Traffic Stops, Part II

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I noted yesterday that a law enforcement officer conducting a traffic stop may order the driver and any passengers out of the vehicle. It’s also reasonably clear that the officer can order the vehicle’s occupants to remain in the vehicle. Robert L. Farb, Arrest, Search, and Investigation in North Carolina 30 & n.160 (collecting cases). But can the officer, without any particularized suspicion that the vehicle’s occupants are committing any non-traffic offense, order one or more of the occupants into his police cruiser? It’s an important question, because if the answer is yes, the officer may also be able to frisk the occupants as a precaution. (More on that below.)

Unfortunately, there’s no clear answer to the question. A leading commentator presents the authority to “direct[] the driver to be seated . . . in the patrol car during the stop” as if it were as well-established as the authority to order the driver out of his own vehicle. 4 Wayne R. LaFave, Search and Seizure 387 (4th ed. 2004). But the cases reveal a much more complicated picture. Some, like State v. Lozada, 748 N.E.2d 520 (Ohio 2001), do indeed endorse the practice, though the Lozada court held that “if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer,” the driver may not be frisked.

Other cases, though, reach a contrary conclusion. See, e.g., State v. Berrios, 235 S.W.3d 99 (Tenn. 2007) (holding that an officer may not, as a routine matter, order a driver into a patrol car during a traffic stop, though acknowledging that unusual circumstances might justify such an intrusion). Of particular note in this connection is Bennett v. City of Eastpointe, 410 F.3d 810 (6th Cir. 2005), which observed that there is a split of authority on this issue, but held that officers do not have “carte blanche authority to throw any motorist pulled over for a traffic violation into the back of a squad car while they check the motorist’s license and registration.” Instead, the court held, being ordered into a patrol car is a more serious intrusion that can be justified only if unusual circumstances are present, such as erratic or threatening behavior by the driver.

Perhaps the United States Supreme Court will grant certiorari and review a case raising this issue, or perhaps one of the North Carolina appellate courts will address it. Until then, my advice to officers is as follows:

  • Don’t order traffic stop subjects into your vehicle as a routine practice.
  • If there is a specific reason that you need to do so during a particular stop, such as a need to protect a subject from inclement weather, or a need to control a subject who is behaving in a threatening manner, go ahead, but document your reasons.
  • If you have a choice between ordering a driver or a passenger into your vehicle, choose the driver. After all, it is the driver who committed the traffic violation that resulted in the stop.
  • You can’t automatically frisk a person just because you have ordered the person into your vehicle. For example, if you order a driver into your vehicle because of inclement weather, you may not have a justification to frisk the driver. If, however, the person is behaving in a threatening manner or if there are other indicators of danger, you may frisk the person for weapons.

Anyone have a different view of this issue? I’d be especially interested to hear from officers about how they handle this issue and why they do what they do. As always, if you’re willing to share your practice but don’t want to post a comment, you can email me and ask me to share your feedback without attribution.

12 comments on “Traffic Stops, Part II

  1. police can frisk a driver of a car under terry v ohio only if they have reasonable suspicion that the driver is armed or is dangerous. reasonable suspicion is past crim. hist. , time of day, behaviors of driver/occupants, and other observations that an officer makes of suspects where in which the officer with his prior knowlege concludes that there is reasonable suspicion for a frisk.

    also if the officer is arresting a suspect for a traffic violation, or other crime he may search the suspect for weapons/drugs/other violations.
    but may not search the car unless evidence of the crime may be found in the car (arizona v gant), unless there is another doctrin that says otherwise then you may if you develope pc.

    anyone see diff?

  2. The NC Highway Patrol does it all the time.

  3. Police get away with improper Terry searches because hardly any civilians know their Rights and have the guts to speak up. ANY improper searches should result in official complaints, and if possible, a lawsuit. It gets the cops attention like nothing else.

    If you are accosted by a cop and he begins to frisk you, never resist physically but you can and should object firmly, not loudly but so anyone in earshot can hear. Write down all names of anyone present for possible later testimony, and tell the cop that you do NOT consent to ANY searches. make it clear that you object to being treated like someone who is guilty when you have done nothing wrong.

    Let the cop know that any violation of your rights will result in legal action, and then do it…follow through. Most drivers need a course in how to act when accosted by police. It begins with following all orders and never resisting, and never shouting or interrupting constantly, giving the cop no excuses for additional charges. Simply tell the cop that you are aware of your Rights and want them respected.

    Never answer questions: If you decline consent the cop will try and engage you in a back and forth to explain yourself and why you decline…you are under NO obligation to answer ANY questions whatsoever, after identifying yourself and providing all legally required car documents.

    Let the cop know that HE will have to justify all his actions at some date in the near future and you will be amazed at how many cops drop the act and back off. they hate people who know they are bluffers and when intimidation doesn’t work they relent…OR go too far, in which case your lawyer will have all the ammo needed if you have done all the right things.

    • It is not a “Terry Search” it’s a “Terry Frisk”. Big difference. A search is when I can go in pockets, remove items, etc. A frisk is simply a pat down for weapons. It is absolutely not a violation of anyone’s rights. The requirements under the Terry Frisk are simply reasonable suspicion that a subject may have a weapon. Again, it does not allow for reaching in pockets, etc. Simply an exterior pat down.

  4. […] North Carolina Criminal Law: Traffic stops, beginning to end. […]

  5. ok if a officer pulls you over for traffic infraction (speeding ,following to close) on the highway. when he approaches car he asked the driver to exit and come to the rear of vehicle. Once there he tells driver the reason he stopped him. he also ask him to come sit in officers patrol car(k-9 unit)so no backseat he sits him in the front seat. but when he start walking to the car he pulls him back by his pants pocket and starts searching him. lifts his shirt up to see his waistline for weapons check I guess feels the items in his front pants pocket. asks him what’s in them he tell him money and keys but he is going in his pocket and pulling the items out anyway. was this legal or illegal? the car was a rental so he couldn’t run tags and get any info on driver he also didn’t check license yet. so there was no reasonable suspicion the driver was armed and dangerous

  6. I would appreciate you being more specific, you have stated, “I noted yesterday that a law enforcement officer conducting a traffic stop may order the driver and any passengers out of the vehicle.”

    But what remains unclear is if you are required to, or will you be breaking any laws by not complying with the request to step out of your vehicle for a regular traffic related stop.

    • Order, not request. Generally, you would be obstructing an officer by refusing to exit the vehicle.

    • Cops can order (i.e. tell you to get out or face arrest consequences) during a traffic stop. The Supreme Court has held this to be necessary for officers based on a variety of reasons, namely safety (on busy roads officers will frequently have people exit and stand on the shoulder so that the officer isn’t in danger of being side-swiped by passing cars). Failure to comply can result in your physical arrest.

  7. […] of anything more than a traffic infraction seems strikes me as much more vulnerable. I noted several years ago that the practice was not clearly supported by existing law, and if anything, Rodriguez calls it […]

  8. Isn’t it true that officers aren’t supposed to go outside the scope of the traffic stop? See State v Bullock

  9. It seems as if legislators and law makers unconstitutionally attempt to lift all constitutional restraints off of government officials.

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