OCTOBER TERM, 1996
Syllabus
MARYLAND
v. WILSON
CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 95-1268. Argued December 11, 1996-Decided February 19,
1997
After stopping a speeding car in which respondent Wilson was a
passenger, a Maryland state trooper ordered Wilson out of the car
upon noticing his apparent nervousness. When Wilson exited, a
quantity of cocaine fell to the ground. He was arrested and charged
with possession of cocaine with intent to distribute. The Baltimore
County Circuit Court granted his motion to suppress the evidence,
deciding that the trooper's ordering him out of the car constituted
an unreasonable seizure under the Fourth Amendment. The Maryland
Court of Special Appeals affirmed, holding that the rule of
Pennsylvania v.
Mimms, 434 U. S. 106, that an officer
may as a matter of course order the driver of a lawfully stopped
car to exit his vehicle, does not apply to passengers.
Held: An officer making a traffic stop may order
passengers to get out of the car pending completion of the stop.
Statements by the Court in
Michigan v.
Long, 463 U. S. 1032,
1047-1048
(Mimms "held that police may order
persons
out of an automobile during a [traffic] stop" (emphasis added)),
and by Justice Powell in
Rakas v.
Illinois, 439 U. S. 128, 155, n. 4
(Mimms held "that
passengers ... have no Fourth
Amendment right not to be ordered from their vehicle, once a proper
stop is made" (emphasis added)), do not constitute binding
precedent, since the former statement was dictum, and the latter
was contained in a concurrence. Nevertheless, the
Mimms rule
applies to passengers as well as to drivers. The Court therein
explained that the touchstone of Fourth Amendment analysis is the
reasonableness of the particular governmental invasion of a
citizen's personal security, 434 U. S., at 108-109, and that
reasonableness depends on a balance between the public interest and
the individual's right to personal security free from arbitrary
interference by officers, id., at 109. On the public interest side,
the same weighty interest in officer safety is present regardless
of whether the occupant of the stopped car is a driver, as in
Mimms, see
id., at 109-110, or a passenger, as here.
Indeed, the 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. On the personal liberty side, the case for
passengers is stronger than that for the driver in the sense that
there is probable cause to believe that the driver has committed a
minor vehicular offense, see id., at 110, but there is no such
reason to stop or detain
409
passengers. But as a practical matter, passengers are already
stopped by virtue of the stop of the vehicle, so that the
additional intrusion upon them is minimal. Pp.411-415.
106 Md. App. 24, 664 A. 2d 1, reversed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, SOUTER, THOMAS, GINSBURG, and BREYER, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which KENNEDY,
J., joined,
post, p. 415. KENNEDY, J., filed a dissenting
opinion,
post, p. 422.
J.
Joseph Curran, Jr., Attorney General of Maryland,
argued the cause for petitioner. With him on the briefs were
Gary E. Bair, Mary Ellen Barbera, and
Kathryn Grill
Graeff, Assistant Attorneys General.
Byron L. Warnken, by appointment of the Court, 519 U. S.
804 (1996), argued the cause and filed a brief for respondent.
Attorney General Reno argued the cause for the United States as
amicus curiae urging reversal. On the brief were Acting Solicitor
General Dellinger, Acting Assistant Attorney General Keeney, Deputy
Solicitor General Dreeben, David C. Frederick, and Nina Goodman.
*
*Briefs of
amici curiae urging reversal were filed for
the State of Ohio et al. by
Betty D. Montgomery, Attorney
General of Ohio,
Jeffrey S.
Sutton, State Solicitor,
and
Simon B. Karas and
Stuart A. Cole, Assistant
Attorneys General, joined by the Attorneys General for their
respective jurisdictions as follows:
Jeff Sessions of
Alabama,
Grant Woods of Arizona,
Winston Bryant of
Arkansas,
Daniel E. Lungren of California,
Gale A.
Norton of Colorado,
Richard Blumenthal of Connecticut,
M. Jane Brady of Delaware,
Robert Butterworth of
Florida,
James E. Ryan of Illinois,
Tom Miller of
Iowa,
Carla J.
Stovall of Kansas,
A. B. Chandler
III of Kentucky,
Richard P. Ieyoub of Louisiana,
Scott Harshbarger of Massachusetts,
Frank J.
Kelley of Michigan,
Hubert Humphrey III of Minnesota,
Mike Moore of Mississippi,
Joseph P. Mazurek of
Montana,
Don Stenberg of Nebraska,
Frankie Sue Del
Papa of Nevada,
Jeffrey R. Howard of New Hampshire,
Tom Udall of New Mexico,
Dennis C.
Vacco of
New York,
Michael F.
Easley of North Carolina,
Heidi Heitkamp of North Dakota,
W A. Drew Edmondson
of Oklahoma,
Theodore Kulongoski of Oregon,
Thomas
Corbett, Jr., of Pennsylvania,
Jeffrey B. Pine of Rhode
Island,
Charles Condon of South Carolina,
Mark W
Barnett of South Dakota,
410
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In this case we consider whether the rule of Pennsylvania v.
Mimms,
434 U. S.
106 (1977) (per curiam), that a police officer may as a matter
of course order the driver of a lawfully stopped car to exit his
vehicle, extends to passengers as well. We hold that it does.
At about 7:30 p.m. on a June evening, Maryland state trooper
David Hughes observed a passenger car driving southbound on 1-95 in
Baltimore County at a speed of 64 miles per hour. The posted speed
limit was 55 miles per hour, and the car had no regular license
tag; there was a torn piece of paper reading "Enterprise
Rent-A-Car" dangling from its rear. Hughes activated his lights and
sirens, signaling the car to pull over, but it continued driving
for another mile and a half until it finally did so.
During the pursuit, Hughes noticed that there were three
occupants in the car and that the two passengers turned to look at
him several times, repeatedly ducking below sight level and then
reappearing. As Hughes approached the car on foot, the driver
alighted and met him halfway. The driver was trembling and appeared
extremely nervous, but nonetheless produced a valid Connecticut
driver's license. Hughes instructed him to return to the car and
retrieve the rental documents, and he complied. During this
encounter, Hughes noticed that the front-seat passenger, respondent
Jerry Lee Wilson, was sweating and also appeared extremely
Charles W Burson of Tennessee,
Jan Graham of Utah,
Jeffrey L. Amestoy of Vermont,
Julio A. Brady of the
U. S. Virgin Islands,
Christine O.
Gregoire of
Washington,
Darrell McGraw, Jr., of West Virginia, and
James E. Doyle of Wisconsin; for Americans for Effective Law
Enforcement, Inc., et al. by
Fred E. Inbau, Wayne W Schmidt,
Robert Wennerholm, James P. Manek, John Kaye, Richard M.
Weintraub, and
Bernard J.
Farber; for the
National Association of Police Organizations, Inc., by
William J.
Johnson; and for the Criminal Justice
Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson.
411
nervous. While the driver was sitting in the driver's seat
looking for the rental papers, Hughes ordered Wilson out of the
car.
When Wilson exited the car, a quantity of crack cocaine fell to
the ground. Wilson was then arrested and charged with possession of
cocaine with intent to distribute. Before trial, Wilson moved to
suppress the evidence, arguing that Hughes' ordering him out of the
car constituted an unreasonable seizure under the Fourth Amendment.
The Circuit Court for Baltimore County agreed, and granted
respondent's motion to suppress. On appeal, the Court of Special
Appeals of Maryland affirmed, 106 Md. App. 24, 664 A. 2d 1 (1995),
ruling that
Pennsylvania v.
Mimms does not apply to
passengers. The Court of Appeals of Maryland denied certiorari. 340
Md. 502, 667 A. 2d 342 (1995). We granted certiorari, 518 U. S.
1003 (1996), and now reverse.
In
Mimms, we considered a traffic stop much like the one
before us today. There, Mimms had been stopped for driving with an
expired license plate, and the officer asked him to step out of his
car. When Mimms did so, the officer noticed a bulge in his jacket
that proved to be a .38-caliber revolver, whereupon Mimms was
arrested for carrying a concealed deadly weapon. Mimms, like
Wilson, urged the suppression of the evidence on the ground that
the officer's ordering him out of the car was an unreasonable
seizure, and the Pennsylvania Supreme Court, like the Court of
Special Appeals of Maryland, agreed.
We reversed, explaining that "[t]he touchstone of our analysis
under the Fourth Amendment is always 'the reasonableness in all the
circumstances of the particular governmental invasion of a
citizen's personal security,'" 434 U. S., at 108109 (quoting
Terry v.
Ohio, 392 U. S. 1, 19 (1968)),
and that reasonableness "depends 'on a balance between the public
interest and the individual's right to personal security free from
arbitrary interference by law officers,'" 434 U. S., at 109
(quoting
United States v.
Brignoni-Ponce, 422 U. S. 873,
412
878 (1975)). On the public interest side of the balance, we
noted that the State "freely concede[d]" that there had been
nothing unusual or suspicious to justify ordering Mimms out of the
car, but that it was the officer's "practice to order all drivers
[stopped in traffic stops] out of their vehicles as a matter of
course" as a "precautionary measure" to protect the officer's
safety. 434 U. S., at 109-110. We thought it "too plain for
argument" that this justification-officer safety-was "both
legitimate and weighty."
Id., at 110. In addition, we
observed that the danger to the officer of standing by the driver's
door and in the path of oncoming traffic might also be
"appreciable."
Id., at 111.
On the other side of the balance, we considered the intrusion
into the driver's liberty occasioned by the officer's ordering him
out of the car. Noting that the driver's car was already validly
stopped for a traffic infraction, we deemed the additional
intrusion of asking him to step outside his car
"de minimis."
Ibid. Accordingly, we concluded that "once a motor vehicle has
been lawfully detained 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."
Id., at 111, n. 6.
Respondent urges, and the lower courts agreed, that this
per
se rule does not apply to Wilson because he was a passenger,
not the driver. Maryland, in turn, argues that we have already
implicitly decided this question by our statement in
Michigan v.
Long, 463 U. S. 1032 (1983),
that "[i]n
[Mimms], we held that police may order
persons out of an automobile during a stop for a traffic
violation," id., at 1047-1048 (emphasis added), and by Justice
Powell's statement in
Rakas v.
Illinois, 439 U. S. 128 (1978),
that "this Court determined in
[Mimms] that
passengers in automobiles have no Fourth Amendment right not
to be ordered from their vehicle, once a proper stop is made," id.,
at 155, n. 4 (Powell, J., joined by Burger, C. J., concurring)
(emphasis added). We agree with respondent that the former
statement was dictum, and the
413
latter was contained in a concurrence, so that neither
constitutes binding precedent.
We must therefore now decide whether the rule of Mimms applies
to passengers as well as to drivers.1 On the public interest side
of the balance, the same weighty interest in officer safety is
present regardless of whether the occupant of the stopped car is a
driver or passenger. Regrettably, traffic stops may be dangerous
encounters. In 1994 alone, there were 5,762 officer assaults and 11
officers killed during traffic pursuits and stops. Federal Bureau
of Investigation, Uniform Crime Reports: Law Enforcement Officers
Killed and Assaulted 71, 33 (1994). In the case of passengers, the
danger of the officer's standing in the path of oncoming traffic
would not be present except in the case of a passenger in the left
rear seat, but the fact that there is more than one occupant of the
vehicle increases the possible sources of harm to the officer.2
On the personal liberty side of the balance, the case for the
passengers is in one sense stronger than that for the driver. There
is probable cause to believe that the driver has committed a minor
vehicular offense, but there is no such reason to stop or detain
the passengers. But as a practical
1 Respondent argues that, because we have generally eschewed
brightline rules in the Fourth Amendment context, see,
e.
g.,
Ohio v.
Robinette, ante, p. 33, we should not
here conclude that passengers may constitutionally be ordered out
of lawfully stopped vehicles. But, that we typically avoid
per
se rules concerning searches and seizures does not mean that we
have always done so; Mimms itself drew a bright line, and we
believe the principles that underlay that decision apply to
passengers as well.
2JUSTICE STEVENS' dissenting opinion points out,
post, at
416, that these statistics are not further broken down as to
assaults by passengers and assaults by drivers. It is, indeed,
regrettable that the empirical data on a subject such as this are
sparse, but we need not ignore the data which do exist simply
because further refinement would be even more helpful. JUSTICE
STEVENS agrees that there is "a strong public interest in
minimizing" the number of assaults on law officers,
ibid.,
and we believe that our holding today is more likely to accomplish
that result than would be the case if his views were to
prevail.
414
matter, the passengers are already stopped by virtue of the stop
of the vehicle. The only change in their circumstances which will
result from ordering them out of the car is that they will be
outside of, rather than inside of, the stopped car. Outside the
car, the passengers will be denied access to any possible weapon
that might be concealed in the interior of the passenger
compartment. It would seem that the possibility of a violent
encounter stems not from the ordinary reaction of a motorist
stopped for a speeding violation, but from the fact that evidence
of a more serious crime might be uncovered during the stop. And the
motivation of a passenger to employ violence to prevent
apprehension of such a crime is every bit as great as that of the
driver.
We think that our opinion in
Michigan v.
Summers,
452 U. S. 692
(1981), offers guidance by analogy here. There the police had
obtained a search warrant for contraband thought to be located in a
residence, but when they arrived to execute the warrant they found
Summers coming down the front steps. The question in the case
depended "upon a determination whether the officers had the
authority to require him to re-enter the house and to remain there
while they conducted their search."
Id., at 695. In holding
as it did, the Court said:
"Although no special danger to the police is suggested by the
evidence in this record, the execution of a warrant to search for
narcotics is the kind of transaction that may give rise to sudden
violence or frantic efforts to conceal or destroy evidence. The
risk of harm to both the police and the occupants is minimized if
the officers routinely exercise unquestioned command of the
situation." Id., at 702-703 (footnote omitted).
In summary, 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
415
for ordering the driver out, the additional intrusion on the
passenger is minimal. We therefore hold that an officer making a
traffic stop may order passengers to get out of the car pending
completion of the stop.3
The judgment of the Court of Special Appeals of Maryland is
reversed, and the case is remanded for proceedings not inconsistent
with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE KENNEDY joins,
dissenting.
In
Pennsylvania v.
Mimms, 434 U. S. 106 (1977)
(per curiam), the Court answered the "narrow question"
whether an "incremental intrusion" on the liberty of a person who
had been lawfully seized was reasonable.
Id., at 109. This
case, in contrast, raises a separate and significant question
concerning the power of the State to make an initial seizure of
persons who are not even suspected of having violated the law.
My concern is not with the ultimate disposition of this
particular case, but rather with the literally millions of other
cases that will be affected by the rule the Court announces. Though
the question is not before us, I am satisfied thatunder the
rationale of
Terry v.
Ohio, 392 U. S. 1 (1968)-if a
police officer conducting a traffic stop has an articulable
suspicion of possible danger, the officer may order passengers to
exit the vehicle as a defensive tactic without running afoul of the
Fourth Amendment. Accordingly, I assume that the facts recited in
the majority's opinion provided a valid justi-
3 Maryland urges us to go further and hold that an officer may
forcibly detain a passenger for the entire duration of the stop.
But respondent was subjected to no detention based on the stopping
of the car once he had left it; his arrest was based on probable
cause to believe that he was guilty of possession of cocaine with
intent to distribute. The question which Maryland wishes answered,
therefore, is not presented by this case, and we express no opinion
upon it.
416
fication for this officer's order commanding the passengers to
get out of this vehicle. 1 But the Court's ruling goes much
further. It applies equally to traffic stops in which there is not
even a scintilla of evidence of any potential risk to the police
officer. In those cases, I firmly believe that the Fourth Amendment
prohibits routine and arbitrary seizures of obviously innocent
citizens.
I
The majority suggests that the personal liberty interest at
stake here, which is admittedly "stronger" than that at issue in
Mimms, is outweighed by the need to ensure officer safety.
Ante, at 413, 414-415. The Court correctly observes that
"traffic stops may be dangerous encounters."
Ante, at 413.
The magnitude of the danger to police officers is reflected in the
statistic that, in 1994 alone, "there were 5,762 officer assaults
and 11 officers killed during traffic pursuits and stops."
Ibid. There is, unquestionably, a strong public interest in
minimizing the number of such assaults and fatalities. The Court's
statistics, however, provide no support for the conclusion that its
ruling will have any such effect.
Those statistics do not tell us how many of the incidents
involved passengers. Assuming that many of the assaults were
committed by passengers, we do not know how many occurred after the
passenger got out of the vehicle, how many took place while the
passenger remained in the vehicle, or indeed, whether any of them
could have been prevented
1 The Maryland Court of Special Appeals held,
inter alia,
that the State had not properly preserved this claim during the
suppression hearing. See App. to Pet. for Cert. 4a. The State
similarly fails to press the point here. Pet. for Cert. 4, n. 1;
Brief for Petitioner 4, n. 1. The issue is therefore not before us,
and I am not free to concur in the Court's judgment on this
alternative ground. See
Caldwell v.
Mississippi,
472 U. S. 320,
327 (1985); this Court's Rule 14.1(a).
417
by an order commanding the passengers to exit.2 There is no
indication that the number of assaults was smaller in jurisdictions
where officers may order passengers to exit the vehicle without any
suspicion than in jurisdictions where they were then prohibited
from doing so. Indeed, there is no indication that any of the
assaults occurred when there was a complete absence of any
articulable basis for concern about the officer's safety-the only
condition under which I would hold that the Fourth Amendment
prohibits an order commanding passengers to exit a vehicle. In
short, the 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.
Furthermore, any limited additional risk to police officers must
be weighed against the unnecessary invasion that will be imposed on
innocent citizens under the majority's rule in the tremendous
number of routine stops that occur each day. We have long
recognized that "[b]ecause of the extensive regulation of motor
vehicles and traffic ... the extent of police-citizen contact
involving automobiles will be substantially greater than
police-citizen contact in a home or office."
Cady v.
Dombrowski, 413 U. S. 433, 441
(1973).3 Most traffic
2 I am assuming that in the typical case the officer would not
order passengers out of a vehicle until after he had stopped his
own car, exited, and arrived at a position where he could converse
with the driver. The only way to avoid all risk to the officer, I
suppose, would be to adopt a routine practice of always issuing an
order through an amplified speaker commanding everyone to get out
of the stopped car before the officer exposed himself to the
possibility of a shot from a hidden weapon. Given the predicate for
the Court's ruling-that an articulable basis for suspecting danger
to the officer provides insufficient protection against the
possibility of a surprise assault-we must assume that every
passenger, no matter how feeble or infirm, must be prepared to
accept the "petty indignity" of obeying an arbitrary and sometimes
demeaning command issued over a loud speaker.
3 See also
New York v.
Class, 475 U. S. 106, 113
(1986);
South Dakota v.
Opperman, 428 U. S. 364,368 (1976);
cf.
Whren v.
United States, 517 U. S. 806, 810, 818
(1996).
418
stops involve otherwise law-abiding citizens who have committed
minor traffic offenses. A strong interest in arriving at a
destination-to deliver a patient to a hospital, to witness a
kickoff, or to get to work on time-will often explain a traffic
violation without justifying it. In the aggregate, these stops
amount to significant law enforcement activity.
Indeed, the number of stops in which an officer is actually at
risk is dwarfed by the far greater number of routine stops. If
Maryland's share of the national total is about average, the State
probably experiences about 100 officer assaults each year during
traffic stops and pursuits. Making the unlikely assumption that
passengers are responsible for onefourth of the total assaults, it
appears that the Court's new rule would provide a potential benefit
to Maryland officers in only roughly 25 stops a year.4 These stops
represent a minuscule portion of the total. In Maryland alone,
there are something on the order of one million traffic stops each
year.5 Assuming that there are passengers in about half of the cars
stopped, the majority's rule is of some possible advantage to
police in only about one out of every twenty thousand traffic stops
in which there is a passenger in the car. And, any benefit is
extremely marginal. In the overwhelming majority of cases posing a
real threat, the officer would almost
4 This figure may in fact be smaller. The majority's data
aggregate assaults committed during "[t]raffic [p]ursuits and
[s]tops." Federal Bureau of Investigation, Uniform Crime Reports:
Law Enforcement Officers Killed and Assaulted 71 (1994). In those
assaults that occur during the pursuit of a moving vehicle, it
would obviously be impossible for an officer to order a passenger
out of the car.
5 Maryland had well over one million nontort motor vehicle cases
during a I-year period between 1994 and 1995. Annual Report of the
Maryland Judiciary 80 (1994-1995). Though the State does not
maintain a count of the number of stops performed each year, this
figure is probably a fair rough proxy. The bulk of these cases
likely represent a traffic stop, and this total does not include
those stops in which the police officer simply gave the driver an
informal reprimand. I presume that these figures are representative
of present circumstances.
419
certainly have some ground to suspect danger that would justify
ordering passengers out of the car.
In contrast, the potential daily burden on thousands of innocent
citizens is obvious. That burden may well be "minimal" in
individual cases.
Ante, at 415. But countless citizens who
cherish individual liberty and are offended, embarrassed, and
sometimes provoked by arbitrary official commands may well consider
the burden to be significant.6 In all events, the aggregation of
thousands upon thousands of petty indignities has an impact on
freedom that I would characterize as substantial, and which in my
view clearly outweighs the evanescent safety concerns pressed by
the majority.
II
The Court concludes today that the balance of convenience and
danger that supported its holding in
Mimms applies to
passengers of lawfully stopped cars as well as drivers. In
Mimms itself, however, the Court emphasized the fact that
the intrusion into the driver's liberty at stake was "occasioned
not by the initial stop of the vehicle, which was admittedly
justified, but by the order to get out of the car." 434 U. S., at
111. The conclusion that "this additional intrusion can only be
described as
de minimis" rested on the premise that the
"police have already lawfully decided that the driver shall be
briefly detained."
Ibid.7
6 The number of cases in which the command actually protects the
officer from harm may well be a good deal smaller than the number
in which a passenger is harmed by exposure to inclement weather, as
well as the number in which an ill-advised command is improperly
enforced. Consider, for example, the harm caused to a passenger by
an inadequately trained officer after a command was issued to exit
the vehicle in
Board of Comm'rs of Bryan Cty. v.
Brown, 67 F.3d
1174 (CA5 1995), cert. granted, 517 U. S. 1154
(1996).
7Dissenting in
Mimms, I criticized the Court's reasoning
and, indeed, predicted the result that the majority reaches today.
434 U. S., at 122-123.
420
In this case as well, the intrusion on the passengers' liberty
occasioned by the initial stop of the vehicle is not challenged.
That intrusion was a necessary by-product of the lawful detention
of the driver. But the passengers had not yet been seized at the
time the car was pulled over, any more than a traffic jam caused by
construction or other stateimposed delay not directed at a
particular individual constitutes a seizure of that person. The
question is whether a passenger in a lawfully stopped car may be
seized, by an order to get out of the vehicle, without any evidence
whatsoever that he or she poses a threat to the officer or has
committed an offense.8
To order passengers about during the course of a traffic stop,
insisting that they exit and remain outside the car, can hardly be
classified as a
de minimis intrusion. The traffic violation
sufficiently justifies subjecting the driver to detention and some
police control for the time necessary to conclude the business of
the stop. The restraint on the liberty of blameless passengers that
the majority permits is, in contrast, entirely arbitrary. 9
In my view, wholly innocent passengers in a taxi, bus, or
private car have a constitutionally protected right to decide
whether to remain comfortably seated within the vehicle rather than
exposing themselves to the elements and the observation of curious
bystanders. The Constitution should not be read to permit law
enforcement officers to order innocent passengers about simply
because they have the misfor-
8 The order to the passenger is unquestionably a "seizure"
within the meaning of the Fourth Amendment. As we held in
United
States v.
Brignoni-Ponce, 422 U. S. 873, 878
(1975): "The Fourth Amendment applies to all seizures of the
person, including seizures that involve only a brief detention
short of traditional arrest.
Davis v.
Mississippi,
394 U. S. 721
(1969);
Terry v.
Ohio, 392 U. S. 1, 16-19
(1968)."
9 Cf.
Ybarra v.
Illinois, 444 U. S. 85, 91 (1979) ("
'[A] person's mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable
cause to search that person'" (citing
Sibron v.
New
York, 392 U. S.
40, 62-63 (1968))).
421
tune to be seated in a car whose driver has committed a minor
traffic offense.
Unfortunately, the effect of the Court's new rule on the law may
turn out to be far more significant than its immediate impact on
individual liberty. Throughout most of our history the Fourth
Amendment embodied a general rule requiring that official searches
and seizures be authorized by a warrant, issued "upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized." 10 During the prohibition era, the exceptions for
warrantless searches supported by probable cause started to replace
the general rule.ll In 1968, in the landmark "stop and frisk" case
Terry v. Ohio,
392 U. S. 1 (1968), the
Court placed its stamp of approval on seizures supported by
specific and articulable facts that did not establish probable
cause. The Court crafted
Terry as a narrow exception to the
general rule that "the police must, whenever practicable, obtain
advance judicial approval of searches and seizures through the
warrant procedure."
Id., at 20. The intended scope of the
Court's major departure from prior practice was reflected in its
statement that the "demand for specificity in the information upon
which police action is predicated is the central teaching of this
Court's Fourth Amendment jurisprudence."
Id., at 21, n. 18;
see also id., at 27. In the 1970's, the Court twice rejected
attempts to justify suspicionless seizures that caused only
"modest" intrusions on the liberty of passengers in automobiles.
United States v.
Brignoni-Ponce, 422 U. S. 873, 879-880
(1975);
Delaware v.
Prouse, 440 U. S. 648,
662-663
10 See,
e. g.,
Amos v.
United States,
255 U. S. 313,
315 (1921);
Weeks v.
United States, 232 U. S. 383, 393
(1914).
11 See,
e. g.,
Carroll v.
United States,
267 U. S. 132,
149 (1925) (automobile search). We had also recognized earlier in
dictum the now wellestablished doctrine permitting warrantless
searches incident to a valid arrest. See
Weeks, 232 U. S.,
at 392; see also J. Landynski, Search and Seizure and the Supreme
Court 87 (1966).
422
(1979).12 Today, however, the Court takes the unprecedented step
of authorizing seizures that are unsupported by any individualized
suspicion whatsoever.
The Court's conclusion seems to rest on the assumption that the
constitutional protection against "unreasonable" seizures requires
nothing more than a hypothetically rational basis for intrusions on
individual liberty. How far this ground-breaking decision will take
us, I do not venture to predict. I fear, however, that it may pose
a more serious threat to individual liberty than the Court
realizes.
I respectfully dissent.
JUSTICE KENNEDY, dissenting.
I join in the dissent by JUSTICE STEVENS and add these few
observations.
The distinguishing feature of our criminal justice system is its
insistence on principled, accountable decisionmaking in individual
cases. If a person is to be seized, a satisfactory explanation for
the invasive action ought to be established by an officer who
exercises reasoned judgment under all the circumstances of the
case. This principle can be accommodated even where officers must
make immediate decisions to ensure their own safety.
Traffic stops, even for minor violations, can take upwards of 30
minutes. When an officer commands passengers innocent of any
violation to leave the vehicle and stand by the side of the road in
full view of the public, the seizure is serious, not trivial. As
JUSTICE STEVENS concludes, the command to exit ought not to be
given unless there are objective circumstances making it reasonable
for the officer to issue the order. (We do not have before us the
separate question whether passengers, who, after all, are in the
car by choice,
12 Dissenting in
Delaware v.
Prouse, 440 U. S. 648 (1979),
then-JusTIcE REHNQUIST characterized the motorist's interest in
freedom from random stops as "only the most diaphanous of citizen
interests."
Id., at 666.
423
can be ordered to remain there for a reasonable time while the
police conduct their business.)
The requisite showing for commanding passengers to exit need be
no more than the existence of any circumstance justifying the order
in the interests of the officer's safety or to facilitate a lawful
search or investigation. As we have acknowledged for decades,
special latitude is given to the police in effecting searches and
seizures involving vehicles and their occupants. See,
e. g.,
Chambers v.
Maroney, 399 U. S. 42 (1970);
New
York v.
Class, 475 U. S. 106 (1986);
New York v.
Belton, 453 U. S. 454 (1981).
Just last Term we adhered to a rule permitting vehicle stops if
there is some objective indication that a violation has been
committed, regardless of the officer's real motives. See
Whren v.
United States, 517 U. S. 806 (1996). We
could discern no other, workable rule. Even so, we insisted on a
reasoned explanation for the stop.
The practical effect of our holding in
Whren, of course,
is to allow the police to stop vehicles in almost countless
circumstances. When
Whren is coupled with today's holding,
the Court puts tens of millions of passengers at risk of arbitrary
control by the police. If the command to exit were to become
commonplace, the Constitution would be diminished in a most public
way. As the standards suggested in dissent are adequate to protect
the safety of the police, we ought not to suffer so great a
loss.
Since a myriad of circumstances will give a cautious officer
reasonable grounds for commanding passengers to leave the vehicle,
it might be thought the rule the Court adopts today will be little
different in its operation than the rule offered in dissent. It
does no disservice to police officers, however, to insist upon
exercise of reasoned judgment. Adherence to neutral principles is
the very premise of the rule of law the police themselves defend
with such courage and dedication.
Most officers, it might be said, will exercise their new power
with discretion and restraint; and no doubt this often
424
will be the case. It might also be said that if some
jurisdictions use today's ruling to require passengers to exit as a
matter of routine in every stop, citizen complaints and political
intervention will call for an end to the practice. These arguments,
however, would miss the point. Liberty comes not from officials by
grace but from the Constitution by right.
For these reasons, and with all respect for the opinion of the
Court, I dissent.
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