"Please step out of the car, ma'am..."

"Please step out of the car, ma'am": words that nobody likes to hear from a police officer.  At this point of a traffic stop many legal questions have already been raised.  Was the basis of the stop constitutional? Should the officer have given the driver (or passengers) their Miranda rights? Was the order to exit the vehicle lawful?  This post will focus on when an exit order from a vehicle is lawful or unlawful.

Under what conditions may an officer ask the occupants of a vehicle to exit?  Under the Fourth Amendment to the U.S. Constitution, officers are given wide latitude to order occupants out of a car, even as a matter of course.  See Pennsylvania v. Mimms, 434 U.S. 106, 109-10 (1977); Maryland v. Wilson, 519 U.S. 408, 412 (1997).  The officer may search the interior of the vehicle for weapons once the occupants are outside of the vehicle.

However, Article 14 of the Massachusetts Declaration of Rights constrains the officer's ability to give an exit order much more than the Fourth Amendment.  The reason for the initial stop of vehicle dictates when an officer may give the exit order.  If the initial stop was simply for a traffic violation, officers in Massachusetts may not order occupants out of a vehicle unless there is reasonable apprehension of danger to the officer or others.  See Commonwealth v. Bostock, 450 Mass. 616, 620 (2008).  The standard is different if the vehicle was initially stopped because the officer suspected criminal activity or if reasonable suspicion of criminal activity arises after the initial stop.  In such circumstances the officer may give an exit order to investigate into the suspected criminal activity.  See Commonwealth v. Blake, 23 Mass. App. Ct. 456, 460 (1987).  However, the investigation can only go so far as is proportional to the suspected criminal activity. See Commonwealth v. Williams, 422 Mass. 111, 116 (1996).

For example, if initially pulled over for suspicion of driving under the influence of alcohol, officers may be violating the occupants constitutional rights if they search the vehicle for weapons.  This assumes no other facts arise to give officers the suspicion that there may be a weapon..  This example is very narrow and only used as an illustration. Any other facts added to it may give the officers reason to search for weapons.  Consulting a criminal defense attorney may be helpful in determining if your constitutional rights have been violated.

Of course a multitude of other issues arise during and after a traffic stop in addition to whether an exit order was lawful.  Other issues may include "threshold inquiries" (Terry v. Ohio, 392 U.S. 1 (1968)), pat frisks, searches of the vehicle, inevitable discovery of contraband or other items, etc. Every vehicle stop should be examined thoroughly to determine if the officers violated certain constitutional rights.

- Attorney Geoffrey Farrington
(413) 283-6455
www.Bohnet-Romani.com