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No.
MARYLAND, PETITIONER v.
on writ of certiorari to the court of special appeals of maryland
[
Justice
In Pennsylvania v. Mimms, 434 U.S. 106 (1977), 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 that--under 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 justification for this officer's order commanding the passengers to get out of this vehicle. [n.1] But the Court's ruling goes much farther. 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.
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 4, 6. The Court correctly observes that "traffic stops may be dangerous encounters." Ante, at 4. 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 by an order commanding the passengers to exit. [n.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). [n.3] Most traffic 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 kick off, 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 one fourth 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. [n.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. [n.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 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 6. 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. [n.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.
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. [n.7]
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 state imposed 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. [n.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. [n.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 misfortune 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." [n.10] During the prohibition era, the exceptions for warrantless searches supported by probable cause started to replace the general rule. [n.11] 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 (1979). [n.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.
Notes
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 alternate ground. See Caldwell v. Mississippi, 472 U.S. 320, 327 (1985); S. Ct. Rule 14.1(a).
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. ___ (1996) (slip op. at 5, 12).
4 This figure may in fact be smaller. The majority's data aggregates 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 non tort motor vehicle cases during a 1 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.
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. ___ (1996).
7 Dissenting in Mimms, I criticized the Court's reasoning and, indeed, predicted the result that the majority reaches today. 434 U. S., at 122-123.
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' " (quoting Sibron v. New York, 392 U.S. 40, 62-63 (1968))).
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 well established 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).
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.