occurred when a police officer approached
a suspect seated in an automobile.
Bristow, Police Officer Shootings‑‑A Tactical Evaluation, 54
J.Crim. L.C. & P.S. 93 (1963).' Adams v. Williams, 407 U.S. 143, 148 n. 3
[92 S.Ct. 1921, 32 L.Ed.2d 612] (1972).
We are aware that not all these assaults occur when issuing traffic
summons, but we have before expressly declined to accept the argument that
traffic violations necessarily involve less danger to officers than other types
of confrontations. United States v. Robinson, 414 U.S. 218,
234 [94 S.Ct. 467, 38 L.Ed.2d 427] (1973).
Indeed, it appears 'that a significant percentage of murders of police
officers occurs when the officers are making traffic stops.' Id.,
at 234, n. 5 [94 S.Ct. 467].
"The hazard of accidental injury
from passing traffic to an officer standing on the driver's side of the vehicle
may also be appreciable in some situations.
Rather than conversing while standing exposed to moving traffic, the
officer prudently may prefer to ask the driver of the vehicle to step out of
the car and off onto the shoulder of the road where the inquiry may be pursued
with greater safety to both."
(Footnote omitted.) Id. at 109‑111, 98 S.Ct. 330.
In extending that rule to passengers in Wilson, the Court stated that
"danger to an officer from a traffic stop is likely to be greater when
there are passengers in addition to the driver in the stopped car. While there is not the same basis for
ordering the passengers out of the car as there is for ordering the driver out,
the additional intrusion on the passenger is minimal." Wilson, supra at 414‑415,
117 S.Ct. 882. One cannot insist too
much on the statistics cited by the Court showing the number of fatal killings
of police officers in connection with traffic stops, including routine traffic
stops. Since Mimms was decided, at least two police officers in this
Commonwealth have been murdered in connection with traffic stops. See
Boston Herald v. Superior Court, 421 Mass. 502, 658 N.E.2d 152 (1995);
Commonwealth v.
Colon‑Cruz, 408 Mass. 533, 562 N.E.2d 797 (1990). (FN1) [429 Mass. 673] The court today waves aside the substantial evidence of this
mortal danger to our law enforcement officers with only a passing reference to
the "danger for a police officer inherent in any auto stop," ante at 664, quoting Commonwealth v. Williams, 46
Mass.App.Ct. 181, 183, 704 N.E.2d 212 (1999), and rejects for the first time a
doctrine we have cited with approval ever since it was first established.
II
The court finds this rejection of the
Supreme Court's Fourth Amendment jurisprudence to be compelled by the similarly
worded provision of art. 14 of the Massachusetts Declaration of Rights, a provision
we have never before cited in this context.
There is no such constitutional compulsion. This is a pure judgment of policy, a policy
judgment that appeals to a majority of this court, though not to the United
States Supreme Court. In the past, when
we have declined to follow the Supreme Court in this area of the law, we have
pointed to decisions in our [429
Mass. 674] sister States to show
that ours is not an idiosyncratic or merely personal judgment. See, e.g.,
Commonwealth v. Stoute, 422 Mass. 782, 786‑789, 665 N.E.2d 93 (1996)
(declining to follow California v. Hodari
D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 [1991] );
Commonwealth v. Upton, 394 Mass. 363, 374 n. 10, 476 N.E.2d 548
(1985) (declining to follow Illinois v.
Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 [1983] ). The court does not do so today, and small
wonder. Forty‑four States and the
District of Columbia have accepted Mimms
and only one has rejected it on constitutional grounds, as the court does
today. (FN2) See Appendix.
(FN3) [429 Mass. 675] And of the twenty‑nine jurisdictions to consider whether to [429 Mass. 676] extend Mimms to
passengers, only three have declined, and, of these three, two were decided
prior to Wilson, seriously
undermining any claim as to their continuing validity. See Appendix.
Indeed, it is significant that the one State court decision to which the
court does point and from which it quotes at length, State v. Smith, 134 N.J. 599, 637 A.2d 158 (1994), explicitly
endorsed Mimms, but declined to
extend it to passengers. Id. at 617‑619, 637 A.2d 158. Moreover, that case was decided before Wilson. And since
Wilson two New Jersey courts have questioned the continuing
validity of Smith. See
State v. Arthur, 149 N.J. 1, 16, 691 A.2d 808 (1997) (discussing both Mimms and Wilson and noting that Smith
was "prior to Wilson "); In
re A.P., 315 N.J.Super. 166, 169‑171, 716 A.2d 1211 (1998)
(discussing with approval both Mimms
and Wilson and distinguishing
permissibility of exit order while performing community caretaking function
from Mimms‑Wilson rule applicable to lawful traffic stops).
The Supreme Court's decision in Mimms
(FN4) explained in some detail why ordering a lawfully stopped motorist
to leave his vehicle might be a reasonable safety precaution. Measured against the danger to the officer,
the Court judged that the inconvenience to the motorist was minimal. As I have said, the court today makes only
the most passing reference to these compelling facts. But
Mimms and Wilson represent a more
general judgment than that regarding the relative weight of the interests of
the police and the stopped motorist. The
Supreme Court is deliberately promulgating a simple bright‑line rule,
which police officers and judges can readily understand and administer. This is in response to a widespread sentiment
that Fourth Amendment law had become far too complex, replete with many
factored tests and complex balancing of factors. (FN5)
Such complexity is particularly inappropriate in an area of law [429 Mass. 677] which is to be administered by police officers in the field,
often in dangerous and confused circumstances. Mimms and Wilson are but two examples of the
Supreme Court's attempt to make the law of searches and seizures more appropriate
to the circumstances to which it applies.
(FN6) The virtue of Mimms and Wilson is that they do not require the officers to weigh up the
factors and circumstances before taking one simple step to increase their own
safety.
Mimms and Wilson would also
take judges out of the business of making similar fine‑grained inquiries
after the fact in order to determine whether the police's self‑protective
measures were justified. Rather, there
is substituted a global judgment and a simple, bright‑line rule. The recent decision of the Supreme Court in Knowles v. Iowa, 525 U.S. 113, 119
S.Ct. 484, 142 L.Ed.2d 492 (1998), to which the court adverts, is entirely
consistent with this development. Mimms and Wilson establish what may be done in a proper traffic stop, and Knowles makes clear that when the
reason for the stop has been exhausted, so is the basis for the self‑protective
and other measures. And that is all that
our many cases‑‑Commonwealth
v. Torres, 424 Mass. 153, 674 N.E.2d 638 (1997); Commonwealth v. Loughlin,
385 Mass. 60, 430 N.E.2d 823 (1982); Commonwealth v. Ferrara, 376 Mass. 502,
381 N.E.2d 141 (1978),‑‑which the court today cites for its
decision hold, as the court's own parentheticals show. (FN7)
The Supreme Court's pursuit of bright‑line rules
that would avoid what the Court called a "bog of litigation" was
again illustrated in the very recent case of
Wyoming v. Houghton, 526 U.S. 295, ‑‑‑‑, 119 S.Ct.
1297, 1303, 143 L.Ed.2d 408, ‑‑‑‑ (1999), [429 Mass. 678] where the Court refused to condemn the search of the handbag of a
passenger in an automobile the police reasonably believed contained contraband,
without any particularized belief relative to that handbag or that
passenger. See id. at 1304 (Breyer, J., concurring).
Of course there is a balancing of
competing interests in these decisions, but what the court misses today is what
might be called the second‑order balancing that weighs the advantages of
a myriad of complex individual determinations against the clarity of a readily
understood and readily administered bright‑line rule.
III
Now what does the court offer as a basis
for rejecting the balance struck in a long line of Supreme Court decisions,
(FN8) and by virtually all of our sister States? See Appendix. Certainly not our precedents, because we have
consistently cited Mimms with
approval, although sometimes tacking on language which misreads what is the
salient and evident holding of that case.
In the light of these many citations, the opening flourish in the
court's analysis of our cases, "We have not adopted Mimms " is somewhat surprising. Ante at 661. Moreover, we have never once until this day
invoked art. 14 in respect to exit orders, and therefore whether we have
misread Mimms or not, (FN9) we were
certainly bound by it in applying the Fourth Amendment.
No, this is pure policy. And what is the basis for this policy? That the intrusions on operators and
passengers are not so minimal as the Supreme Court and almost every other State [429 Mass. 679] court think, (FN10) and that the police officers may after all
get all the protection they need, because "it does not take much for a
police officer to establish a reasonable basis to justify an exit order." Ante
at 664. But that is just the point: it does not take much because the danger is
ever present and therefore both police officers and the administration of
justice are better served by the Supreme Court's bright‑line rule. In this respect, the bright‑line Mimms‑Wilson rule is analogous to the patfrisk that may accompany a
lawful Terry stop. See
Terry v. Ohio, 392 U.S. 1, 24‑25, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). As in the traffic stop, the
initial intrusion does require some demonstrable predicate, but neither the
Supreme Court nor this court has ever demanded that an officer conducting a patfrisk must‑‑to
use the court's phrasing today‑‑"establish a reasonable
basis" for the protective measure.
If the stop is lawful, this further minor intrusion is entirely within
the officer's discretion. See Terry, supra at 30, 88 S.Ct. 1868;
Commonwealth v. Fraser, 410 Mass. 541, 544‑545 n. 4, 573
N.E.2d 979 (1991), quoting 3 W.R. LaFave, Search and Seizure § 9.4(a), at 499
(2d ed. 1987 & Supp.1991) ("A
protective frisk of a suspect under the principles of Terry may be warranted where there is 'some legitimate basis for
the officer being in immediate proximity to the person' "). The reason is the same here: to ask more is to put the officer in danger
for insufficient reason.
Unfortunately the court chooses to bolster
its policy judgment by invoking the inflammatory issue of race: "Routine traffic stops may also pose
unique hardships on minorities who, it has been argued, are often the subject
of stops on pretext." Ante at 663. What work is the word "pretext" doing
here? Is the traffic stop justified, or
is it not? If it is not, then of course
it constitutes an unlawful seizure and resulting searches are also unlawful. What the court must mean is that the traffic
stop is lawful, but the discretion to make the stop is invoked discriminatorily
against minorities, as the materials cited by the court and the concurrence
clearly indicate. And that
discriminatory imposition may then be the occasion for imposing, in a discriminatory
way, [429 Mass. 680] the further humiliation that the
court discerns in police exit orders.
Although I completely agree that the discriminatory enforcement of the
law is a shame and a disgrace, as Professor Randall Kennedy has so eloquently
argued, see Kennedy, Race, Crime, and the Law c. 4 (1997), I think it is
fanciful to imagine that by weaving a gossamer garment of complicated rules, we
will do anything at all to root out this behavior wherever it exists. Does not the court seek to justify this very
decision by arguing that "it does not take much for a police officer to
establish a reasonable basis to justify an exit order?" Surely bigoted or abusive police officers,
bent on mischief, will have no difficulty at all in concocting such a
"reasonable basis" after the fact.
It is a fundamental error to fashion rules that will hamper only
conscientious officers in order to restrain the unconscientious and abusive,
who in any event will evade them. The
conscientious officer who follows the court's ruling today must hesitate in
order to ponder whether he has that "objective" and
"articulable" basis for ordering a driver or his passenger out of a
lawfully stopped vehicle. That moment's
hesitation may cost him his life. That
is what the Supreme Court concluded a long time ago and that is the judgment to
which it has adhered ever since. The
unscrupulous officer will do as he pleases and find his justification
afterward.
So it comes down to two policy
judgments: that of the Supreme Court and
of almost all other State courts, or the one this court promulgates today in
the name of our State Constitution. I
prefer the Supreme Court's judgment and the judgment of State courts across the
nation. May not the majority of this
court prefer its own? Is there no
principle of choice, no metric of judgment here? This is an utterly false dilemma, and the
maxim in dubiis libertas cuts sharply against what the court does today. For the Supreme Court's rule leaves the Legislatures
of this nation‑‑which, after all, have the mandate, the experience,
and the means to make policy judgments‑‑free to enact more
stringent measures if they deem it appropriate.
This court's action today removes that option from the Legislature. Our Legislature has, on several occasions,
enacted procedural protections against police practices more stringent than we
were prepared to impose in the name of the Constitution. Even now, as the court's and the concurring
opinion's citations indicate, the problem of discriminatory enforcement of
traffic laws has caught the attention of our and other State Legislatures and
State and Federal executive policy makers.
Quite apart from the [429
Mass. 681] greater legitimacy of
policy making by the Legislature, the Legislature has the means to gather the
facts, to develop structured remedial systems, and the ability to reverse
course if it makes a mistake. When we
speak in the name of the Constitution, however, we purport to speak for the
ages and, absent a change of heart, only a constitutional amendment can reverse
a mistaken course of decision. But the technical and particularistic nature
of today's mistaken decision does not allow even that cumbersome remedy, and
the people of the Commonwealth must rely entirely on this court's wisdom and
restraint. Cf. District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648,
411 N.E.2d 1274 (1980) (death penalty violates State Constitution) overturned
by the 1982 amendment (art. 116 of the Amendments) to art. 26 of the
Massachusetts Declaration of Rights.
IV
Finally, I must respond to the court's
invocation of history to justify, maybe even to compel, its unwise and
idiosyncratic decision. This is the
argument that John Adams made me do it.
Of course we have a duty to come to our own conclusion about the meaning
of our own Constitution, and no one asserts otherwise. This is particularly so if the wording of our
Declaration of Rights is more stringent than that of the Bill of Rights. See, e.g.,
Commonwealth v. Amirault, 424 Mass. 618, 628‑631, 677 N.E.2d 652
(1997); Commonwealth v. Hinckley, 422
Mass. 261, 661 N.E.2d 1317 (1996). In
this case the two formulations are, in all relevant respects, identical. Of course even then "we can go up,"
and place greater restrictions on law enforcement than the Supreme Court has
decreed. This is a truism. We are not free to go down, so "up"
is the only direction in which we may move, but that proves nothing. The directional metaphor of "up"
suggests that more is necessarily better, as are more parks, more teachers,
more safety, and more security. But that
begs the central question. Are more and
more restrictions on law enforcement, more and more elaborate rules
better; is that trend really
"up?" Thus, rather than
engaging in judicial chauvinism we should ask:
Is this decision wise, and‑‑far more to the point‑‑is
there something in our Constitution that authorizes us to announce this
anomalous rule and, by styling it a constitutional judgment, to put it beyond
the reach of the ordinary processes of government? There is not.
As for history, research shows that many
of the complexities we have thrown up about the process of investigating,
prosecuting[429 Mass. 682]
and punishing crime were far from the contemplation of those who framed
either the Bill of Rights or our own Declaration of Rights. See Amar, The Fourth Amendment, Boston, and
the Writs of Assistance, 30 Suffolk U.L.Rev. 53 (1996); Amar, Fourth Amendment First Principles, 107
Harv. L.Rev. 757 (1994); Langbein, The Historical Origins of the
Privilege Against Self‑Incrimination at Common Law, 92 Mich. L.Rev. 1047
(1994). These and other restrictions are
of more recent vintage, based in large part on a series of warmly contested
decisions of the United States Supreme Court primarily during the decade of the
1960s. See, e.g., Furman v. Georgia, 408 U.S. 238, 257, 92 S.Ct. 2726, 33 L.Ed.2d
346 (1972) (Brennan, J. concurring) (death penalty violates Eighth Amendment to
the United States Constitution); Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966); Griffin v. California, 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106 (1965); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.
1684, 6 L.Ed.2d 1081 (1961). And as for
the integrity of our distinct constitutional traditions, the striking thing is
that, often as not, these Supreme Court decisions compelled us to abandon long‑standing
lines of decision interpreting our Declaration of Rights. See, e.g.,
Commonwealth v. Tibbetts, 157 Mass. 519, 32 N.E. 910 (1893);
Commonwealth v. Dana, 2 Met. 329, 43 Mass. 329 (1841). Cf. Cassell, The Mysterious Creation of
Search and Seizure Exclusionary Rules under State Constitutions: The Utah Experience, 1993 Utah L.Rev.
751. That is why the invocation of our own
independent traditions on this, as on other occasions, e.g., Commonwealth v. Stoute, 422 Mass. 782,
786‑787, 665 N.E.2d 93 (1996) (declining to follow California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d
690 [1991] ); Commonwealth v. Lyons, 409 Mass. 16, 18,
564 N.E.2d 390 (1990), and Commonwealth
v. Upton, 394 Mass. 363, 371, 476 N.E.2d 548 (1985) (declining to follow Illinois v. Gates, 462 U.S. 213, 103
S.Ct. 2317, 76 L.Ed.2d 527 [1983] [totality of the circumstances in determining
reasonable suspicion and probable cause] ); District Attorney for the Suffolk Dist. v.
Watson, supra at 666‑667, 411 N.E.2d 1274 (declining to follow Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 [1976] ), is more
than a little opportunistic. What in
fact has happened is that after the brief burst of activity in the Supreme
Court, the Court itself calmed down and declined, in a series of decisions of
which Mimms and Wilson are but two, to extend the doctrines of that brief earlier
period. That more sober trend, of
course, invoked the strong disapproval of the dwindling number of Justices who
in dissent would have extrapolated from the sometimes salutary positions marked
out in the earlier decade. And sensing
defeat, the call went out for State courts to take up the work in the [429 Mass. 683] name of their own State Constitutions. Brennan, State Constitutions and the
Protection of Individual Rights, 90 Harv.
L.Rev. 489 (1977). That, and not
John Adams, is the historical foundation of today's unfortunate decision.
For these reasons, I respectfully
dissent.
APPENDIX.
A Survey of the Permissibility of
Automatic Exit Orders to Lawfully Stopped Drivers and Passengers
I.
Automatic Exit Orders Permissible as to Both Drivers and Passengers (twenty‑five
States and the District of Columbia).
The following jurisdictions either
applied the holding of Pennsylvania v.
Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), allowing law
enforcement officials to issue automatic exit orders to drivers, to passengers
prior to Maryland v. Wilson, 519 U.S.
408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), or have since applied or expressed
agreement with Wilson.
Alaska:
State v. Wystrach, No. A‑6158, slip op. at 1, 1997 WL 280671
(Alaska Ct.App. May 28, 1997) (overturning suppression of evidence found on
passenger in vehicle stating "[t]he record in [this] case is not clear
whether [the defendant] was 'asked' or 'directed' to roll down her
window.... However, even assuming that
[the defendant] was ordered to roll down her window, it appears that this
directive was a lesser intrusion than is authorized under Wilson ").
Arizona:
State v. Webster, 170 Ariz. 372, 373‑374, 824 P.2d 768
(Ct.App.1992) (holding that Mimms
rule applies equally to both drivers and passengers and even encompasses
further order to get back into car).
Arkansas: Wright
v. State, 327 Ark. 558, 562, 940 S.W.2d 432 (1997) (applying Mimms‑Wilson rule to driver and passenger).
California:
People v. Wilson, 59 Cal.App.4th 1053, 1061, 69 Cal.Rptr.2d 683
(1997) (citing Mimms and Wilson as evidence that "the
United States Supreme Court has made it clear the Fourth Amendment exclusionary
rule is not to be interpreted so as to endanger police officers in the
responsible performance of their duties"). People v. Castaneda, 35
Cal.App.4th 1222, 1230, 42 Cal.Rptr.2d 18 (1995) (quoting Mimms for the proposition that requesting a driver to step out of
a car "after the driver [i]s lawfully detained" is a reasonable and
minimal intrusion).
Connecticut:
State v. Wilkins, 240 Conn. 489, 494 n. 9, 692 A.2d 1233 (1997)
("following a valid traffic stop, an officer may request the driver to
step out of his or her vehicle....
Indeed, the Supreme Court has recently held that this authority extends
to passengers as well").
[429 Mass. 684] District of Columbia: Thomas v. United States, 553 A.2d 1206,
1208 n. 7 (D.C.1989) (taking note of
Mimms and the fact that choice of safety over "minimal intrusion"
had been extended to passengers pre‑Wilson
).
Florida:
Bratcher v. State, 727 So.2d 1114 (Fla.Dist.Ct.App.1999) ("Once
the deputy undertook the investigatory stop, he could briefly detain the men
and request that they identify themselves.
The driver and passenger could be ordered to exit the vehicle in
connection with this brief investigation"). J.B. v. State, 718 So.2d
1280, 1281 (Fla.Dist.Ct.App.1998) ("Because of the dangers which police
officers encounter in stopping vehicles, they, as a matter of routine, may
order a passenger to get out of a lawfully stopped vehicle without reasonable
suspicion" Borski v. State, 712 So.2d 787, 788 (Fla.Dist.Ct.App.1998)
(approving of Mimms‑Wilson rule and holding the rule extends
to orders to driver or passenger to remain in the vehicle).
Georgia:
Thomas v. State, 231 Ga.App. 173, 174, 498 S.E.2d 760 (1998) (citing Mimms in ratifying exit order directed
at driver); Holt v. State, 227 Ga.App. 46, 50, 487
S.E.2d 629 (1997) (citing Wilson with
approval).
Illinois:
People v. Gonzalez, 294 Ill.App.3d 205, 212, 228 Ill.Dec. 766, 689
N.E.2d 1187, aff'd, 184 Ill.2d 402, 235 Ill.Dec. 26, 704 N.E.2d 375 (1998),
petition for cert. filed (U.S. Feb. 26, 1999) (No. 98‑8359) (applying the Mimms‑Wilson rule and further holding that it is permissible for officer
to require that passenger remain at the scene, stating "we do not believe
that requiring [the passenger] to remain at the scene causes a significant
additional deprivation of personal liberty").
Indiana:
Young v. State, 564 N.E.2d 968, 970 (Ind.Ct.App.1991) (following Mimms and stating that the officer's
brief detention of a driver outside of his car was a "de minimis intrusion
... even where nothing specific indicate[d] that the officer's personal
security may be in jeopardy"). Warr v. State, 580 N.E.2d 265, 267
(Ind.Ct.App.1991) (extending Mimms
holding to passengers pre‑Wilson
).
Iowa:
State v. Doran, 563 N.W.2d 620, 623 (Iowa 1997) (authorizing, under
State Constitution, automatic searches incident to traffic citations). But see
State v. Becker, 458 N.W.2d 604, 607 (Iowa 1990) (considering, pre‑Wilson, whether Mimms rationale extends to passengers and determining that
articulable grounds for suspicion are necessary before an officer can order a
passenger from a vehicle). Note that the Becker court cites authority from three
other States‑‑Louisiana, Tennessee, and Pennsylvania‑‑to
support its conclusion. The Louisiana
case cited was explicitly overruled by
State v. Landry, 588 So.2d 345 (La.1991).
The Pennsylvania case has also been overruled. The Tennessee case has not been reconsidered
or applied in the nearly twenty years since it was decided. [429 Mass. 685] The decision to allow the greater
intrusion of a search incident to a traffic citation and the subsequent
decision in Wilson makes refusal to
extend Mimms to passengers highly
unlikely.
Louisiana:
State v. Drake, 733 So.2d 33 (La.App.1999) (confirming that State
law is consistent with Wilson
decision, stating "[w]hen a vehicle is stopped‑‑even for a
traffic violation‑‑officers may lawfully order its passengers to
exit the vehicle"). State v. Landry, 588 So.2d 345, 347
(La.1991) (accepting Mimms and
extending its holding to passengers pre‑Wilson because ensuring officers' safety was sufficient to justify
what court characterized as a "slight inconvenience" to individuals
involved).
Maryland:
Graham v. State, 119 Md.App. 444, 447, 705 A.2d 82 (1998)
(explaining state of the law under Mimms
and Wilson ).
Minnesota:
State v. Perkins, No. C5‑97‑2013, 1998 WL 217212
(Minn.Ct.App. May 5, 1998) (same, post‑Wilson ). State v. Ferrise, 269 N.W.2d 888, 890
(Minn.1978) (extending Mimms rule to
passengers pre‑Wilson and
holding that, as officers may order occupants out of the car, they may also
open occupants' doors for purposes of ordering them out of the vehicle).
Missouri:
State v. Reynolds, 753 S.W.2d 1, 2 (Mo.Ct.App.1988) (stating, pre‑Wilson, that "[o]nce a vehicle is
lawfully detained for a traffic violation, a police officer may order the
occupants to get out of the vehicle....
The officer need not suspect foul play from the vehicle's occupants at
the time of the stop," citing Mimms,
supra at 109, 98 S.Ct. 330).
Montana:
State v. Roberts, 284 Mont. 54, 943 P.2d 1249 (1997) (citing Wilson, holding that an officer, who
stopped automobile because he believed arrest warrant existed for driver, did
not unlawfully detain passenger by directing him to remain in the vehicle).
State v. Stubbs, 270 Mont. 364, 369, 892 P.2d 547 (1995) (reversing
lower court's ruling that search exceeded the constitutionally permissible,
quoting Mimms for the proposition
that "investigative detentions involving suspects in vehicles are
especially fraught with danger to police officers").
New
York:
People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d
733, cert. denied, 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376 (1989) (citing Mimms and further holding, pre‑Wilson, that "precautionary police
conduct directed at a passenger in a lawfully stopped vehicle is equally
authorized, within Federal constitutional guideposts, as that applied to a
driver. Inasmuch as the risks in these
police/civilian vehicle encounters are the same whether the occupant is a
driver or a passenger, 'police may order persons out of an automobile during a
stop for a traffic violation' "). People v. Harris, 173 Misc.2d 49, 52
& n. 2, 660 N.Y.S.2d 792 (N.Y.Sup.Ct.1997) (explaining that "[t]he
U.S. Supreme Court in [Mimms ]
announced the rule that the driver of a
[429 Mass. 686] motor vehicle
who has been lawfully stopped for a traffic offense could be ordered out of
that vehicle by the police officer; the
Court of Appeals followed the pronouncement....
The Court of Appeals in [Robinson
] thereafter decided that the same rule applied to the passengers in the
stopped vehicle" and "[t]he U.S. Supreme Court decided likewise in [Wilson ]").
Ohio:
State v. Robinette, 80 Ohio St.3d 234, 239, 685 N.E.2d 762 (1997)
(citing Mimms and holding automatic
exit order "justified because it was a traffic stop").
State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993), cert.
denied, 510 U.S. 1166, 114 S.Ct. 1195, 127 L.Ed.2d 544 (1994) ("Unlike an
investigatory stop, where the police officer involved 'must be able to point to
specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion,' ... a Mimms order does not have to be justified by any constitutional
quantum of suspicion"). State v. Ross, No. 16135, 1997 WL 531217
(Ohio Ct.App. Aug. 29, 1997) ("pursuant to Maryland v. Wilson, [the officer] possessed the authority to order
[the defendant, a passenger] out of the car pending the issuance of her
ticket").
Pennsylvania:
Commonwealth v. Rodriguez, 695 A.2d 864, 868‑869
(Pa.Super.Ct.1997) ("This court has recently determined that the effect of Mimms is to require that 'police may
request both drivers and their passengers to alight from a lawfully stopped car
without reasonable suspicion that criminal activity is afoot,' " quoting Commonwealth v. Brown, 439 Pa.Super.
516, 528, 654 A.2d 1096 (1995), and noting that the Supreme Court later did the
same in Wilson ).
Rhode
Island:
State v. Milette, 727 A.2d 1236 (R.I.1999) (noting that "[t]his
Court has long recognized that a police officer may order the driver of a
lawfully stopped motor vehicle to exit the vehicle for the purposes of
verifying identification and to further the strong public interest in securing
the safety of law enforcement officers," citing State v. Aubin, 622 A.2d 444, 445 [R.I.1993], Wilson, and Mimms ).
State v. Lombardi, 727 A.2d 670 (R.I.1999) (Noting Wilson decision extending Mimms to passengers and that "[i]n State v. Soares, 648 A.2d 804
[R.I.1994], we had some four years earlier held that a police officer had a
clear right to order a passenger in a car that had been validly stopped for any
reason to step out of the car").
South
Dakota:
State v. Ashbrook, 586 N.W.2d 503, 508‑509 (S.D.1998) (
"[T]he passenger would have had to wait until [the officer] had completed
his transactions with [the driver] in any event.... The only change in the passenger's condition
during the stop was that she had to wait outside, rather than inside, the
van," citing Wilson and noting
"the danger to officers is greater when there are passengers in a stopped
car"). State v. Tilton, 561 N.W.2d 660, 664 (S.D.1997)
("an officer making a traffic stop may order passengers to get out of the
car pending completion of the stop").
[429 Mass. 687] Texas: Josey v. State, 981 S.W.2d 831, 840
(Tex.Ct.App.1998) (citing Mimms and Wilson and stating "[b]ecause an
officer's safety may be threatened by a passenger's access to weapons in an
automobile, an officer may, as a matter of course, order a passenger in a
lawfully stopped vehicle to exit the vehicle pending completion of the
stop."). Rhodes v. State, 945 S.W.2d 115, 118
(Tex.Crim.App.), cert. denied, 522 U.S. 894, 118 S.Ct. 236, 139 L.Ed.2d 167
(1997) (safety precautions as to passenger upheld pursuant to Mimms‑Wilson rule). Goodwin v. State, 799 S.W.2d 719, 727
(Tex.Crim.App.1990) (citing Mimms,
stating "[p]olice officers are allowed to order drivers out of their cars
once they have been lawfully stopped for a traffic offense").
Utah:
State v. Shepard, 955 P.2d 352, 356 (Utah Ct.App.1998) (noting that
the Utah Supreme Court had, pre‑Wilson,
"noted that under Mimms, a
police officer may order a driver‑‑but not a passenger‑‑out
of a car during a traffic stop," then holding, since Wilson had been decided, "until the Utah Supreme Court
decides otherwise under the Utah Constitution, Wilson is controlling in Utah").
Virginia:
Harris v. Commonwealth, 27 Va.App. 554, 562, 500 S.E.2d 257 (1998)
(the court noted that "[f]ollowing a lawful traffic stop, the Fourth
Amendment permits the police to order the passengers to get out of the car
pending the completion of the stop," and that "this Court has
previously held that police officers may also detain passengers beside an
automobile until the completion of a lawful traffic stop"). Note that, pre‑Wilson, the Virginia Supreme Court declined specifically to reach
the issue whether Mimms extended to
passengers, stating, in Bethea v.
Commonwealth, 245 Va. 416, 419, 429 S.E.2d 211 (1993), "we note that
the Supreme Court specifically limited its holding in Mimms to circumstances in which a police officer orders the driver
to get out of a vehicle after the vehicle has been lawfully stopped," and
holding it "need not determine whether the de minimis rationale utilized
in Mimms is applicable to a passenger
in a vehicle when the initial vehicle stop is predicated solely on matters
pertaining to the driver. The facts of
this case only require the application of the more general principle that
Fourth Amendment interests are not violated when a police officer can 'point to
specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.' "
Wisconsin: State
v. Kehler, No. 96‑0854‑CR, 1997 WL 222274 (Wis.Ct.App. May 6,
1997) ("Once a police officer has lawfully detained an automobile for a
traffic violation, 'the police officers may order the driver to get out of the
vehicle without violating the Fourth Amendment's proscription of unreasonable
seizures,' " citing Mimms and Wilson. Further, the court held that,
"officers' subjective motivations for the stop are irrelevant," as
long as the stop was lawful).
Wyoming:
Houghton v. State, 956 P.2d 363, 372 (Wyo.1998) [429 Mass. 688] Golden,
J., dissenting), rev'd, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)
(dissent explains that under Mimms‑Wilson rule, automatic exit orders may
be directed at both drivers and passengers, majority appears to agree on this
point but holds evidence belonging to passenger, found during subsequent search
of vehicle, to be inadmissible. Id. at 370. Supreme Court overrules, finding that
evidence should not have been suppressed).
II.
Automatic Exit Orders Permissible to Drivers.
A.
Silent as to Passengers (Sixteen States).
The
following jurisdictions have accepted
Mimms but have not had cause to address the issue as it pertains to
passengers. As these jurisdictions have
accepted Mimms, there is no reason to
believe that Wilson is not similarly
the law of the State.
Alabama: Ex parte Carpenter, 592 So.2d 627, 631
(Ala.1991) (where driver and passenger ordered out of the vehicle, court,
citing Mimms, stated "[o]nce a
police officer with reasonable suspicion has stopped a suspect in an
automobile, the officer has the authority to ask the suspect to get out of the
automobile.... This intrusion is de
minimis when balanced with concerns for the officer's safety").
Colorado: People v. Carlson, 677 P.2d 310, 314
(Colo.1984) (extending Mimms
rationale to investigatory stop on reasonable suspicion of traffic violation,
in contrast to stop for purpose of issuing citation for known traffic violation
as in Mimms )
Delaware: Hall v. State, No. C.A. 97M‑03‑001,
1998 WL 281206 (Del.Super.Ct. May 11, 1998) (ratifying automatic exit order to
driver).
Idaho: Sprague v. Burley, 109 Idaho 656, 664,
710 P.2d 566 (1985) (ratifying stop quoting
Mimms, supra at 110‑111, 98 S.Ct. 330, and holding "a driver
stopped for ticketing may be ordered out of his car without the officer showing
any particular grounds for believing he was in danger, as 'this additional
intrusion can only be described as de minimis.'
... Hence, without any showing
that the particular suspect may be armed, an officer may require a person
lawfully stopped to alight from his or her car in order to diminish 'the
possibility, otherwise substantial, that the driver can make unobserved
movements' ").
Kansas: State v. Burks, 15 Kan.App.2d 87, 90, 803
P.2d 587 (1990) (stating that the court had applied Mimms and "also relied on
Mimms to find that removing an occupant from a car did not violate the
Fourth Amendment" but finding that officers were not justified in ordering
passenger from car and pat‑frisking him without articulable suspicion).
Kentucky: Docksteader v. Commonwealth, 802 S.W.2d
149, 150 (Ky.Ct.App.1991) (citing Mimms
approvingly).
[429
Mass. 689] Maine:
State v. Izzo, 623 A.2d 1277, 1281 (Me.1993) (upholding exit order
and citing Mimms ).
Michigan: People v. Bloyd, 416 Mich. 538, 552, 331
N.W.2d 447 (1982) (accepting Mimms
standard describing being told to stand outside a car as opposed to sitting in
the car as "a permissible de minimis intrusion").
Nebraska: State v. Crom, 222 Neb. 273, 283, 383
N.W.2d 461 (1986) (Krivosha, C.J., concurring) (quoting Mimms for the proposition that the reasonableness of seizures less
intrusive than traditional arrest depends "on a balance between the public
interest and the individual's right to personal security free from arbitrary interference
by law officers").
New Hampshire: State v. Hamel, 123 N.H. 670, 676, 466
A.2d 555 (1983) (citing Mimms for the
proposition that a police officer's order to get out of car is a de minimis
intrusion).
New Mexico: State v. Lovato, 112 N.M. 517, 522, 817
P.2d 251 (Ct.App.1991) (upholding exit order, stating "[e]ven in routine
traffic stops, police may adopt precautionary measures addressed to reasonable
fears.... In Mimms the Supreme Court recognized the inordinate risks police
take when they approach cars with persons seated in them, and approved the
practice of requiring the persons to get out of the car and be subject to a
protective frisk even in the absence of individualized suspicion").
North Carolina:
State v. Hamilton, 125 N.C.App. 396, 400, 481 S.E.2d 98 (1997)(quoting Mimms, stating, "[t]his Court has
recently held that the Fourth Amendment is not violated when an officer
requires a driver of a vehicle, stopped for a traffic violation, to exit the
vehicle.... This procedure reduces the
likelihood of assault on the officer and 'is not a "serious intrusion upon
the sanctity of the person" ' " and upholding exit order to passenger
as well although noting that the passenger had also committed a violation by
not wearing his seat belt).
North
Dakota:
State v. Mertz, 362 N.W.2d 410, 413 (N.D.1985) (holding that
"the Supreme Court's reasoning in
Mimms should be extended to the facts of this case so as to justify [the
officer's] action in ordering [the defendant] into the patrol car during issuance
of the speeding citation").
Oklahoma: Loman v. State, 806 P.2d
663, 666 (Okla.Crim.App.1991) (citing
Mimms ).
South Carolina: State v. Smith, 329 S.C.
550, 556, 495 S.E.2d 798 (Ct.App.1998) (officer who observed defendant speeding
was justified in stopping him and subsequently asking him to step out of his
vehicle, citing Mimms ).
West Virginia: State v. Boswell, 170 W.Va.
433, 439‑441, 294 S.E.2d 287 (1982) (citing [429 Mass. 690] Mimms but finding that defendant was
not even seized, as officer merely asked for identification and defendant
alighted from vehicle on his own volition).
B. Automatic Orders to Passengers
Not Permitted (decisions preceding Wilson
) (two States).
The
following jurisdictions accepted Mimms
but, prior to Wilson, declined implement
a bright‑line rule allowing exit orders as to passengers.
New Jersey: State v. Arthur, 149 N.J.
1, 16, 691 A.2d 808 (1997) (discussing both
Mimms and Wilson and noting that State v. Smith, 134 N.J. 599, 637 A.2d
158 (1994), was "prior to Wilson
").
State v. Smith, 134 N.J. 599, 610‑611, 612, 637 A.2d 158
(1994) (explicitly adopted the holding of
Mimms: "we conclude that the Mimms test, as applied to drivers,
satisfies the New Jersey Constitution as well," but holding, pre‑Wilson, that Mimms did not extend to passengers). In re A.P., 315 N.J.Super.
166, 169‑171, 716 A.2d 1211 (1998) (discussing with approval both Mimms and Wilson and distinguishing permissibility of exit order while
performing community caretaking function from Mimms‑Wilson rule applicable
to lawful traffic stops).
Tennessee: Johnson v. State, 601
S.W.2d 326, 327 (Tenn.Crim.App.1980) (accepting Mimms the court, pre‑Wilson,
stated "[t]he narrow question we face is whether a police officer, after
having stopped a motor vehicle for a traffic violation, has the right to 'check
the passengers' who happen to be in the vehicle, nothing else appearing
amiss. We hold that officers have no
such right").
C. Automatic Orders to Passengers
Not Permitted (decisions rejecting Wilson
) (one State).
The
following jurisdiction has accepted Mimms
but has decided that passengers in a vehicle have additional rights under the
State Constitution which prevent their being asked to exit a vehicle without
particularized suspicion.
Washington: State v. Mendez, 137
Wash.2d 208, 220, 970 P.2d 722 (1999) (holding Mimms rule regarding drivers consistent with Washington
Constitution but refusing to extend the bright‑line rule to passengers as
in Wilson ).
III: Automatic Exit Orders Not Permitted as to
Either Drivers or Passengers (two States).
The
following jurisdictions have, in one case explicitly and the other implicitly,
rejected the Supreme Court's balancing of the interests and have not allowed
law enforcement officers to issue automatic exit orders.
Hawaii: State v. Kim, 68 Haw. 286,
287‑288, 711 P.2d 1291 (1985) (order to exit car requires a reasonable
basis of specific articulable facts to believe a crime has been committed under
Hawaii Constitution).
[429 Mass. 691] Oregon: State v. Morton, 151 Or.App. 734, 739,
951 P.2d 179 (1997) (exit order to passenger deemed unconstitutional where
officer testified that order was to investigate possibility of drug crime, not
due to safety concerns). State v. Peterson, 143 Or.App. 505, 923
P.2d 1340 (1996) (exit order to driver unreasonable where "there was nothing in defendant's
behavior to suggest imminent aggressiveness or hostility toward [the
officer]"). Note: neither case makes any reference whatsoever
to either Mimms or Wilson and there is some hint that the
rejection of this line of cases is compelled by a State statute. See
State v. Lanig, 154 Or.App. 665, 667, 963 P.2d 58 (1998) (citing
Or.Rev.Stat. § 810.401[3][b] [1997], which has been construed to limit the
course of police action during a stop for a traffic infraction).
IV: No Authority or Undecided (three States).
The following jurisdictions either have
not clearly ruled on the issue of the permissibility of automatic exit orders
or have not been dealt with the issue at all in a published opinion.
Mississippi: No authority found.
Nevada: No authority found.
Vermont:
State v. Caron, 155 Vt. 492, 501, 586 A.2d 1127 (1990) (holding that
"[w]here a police officer has made an initial stop based on a reasonable
suspicion that the occupants have participated in a violent felony and there is
a high likelihood that the occupants might be dangerous, we see no reason to
preclude the officer from taking the protective measure of asking the occupants
to step from the vehicle"). State v. Jewett, 148 Vt. 324, 329‑330,
532 A.2d 958 (1987) (court asked to reject
Mimms and hold that Vermont constitution requires officer to have
reasonable suspicion that occupant is armed and dangerous before officer can
order occupant from vehicle; the court,
however, did not reach this question finding that there was reasonable
suspicion of driving while under the influence of alcohol, which was itself
sufficient basis for an exit order).
(FN1.) In reaching this conclusion, the judge
expressly relied on Commonwealth v.
Torres, 424 Mass. 153, 158, 674 N.E.2d 638 (1997), which is based
exclusively on art. 14 of the Declaration of Rights of the Massachusetts
Constitution. The Commonwealth makes no
argument that the defendant did not raise art. 14 as the only ground on which
he could obtain the relief he sought in his motion to suppress.
(FN2.) In
Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), the
United States Supreme Court appears to have drawn the line on what may be done
by the police in a routine traffic stop.
There the Court held that a police officer who had made such a stop and
cited the driver for speeding could not thereafter conduct a "full field‑type
search" of the vehicle. Id. at 488.
(FN3.) The United States Supreme Court, in New York v. Class, 475 U.S. 106, 115,
106 S.Ct. 960, 89 L.Ed.2d 81 (1986), recognized that "[k]eeping the driver
of a vehicle in the car during a
routine traffic stop is probably the typical police practice. See D. Schultz & D. Hunt, Traffic
Investigation and Enforcement 17 (1983)."
(Emphasis added.)
(FN4.) We question the assumption that asking
a person at a traffic stop to get out of the car will be safer than keeping the
person in the car. As Justice Stevens
pointed out in his dissent in the Wilson
case, there is no empirical evidence supporting this contention, and the
available "statistics are as consistent with the hypothesis that ordering
passengers to get out of a vehicle increases the danger of assault as with the
hypothesis that it reduces that risk." Maryland v. Wilson, 519 U.S. 408, 417,
117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (Stevens, J., dissenting). Professor LaFave, in 4 W. LaFave, Search and
Seizure § 9.5, at 44 (Supp.1999), notes the absence of empirical evidence that,
as a class, passengers in automobiles whose drivers have committed a traffic
violation have a propensity to violence.
(FN5.) Bright‑line rules also undermine
the Fourth Amendment's underlying touchstone of reasonableness. See LaFave, supra at 44. See also Dery,
Sanctioning "Thousand Upon Thousands of Petty Indignities": The Supreme Court's Creation of a
Constitutional Free Zone for Police Seizure of Innocent Passengers in Maryland
v. Wilson, 54 Wash. & Lee L.Rev. 1419 (1997); Harris, Car Wars: The Fourth Amendment's Death on the Highway,
66 Geo. Wash. L.Rev. 556 (1998); Harris, "Driving While Black" and
All Other Traffic Offenses: The Supreme
Court and Pretextual Traffic Stops, 87 J.Crim. L. & Criminology 544
(1997); Sklansky, Traffic Stops,
Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup.Ct. Rev.
271. To the extent that a bright‑line
rule is needed, our conclusions today establish one: No exit order may be given to driver or any
passenger in a routine traffic stop without the police officer's having an
objective reasonable basis to justify the order.
(FN6.) Terry v. Ohio, 392 U.S. 1, 23‑26,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
(FN7.) Two of these States, California and
Florida, had no choice in the matter because of amendments to their State
Constitutions which require interpretations consistent with those of the United
States Supreme Court in its construction of the Fourth Amendment. The other States are: Colorado, Connecticut, Idaho, Illinois,
Indiana, Iowa, Kentucky, Louisiana, Maryland, New Jersey, New York, North
Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Texas,
Virginia and Wisconsin.
While Iowa has not considered Mimms, it has upheld, under the State
Constitution, a statute authorizing searches incident to traffic citations,
making rejection of Mimms‑Wilson unlikely. State v. Doran, 563 N.W.2d
620 (Iowa 1997).
(FN8.) These States either have not decided
the issues, have decided the issues after considering only Fourth Amendment
arguments, or have done so with no citation to State constitutional
authority. The States are: Alabama;
Arizona (but see State v. Webster,
170 Ariz. 372, 374‑375, 824 P.2d 768 [Ct.App.1991] [Livermore, C.J.,
dissenting] [citing Mimms, majority
upholds police officer's order that passenger get back into vehicle on traffic
stop, dissent argues that seizure of passengers requires individual
justification] ); Arkansas; Delaware;
Georgia; Kansas; Maine;
Minnesota; Mississippi; Missouri;
Montana; Nebraska; Nevada;
New Hampshire; New Mexico; Oklahoma;
South Carolina; Tennessee; West Virginia; Wyoming (but see Goettl v. State, 842 P.2d 549, 558, 569‑575 [Wyo.1992]
[Urbigkit, J., dissenting] [urging continued independent review under the
Wyoming Constitution of search and seizure questions, noting, for example, that
in Wyoming passengers in motor vehicles have a legitimate expectation of
privacy] ).
Two
of the States have expressly stated an interest in considering Mimms or Wilson on State constitutional grounds. These States are: Alaska,
State v. Wystrach, No. A‑6158, 1997 WL 280671 (Alaska Ct.App., May
28, 1997) (the court has not had "the opportunity to consider whether the
Alaska Constitution requires a different rule"); Utah,
State v. Shepard, 955 P.2d 352, 357 n. 1 (Utah Ct.App.1998) (court accepts
holding in Wilson, "until the
Utah Supreme Court decides otherwise under the Utah Constitution").
(FN9.) These States are as follows: Hawaii,
State v. Kim, 68 Haw. 286, 287‑288, 711 P.2d 1291 (1985) (rejecting Mimms ); Washington, State v. Mendez, 137 Wash.2d 208, 220, 970 P.2d 722 (1999)
(affirming acceptance of Mimms under
Washington Constitution, explicitly refusing to extend to passengers); Vermont,
State v. Caron, 155 Vt. 492, 500‑501, 586 A.2d 1127 (1990) (court
upholds exit order on the basis that police had reasonable suspicion that
person stopped was armed and dangerous), and
State v. Jewett, 148 Vt. 324, 330, 532 A.2d 958 (1987) (under Vermont
Constitution, justified exit order on the basis that police had reasonable
suspicion that individual was driving while under the influence of alcohol, and
that ordering occupant out of the vehicle may "confirm or negate ...
suspicions regarding probable cause to arrest").
(FN10.) The situation in Michigan and Oregon is
unclear and we have not included these States in any category.
(FN11.) It is implicit in the judge's findings
of fact that he rejected the trooper's testimony that the defendant's
nervousness and hand motions provided him with an objectively reasonable fear
for his safety. In his findings of fact,
the judge said, "Because the defendant appeared to be nervous, [the]
trooper ... ordered him to exit the vehicle." In discussing his reasons for allowing the
defendant's motion to suppress the evidence gathered as a result of the search,
the judge said, "No gesture or conduct indicated the presence of a weapon
on defendant's person or in his immediate vicinity. Although certainly the trooper had every
right to be careful for his own safety, he had no objective basis upon which to
order the defendant out of the vehicle and to continue his investigation. The trooper was simply following a
'hunch'...."
(FN1.) The killing in Commonwealth v. Colon‑Cruz, 408 Mass. 533, 562 N.E.2d 797
(1990), occurred after the perpetrators had already been ordered out of the
vehicle during a routine traffic stop.
(See, e.g., UPI News Service, May 9, 1985.) The court's emphasis on the location of the
shooters misses the point of the Mimms‑Wilson line of cases.
Mimms and Wilson are not
so much about in or out being better (although, as both cases involved exit
orders, the court did explain the potential benefits which would animate such
an order on the part of the officer), they are about assuring that officers
have the ability to take protective measures which amount to only a de minimis
intrusion on the occupants' liberty‑‑namely deciding where the
officer would prefer the occupants wait‑‑in order to minimize the
threat to the officer during these potentially dangerous encounters. I cite to the cases in the accompanying text
merely to indicate how real this danger is here in the Commonwealth.
Courts
across the nation have realized that the purpose of Mimms and Wilson is not
for courts to decide whether having occupants wait inside or outside the
vehicle is safer, rather, it is to allow the experienced officer in the field
to make this determination in the particular circumstances present. See, e.g.,
State v. Webster, 170 Ariz. 372, 373‑374, 824 P.2d 768 (Ct.App.1991)
(holding that Mimms rule applies
equally to both drivers and passengers and even encompasses further order to
get back into car); Borski v. State, 712 So.2d 787, 788
(Fla.Dist.Ct.App.1998) (approving of
Mimms‑Wilson rule and
holding the rule extends to orders to driver or passenger to remain in the
vehicle);
State v. Roberts, 284 Mont. 54, 943 P.2d 1249 (1997) (citing Wilson, holding that an officer, who
stopped automobile because he believed arrest warrant existed for driver, did
not unlawfully detain passenger by directing him to remain in the
vehicle). That the protective measure
may sometimes prove insufficient, or even that it may backfire, does not
detract from the need to allow the officer in the field the ability to make
this determination free from the fear that his actions will later be second‑guessed
by some court.
(FN2.) The Supreme Court of Oregon has not
ruled on this issue but the Oregon Court of Appeals appears to have rejected
the Mimms rule on statutory
grounds. See State v. Lanig, 154 Or.App. 665, 667‑668, 963 P.2d 58 (1998)
(citing Or.Rev.Stat. 810.401[3][b][1997], which has been construed to limit the
course of police action during a stop for a traffic infraction). Not only does my dissent urge that the
question be one for legislative determination, but the court's opinion here
today preempts such determinations.
Moreover, the existence of such a law indicates a belief that, were it
not for the law, the contested police action would be permissible under the
State as well as the Federal Constitution.
See Appendix. Three States have
not ruled on the issue. Id.
(FN3.) Much of the materials the court cites
to draw the teeth of my demonstration that the step it takes today is at odds
with the prevailing law across the nation, are either dubiously characterized
or beside the point. The court gives
some importance to the fact that some of the States that have followed Mimms or Wilson "have not expressly considered the issues in Mimms or Wilson under their State Constitutions." Ante at 666‑667. The contention that the absence of an
explicit reference to a provision of the State Constitution indicates a failure
of these courts to consider that issue is unconvincing. Both the courts and the defense bar are aware
of the existence of State Constitutions and it is unreasonable to suggest that
motions to suppress are regularly denied where the State Constitution would
require a different result. Even where
the State Constitution is not explicitly mentioned, courts often use broad and
inclusive language that does not indicate that the decisions are solely
contemplating the Fourth Amendment to the United States Constitution. See, e.g.,
State v. Reynolds, 753 S.W.2d 1, 2 (Mo.Ct.App.1988) (denying motion which
"alleges that the trial court committed error when it overruled his motion
to suppress," because "[o]nce a vehicle is lawfully detained for a
traffic violation, a police officer may order the occupants to get out of the
vehicle"). Moreover, there is
evidence that, even where a majority opinion does not make explicit reference
to the State Constitution, the issue is usually brought to the court's
attention, just not successfully. State v. Ferrise, 269 N.W.2d 888, 890,
891 & n. 1 (Minn.1978) (where court extended Mimms rule to passengers pre‑Wilson and dissent argued that there was not "the ample
probable cause in this case which is required by the constitutions of both the
United States and the State of Minnesota," citing art. 1, § 10, of the
Minnesota Constitution); State v. Stubbs, 270 Mont. 364, 369, 375,
892 P.2d 547 (1995) (Trieweiler, J., dissenting) (where court cited Mimms with approval and dissent argued
that the result did not square with "either the Fourth Amendment to the
United States Constitution or Article II, Section 11, of the Montana
Constitution"); Houghton v. State, 956 P.2d 363, 366 n. 2
(Wyo.1998), rev'd, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (not
taking issue with automatic exit order despite explaining that art. 1, § 4, of
the Wyoming Constitution is "somewhat stronger than its federal
counterpart").
Equally
misleading is the court's claim that "[t]hree States have rejected either Mimms or Wilson on State constitutional grounds." Ante at 667. In fact, only one other court in the entire
nation has done what this court does here today. State v. Kim, 68 Haw. 286,
287‑288, 711 P.2d 1291 (1985), rejected Mimms and Hawaii has not given any indication, nor is it likely
to, that it would come to a different conclusion regarding passengers in light
of Wilson. The court claims that Vermont appears not to
follow Mimms. Ante at n. 9. But the Vermont cases the
court cites cite Mimms and do not
anywhere disavow its holding. In State v. Jewett, 148 Vt. 324, 329, 532
A.2d 958 (1987), the court was explicitly asked to hold that, "under
Chapter I, Article Eleven of the Vermont Constitution police officers may ...
require the suspect to leave his vehicle only if they reasonably suspect the
person is armed and dangerous."
The court declined to announce any such rule and upheld the exit order
and subsequent search. The court found
that there was, indeed, probable cause to search the suspect, obviating the
need for the court to choose which standard, prosecution's or defense's, to apply
as either was met. Id. at 330, 532 A.2d 958. Cf.
State v. Caron, 155 Vt. 492, 501, 586 A.2d 1127 (1990). It is also a stretch for the court to cite
the Supreme Court of Washington in support of today's holding for, while that
court has, indeed, rejected Wilson,
it has explicitly accepted Mimms
which the court today also rejects. State v. Mendez, 137 Wash.2d 208, 220,
970 P.2d 722 (1999).
The
court similarly attempts to manufacture indecision where none exists. The court claims that the situation in
Michigan is "unclear." Ante at n. 10. The only basis for such a contention is a
case in which an appeals court reversed itself on reconsideration after
initially holding that the Michigan Constitution provided greater rights than
that afforded by the Supreme Court decision in Mimms. People v. Harmelin,
176 Mich.App. 524, 527, 440 N.W.2d 75 (1989), aff'd, 501 U.S. 957, 111 S.Ct.
2680, 115 L.Ed.2d 836 (1991). But even
in its earlier opinion, the court in that case admitted that "other panels
of this Court have cited Mimms with
approbation." Id. at 530, 440 N.W.2d 75. In fact, both the Supreme Court of Michigan, People v. Bloyd, 416 Mich. 538, 552,
331 N.W.2d 447 (1982) (accepting Mimms
standard describing being told to stand outside a car as opposed to sitting in
the car as "a permissible de minimis intrusion"), and several appeals
panels, before and since, have done so. People v. Martinez, 187 Mich.App. 160,
165‑166, 466 N.W.2d 380 (1991) (extending Mimms to passengers pre‑Wilson
);
People v. Laube, 154 Mich.App. 400, 408‑410, 397 N.W.2d 325
(1986);
People v. Blackburne, 150 Mich.App. 156, 164‑165, 387 N.W.2d
850 (1986). Further, on reconsideration,
the panel in Harmelin, supra at 531,
440 N.W.2d 75, held that the evidence in that case was wrongly suppressed
because the search and seizure provision in the Michigan State Constitution
provides that it "shall not be construed to bar from evidence in any
criminal proceeding, any narcotic drug, firearm, bomb, explosive or any other
dangerous weapon, seized by a peace officer outside the curtilage of any
dwelling house in this state."
Art. 1, § 11, of the Michigan Constitution. As the evidence Gonsalves seeks to have
suppressed in this case is cocaine and it was seized outside the home, even
this outlier of a case cited by the court would support a result different from
that reached by the majority today.
(FN4.) The court today characterizes Pennsylvania v. Mimms, 434 U.S. 106, 98
S.Ct. 330, 54 L.Ed.2d 331 (1977), as the abandonment of some prior rule akin to
that which it today proclaims and to which it suggests the Supreme Court used
to adhere until somehow it went astray.
But Mimms overruled no
precedent. The court, therefore, does
not here hold fast to some great tradition, while the Supreme Court loses its
way.
(FN5.) See Sklansky, Traffic Stops, Minority
Motorists, and the Future of the Fourth Amendment, 1997 Sup.Ct. Rev. 271, 291‑298,
citing sources including Amar, Fourth Amendment First Principles, 107
Harv. L.Rev. 757, 758, 761 (1994); Amsterdam, Perspectives on the Fourth Amendment,
58 Minn. L.Rev. 349, 417 (1974);
Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind. L.J. 329
(1973); Wasserstrom, The Fourth
Amendment as Constitutional Theory, 77 Geo. L.J. 19, 20 (1988).
(FN6.) This, in my view, is the best
explanation of our unwillingness in
Commonwealth v. Macias, 429 Mass. 698, 711 N.E.2d 130 (1999), to follow the
Supreme Court in lowering the standard for a no knock warrant to reasonable
suspicion. In that case a judicial
officer makes the decision to dispense with the knock and announce requirement
at the same hearing at which he determines whether a warrant should issue at
all. There is, in the context of that
process, none of the need for a split‑second intuitive judgment to engage
in a protective measure as there is here and in a Terry stop.
(FN7.) The majority opinion cites numerous
cases from this court and the Appeals Court as examples of protections
guaranteed by art. 14 that "may not be recognized under the Fourth Amendment." Ante
at 662. In fact, each and every one of
the examples given is entirely consistent with Fourth Amendment
requirements. These cases simply stand
for the proposition that, in order to extend a stop beyond the time necessary
to complete the purpose for which the stop was made, the police must have
probable cause. This is required by the
Fourth Amendment. See Knowles, supra. The
Mimms‑Wilson doctrine does
not authorize extended detention or any search without probable cause. It simply allows the officer, for his own
safety, to have the occupants of a vehicle wait outside the vehicle, where
their actions can be observed, rather than inside the vehicle, where they
cannot.
It
should only be added that when our cases speak of the production of a "valid"
license and registration as terminating the officer's grounds for further
detaining a motorist, this must include the time it takes to check by radio or
computer, whether the documents produced are indeed valid.
(FN8.) See Sklansky, supra at 282‑291.
(FN9.) The court relies on "the
principles expressed in the Santana
decision." Ante at 662. But
Commonwealth v. Santana, 420 Mass. 205, 212‑213, 649 N.E.2d 717
(1995), purports to follow Mimms and,
as all of our cases on this subject until this one, does not mention art. 14 (a
provision we certainly know how to deploy when we want to, see Commonwealth v. Upton, 394 Mass. 363,
476 N.E.2d 548 [1985] ). Our decision in Commonwealth v. Torres, 424 Mass. 153,
674 N.E.2d 638 (1997), which is the sole reference to art. 14 cited by the
majority, invokes art. 14 not in this context but in respect to the continued
detention of the subject of a routine traffic stop after the purpose of the
stop had been effectuated. Our decision
there is entirely consistent with the Supreme Court's decision in Knowles v. Iowa, 525 U.S. 113, 119
S.Ct. 484, 142 L.Ed.2d 492 (1998).
(FN10.)
In arguing that the intrusion is not minimal, the majority states that the
driver, and especially any passengers, have an interest in having the stop
concluded quickly. The Mimms‑Wilson rule is mindful of this concern. The Fourth Amendment does require that the
stop not be extended in duration without probable cause. The
Mimms‑Wilson rule does not
allow officers to extend the duration of a lawful stop but only to determine
where the occupants wait for the time necessary to effectuate the purpose for
which the stop was made.