Q&A: Common issues arising from traffic stops

By Ken Wallentine

A recent ruling in Maryland (Sellman v. State, 2016 WL 4470904 (Md. 2016)) raises some of the most common questions raised about traffic stops and passengers. A brief review may be helpful.

Q: May an officer require the driver and passengers to get out of the car, solely for safety reasons and without any individual reasonable suspicion of criminal activity?

A: Yes. The U.S. Supreme Court has repeatedly and unequivocally held that officers may order the driver and any passengers to get out of the car until the traffic stop is over (Maryland v. Wilson, 519 U.S. 408 (1997); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam)).

However, a handful of states have rejected the Mimms/Wilson rule on state constitutional grounds. For example, see Commonwealth v. Gonsalves (711 N.E.2d 108 (Mass. 1999), rejecting Mimms/Wilson); State v. Caron (586 A.2d 1127 (Vt. 1990), upholding exit order on the basis that police had reasonable suspicion that person stopped was armed and dangerous); and State v. Kim (711 P.2d 1291 (Haw. 1985), rejecting Mimms).

Q: May an officer require the driver and passengers to remain in the car, solely for safety reasons and without any individual reasonable suspicion of criminal activity?

A: Yes. In Maryland v. Wilson, the Supreme Court considered whether police officers can order a passenger out of a lawfully stopped vehicle under the Fourth Amendment, balancing the passenger’s liberty interest with the public interest in officer safety. Relying on the Court’s rationale, virtually all federal appellate courts agree that officers may order the passengers to remain inside the automobile or order the passenger to get back into an automobile that he or she voluntarily exited. One court succinctly noted: “In the final calculus, we think it best left to the discretion of the officers in the field who confront myriad circumstances we can only begin to imagine from the relative safety of our chambers. We hold that under the Fourth Amendment it is reasonable for an officer to order a passenger back into an automobile that he voluntarily exited because the concerns for officer safety originally announced in Wilson, and specifically the need for officers to exercise control over individuals encountered during a traffic stop, outweigh the marginal intrusion on the passenger’s liberty interest” (United States v. Williams, 419 F.3d 1029, 1034 (9th Cir. 2005)).

However, Maryland v. Wilson did not answer the question of whether an officer could stop a passenger who wished to walk away from the scene of a traffic detention. For obvious and overwhelming safety reasons, officers should be able to keep driver and passengers in view and control their movements during the detention. Though courts have been divided on the issue, the majority view allows the officer to control the passengers’ movements until the end of the traffic stop. See, for example:

United States v. Williams (419 F.3d 1029 (9th Cir. 2005)), as quoted above
Coffey v. Morris, 401 F. Supp. 2d 542 (W.D. Va. 2005)
People v. Forbes, 728 N.Y.S.2d 64 (N.Y. A.D. 2001)
State v. Hodges, 631 N.W.2d 206 (S.D. 2001)
People v. Dixon, 21 P.3d 440 (Colo. App. 2000)
People v. Gonzalez, 704 N.E.2d 375 (Ill. 1998), cert. denied, 528 U.S. 825 (1999)
Carter v. State, 494 S.E.2d 108 (Ga. App. 1997)
State v. Webster, 824 P.2d 768 (Ariz. App. 1991): An order to passenger to return to the car imposes no greater intrusion on the passenger’s freedom than an order directing a passenger inside a stopped car to get out; the threat to the officer does not dissipate when a passenger gets out of a stopped car.

Q: May an officer require the driver and passengers to show their hands while in the car?

A: Yes. The officer may order all of the occupants to remain in the car with their hands visible (United States v. Moorefield, 111 F.3d 10 (3rd Cir. 1997)).

Q: May an officer frisk the driver and passengers, solely for safety reasons and without any individual reasonable suspicion of criminal activity?

A: No. The officer may pat down the occupants of the vehicle and conduct a search of the passenger compartment, but only when the officer has a reasonable suspicion that the occupants might be armed and dangerous (Arizona v. Johnson, 555 U.S. 323 (2009); Michigan v. Long, 463 U.S. 1032 (1983)). A number of factors may lead to reasonable suspicion to frisk, including disobeying a command to show hands (United States v. Taylor, 716 F.2d 701 (9th Cir. 1983)).

Q: May an officer require the passengers to identify themselves?

A: The Supreme Court has not explicitly held that an inquiry into a passenger’s identity is permissible. However, Court precedent inevitably leads to that conclusion (see United States v. Fernandez, 600 F.3d 56 (1st Cir. 2010)). The Supreme Court stated in Hiibel v. Sixth Judicial Dist. Court (542 U.S. 177 (2004)) that “[o]btaining a suspect’s name in the course of a Terry stop serves important government interests” because “[k]nowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.” In Fernandez the court applied this sentiment directly to vehicle passengers: “To the extent a risk of violence may be tied to such background characteristics, the officer is equally vulnerable whether these characteristics apply to a driver or a passenger.” See also United States v. Soriano–Jarquin (492 F.3d 495, 500 (4th Cir. 2007)): “If an officer may ‘as a matter of course’ and in the interest of personal safety order a passenger physically to exit the vehicle, he may surely take the minimally intrusive step of requesting passenger identification.”

Of course, an officer may always politely ask for identification and try to obtain it voluntarily, as the Hiibel decision noted: “In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.” And in INS v. Delgado (466 U.S. 210, 216 (1984)), the court stated, ”Interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.”

A few state courts have applied a more restrictive view of asking passengers for identification. Make sure that your practice complies with the prescribed practices of both your agency and your local prosecutor.


    (844) 312-9500

Director Daniel Keen
Northampton (PA) Department of Corrections

“It came down to three main factors for us: safety, time and efficiency. This is a way to protect  the staff, public and inmates in the best interest of all.”

Major Jeff Fox
Vigo County (IN) Sheriff's Office

“Lexipol’s Implementation Services program was key to getting our manuals off the shelf. If it weren’t for that, we wouldn’t be implemented today. Departments should recognize their limitations and realize that they likely don’t have the resources to do it on their own. Implementation Services is key to getting it done.”

Chief Deputy Ray Saylo
Carson City (NV) Sheriff's Office

"It’s a huge priority of this administration to teach policy to our sergeants, and Lexipol’s Daily Training Bulletins help us do that. We are constantly drilling into them that policy will protect them as an individual officer. If they ensure that their people are following policy, even if they’re sued, they will be OK.”

Sgt. Bryan Ward
Cumberland County (PA) Sheriff's Office

"Calling Lexipol an insurance policy doesn’t do it justice, because it doesn’t capture the enormous power that partnering with Lexipol provides.”

Chief Deputy Klint Anderson
Weber County (UT) Sheriff's Office

“We spent a considerable amount of money and effort trying to develop and maintain comprehensive and legally based policies and procedures. Lexipol has relieved us of that burden and provided us with a policy system that we have great confidence in and that we can tailor to suit our particular goals and community standards.”

Sheriff Blaine Breshears
Morgan County (UT) Sheriff's Office

“We had a use of force lawsuit, and as soon as the attorneys discovered that we have Lexipol, they said, ‘We won’t have an issue there.’ Our policies were never in question.”

Lt. Craig Capps
White County (TN) Sheriff's Office

"I would recommend Lexipol to any law enforcement agency, whether three-person or 2,000-person—it makes no difference. The program works.”

Chief John Defore
Hiawatha, KS

“By offering 365 daily training bulletins to my officers, I am saving far more than the cost of the software every year. In fact, I was able to show my commissioners a cost savings by utilizing Lexipol for our policy and policy training needs.”

Captain Jeff Schneider
Yakima (WA) Police Department

“KMS tracks and logs when people acknowledge and accept updates, which is very important, and it lets us track who isn’t getting the updates so we can give them the appropriate attention.”

Chief David Maine
The Village of Hunting Valley (OH) Police Department

“What we had before Lexipol had been around for years. It was like every other policy manual I had seen: It didn’t get the updates it needed. The Lexipol manual is a living, breathing document.”

Chief Deputy Lauren Osborne
Surry County (NC) Sheriff’s Office

“If there’s a change as a result of case law, or a procedure that needs to change, Lexipol does the legwork, sends it to us, we approve it and send it out to our people for acknowledgement—and it’s all documented.”

Sheriff Gerald Antinoro
Storey County (NV) Sheriff’s Office

“Lexipol is one of the best products I have seen in my 30+ years in law enforcement.”

Deputy Chief John McGinty
Simi Valley (CA) Police Department

“You get sued for your policies or you get sued for your actions, or both. You can only do so much about actions. But having Lexipol gives me confidence that if we draw a lawsuit, our policies won’t come under attack.”

Chief Kelly Stillman
Rocky River (OH) Police Department

“I can’t say enough about the positives from a chief’s perspective. I don’t know why everyone isn’t with Lexipol.”

Chief Jeff Wilson
Orofino (ID) Police Department

“The Lexipol Policy Manual is easy to use, it’s convenient and you have peace of mind knowing that you have a thorough manual that is going to stand up to any challenge the agency may face.”

Chief Ralph Maher
Oak Creek (CO) Police Department

“With Lexipol, I know our policy manual is going to be up to date. I can turn my back on it today and tomorrow there will be any needed updates waiting for me. That allows me to focus on some of the other things I have to do as a chief.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Commander Leslie Burns
Mercer Island (WA) Police Department

“Lexipol provides a huge advantage for agencies pursuing accreditation. The tools take about 60% of the difficulty out of the accreditation process. If you want to be accredited, this is the way to do it.”

Deputy Chief Robin Passwater
Kankakee (IL) Police Department

“If you don’t have Lexipol, even with a full-time person dedicated to policy, there’s almost no way you can keep updated on all the laws and also have the training component. It’s an excellent system.”

Assistant Chief Bill Holmer
Glen Ellyn (IL) Police Department

“It’s a no-brainer for me. Someone is watching for changes to laws for me, and then tweaking the content based on those changes or updates in best practices.”

Lt. Ed Alvarez
Bay Area Rapid Transit (BART) (CA) Police Department

“I like the mobile app because it tells me no matter where I am when I have updates to complete or when people take the DTBs. No matter where I am, I have access. The officers can get real-time updates. Everything is at their fingertips, any time.”

Chief Greg Knott
Basalt (CO) Police Department

“Lexipol gives you peace of mind because the policies that you’re implementing have been reviewed by professionals in the field and by attorneys—not just your agency’s legal counsel.”

Chief Corry Blount
Bartonville (TX) Police Department

“I feel comfortable that when we issue a policy, it covers what it needs to cover. It’s the most comprehensive policy content I’ve used in my career.”

Lt. Victor Pecoraro
Auburn (CA) Police Department

“The updates are super easy because you can pop them open, see the redline versions and be able to edit it on the fly. Once I learned I could do that, I was excited.”

Chief Joseph Morris
Arapahoe Community College (CO) Police Department

“Officers are not infallible. We have limited memories like everyone else. Working under stress presents more challenges. There are times we need to access policies in the field so we are comfortable in our decision making. The mobile application has been great for this!”

Captain Jesus Ochoa
Coronado (CA) Police Department

“Knowing that Lexipol is keeping our policies current means that there isn’t something else for us to worry about. We can focus on our jobs. That definitely gives us peace of mind.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Jim Franklin, Executive Director
Minnesota Sheriffs' Association, MN

"Lexipol is, indeed, ahead of the curve with their unique risk management solutions in law enforcement. The Minnesota Sheriffs' Association has been eagerly anticipating the release of the Lexipol Custody Manual. Lexipol meets the needs of law enforcement and custodial agencies by recognizing the emerging challenges facing our agencies, and providing comprehensive tools and resources to reduce liability and risk in a professional and highly efficient manner. The Minnesota Sheriffs' Association is proud of its continued partnership with Lexipol."

Close [X]
Close [X]
Close [X]
Close [X]