Can a Passenger Be Detained on a Traffic Stop?

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  We in the United States are blessed with the recognition that we can travel freely without government interference. Sooner or later, though, just about everyone that operates a motor vehicle or is a passenger in one will be stopped by a law enforcement officer. The police officer, however, must have a legitimate reason to make the stop. A traffic stop is a seizure under the 4th Amendment of the United States Constitution. Before an officer can legally stop a vehicle, he must have at least reasonable suspicion¹ of a law violation (Terry v. Ohio, 392 US 1, 1968). There must be a traffic violation like driving in excess of the speed limit, failing to stop for a stop sign, and etcetera. The vehicle can also be stopped if the officer has reason to believe that one or more of the occupants are suspects in a crime (US v. Cortez, 449 US 411, 1981). When a vehicle, occupied by two people, is stopped by a police officer for let us say speeding, the driver is the target of the seizure. The passenger did nothing wrong, but is also seized by the officer. It is an unavoidable situation. This brings us to the question at hand. Can a passenger be detained on a traffic stop?

Logically we can understand that all occupants are seized on a traffic stop. The US Supreme Court recognized this fact in Brendlin v. California, 000 US 06-8120 (2007). The court held that the passenger is seized under the 4th Amendment and can challenge the constitutionality of the stop. The question is to what extent can the officer control the passengers? If an officer stops a vehicle for speeding, is the passenger free to exit the vehicle and walk off, or can the officer compel the passenger to stay. The Terry case made it clear that the officer has to have reasonable suspicion of a law violation to detain that person against his will. There is no reasonable suspicion that the passenger committed a violation. So, how can the officer legitimately detain the passenger? The US Supreme Court started giving guidance on this issue in Maryland v. Wilson, 519 US 408 (1997). This case is the sister case to Pennsylvania v. Mimms, 434 US 106 (1977). The Court in the Mimms case held that an officer can order the driver out of his vehicle for officer safety reasons. The Wilson case gave the officer equal control over the passenger. The passenger can be ordered from the vehicle and kept out until the completion of the traffic stop. The Court recognized that passengers in a vehicle stopped on traffic increases the danger to the officer. For safety reasons the officer is allowed to control the movement of the passengers. A passenger is already seized for 4th Amendment purposes because of the traffic stop. The controlling of movement by ordering the passenger back into the vehicle, or out of the vehicle, or to sit on the curb are all minimal additional intrusions. Weighing this against the officer’s safety, the Court held that the intrusion was reasonable.  If the passenger is already seized by virtue of the traffic stop, the officer does not need further reasonable suspicion under Terry to control the movement of that person. The 10th Circuit Court of Appeals held in the Oklahoma case of US v. Barnes, 156 F.3d 1244 (1998) that a passenger in a vehicle can be detained, ordered from the vehicle, and made to stand by a fence for the officer's safety, the passenger's safety, and to minimize distraction to the dog during a sniff of the vehicle.  The 9th Circuit Court of Appeals held in US v. Williams, 419 F.3d 1029 (2005) that the officer can order a passenger in a vehicle, who was trying to exit and leave a traffic stop, back into the vehicle. “Allowing a passenger, or passengers, to wander freely about while a lone officer conducts a traffic stop presents a dangerous situation by splitting the officer’s attention between two or more individuals, and enabling the driver and/or the passenger(s) to take advantage of a distracted officer.” The need for the officer’s safety and ability to exercise control over the occupants in a vehicle stopped on traffic outweigh the minimal intrusion into the passenger’s liberty. Finally, in Arizona V. Johnson, 000 US 07–1122 (2009), the United States Supreme Court held that, ""A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will."

Police officers have the authority during lawful traffic stops to control all occupants of the vehicle. The officer can prevent passengers from exiting and leaving the scene. The officer can make a passenger get out of the vehicle, sit on the curb, stand by a fence, or follow any other reasonable request to ensure the officer's and passenger's safety. The officer's authority to control the occupants of a stopped vehicle ends when the officer no longer needs to control the scene and advises the occupants they are free to leave.